Cross-Boundary Municipalities Bill: briefing & voting; Municipal Systems Bill: discussion

Meeting report

PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE; LOCAL GOVERNMENT AND ADMINISTRATION SELECT COMMITTEE: JOINT MEETING
14 June 2000
CROSS-BOUNDARY MUNICIPALITIES BILL: BRIEFING AND VOTING; MUNICIPAL SYSTEMS BILL: DISCUSSION

Documents handed out:
Cross-Boundary Municipalities Bill [B 37-2000]
Municipal Systems Bill [B 27-2000]
Briefing on Cross-Boundary Municipalities Bill (attached to end of minutes)

SUMMARY
After being briefed on the reasons for Cross-Boundary Municipalities (interdependence, financially viability, equitable redistribution, administrative capacity), the Committee adopted the Local Government: Cross-Boundary Municipalities Bill together with amendments proposed by the Department.

The Committee conceptually examined Chapter 2 of the Municipal Systems Bill: Legal Nature of Municipalities and Internal Relationships.

Under Clause 4 on the rights and duties of governing structures there were conceptual disagreements as to whether "municipality" (defined to include communities, residents or ratepayers in Clause 2) or the "council of the municipality" had these rights and duties. It was also felt that the reference to "rights" was misplaced and should be replaced by "functions". There was also disagreement on the inclusion of clauses, which stated that the council was entitled to perform its functions without interference or fear of intimidation and that the councillors had to be treated with dignity and respect. Whilst agreeing with these sentiments, they felt that idealistic political statements which were legally unenforceable should not be included. They believed this created the impression that councillors were being singled out and given special privileges yet everyone had the right to dignity and respect and not to be intimidated.

MINUTES
Local Government: Cross-Boundary Municipalities Bill
Mr M Sutcliffe, Chairperson of the Municipal Demarcation Board, briefed the Committee on the Bill. Mr Carrim noted that Mr Sutcliffe would respond in writing to the two questions which had been previously raised by members on this Bill. The first was "How many voters were affected by the Bill". The second was: "Which criteria could not be met to warranted this Bill".

Mr Sutcliffe said that earlier in the year the Municipal Demarcation Board had gone through a process of looking at possible cross-boundary municipalities. The Board had to satisfy itself that in terms of Section 155 (6A) of the Constitution, the objectives and factors in the Municipal Demarcation Act could not be met.

If one looked at Section 24 of the Demarcation Act, there were constitutional obligations around service delivery and the like which municipal government should have. There were three additional requirements which the Board had to look at to ensure that the municipal system being created fulfilled this. The first was that it should enable effective governance, it should allow for integrated development, and it should ensure that there was an inclusive tax base. These three as well as the other constitutional obligations were not met in certain cases and hence the need for cross-border municipalities.

Mr Sutcliffe highlighted a few of the factors in Section 25 of the Municipal demarcation Act which necessitated cross-border municipalities. He said that interdependence was a major reason for having cross-boundary municipalities, because there were communities being divided by provincial boundaries. Also if one looked at the requirement for integrated areas as well as for financial viability and administrative capacity, one side of the provincial boundary (in almost every instance where municipalities were divided by provincial boundaries) was benefiting greatly from the taxes which flowed from the other side of the provincial boundary. In terms of the redistribution requirement of the Act, there would be no redistribution if one did not have these cross-boundary municipalities. Land use patterns involving social, economic and transport issues was also a factor that determined this.

Mr Sutcliffe took the Committee through a slide presentation which illustrated some of the cross boundary municipalities which would be established. He showed how beneficial it was not to separate these municipalities on account of the provincial boundaries.

Amendments to the Bill had been suggested already by the department and the committee adopted the Local Government: Cross-Boundary Municipalities Bill together with these amendments. Mr Carrim read out the report on the Bill, which was also adopted.

Municipal Systems Bill
Mr Carrim said that they would follow an initial general conceptual examination of the Bill. He asked that only conceptual issues be raised. Discussion commenced at Clause 3 of Chapter 2:

Clause 3 Co-operative Governance
The Chairperson, Mr Y Carrim (ANC), noted Mr B Solo's question in the previous meeting: Why was Section 3(2) was there. This issue had also been raised by some of the submissions from the public.

Mr Carrim said that his understanding was that 3(2) was related to 3(1)(a) and it said that while municipalities had to integrate, it was in a context where they did not become subordinate to provincial and national government because this was never intended in the notion of co-operative governance. The ability or right [of municipalities] to exercise their powers and perform their duties could not be compromised. He added that Mr Solo was not in the meeting so the subsection should be left as it was.

Mr Carrim asked Ms J Manche from the Department of Provincial and Local Government to respond.

Ms Manche said that this had been covered in 151(4) of the Constitution.

Mr Carrim asserted that where something was in the Constitution, it did not mean that it could not be repeated in a piece of legislation. People did not carry the Constitution with them every time they looked at a particular law. Inclusion here seemed reasonable under the circumstances since it emphasised the point that provincial and national government had to recognise that local government was a sphere of government.

Clause 4. Rights and duties of governing structures
Mr Carrim said that gender sensitivity had to be included in this section. The Gender Advocacy Programme or the Gender Commission had pointed this out. There had been general agreement by the Committee in its last meeting that something had to be said about the responsibility of a council to recognise female disadvantage. This type of clause would form part of Clause 4(2).

Mr Carrim asked if there were any broad conceptual or general issues which members wanted to raise on Clause 4.

Ms G Borman (DP) was concerned about the use of the word "communities" throughout the section as well as "financially sustainable".

Mr Carrim said that the use of these words had been raised as a concern and were being flagged. They would be dealt with after this "first stage" process.

Ms M Verwoerd (ANC) said that Clause (4)(2)(e) should include "sustainable", thus it should read " promote sustainable development …"

Ms Manche said that the Department wanted to flag and re-look at 4(1)(c), which stated that the council of a municipality had the right to perform its functions without interference or fear of intimidation and threats. It also wanted the Committees' views on this, given the fact that the council was democratically elected and one should not promote the concept of an electorate which may intimidate and threaten.

Mr Bhabha (ANC, NCOP) also wondered why 4(1)(c) existed. He felt that it appeared as if a current reality was being described. As Ms Manche had pointed out, it is a democratic country, therefore it was unnecessary to make such statements.

Mr J Selfe (DP) added that the clause had a number of rights, but what happened if they were not realised? Essentially everyone had the right to perform their functions without fear of intimidation. One was stating the obvious, thus one should rather provide for a sanction somewhere in the Bill, which would govern this particular circumstance.

Mr Selfe had a problem with Clause 4(2)(b) which said "The council must…provide …government for communities, residents and ratepayers". Presumably municipalities were in the business of producing government for everyone. He felt that there had to be a reformulation of this clause.

Mr Bhaba agreed that by stating only three categories (communities, residents and ratepayers) implied that there were categories for which a council did not have to provide democratic and accountable government, for example, refugees.

Mr Carrim said that Mr Ngubeni of the ANC was busy working on this matter and would presumably come with proposals in this regard. He asked the members to therefore desist from raising the "communities, residents and ratepayers" issue again. He said that there had already been a tedious and exhaustive discussion of this in a previous meeting.

An ANC member had a problem with the fact that Clause 4 referred to " 'rights' and duties of governing structures". He felt that "rights" should be substituted with "functions".

An opposition party member said that whether it was a function or a right, she wanted to know how one could say that the council had "to govern on own initiative…" She felt that this was contrary to the whole spirit of the Bill. The council should govern not on its own initiative but on what was wanted by the community.

Ms Manche said that Section 151(3) of the Constitution stated: "A municipality
has the right to govern, on its own initiative, the local government affairs of its community, subject to national and provincial legislation, as provided for in the Constitution." She said that Clause 4 thus stemmed from the Constitution and expanded on the detail concerning the areas covered.

An ANC member felt that the whole of 151(3) should be reproduced in Clause 4 to clear up any confusion.

Mr M Bhaba said that before the committee continued with Clause 4, there had to be consensus of what a municipality and a council was. The Constitution said here "…the municipality on its own initiative…". In the Bill it stated "the council… on its own initiative…". He asked why there were different references. Conceptually a municipality was a corporate entity, which consisted of its administration and its communities. When one referred to a council, one was only referring to the political element, not necessarily including its communities. There was only reference being made to one element.

Mr Carrim agreed with Mr Bhahba and said that what was in the Constitution had to be the base on which Chapter 4 was applied.

Mr Smith disagreed. Although Mr Bhabha as well as SANCO was correct that a municipality was given the right to "govern" on its own initiative. He said that "govern" meant to exercise, presumably, legislative and executive power. The previous provision of the Constitution said that this was vested in the council. Thus if one was governing, one governed through the mechanism of a council, not through something else. Therefore he felt that the introductory sentence and the first sub clause of Clause 4 was 100% correct except for the missing word, "its".

Mr Carrim said that he agreed with both Mr Bhabha and Mr Smith because he was not dealing with a clause but a concept.

Mr Carrim said that since no final decisions were being taken, the issues at hand had to be flagged.

Clause 5. Rights and duties of communities, residents and ratepayers
Ms Verwoerd said that some concerns had been raised specifically by the gender lobby about Clause 5(2)(d) - the concept of treating municipal officials with dignity and respect. Whilst everyone agreed with this, the Gender Commission had raised the issue of the hierarchical approach - that this would instil the idea that certain people were entitled to special treatment - why not treat anyone else with dignity and respect?

She added that in her study group it had been discussed that something like respect was something someone earned. One could not have it written into a Bill. Thus whilst the sentiment behind this clause was understood, she asked if it was really something which belonged in the law.

Ms Manche said that this was related to the issue raised earlier about fear of intimidation.

Mr Bhaba said that any human being was entitled to dignity and respect. He asked why the impression was created that these people were special.

Mr Smith said that his point flowed from Mr Bhabha's point. After looking at the heading of this Chapter: "Legal Nature of Municipalities and Internal Relations" he said that 5(2)(d) was a political statement and not a legal relationship. There were one or two exceptions in Clause 5 such as the right to participate in accordance with the Act. The rest seemed to be statements of what Parliament would like people to do as opposed to a legal obligation or duty.

Secondly he asked what the sanction was. If there was a "legal nature" then how was this enforceable.

Ms Manche agreed that some of what was included in the Bill was what the Department would ideally like to see happen. The experience of municipalities was that there were certain things that did happen to councillors and their property for example. The Department would like to see a certain ethos prevailing. However as the sections stood many were not enforceable.

Mr Smith was concerned that firstly, whilst it appeared that many sections were not enforceable but idealistic, there could in fact be a situation where residents, ratepayers and communities could litigate against councils who failed to comply with something set out in the Bill merely as an ideal and not an enforceable legal right.

Mr Bhaba, latching on to this point, referred to 5(2)(a)-(f). He said that this fell under the heading "The rights and duties of communities, residents and ratepayers". One would therefore imagine that any failure under this section attracted a punitive sanction. Section 5(2)(d) did not establish a right or a duty in this sense, which attracted a sanction. Instead it was almost a sentiment being expressed. Whilst he understood the rationale behind this, he felt that it was misplaced and superfluous.

Mr Carrim felt that it was important to include "legal nature" in the chapter heading since the legal entity was constituted of not only councils and officials, but also the public.

Secondly he agreed that Clauses 4 and 5 were inter-linked. The obligation and the possibility of being justiciable applied to both council and the public. He was not convinced that 5(2)(d) had to be dropped and suggested that there had to be a balance. There had to be a way of saying that council had to be respected but so should the public. There was a sense in which council officials were subject to abuse. He felt that 5(2)(d) had to be retained in a slightly less "wishy-washy" form. On the other hand it had to be balanced by something in Clause 4.

Mr Carrim added that laws, though substantially so, were not purely around what could be justiciable. There was a sense in which a law had a "spirit" and it conveyed a particular aim and mood. This was why one used words like "strive to " or "seek to" since this was what one would like municipalities to do. Not every line in an ultimate law could be practically implemented overnight. He asked what was wrong in conveying a sense that the public had to show greater respect for councillors and officials, but councillors and officials also had to show greater respect to people. He said that a person like Mr Peter Smith would say that this was "wishy-washy" sentimental slosh. This debate had taken place before, where Mr Carrim had agreed to throw both sections out and the ANC had wanted to rather balance the two. He said that the members of the ANC study group would discuss this and come with a proposal the following week.

Mr van der Venter said that 5(2)(d) was more relevant in the Code of Conduct.

The Department's response was that they agreed with Mr Bhabha and said that 5(2)(d) was not suitable in Clause 5 and should be deleted.

Mr Smith said that 5(2)(f) said " to comply with by-laws and other legislation…". He was not clear on what "other legislation" a municipality passed other than by-laws.

He also noted that 4(1)(b) stated that "the council …has the right to perform the duties…" He pointed out that one did not have a right but an obligation to perform a duty.

The Committee then looked at the Bill clause by clause and started at the beginning of Chapter 2 at Clause 2. The following comments were made:
- Mr Carrim said that Clause 2(a) and (b) concerned a broader debate, which would be returned to.
- A committee member said that Clause 2(c) had to be read together with the Bill of Rights. It related to behaviour and the Bill of Rights protected everyone in terms of how people had to respect other people's rights.

The meeting did not progress any further due to time constraints.

Appendix:
Presentation to Portfolio Committee: Cross Boundary Municipalities

Rationalisation
There are likely to be:
6 (A Category) Metropolitan areas
47 (C category) District Municipalities
232 (B category) Local Municipalities
District Management Areas in 14 of the District Councils.

Cross Boundary Municipalities
- During week of 21 February Board finalised all boundaries
- Except for KwaZulu-Natal, all affected provincial legislatures have passed/will pass resolutions.
- National Act to be passed mid-June 2000 and provincial agreements will then continue. Generally, the more limited option will be selected which is simply that in matters of local government the MECs will concur. The whole question of provincial agreements requires further research as to its implications.

CBMs in Financial Terms
- Mothibastadt-Kuruman: Northern Cape R 2720 per household versus North West R333 per household
- Bronkhorstpruit-Ekangala: Gauteng R8573 per household versus Mpumalanga R3690 per household
- Kokstad-Mount Fletcher: KZN R3073 per household versus Eastern Cape R53 per household
- Carltonville-Fochville: Gauteng R4755 per household versus North West R3897 per household

District Management Areas
- Deserts and semi-desert areas
- State-managed conservation areas
- Special Economic Areas
- On the question of Traditional Authority areas: (I) DMAs would take control away from communities, (ii) would lead to dysfunctional Category B's, (iii) would be impossible to manage in most traditional areas.

Note: Maps not included