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PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
6 April 2005
INTERGOVERNMENTAL RELATIONS FRAMEWORK BILL: DEPARTMENT RESPONSE
Acting Chairperson: Mr M Lekgoro (ANC)
Documents handed out:
Intergovernmental Relations Framework Bill [B3-2005]
The Department of Provincial and Local Government responded to comments raised and amendments proposed during the public hearings on the Intergovernmental Relations Framework Bill. The Department decided against the inclusion of traditional leadership structures in the definition of ‘consultation’ because the Bill related only to executive authority figures, and clarified a few definitions. Alternate representatives and civil society organisations would not be allowed to attend meetings of the President’s Co-ordinating Council (PCC) on intergovernmental relations as envisaged in Clause 5, but acting mayors and Premiers would be allowed. Submissions argued that intergovernmental forums in Clause 32 would not be able to implement protocols, but the Department disagreed as these structures were vital. The Democratic Alliance questioned whether Clause 43 imposed burdensome reporting requirements on the Minister, and the Department committed to getting back to the Committee on this matter.
Department response to submissions
Mr D Powell, Department Acting Deputy Director-General: Governance, Policy and Research, informed Members that the Department had gone through all the submissions received during the public hearings, and it would comment only on proposed amendments to specific clauses. The Department would thus not be responding to the comments that were of a general or political nature, as the Committee would instead deal with those issues.
Mr Powell reminded Members that during a previous meeting, the Committee had proposed the notion of an integrated and developmental state. The Department believed that government’s commitment to an integrated and developmental state was implied in the Preamble, yet it did not object to an express stipulation of this commitment in the third "whereas" in the Preamble. The Committee also proposed that the words "and efficient" be included in the fifth paragraph of the Preamble, and the Department was of the view that ‘efficient’ were in fact included in the second "whereas" as currently contained in the Preamble. Members also questioned whether the second last paragraph accurately expressed that the Bill would in fact supersede all other legislation that dealt with intergovernmental relations, and this could be amended to reflect that.
Chapter 1: interpretation, Application and Object of Act
Clause 1: Interpretation
Mr Powell stated that the Committee had requested a more user-friendly definition of this term. The current definition reflected the dictionary definition of the term and the Department was thus of the view that the current definition be retained.
Mr S Mshudulu (ANC) agreed that the current formulation be retained, as that was one area in which consultation must be monitored to ensure the officials were exercising it properly.
Mr M Nonkonyana (ANC) asked the Department to explain the role to be played by traditional structures in the consultation process, and proposed that a definition of ‘structures of traditional leadership’ be included in the Bill.
Mr Powell responded that this was dealt with in the Traditional Leadership and Governance Framework legislation, and for that reason the Department believed there was no reason to include a reference in this Bill. This Bill dealt primarily with constitutionally elected officials who were the executive decision-makers. The decision to accommodate traditional leadership structures was thus left to the discretion of the provincial MEC. The National House of Traditional Leaders (NHTL) submission did not propose concrete amendments to specific provisions in the Bill, and it was thus difficult for the Department to respond to the general concerns it raised.
Mr Mshudulu noted that the Bill made no mention of gender perspectives, and it must be included.
The Acting Chair stated that this must be kept in mind. However the problem was that it would be difficult for the Bill to express a view on the gender requirements of local government structures, because the structures referred to in the Bill themselves refer to or consist of other structures. The effects could thus be too far-reaching.
Mr Powell stated that the Committee had sought clarity as to whether this term referred to functional of geographical jurisdiction. The current definition was consistent with the Municipal Systems Act, which referred to both functional and geographical jurisdiction.
’MEC for local government’
Mr Powell agreed to the Committee’s proposal that the word "MEC" be written out in full.
Mr Powell stated that the Department agreed to the Committee’s proposal that this word be written in small letters, as this was consistent with the approach of other pieces of local government legislation.
’organ of state’
Mr Powell stated that this definition would be reconsidered by the Department.
Clause 2: Application of Act
Mr Powell stated that the Committee proposed the relocation of Clause 1(3) and (4) to this clause. The Department had originally decided to place those sub-clauses in Clause 2, yet the State Law Advisors believed they were better located in Clause 1. He stated that the Department had no objections to them being moved to this clause. It was proposed that this clause not be made applicable to the municipal legislative functions of the council, but the Department was of the view that it must be retained and developed on a case-by-case basis.
Clause 3: Object of Act
Mr Powell stated that the Professor Nico Steytler, Director: UWC Community Law Centre (CLC), proposed in his submission that the word ‘concept’ here be replaced with ‘principles’, as that wording would be consistent with the Constitution. The Department agreed with this proposal. Prof Steytler also proposed the deletion of sub-clause (c). The Department disagreed, as it believed that both monitoring and implementation could be done intergovernmentally, especially if there was a move away from a talk shop model to effective discussions on issues of practicality.
Chapter 2: Intergovernmental Structures
Clause 5: Composition
Mr Powell stated that many submissions raised concerns with this clause. The Department was of the view that the Bill cannot provide for alternatives to the President’s Co-ordinating Council (PCC) because Ministers should not be allowed to delegate this power. Comments made regarding the nature of the person referred to in sub-clause 5(1)(h) stated that this person must be a political representative, as envisaged in sub-clause 3. The Department agreed with these proposals and the provision would be clarified to express that.
He stated that submissions from the South African National Civics Organisation (SANCO), UCT’s Economics and Labour Research Unit (ELRU) and Childline, proposed the inclusion of civil society representatives on the PCC. The Department however disagreed, as it believed there were currently structures in place that dealt effectively with the involvement of civil society institutions, and there was no need to include their representation on the PCC. Furthermore, civil society organisations could not be part of the PCC because the PCC consisted only of executive authorities. SANCO also proposed the representation of NEDLAC at the PCC, and that Metropolitan Councils had to be given the opportunity to establish similar forums. The Department however disagreed, for the same reasons provided with regard to the ELRU and Childline submissions. Those structures could however be granted representation on the PCC on a case-by-case basis, should a situation arise in which their expertise was needed. This inclusive approach was allowed by sub-clause 1(h). SANCO also proposed the inclusion of the words "or organisation" after "person" in sub-clause 1(h), but the State Law Advisors decided that the term "person" had been defined to include this.
Mr P Smith (IFP) stated that he believed the PCC should have an acting Premier post, and asked whether a standard name would be employed for each kind of structure established.
Mr Powell responded that the Department would consider the inclusion of an acting Premier. However the idea with the PCC was that alternates would not be allowed, and instead focus would be placed on acting Premiers because the Department believed that the Constitution itself catered for an acting capacity. Clause 31 allowed the creation of structures to deal with a range of appointment procedures.
Dr P Bouwer, Manager: Legal Services, stated that he agreed with Mr Powell. The Constitution set out a hierarchy and the Municipal Structures Act had been amended to provide upfront for acting capacities, especially of mayors. This could be addressed instead in the definitions clause, but it could make the provisions unwieldy.
The Acting Chair replied that agreement had been reached that acting Premiers and mayors would have representation on the PCC, and that a standard name would be used.
Mr Powell responded that the names of the structures would be considered further by the Department.
Mr Smith suggested that the agenda of the PCC must be prescribed by its internal rules, and he had never before seen an agenda spelt out expressly in a Bill.
Mr W Doman (DA) stated that he understood the Department’s insistence that the agenda be prescribed in the Bill, because it would not be desirable for all minor and ancillary matters to be discussed at a PCC. The Department’s approach would also prevent the Minister from unduly influencing the agenda of the meeting by adding matters.
Mr Powell replied that this would be cured by Clause 31, and the specific details of the PCC meetings had not yet been finalised.
Mr Smith disagreed and stated that Clause 31 was not the appropriate provision.
Mr Powell agreed with Mr Doman that a strategic directive was needed to guide the meetings of the PCC, so that executive issues alone were dealt with and not minor details.
Mr Doman proposed that local mayors be included on the PCC as well because, if they were currently involved in such structures in practice, a two-tier system could be created, which must be avoided.
The Acting Chair replied that the Department was aware that there was some consensus amongst Members on this issue. He proposed that Clause 16(3) be extended to include "invite mayors of local municipalities where necessary", and requested the Department to consider this proposal further.
Mr Smith proposed that the acting mayor of a district municipality should be a representative on the PCC.
Mr Powell stated that this would be considered further.
Clause 8: Establishment
Mr Powell stated that the Committee had raised a concern on a previous occasion that the PCC should instead be named the MinMec (Ministers and Members of Executive Councils) because it was much more familiar and had a much stronger claim to be recognised as such. The Department was of the view that sub-clause 1 was broad enough to accommodate this concern.
Clause 11: Reports and referrals to President’s Co-ordinating Council
Mr Powell stated that the Department did not believe that this clause imposed overly rigorous or burdensome reporting requirements. The requirements were flexible yet stern, and the Department therefore disagreed with the concerns raised by Prof Steytler’s submission. Prof Steytler also questioned whether annual reporting would be possible, and this matter could be discussed further by the Committee.
Clause 20: Other provincial intergovernmental forums
Mr Powell agreed with the submissions which proposed the deletion of this clause, as it was already provided for in a previous clause.
Clause 21: Interprovincial forums
Mr Powell stated that the Committee had requested clarity on the roles of the parties involved, and the Department would need time to consider this further.
Clause 24: Role of district intergovernmental forums
Mr Smith proposed the reshuffling of sub-clauses 1(d) to (h), so that those appear first and then sub-clauses 1(a) to (c). This would reflect the proper prioritisation of those matters.
Mr Powell stated that the Department would consider this. However the presence of the words "including" and "or" in that sub-clause meant that there was no hierarchy.
Mr Smith agreed that there was no legal difference between the original formulation and his proposal, but suggested that his proposal simply read better.
The Acting Chair stated that the Department would get back to the Committee on this proposal.
Clause 26: Intermunicipality forums
Mr Powell stated that the Department would consider further the roles of these forums.
Part 5: General
Mr Powell stated that it was proposed by a submission that standard rules were needed in Clause 31, and the Department agreed. Several other comments were submitted on these clauses but the Department was of the view that none of them proposed substantive amendments, and it decided against commenting on those clauses.
Chapter 3: Conduct of Intergovernmental Relations
Clauses 32: Implementation protocols
Mr Powell indicated that Prof Steytler’s submission proposed the deletion of Clause 32(6) because, he argued, protocols were linked to executive powers and it was therefore inappropriate for intergovernmental forums to deal with protocols. The Department however disagreed with Prof Steytler because the intergovernmental forums were in fact capable of doing so because they contained officials who made very high-level decisions.
He stated that Prof Steytler contended that such forums could not implement protocols on capacity building in Clause 32(2)(b). The Department disagreed because the inclusion of that power would strengthen the enabling Constitutional provision.
A submission by Mr Gotz, a private individual, proposed the insertion of a sub-clause 7 to extend the protocols to other areas, but the Department disagreed because this would create too many and the primary protocols were in any event contained in sub-clause 2(a)-(d).
Clause 33: Provincial policies and legislation affecting local government
Mr Powell stated that the South African Local Government Association (SALGA) submission suggested that the word "or" in sub-clause 1(c) should be replaced with and "and", and the Department believed that this amendment would be approved by the Committee. The submission by Mr Gotz raised several issues with sub-clause 2 regarding the implementation of protocols. The Department was of the view that the Bill specifically moved away from priority and planning of such protocols and instead focused on the actual implementation now that the protocols had already been prioritised and planned.
Chapter 4: Settlement of Intergovernmental Disputes
Mr Nonkonyana asked the Department to explain how disputes that arose within municipalities themselves would be resolved.
Dr Bouwer responded that Clause 2 stipulated that the Bill would deal with all disputes, but how exactly they would be resolved would have to be developed on a case-by-case basis. The Department however needed time to fully consider this matter.
Chapter 5: Miscellaneous
Clause 43: Reports to Parliament
Mr Doman stated that this clause imposed onerous annual reporting requirements on the Minister.
Mr Powell replied that the Department would have to be guided by the Committee on this issue.
Mr Doman proposed the deletion of the phrase "for tabling in both Houses" from this clause, because each House had its own rules.
Dr Bouwer responded that this was a question of semantics because it stipulated that the Minister must submit a report, and it therefore did not stipulate the matters of procedure specific to each House.
Mr Powell added that the aim was not to be overly prescriptive but was instead to give more status to the report.
The Acting Chair proposed that this matter be flagged for further discussion.
Mr Smith proposed that the title of the Bill be changed to "executive government intergovernmental relations Bill" as this was a more accurate description of the Bill, because the current title suggested that the Bill dealt with the entire gamut of intergovernmental relations.
Mr Nonkonyana disagreed with Mr Smith, as the Bill sought to give expression to the mandate in Section 41(2) of the Constitution.
Mr Smith proposed that the beginning of the clause be reworded to read either "the Minister may, from time to time, submit" or "the Minister must, from time to time, submit".
Mr Powell responded that this amendment could be effected, although the Minister was in any event required to report annually via the Annual Report.
The Acting Chair ruled that the Department must raise this matter with the Minister and report back to the Committee.
The meeting was adjourned.