Independent Municipal Demarcation Authority Bill update; with Deputy Minister

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Meeting Summary


The Select Committee held a virtual meeting to consider whether it should proceed with the Independent Municipal Demarcation Authority Bill [B14B-2022] despite it still not having received the negotiating mandate from the Eastern Cape.

Since it is a Section 76 Bill, provinces have to prepare and present a negotiating mandate to the Select Committee. For this Bill, eight out of the nine provinces had presented their negotiating mandates to the Select Committee. The Eastern Cape had not, explaining that the provincial legislature would not have sufficient time to conduct public participation and process the Bill before the end of the Sixth Term. The Select Committee was of the view that it had granted provinces the full eight-week cycle period to conduct public participation and it further granted an additional two weeks for those that requested extensions.

There were two divergent views in this meeting. The Chairperson believed the Select Committee should proceed and complete the legislative process. The Bill aimed to facilitate the demarcation of municipal boundaries and ward delimitation. It is legislation to help South Africa prepare for the local government elections two years from now. Hence, the Bill was too important to delay. Proceeding without the participation of one province would not be exceptional as the National Council of Provinces (NCOP) had done this before.

The other view supported by the Democratic Alliance was to defer the consideration of the Bill to the Seventh Parliament as several provinces had complained about the lack of time to conduct proper public participation at the very beginning of the process. Further, if there were substantive amendments, these would have to be referred to the National Assembly.

As there was no consensus, the Select Committee had to vote on the matter and the majority of the Committee agreed that the Bill should proceed.

Members entered into an argument on whether the Committee should consider the negotiating mandates in this meeting. Some Members were of the view that since this was not stated on the meeting notice or agenda, they were not prepared and it should not be discussed. Other disagreed and accused those Members of deliberately delaying the legislative process. However, it was decided to convene the next day to consider and adopt any proposed amendments so that a final version can be sent to the provinces for their final mandates.

Meeting report

Chairperson’s opening remarks
The Chairperson stated that the meeting would be dealing with the Independent Municipal Demarcation Authority Bill [B14B-2022]. Deputy Minister Zolile Burns-Ncamashe was welcomed and the apology of Mr E Mthethwa (ANC, KZN) was noted.

The Chairperson refreshed the Select Committee’s memory that in its 23 April meeting eight negotiating mandates from provinces had been presented and the Select Committee still did not have the Eastern Cape negotiating mandate. In that meeting, the Select Committee had attempted to get some legal clarity on how it should proceed in the absence of one provincial negotiating mandate. The Select Committee had resolved to obtain a legal opinion to understand how it should correctly deal with the matter when one province does not submit a negotiating mandate on a Section 76 Bill. The Committee has also dealt with the political management of the process and its implications as this Bill is to facilitate the demarcation of municipal boundaries and ward delimitation. It is legislation to help the country prepare for the local government’s election two years from now. Hence, the Bill has to be dealt with now.

Prior to this meeting, the Chairperson had a discussion with the Parliamentary Legal Advisor and had engaged with political authorities including the Eastern Cape Legislature speaker requesting that the Bill be facilitated.

The Select Committee was at a point that it needed to make a decision whether to proceed forward or not with only eight negotiating mandates. In addition, he informed the Committee that several provinces had indicated that they had wanted more time for processing the Bill given its importance and that the Select Committee had not given provinces sufficient time.

The Chairperson explained that the reason the Eastern Cape Provincial Legislature did not submit its negotiating mandate in time was that it had to process five important pieces of legislation. It had already dealt with four and it was only this Bill that the province would not have time to deal with. The province requested the Bill be deferred but did not provide details about deferring to when.

Given the importance of the legislation and its profound implications for the country, the Select Committee had to make a decision whether to proceed and consider the negotiating mandate comments of the eight provinces and the Department's response to those, and compile the C list of proposed amendments and develop final mandates from provinces.

Given the context, the Chairperson was of the view that the process must go ahead without the Eastern Cape negotiating mandate. The Select Committee would be setting a bad precedent when a province has been requested by this Committee to do this and it does not do that in line with the eight-week cycle requirement and has still failed to comply with the two-week extension. The Select Committee has attempted to engage with the province without a tangible outcome. What does that mean when eight provinces have done what was required irrespective of the constraints that are there? It was also not uncommon in the 30 years of NCOP history that a legislative process would go ahead irrespective of one or two provinces not submitting their negotiating mandates.

He sought Members’ input on the matter.

Mr C Smit (DA, Limpopo) disagreed with the Chairperson’s view and said that the Select Committee must defer the Bill to the Seventh Parliament. There is not enough time to give due diligence to the Bill. There is also the possibility of amendments that might need to be referred back to the National Assembly.

The Chairperson cautioned Mr Smit that Members should not pre-empt on the premise that there would be substantive amendments leading to the Bill being referred to the NA since the Select Committee has not crossed that bridge yet.

Mr Smit pointed out that neither the meeting notice nor the agenda stated that the Committee would be discussing the Bill today. The agenda only shows that Members would be getting feedback on the legal opinion today.

The Chairperson reminded Mr Smit that deliberations on the Bill could have proceeded in the 23 April meeting. The Committee had agreed to pause that process to seek legal advice.

Mr R Badenhorst (DA, Western Cape) agreed with Mr Smit and pointed out that there was more than one province such as the Western Cape that indicated from the very start that the process has not allowed them sufficient time to conduct proper public participation. He was of the view that the matter should be deferred to the Seventh Parliament.

Ms S Shaikh (ANC, Limpopo) agreed with the Chairperson that the Committee should continue with the Bill. The Committee did give provinces two weeks extra in addition to the eight-week cycle for public participation on the Bill. She wholeheartedly supported that the Select Committee should not set a bad precedent and that the process be delayed because of the absence of one province. This is not the only time where the NCOP has dealt with the matter in this manner.

The Chairperson said there were two different views and he had to put the matter to vote.

Ms A Maleka (ANC, Mpumalanga) interjected and apologised for not being able to raise her hand. She agreed with what Ms Shaikh had said.

The Chairperson continued that one view is that the Select Committee must proceed irrespective of the participation of the Eastern Cape and the other view is that provinces have not been given more time and the process should not proceed. It is unfortunate that the matter had to be put to the vote.

He asked Members to vote.

Ms N Ndongeni (ANC, Eastern Cape), Ms Shaikh, Ms Maleka, Ms Bartlett (ANC, Northern Cape) and the Chairperson supported to proceed.

Mr Badenhorst and Mr Smit objected to proceeding.

Thus the Committee agreed that the Bill would proceed.

The Chairperson asked Members when the Bill should proceed. His view was that this meeting was scheduled to get the legal opinion and to deal with political management of this. The 23 April meeting was to consider the negotiating mandates and the Department responses. Thus the Committee could continue with this in this meeting.

Ms Shaikh agreed that consideration of the negotiating mandates could continue and the Chair’s office could send Members the revised programme.

The Chairperson agreed that a revised programme would be devised until the end of this term. The Committee would look at submissions and possible amendments to the Bill during the next few days.

Mr Smit reiterated that there was no mention of consideration of negotiating mandates on the meeting agenda or notice. Since preparation is needed for such a process, he objected.

The Chairperson replied that it is unfortunate that he had to mention this, but Mr Smit was trying his best to delay the processing of the Bill.

Mr Smit called for a point of order and accused the Chairperson of being out of order.

The Chairperson pointed out that Mr Smit has a responsibility to respect this meeting. If Mr Smit continued to disrespect this meeting, the Chairperson would request for him to be chucked out of this meeting.

The Chairperson repeated his point that Mr Smit was trying to delay the process. The Select Committee postponed the meeting on the basis of getting a legal advice and to handle the matter from a political aspect. Members had not known if the Committee would proceed from where it ended the last time or not so obviously the consideration of negotiating mandates would not be included in the meeting agenda. Since the Committee has decided by voting to proceed, the consideration should proceed. The process should not be delayed because there was the view that the Bill should be deferred to the Seventh Parliament.

Ms E Wilson (DA, Limpopo Provincial Legislature) disagreed and said that the Select Committee could not discuss items that are not on the agenda. She did not think it fair to accuse someone of delaying the process. You cannot change the agenda to suit the purpose of another agenda. She supported the view of Mr Smit.

Mr Badenhorst agreed with Ms Wilson and Mr Smit that the Chair’s position is incorrect. It is Members’ duty to point out to the Chair if the Select Committee is procedurally in error. If this was going to be a continuation of the previous meeting, it should have been stated as such in the meeting agenda.

The Chairperson indicated that the Committee did not know if the meeting would continue or not. On 23 April the Committee had decided to postpone the negotiating mandates and the Department response in order to obtain a legal opinion. He could not pre-empt that. He sought the procedural officer’s input.

Mr Moss Manele, Committee Secretary, explained that the Department had responded to the negotiating mandate inputs. What the Select Committee still had to do was to consider and adopt any proposed amendments so that the C-List can be approved and integrated into the existing Bill to form a D version. The C-List and D-Bill would be sent to the provinces.

The Chairperson asked if the meeting could be reconvened tomorrow.

Mr Manele replied that the Committee had to speed up the process and get approval to convene the meeting tomorrow.

The Chairperson proposed that the meeting be postponed and obtain permission to hold the meeting tomorrow in line with the rules of Parliament.

Ms Maleka supported the Chairperson’s proposal.

The Chairperson apologised saying he did not expect that the meeting would deteriorate to such a level. He would not tolerate anything that deterred the Select Committee from discharging its law making responsibility.

The Chairperson adjourned the meeting.


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