Municipal Demarcation Authority Bill: COGTA response to negotiating mandates & Legal Opinion on matters raised by WCP and ECPL; with Deputy Minister

Meeting report

Opening remarks

The Chairperson welcomed the Members and the delegation from the Department of Cooperative Governance and Traditional Affairs (COGTA), led by the Deputy Minister, to the meeting.

The Committee was following up on its meeting from the previous week, where it considered the issue of the negotiating mandates pertaining to the Independent Municipal Demarcation Authority Bill. Some work needed to be done in terms of following up with the provinces that had not submitted their negotiating mandates. The Committee expected to receive the departmental response to the provinces that had tabled their negotiating mandates, and would hear a legal opinion on the request made by the Western Cape and Eastern Cape on the processing of the Bill.

The Chairperson commented that the Bill was important, as it was the heartbeat of what needed to happen at the municipal level in terms of the demarcation of municipal boundaries and the limitation of municipal wards. The Committee and Department had to ensure that they concluded the process, and in the case that they could not do so, they would have to accept that reality. Given the tight timeframes, the Committee would hear the two presentations and then discuss a way forward on what must be done.

DCOG response to tabled negotiating mandates on Independent Municipal Demarcation Authority Bill [B14-2023]

Dr Kevin Naidoo, Deputy Director-General (DDG): Institutional Development, Department of Cooperative Governance (DCOG), presented the Department's response to the negotiating mandates submitted by the provinces. He said the Western Cape Provincial Legislature had submitted its negotiating mandate after the Department had submitted its presentation to the Committee, and the responses to the Western Cape were included in the latter part of the presentation.

On 30 November 2023, the National Assembly (NA) considered the report of the Portfolio Committee and approved that the Bill be transferred to the National Council of Provinces (NCOP) for consideration. In February, DCOG briefed the Select Committee, and the NCOP had referred the Bill to the provincial legislatures, and public hearings had started. Thereafter, negotiating mandates were received by the Department, except for those of the Western Cape and Eastern Cape provincial legislatures.

Dr Naidoo then presented the Department’s responses to the negotiating mandates of each of the provinces that had submitted – see presentation attached for details

The Chairperson thanked Dr Naidoo for the presentation, noting that it was informative and reflected the views, proposals and concerns of provinces after they had engaged in the public participation processes. This showed that the process was meaningful and that the people had contributed and added what they felt needed to be included or excluded in the Bill, and how improvements should be made to the Bill. He asked Dr Naidoo whether only the Eastern Cape and Limpopo had not submitted their negotiating mandates.

Dr Naidoo said that was correct.

The Chairperson asked whether it was correct that the Limpopo province had said it would submit its negotiating mandates before 24 March.

Dr Naidoo said it had been confirmed that they would submit on 20 March.

The Chairperson said he had tried to reach the Chairperson of the Eastern Cape legislature, but he could not reach him. He asked Dr Naidoo if the Department had received any communication from the Eastern Cape.

Dr Naidoo said they had not received any communication from the province.

Procedural and legal opinion on the request tabled by Western Cape and Eastern Cape provincial legislatures on the processing of the Independent Municipal Demarcation Authority Bill

Mr Andile Tetyana, Parliamentary Legal Advisor, provided the legal opinion on the request tabled by the Eastern Cape and Limpopo provinces for an extension of the timeline for tabling the provincial negotiating mandates on the Bill.
He said Parliament was constitutionally obligated to take reasonable steps to facilitate public participation before it enacted legislation. Affected persons must be afforded an opportunity to meaningfully participate in the legislative process. In this regard, public participation acted as a safeguard to prevent the interests of the marginalised from being ignored or misrepresented. The National Assembly (NA), NCOP and provincial legislatures each had a constitutional obligation to facilitate public involvement in their legislative processes. Their obligations to facilitate public participation were contained, respectively, in sections 59(1)(a), 72(1)(a) and 118(1)(a) of the Constitution. Public participation was a crucial part of participatory democracy and the law-making process, as it afforded the public a meaningful opportunity to participate in the legislative process and strengthened the legitimacy of legislation in the eyes of the people.
Regardless of the process Parliament chooses to adopt, it must ensure that a reasonable opportunity is offered to members of the public and all interested parties to know about the issues and to have an adequate say. A reasonable opportunity to participate in legislative affairs must be an opportunity capable of influencing the decision to be taken. It was unreasonable if the content of a public hearing could not possibly affect Parliament’s deliberations on the legislation. If the hearing was not effectively or timeously advertised, if people were unable to attend the hearing, or if the submissions made at the hearing were not transmitted accurately to the legislature, then the hearing was not capable of influencing Parliament’s deliberations. However, this did not mean that the legislature must accommodate all demands arising in the public participation process, even if they were compelling.
The public involvement process must give the public a meaningful opportunity to influence Parliament, and Parliament must take account of the public’s views. Even if the lawmaker does not change its mind, it must approach the public involvement process with a willingness to do so.
Mr Tetyana said the request by the Limpopo Legislature for an extension of timeframes for public consultation by at least two weeks was reasonable, particularly considering that the NCOP referred the Bill to provincial legislatures on 7 February. He said the request by the Eastern Cape provincial legislature to defer the further processing of the Bill to a date after 31 March was also reasonable. The request by the Western Cape Provincial Parliament to extend the timeline for the provinces’ negotiating mandates until the end of April, or alternatively to let this legislation stand over for the next administration, was not without merit.
The three provinces said that the timeline given by the Select Committee had been too short for them to facilitate adequate public involvement and consultation. Accordingly, the requests by the respective provinces for an extension of the timeline for the provinces’ negotiating mandates should be granted. Unreasonably withholding the requests had the real danger of opening up Parliament to unnecessary and costly litigation, and this would place Parliament on a collision course with the current jurisprudence, particularly on the centrality of adequate public involvement and consultation in Parliament’s law-making process.
The Chairperson said the National Assembly had passed the Bill on 30 November 2023, and had referred it to the NCOP on the last day before Parliament went on recess. The Committee had given the Bill priority since its first meeting on 7 February, where it received a presentation from the Department, and had immediately sent the Bill to the provinces, as there was an urgency attached to the Bill. The provinces had accepted the responsibility to do their work on the Bill within the allocated timeframes.

The Committee had received seven negotiating mandates from the provinces, with outstanding negotiating mandates from the Eastern Cape and Limpopo provinces, which the Chairperson felt were holding the Committee and the process to ransom, and delaying the process. The Chairperson said whatever decision would be made should not frustrate the process, especially by the two provinces, because allowing this would have profound negative implications for the country.

He emphasised the importance of the Bill, noting that the country would have municipal elections within the next two years, and the basis of those elections would be in the Bill. If the Bill was not finalised, the next Parliament would have a choice to either continue or restart the process, and restarting it would be a long-protracted process. The Committee must discuss what it must do under the current circumstances.

Dr Naidoo corrected his statement that the Limpopo province would submit its negotiating mandate on 20 March. He said the province would start its public hearings on that day and the Department would support that process.

The Chairperson noted that, and asked that the Members discuss the next steps to be taken by the Committee

Discussion

Mr C Smit (DA, Limpopo) said that the fact that the Committee dealt with the negotiating mandates before obtaining a legal opinion concerned him because it should have been done the other way around so that it could give the Committee direction. The Western Cape, even though they had submitted their negotiating mandate, had made it clear that they were under a lot of pressure to submit it without being able to do proper public participation, and that was not good.

The Bill was important and would have major implications going forward, and the courts had confirmed that if a Bill contained such possible implications, more time should be allowed for the public participation process to take place. It was concerning that the Committee was pushing for the conclusion of the process because it was under pressure -- the provinces were also under pressure. The Committee should consider giving the extensions so that the provinces could do proper public participation processes. He said they were not being held to ransom by the provinces, but the provinces were putting the interests of their communities first, and trying to ensure that their communities had their say on the Bill.

Ms S Shaikh (ANC, Limpopo) said Limpopo had requested a two-week extension on the matter, so their negotiating mandate would probably be submitted next week. She said it would be important not to have an open-ended extension on the legislation. She asked the legal advisor what the cut off period for an extension would be, given the importance of the Bill and in trying to finalise it in the current term. She also wanted to know what would happen if a specific province did not want to adhere to the specific period of extension, considering the rules of the NCOP that five provinces were needed to pass a piece of legislation.

Mr R Badenhorst (DA. Western Cape) said the negotiating mandate from the Western Cape had been submitted on 7 March, according to his information, so he wanted to understand why it was mentioned that it had been submitted late. He said the NCOP must follow the Constitution, which says they must facilitate public involvement, and rule 219 says at least eight weeks must be provided for the public participation process. When the Western Cape province submitted its negotiating mandate on 7 March, it had also submitted a letter from the Speaker to the Chair of the NCOP notifying him that the Western Cape Provincial Legislature had had very little time to go through the proper public participation process, and had to resort to social media to receive comments from the public.

The Chairperson said everyone was under pressure, including the NCOP, the provinces, the Department and the National Assembly, and he had attended many meetings where they had been asked to prioritise the legislation to be finalised before the end of the current administration. This Bill was one of the priority Bills, and everyone was under pressure to conclude it because the elections were happening soon. The question should be what the Committee should do under the circumstances, given that they must prioritise legislation and ensure that they did not undermine the process of meaningful public participation.

The Members must also consider that seven provinces had submitted their negotiating mandates, having followed their different respective processes of public participation and getting engagement. None of the provinces had said their processes were not meaningful. The Bill would not be passed without meaningful participation, and only two provinces had not submitted their negotiating mandates. In that regard, the question that needed an answer was what needed to be done about those provinces under the circumstances to ensure that the process moved forward. If it was impossible, the Committee would have accepted that it was impossible, but only two provinces had not submitted out of nine, meaning it was possible. The Committee needed to consider whether it should give the two provinces an extension, and how it would proceed if the provinces failed to meet that deadline again.

Legal Advisor’s response

Mr Tetyana said the letter written to the NCOP by the Limpopo province on 26 February requested a two-week extension, and the NCOP rules said that depending on the substance of the Bill, the period for consideration of a Bill was at least eight weeks. The briefing by the Department had happened on 19 February, and eight weeks from that would be exactly 19 April. The Eastern Cape had given the Chairperson its own programme, and stated that it would not be able to complete the process before 31 March. Sub-rule 3 of the Parliamentary Instrument states that in the event that the substance of the Bill requires more time than the eight-week period, the Chairperson of the Council may, at the request of the Chairperson of the relevant Committee or Speaker of the of a provincial legislature, extend the period. The view of Parliamentary Legal Services was that what the provinces asked for was reasonable, considering the legal implications it would have if the extensions were not granted.

The Chairperson asked whether Mr Teytana was suggesting that the Committee grant the two provinces the two-week extension.

Mr Tetyana said he felt the request for a two-week extension by Limpopo was reasonable, considering when the Department had submitted the Bill to the provinces to commence the public participation process.

The Chairperson proposed that in line with the rules of the NCOP, the Committee should write a letter to the Chair of the NCOP requesting an extension of two weeks to allow the two provinces to finalise their negotiating mandates. He would continue the process of engaging with the provinces and elevate his engagement with provinces to the Speakers of the provinces so that they finalise their negotiating mandates. He then suggested that the Committee suspend the discussion on the Department's responses to the negotiating mandates of the seven provinces until all negotiating mandates were received and responded to by the Department after two weeks. After that, the Committee would be left with the final mandate, and would try to drive the process under those circumstances.

Ms Shaikh agreed with the proposal of the Chairperson, and proposed that the Department submit its responses on the outstanding negotiating mandates to the Committee during the recess.

Mr Badenhorst said the letter by the Western Cape to the Speaker of the NCOP requesting the extension of the public participation process to at least the end of April or the next administration, should be considered because even with the two weeks' extension, the Committee would be working outside the Rules of Parliament regarding the timeframes. 

The Chairperson said he would also elevate the letter in his discussion with the Chairperson of the NCOP to ascertain how he would respond to it under the current circumstances, bearing in mind the time constraints and that seven provinces had already submitted their negotiating mandates. The end of April would be awkward because after the negotiating mandates, the Committee must still discuss the submissions and responses from the Department, and thereafter, the matter would be referred to the provinces for their final mandates, and which would be in the middle of the elections, which would be difficult.

The meeting was adjourned.