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HOME AFFAIRS PORTFOLIO COMMITTEE
24 May 2000
MUNICIPAL STRUCTURES ACT; MUNICIPAL ELECTORAL BILL: BRIEFING
Document handed out:
Opinion from Office of Chief State Law Advisor on Municipal Electoral Bill
The Chairperson of Provincial and Local Government Portfolio Committee briefed the committee on the section of the Municipal Structures Act which outlines the structure of the electoral system for municipal councils. Committee members were concerned that the new electoral system was too complicated but this was rejected by the presenter who cited the low numbers of spoilt ballot papers in the last national elections and said one should not under-estimate the electorate.
Representatives of the Independent Electoral Commission (IEC) and the Chief State Law Advisor dealt the Municipal Electoral Bill which deals with how the election elections will be run. The State Law Advisor believed that the potential unconstitutionality of s 7(2)(b) of the Bill is an urgent matter and will generate a great deal of debate. This section states that that prisoners will not have the right to vote in the municipal elections.
Mr Yunus Carrim's presentation aimed to explain the new model of local government to the Members. He commented that the transformation of local government is more onerous than that of national and provincial government. The pre-interim phase of the local government transformation took place in the 1980s and early 1990s. The interim phase took place in the mid to late 1990s. The process is now headed for its final phase.
Some of the principles that underpin the new model of local government are that local government is no longer a function of provincial government, but a separate sphere. The function of local government comprises not just the provision of services, but also social and economic development. The structure of local government must be financially sustainable. Finally, Mr Carrim commented that negotiations can make local government more powerful over time.
Mr Carrim noted that there are three categories of municipalities in the Constitution: unicities or "megacities" over which local government acts as a single structure to exercise all powers and functions, and a two-tier system outside of metropolitan areas comprised of local councils and district councils.
The municipal councils will be in place for a five-year term. There are three models for municipal councils: a mayor as the executive, or an executive committee system or neither of these. In the first instance, a majority appoints an executive mayor who appoints a mayoral committee. The second instance is multi-party, in that the executive committee is comprised of all parties in proportion to the number of votes they have received. In the third instance, the executive would be comprised of a plenary system. Additionally, a speaker will chair meetings.
Mr Carrim pointed out that the new model for local government makes for very powerful district councils. 40% of the district councils will be directly elected, or reflect proportional representation, and 60% will be appointed by local councils.
Under-populated parts of the country will be known as "District Management Areas"; therefore, district councils will be made up of primarily local councils and district management areas.
At the present time, local government is made up of 60% ward candidates and 40% from proportionally represented party lists. Since women were not properly represented in the ward system, the new Bill will change this to 50-50 to allow for the proportional representation of women. In fact, the law now says 50% of candidates must be women, but this may be found to be unconstitutional, in that a party may not be compelled to appoint a woman.
The proposed system will be a mixed system for overall proportionality; this means the more wards you get, the fewer seats you are entitled to on the list.
The voters for a local council will have three votes: one voter in the ward for a candidate; one vote for a party; and one vote for direct election to the district council. The voters in a metropolitan area will have two votes: one on the ward for the unicity and one on the list for the unicity. The average voter in a district management area will also have two votes. Mr Carrim conceded that this entails a complex system and that the Provincial and Local Government Portfolio Committee were originally concerned about the complexity of the system, particularly in areas of the country with low levels of literacy. He explained that the Committee is now convinced that the system is not overly complex, but is appropriate to allow for the consolidation of democracy in this country.
Mr Morwamoche (ANC) asked what would happen in the case of independent candidates.
A representative of the NCOP commented that the process is complex and that she foresees only chaos, confusion and destabilisation. She asserted that people need information first.
Mr Walters (DP) commented that the proposed system favours bigger parties. He also agreed with the NCOP representative that voter education is imperative and that funds for this are limited.
Mr Pretorius (NNP) asked what would be the effect on provincial government of the increased power of local government?
Mr Carrim responded to all of these questions in defence of the legislation, commenting that, whereas the model is sophisticated, it is functional. The legislation is the result of an exhaustive process of shaping local government, unprecedented elsewhere in the world. The process of developing this legislation was slow, ponderous, thoughtful and took a long time. In response to those who suggested that the process is too complex for members of the population who are illiterate, Mr Carrim asked members not to underestimate the electorate. Noting the low number of spoiled ballots in previous elections, Mr Carrim suggested that there is no reason to believe people will not understand the system. He reminded Members of the Home Affairs Committee that it is their responsibility to raise more money for voter education. He agreed that more must be done in this regard, but disagreed that voters are not capable of working with the new system.
In response to Mr Pretorius' question about the effect of increased power at the local government level on provincial government, Mr Carrim asserted that the more each sphere interacts with the other, the stronger it becomes.
Ms Verwoerd (ANC), of the Provincial and Local Government Portfolio Committee, asserted that the message will be a simple one once it reaches voters. She asked Members not to overcomplicate the proposed system, insisting that it is not really complicated.
As far as independent candidates are concerned, she said that such candidates will have to declare their independence, in order to avoid the situation of a candidate who is a member of a party trying to mask that fact.
Finally, Mr Sikakane (ANC) asked if these changes were, in fact, not to advantage the majority party but all about empowering the people?
Mr Carrim agreed with Mr Sikakane that, yes, to some extent, the intention of the changes is to de-politicise the government.
Municipal Electoral Bill
A representative of the IEC summarised the Bill clause by clause.
Mr Bruwer, State Law Advisor, gave a presentation regarding the fact that prisoners will not have the right to vote [see s 7(2)(b)], advising that this is a "thorny" issue. Although Cabinet had decided that prisoners should not vote, the constitutionality of this decision is yet to be decided. He says this provision represents the disenfranchisement of prisoners and outlined a detailed constitutional argument in anticipation of a constitutional challenge to s 7(2)(b).
Members asked questions relating to the right of prisoners to vote as well as accommodations to the process for people with disabilities. There were also requests for clarification of the fact that South Africans who are away on holiday at the time of an election will not be able to vote. This decision, according to the IEC, has been made for purely practical reasons. Mr Pretorius (NNP) asked if holidaymakers could not vote before they left on holiday? The IEC representative answered that would not work as it would require separate election dates.
Mr Bruwer interjected to remind Committee Members that the potential unconstitutionality of s 7(2)(b) of the Bill is an urgent matter and will generate a great deal of debate and controversy.