Independent Municipal Demarcation Authority Bill: Deliberation & Negotiation Mandate

Local Government, Environmental Affairs & Development Planning (WCPP)

27 February 2024
Chairperson: Mr I Sileku (DA)
Share this page:

Meeting Summary

Video

The meeting of the Standing Committee on Local Government (WCPP) was convened to continue processing the Independent Municipal Demarcation Authority Bill [B14B-2022] and to deal with the provincial negotiating mandate on the Bill.

Members discussed proposed amendments to various clauses of the Bill and sought legal counsel on matters pertaining to constitutional validity. Concerns were notably raised regarding the clarity of financial information provided and the need for adequate time for public feedback. Despite divergent viewpoints on specific proposals, there was a shared commitment among Members to uphold principles of fairness and democratic governance.

Key topics of discussion included the establishment of a negotiating mandate, the appointment process for board members, and the delineation of responsibilities between different spheres of government. Throughout the meeting, Members engaged in robust dialogue, seeking to reconcile differing perspectives and reach consensus on critical issues.

Plans were made to draft a comprehensive negotiating mandate that would incorporate the concerns and proposals discussed during the session. The importance of addressing substantive concerns while ensuring procedural integrity was mentioned, with a commitment to transparency and inclusivity in the decision-making process.

Meeting report

The Chairperson opened the meeting and suggested a moment of meditation and reflection before the meeting commenced. He thanked everyone, informing all the attendees that the Standing Committee on Local Government would now be in session. The agenda included discussing feedback on the Independent Municipal Demarcation Authority (IMDA) Bill and deciding on the adoption of a negotiating mandate regarding this Bill.

The Chairperson invited Members to briefly introduce themselves. Reminding everyone of the virtual nature of the meeting, he reiterated the importance of muting oneself when not speaking and avoiding interruptions. Members were encouraged to use the chat for clarity or raise their hands using the designated icon.

The Chairperson thanked those who had represented him in his absence, and expressed dissatisfaction with the limited time for public participation provided by the National Council of Provinces regarding the Bill's impact on the Western Cape's 30 municipalities. He stressed the necessity of continuing with their work despite these challenges, promising to convey the Committee's concerns to the National Council of Provinces (NCOP).

The floor was then given to the Procedural Officer to provide any pertinent information to the Committee.

The Procedural Officer did not have much to say, but he mentioned that he had already distributed all the comments received. There were only two additional submissions, one from a Member with some extra comments, which could be highlighted. However, he had nothing new to contribute. He also noted that the provincial parliament had not yet received any response from the NCOP regarding its letter.

The Chairperson also opened the floor for Members to propose any amendments to the Bill.

Ms M Maseko (DA) raised a concern about the cost attached to the Bill and asked if the Department had provided this information.

The Procedural Officer mentioned that he had not received the cost details yet but assured the Member that he would promptly follow up on it.

Ms Maseko expressed concerns about the Committee's need to address costs when formulating their negotiating mandate. She stressed the importance of understanding the financial implications, particularly regarding CEO salaries and other expenses discussed in the meeting. Ms Maseko also referred to the response from the official regarding funding from National Treasury, highlighting the current financial constraints. She stressed the necessity of having cost details to make informed decisions when shaping their negotiation mandate and final mandates.

The Chairperson then commented, suggesting that the Procedural Officer would follow up on the matter. He added that, although the Officer would address this issue, they would still need to discuss it further while dealing with their negotiating mandate and subsequently with their final mandate. The Chairperson expressed hope that they would have received a response from the national level by the time they addressed their final mandate. He asked Ms Maseko if everything was in order or if they should let the Procedural Officer follow up on her concerns.

Ms Maseko responded affirmatively, indicating that it was in order. She suggested incorporating the discussion on cost implications into their negotiating mandate, as they had more influence over it compared to the final mandate.

Mr M Klaas (EFF) suggested that they should clarify what they can support, and he talked about the need for cost considerations before proceeding. He highlighted the importance of finalising Ms Maseko's raised concerns.

In response, the Chairperson acknowledged Mr Klaas's input, stating they would need to address concerns or proposals during the negotiation mandate phase. He explained that their responses would contribute to whether they supported any changes in opposition. The Chairperson assured the Committee that Ms Maseko's unanswered questions would be incorporated into their negotiating mandate for the benefit of all Members.

Independent Municipal Demarcation Authority (IMDA) Bill [B14-2022]
Clause Nine
The Chairperson requested clarification on certain clauses of the Independent Municipal Demarcation Authority Bill, specifically focusing on clause 9(2e).

He proposed extending the exclusion criteria to include individuals holding political party positions, beyond just official political office. He sought feedback on the feasibility of this proposal from Adv Maasdorp, acknowledging that it might be challenging but expressing a desire to extend the exclusion criteria, nonetheless.

Clause Seven
Ms Maseko requested to address section 7(2a) and proposed an addition to ensure that qualifications remained a primary criterion for board composition. She sought assistance in structuring this requirement to emphasise the importance of qualifications in reflecting the pool of knowledge relevant to demarcation issues.

Ms Maseko clarified that the term "collective representation" should be aligned with qualifications rather than general knowledge. She sought clarification from Advocate Romeo Maasdorp on this matter.

Adv Romeo Maasdorp, Legal Advisor, WCPP, responded, acknowledging Ms Maseko's intention to emphasise qualifications in board composition. He interpreted the provision as implying that the board should collectively possess knowledge specifically relevant to demarcation issues. He explained that the phrase "pool of knowledge" encompasses substantive knowledge, educational qualifications, and experience related to demarcation, town planning, and local government matters. He suggested that specifying various criteria such as academic experience, gender, religion, etc., was unnecessary as they were already implied within the concept of a pool of knowledge.

The Chairperson thanked Adv Maasdorp and then asked Ms Maseko if she was comfortable with his explanation.

Ms Maseko confirmed her comfort. She then discussed the importance of ensuring clarity for all readers, even those without legal expertise.

The Chairperson acknowledged Ms Maseko's caution and expressed appreciation for Adv Maasdorp's clarification, noting his extensive experience. He then invited other Members to contribute.

Clause 10
Turning to the Procedural Officer, the Chairperson requested to discuss the appointment of board members, specifically referring to section 10(1)(b). He proposed revisiting the composition of the selection panel to reduce political influence and ensure fair selection processes. He suggested that the majority of the panel should not consist of politicians, seeking Adv Maasdorp's opinion on the matter.

Adv Maasdorp expressed his conflicted stance when asked for his opinion, highlighting his inclination towards legal matters. However, he acknowledged the Chairperson's scepticism regarding the inclusion of politicians in the selection panel. He explained that if the sponsoring department desired a specific demographic for the board, it was within its authority to dictate the composition of the selection panel. He mentioned that the Committee had the power to influence the policy direction and composition of the board, suggesting alternative profiles such as local government experts, academics, NGO representatives, civil society members, and lawyers. He appreciated the Chairperson's scepticism towards politicians' involvement.

In response, the Chairperson thanked Adv Maasdorp for his insights, and proposed exploring alternative methods for selecting panel members. He suggested adopting a transparent and open process similar to parliamentary procedures, involving candidate nominations and interviews to ensure credibility. The Chairperson expressed unease about the current composition of the panel and sought the Committee's opinion on reconsidering the selection process. He questioned whether other Committee Members shared his concerns about the involvement of politicians in the panel.

Ms C Murray (DA) raised concerns about the extent of the Minister's discretion in determining the composition of the panel, questioning whether there might be an imbalance of power vested in the Minister, particularly in matters related to demarcation. She suggested examining whether the Minister's authority should be subject to further scrutiny to prevent potential overreach.

In response, the Chairperson acknowledged Ms Murray's concerns and proposed revisiting the criteria for panel selection to mitigate the dominance of politicians. He stressed the importance of ensuring that the panel comprised individuals with relevant knowledge and experience, cautioning against replicating past mistakes observed in other sectors. He recommended exploring alternative processes, such as adopting parliamentary selection procedures, including interviews by a National Assembly Committee, and incorporating public participation. Furthermore, he suggested mandating specific qualifications for board positions to ensure suitability.

The Chairperson invited input from other Committee Members on this proposal.

The Procedural Officer expressed agreement with the Chairperson's remarks.

Clause 10
The Chairperson directed the Procedural Officer to section 10.3 regarding the selection panel's authority to establish its own procedures, emphasising the requirement for fairness and transparency. He sought clarification from Adv Maasdorp regarding whether the existing language adequately addressed transparency or if additional criteria were necessary.

Adv. Maasdorp responded, affirming that the concepts of fairness and transparency are well-established in legal precedent, akin to clauses found in the Members' code of conduct. He explained that any procedure lacking transparency would be evident, and individuals could seek legal recourse based on established legal doctrines. He expressed satisfaction with the current language of section 10.3.

The Chairperson was pleased with Adv. Maasdorp's explanation and sought input from colleagues on their comfort level with the explanation provided.

Ms Maseko expressed concerns about the lack of clarity regarding procedures for ensuring transparency, particularly concerning establishing a new board with a CEO. She noted the difficulty in structuring transparency criteria without clear procedures to reference. However, she leaned towards agreeing with the legal advisor's perspective.

The Chairperson then addressed the issue of filling board vacancies, highlighting Ms Maseko's concern about the President choosing from the pool of initially rejected candidates. He proposed readvertising vacancies instead of selecting from the previous pool.

Ms Murray supported this proposal but raised concerns about associated timelines and ensuring the quality of candidates. She suggested a vetting process to ensure the selection of suitable candidates within a reasonable timeframe.

The Chairperson sought clarification on the proposed timeline for filling vacancies, to which Ms Murray underlined the importance of a quality selection process over strict timelines.

Ms Maseko discussed the importance of selecting the right candidates for the board and suggested that timelines might not be crucial given the nature of the demarcation process. She reiterated the need for clear and straightforward procedures, favouring readvertising vacancies to attract suitable candidates.

Mr Klaas mentioned the importance of not allowing the President to fill vacancies arbitrarily and suggested that vacancies should be readvertised if suitable candidates are not found initially. He expressed concerns about imposing strict timelines on the process.

Clause 16
Ms Maseko raised concerns about Clause 16, noting the absence of limitations on the number of committee meetings per year. She suggested establishing guidelines to control the frequency of meetings due to the associated cost implications.

The Chairperson expanded on the discussion, questioning whether it would be within the Committee's scope to propose limitations on the number of committees the board can establish, considering the potential cost implications. He sought clarification from Adv Maasdorp on this matter.

Adv Maasdorp highlighted the discretion given to the board in Clause 16(2) to establish committees as necessary to perform its functions. He proposed that a control measure be added in the form of budgetary considerations. He also suggested that committees should only be established if there is budget allocated to maintain and provide resources for their functions.

The Chairperson expressed agreement with Adv Maasdorp's proposal, emphasising the need for control measures given the absence of limitations on the number of committees in Clause 16. He appreciated Adv Maasdorp's suggestion and indicated that it aligned well with the Committee's intentions.

Adv Maasdorp further elaborated on his proposal, suggesting an amendment to Clause 16(2) to include language requiring the establishment of committees to be subject to budgetary and resource considerations. This, he argued, would ensure that the board's discretion is moderated by financial prudence and management considerations.

Adv Maasdorp clarified that Clause 16(4) allows the board to establish committees comprised of technical experts to carry out specific tasks or research within their area of expertise. These committees may consist of professionals with specialised knowledge relevant to the board's functions, such as academics or experienced professionals.

However, Adv Maasdorp explained that while the Committee Members do not need to all be board members, Clause 16(4) mandates that at least one Member of the Committee must be a board member. This ensures that the board maintains oversight and alignment with the Committee's work, providing continuity and ensuring that the board's mandate is carried out effectively.

In essence, Clause 16(4) allows flexibility in appointing committee members from outside the board but requires representation from the board to maintain oversight and accountability.

Ms Maseko expressed her concern regarding Clause 16, highlighting the significant financial implications associated with it due to its open-ended structure.

Clause 18
Moving on to Clause 18, Ms Maseko questioned whether members of the board should be required to disclose any political party affiliations as part of the disclosure requirements. She sought clarification from Adv. Maasdorp on whether such an amendment would be constitutional and whether it could be included as one of the disclosure requirements for board members. Ms Maseko expressed concern about whether disclosing political party affiliation of board members, as part of the disclosure requirements, would be constitutional.

Adv. Maasdorp responded, stating that it might raise eyebrows and be frowned upon due to constitutional considerations. He explained that while disclosing personal and business interests is acceptable, political affiliation could pose challenges given the Constitution's stance on criteria related to sex, gender, religion, and ethnicity. He suggested that, while the concern may be valid given the board's mandate, inserting such a requirement might not withstand constitutional scrutiny.

Ms Murray proposed looking at how similar disclosure requirements are worded for organisations like the IEC to inform their decision.

The Chairperson acknowledged Ms Maseko's concerns and attempted to understand her perspective. While recognising the importance of appointing individuals based on expertise rather than political affiliation to avoid conflicts of interest, there were reservations about the board's current composition. The Chairperson expressed concerns about potential biases in decision-making processes, particularly in cases involving redetermination of boundaries and municipalities. He mentioned the need to consider the broader implications of political affiliations within the board's operations.

Ms Maseko thanked Ms Murray's suggestion to consider the wording used by the Independent Electoral Commission (IEC) regarding disclosures. She also agreed with Adv Maasdorp's perspective on the importance of expertise and the potential conflicts that could arise from political affiliations. Ms Maseko added a point about the significance of expertise and the moral considerations involved in decision-making processes.

The Chairperson acknowledged the concern raised about Clause 18 and suggested moving on to hear further correspondence on the matter. He then invited other Members to raise any additional points or clauses they wished to discuss.

Clause 23
Ms Maseko brought up Clause 23(1), which discusses the municipality's capacity being judged based on its ability to execute functions in line with the Ministers and MEC. She proposed that the authority should not have the power to conduct capacity assessments, as this could be seen as asserting the executive power of national and provincial governments.

The Chairperson then asked if everyone was comfortable with this proposal, suggesting that the authority should not be responsible for conducting capacity assessments on local authorities. Instead, they could request reports from the relevant ministers and departments if the need arises.

Ms Murray expressed her agreement with the decision and thanked everyone for their input. She then raised a related question about the extent to which continuing to conduct capacity assessments might breach the separation of powers.

The Chairperson acknowledged the agreement among the Members.
 
Ms Maseko identified Clause 23(2), expressing concerns about the inclusion of special objectives such as justice, sustainability, and efficiency in addition to the objectives listed in subsection one. She questioned the relevance of these objectives to the Spatial Planning and Land Use Management Act and sought clarification from the relevant department.

The Members agreed to seek clarity on the Clause.

Clause 24
Ms Maseko addressed Clause 24, emphasising the need to consider factors that might undermine local authorities' autonomy to adopt policies differing from those of the national government. She proposed that the Clause should acknowledge the role of local authorities and exclude policies and plans that could impact the nature of local government within these boundaries. She sought clarification on how to address this concern, seeking input from the Chairperson and Adv Maasdorp.

The Chairperson's assessment regarding the Clause sought questions on whether the Clause seems to impose the authority of one sphere of government onto another.

Ms Maseko concurred that the Clause seemed to impose the authority of one sphere of government onto another. She mentioned the importance of recognising the policies of local authorities and ensuring that the Clause respects their autonomy.

The Chairperson requested raising a proposal regarding the use of national policy in determining municipal boundaries, seeking clarity on whether it constitutes encroachment on another sphere of government or if it's a standard procedure. He talked about the importance of understanding the implications of Clause 24(n) and how it relates to the autonomy of local authorities. He requested that Adv Maasdorp shed light on this clause.

Ms Maseko suggested that before Adv Maasdorp provides clarification, they should express their concern about how Clause 24(n) is structured, as it seems to undermine the authority of local governments. She proposed highlighting this concern to ensure that it is addressed appropriately.

The Chairperson suggested that the concern about Clause 24(n) should be noted, along with a question about whether it could be seen as undermining another sphere of government or as one sphere imposing itself on another. He decided not to ask Adv Maasdorp to speak on this matter at the moment.

Adv Maasdorp humorously said that he was volunteering to offer his legal advice. He suggested that the authority, guided by a board, should carefully consider various factors such as demarcations, redeterminations, and boundary delineations. He discussed the importance of aligning decisions with national development plans to ensure coherence in infrastructure development and community separation. The national authority, as outlined in the Bill, must prioritise national policies and plans before making any boundary-related decisions, thereby avoiding conflicts with long-term development goals. The focus should be on harmonising local government boundaries with overarching national strategies, rather than arbitrarily redrawing lines without due consideration.

Ms Maseko acknowledged the interpretation of the Clause, emphasising the crucial role of special planning in certain cases. Ms Maseko raised concerns about towns not always being developed through special planning, leading communities to create their own arrangements. She illustrated this with an example from Ward 101, highlighting challenges faced by voters due to distant voting stations. Ms Maseko stressed the importance of local authority consultation to prevent such issues. She emphasised the practical challenges that can arise despite the theoretical soundness of the Bill.
She expressed her willingness to withdraw the proposal to raise the concern, indicating that she had no objections to doing so.

Clause 32
Ms Maseko clarified her proposal regarding Clause 32. She suggested extending the timeframe for informing the Minister and Minister of Finance about a determination or redetermination from six months to nine months. Additionally, she proposed that Clause 32(4)(c) should only allow the Minister of Finance to shorten the timeframe from nine months to a minimum of six months.

The Chairperson noted that the version of the Bill shared with municipalities had a six-month timeframe, while the one in front of him indicated nine months. He suggested sticking with the updated nine-month timeframe. Additionally, he proposed excluding a specific sentence in Section 32(4)(c) that referred to Section 87 of the Municipal Structures Act, leaving only the Minister of Finance's authority intact.

Clause 38
The Chairperson proposed a more comprehensive appointment and interview procedure for Clause 38, Subsection 2, instead of the current process where the Minister provides a list of names for the President to appoint, based on public nominations. He suggested that, given the significant responsibilities of the authority, a more rigorous process would be preferable.

Ms Maseko agreed with this proposal.

The Procedural Officer sought confirmation that the proposal was to opt for a more comprehensive appointment and interview procedure, which was deemed preferable.

The Chairperson confirmed.

The Procedural Officer acknowledged the request for clarification on the proposals submitted by a Member and confirmed that they were being taken into account.

The Chairperson then presented the first proposal, which aimed to clarify that a board member's term should not exceed five years and six months, calculated from the date of appointment by the President, and that this term must end no later than five years and six months after the last municipal council election date.

The Chairperson sought confirmation from the Members if they were comfortable with this proposal.

Ms Maseko sought clarification on the rationale behind the inclusion of the six-month period in the appointment term for board members. She understood the intention but wanted to understand why specifically six months were added to the five-year term.

The Procedural Officer clarified that Mr A Van der Westhuizen (DA) proposed the inclusion of the phrase "and six months" in the Clause. The rationale behind this addition was related to the municipal financial year and the time lapse between local government elections, the swearing-in of councillors, and the first council meeting. The inclusion of six months aimed to address this time gap.

The Chairperson provided some context, mentioning that the proposed addition aligns with how terms are structured in local authorities, where a grace period of six months is often given after the expiry of a term. This addition aims to provide consistency in term durations. However, he noted that the decision ultimately rests with the Members.

Ms Maseko expressed her view that the current five-year term for board members should suffice, without the need for an additional six-month grace period. She talked about how the responsibility lies with government to ensure smooth transitions and procedures for appointing new members after the initial five-year term. Ms Maseko suggested that allowing an extra six months could potentially be abused and reiterated that the board's role is not to manage local government councils. Therefore, she advocated for maintaining the term at five years without the additional grace period.

The Chairperson acknowledged Ms Maseko's argument against the additional six-month grace period, and confirmed that the Committee does not support the proposal for an extension.

Ms Murray agreed with this stance, emphasising the importance of adhering to democratic principles and timelines.

The Chairperson reiterated the decision not to extend the term by six months. The Procedural Officer then mentioned a proposal regarding rewording Clause 17(3), but no specific suggestion was provided.

The Chairperson suggested disregarding the proposal due to the lack of clarity on what needed to be reworded.

Ms Maseko agreed with this decision.

The Chairperson requested the Procedural Officer to share additional comments received from the Department and South African Local Government Association (SALGA).

The Procedural Officer mentioned that he had circulated these comments to all the Members, and needed a moment to locate them.

The Chairperson talked about the importance of ensuring that what the Procedural Officer had matched what was shared with the Members to avoid discrepancies.

The Procedural Officer confirmed that the comments he had were indeed distributed to all the Members.

The Chairperson confirmed with the Members if they were familiar with the content of the comments displayed on the screen, emphasising that they were given the opportunity to review them in advance.

The Procedural Officer confirmed that only two municipalities had commented, mainly discussing time constraints.
 
Ms Maseko expressed her concern about the time constraints and the need for sufficient time for municipalities to provide feedback, especially when there are changes to the Bill. She discussed the importance of ensuring municipalities have enough time to understand and comment on the proposed legislation to effectively represent their interests.

Ms Murray agreed with Ms Maseko's concerns and suggested that, when drafting the negotiating mandate, they should separate substantive concerns from procedural ones, ensuring that there is enough time for meaningful public participation within the normal six-week cycle.

The Procedural Officer acknowledged the suggestions and stated that he would compile the negotiating mandate with the new additions raised in the meeting. He proposed finding a suitable time next week to formally adopt the negotiating mandate.

The Chairperson thanked all the Members for their input and comments and Adv Maasdorp for his guidance. He also thanked the Committee support staff for its work behind the scenes, acknowledging their valuable contribution. He concluded by expressing appreciation for the opportunity to work with such great individuals and wished everyone a blessed day.

The meeting was adjourned.

Audio

No related

Present

Download as PDF

You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.

See detailed instructions for your browser here.

Share this page: