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PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
12 April 2005
INTERGOVERNMENTAL RELATIONS FRAMEWORK BILL: DELIBERATIONS
Chairperson: Ms N Ntshulana-Bhengu (ANC)
Documents handed out:
State Law Advisor amendment
SALGA submission (see Appendix)
FEDUSA and IMATU Submission
Intergovernmental Relations Framework Bill [B3-2005]
Intergovernmental Relations Framework Bill: First Working Document (7 April)
Intergovernmental Relations Framework Bill: Final Voting Document
The Department presented the drafted proposed amendments that had originated from the hearings and earlier deliberations with the Committee and reiterated the ethos of the Bill in seeking to promote improved intergovernmental relations with government entities. Numerous questions were raised including the status of this "general framework" Bill vis-à-vis existing "sector-specific" legislation, the possibility of conflict with other Acts, the role of the Minister in issuing new regulations when necessary, the distinction between regulations and guidelines and the organs of state that would be affected by the Bill.
Mr D Powell (Acting Director-General: Governance, Policy and Research) went through the drafted proposed amendments that had been suggested at the hearings and previous meetings. Reference to the developmental state and the integration of government would be inserted within the Preamble. A definition of a Mayor would be inserted into Chapter One under Definition and Interpretation to account for local authorities where no Executive Mayor existed. Further definitions of organs of state would be added to facilitate cross-reference, highlighting those that were excluded. The relevance of organs of state would be defined on a case-by-case basis.
Clause 2: Application of Act
Mr M Nonkonyana (ANC) asked for clarity on whether the Bill would supersede existing Acts or whether existing regulation would remain in force pertaining to the objectives of the Bill such as the resolution of intergovernmental disputes.
Mr P Smith (IFP) stated that the reference to other Acts regarding the likelihood of conflicts between various Acts was problematic as the Bill would affect other Acts dealing with settlement of disputes and would therefore be in conflict with other Acts.
Mr S Mashudulu (ANC) asked whether the Bill would have overriding powers over other Acts such as the Municipal Systems Act and Structures Act. He asked if the Bill would amend the provisions of other Acts. The legal implications for other sectors of government would have to be considered.
Mr Powell responded that the intention of the clause was to establish a general framework with Acts of specialisation remaining. The present Bill was unique in seeking to provide a framework that encompassed a broad range of government legislation. The Bill should be perceived as a default mechanism in providing remedies to address disputes.
Dr Bouwer stated that the Bill was designed to include subordinate legislation within a catch-all mechanism. The distinction should be made between the general legislation and sector specific legislation regarding dispute resolution. The Bill intended to cover lapses in other Acts but acknowledge certain sector specific material such as budget-related legislation.
Mr Nonkonyana stated that all Acts of Parliament were important and the prioritising of legislation could prove a dangerous precedent.
Mr Smith stated that the reasoning behind dispute resolution was not clear as each sector had specific conflict resolution mechanisms that would apply when necessary. The Bill appeared to be in conflict with existing legislation.
Dr Bouwer responded that the process of subordination to other Acts was outlined in the particular clause.
Mr Nonkonyana noted that the intention of the Bill was to harmonise all intergovernmental relations and promote effective interaction between the various arms of government. However, a problem existed in the relation of the proposed legislation to other Acts.
Mr Powell stated that the removal of the clause would not destroy the intention of the Bill but this was not a realistic option. The status of the Bill should be determined against the prescriptions of other Acts on a case-by case basis.
Mr Nonkonyana asked whether the provisions of the Bill would prevail in a conflict situation with other legislation or rules of procedure.
Mr Smith stated that the prioritisation of Acts was difficult to determine and the Bill attempted to provide over-arching regulation that was problematic.
Mr Lekgoro asked for clarity on the proposed method where an existing piece of legislation provided a more effective means to resolve disputes.
Dr Bouwer responded that the interpretation guidelines stated that, in certain situations, specific legislation could override the general framework. He proposed that a reference be added that referred to prevailing legislation and acknowledged its relevance.
Mr Powell stated that the Bill did acknowledge specialist legislation but was amenable to possible rephrasing.
Mr Mashudulu referred to the submission of comments by stakeholders and reconfirmed the right of interested parties to participate. However, late submissions had to be bound by decisions taken. Extensive public hearings had taken place and numerous opportunities for input had been provided.
The Chairperson noted that no deadline had been set for certain inputs and specific requests could be considered.
Mr W Doman (DA) suggested that stakeholders be informed of the urgent need to make submissions in order to protect the reputation of Parliament in encouraging public input.
Clause 9: Composition
Mr Powell referred to a submission from COSATU that questioned public participation at the local authority level. The Department favoured the continuation of the status quo in line with constitutional principles. Clause 9(1)(d) would include an automatic reference to subclause (a) in terms of the Municipal Systems Act.
Clause 20: Other provincial intergovernmental forums
Mr Powell stated that the word "formal" would be removed as it was redundant.
Clause 21: Role of interprovincial forums
Mr Powell noted that clause 21(a) would be inserted to address cross-boundary issues and confirm best practice. The clause would promote the sharing of information and encourage co-operation between various local structures of differing capacity.
Clause 26: Role of intermunicipality forums
Mr Powell stated that the clause would be inserted to define the role of forums at the local government level.
Clause 31: Standard internal rules
Mr Powell said that the word "draft" would be inserted as alterations could be made where necessary.
Clause 39: Consequences of declaring formal intergovernmental disputes
Mr Powell referred to a submission by SALGA highlighting the potential for the Minister of Provincial and Local Government to avoid declaring a meeting when party to a dispute. This was refuted as the Minister was bound by the legislation.
Clause 43: Reports to Parliament
Mr Powell stated that the Bill would require the Minister to table a report to both Houses of Parliament as opposed to submitting a report to Parliament for tabling to both Houses in order to avoid the implication that it was instructing Parliament. The Department did not want to insert "may" as the Minister was obligated to provide reports on a regular basis.
Clause 44: Regulations and guidelines
Mr Powell stated that the intention of the Bill was to put frameworks in place while allowing for practice to evolve over time through new regulations. The Minister could make regulations that were not inconsistent with the guiding framework. The Bill could either be highly prescriptive in determining what regulations the Minister could issue or allow for a more flexible approach. The Bill would not prescribe the type of regulations to be allowed.
Mr Smith stated his opposition to this clause claiming that the power of the Minister had to be clearly defined in terms of prescription.
Mr Doman asked for clarity on the proposed changes to the clause.
Mr Powell replied that the Minister had to have the power to make new regulations where required.
Mr Mashudulu added that such a provision was needed to ensure implementation of the Act. A distinction had to be drawn between Acts of Parliament and the creation of particular regulations as the need arose.
Mr Nonkonyana asserted that the powers of the Minister were curtailed by the clause in question as an appropriate consultative process had to unfold before the production of regulations. The Minister should be free to issue regulations where necessary.
Dr Bouwer stated that the issuing of regulations by an executive involved the delegation of such power by the legislative body. The legislature could set the parameters of such powers. The role of the Members was to anticipate the type of regulations that could be produced in this manner. The right of the Minister to issue regulations should not infringe on the internal discretion of intergovernmental forums in formulating best practice.
Mr Powell stated that subclause (1)(a) dealt with regulations and subclause (1)(b) with guidelines as a framework for directing government interaction. Guidelines could only be issued in the case of planning priorities, as different conditions would apply. The purpose of the Act was to promote co-ordination of government activity while avoiding an overly prescriptive stance.
Adv S Holomisa (ANC) advocated reforming the provision to give the Minister greater powers and prevent confusion over the type of regulations that could be produced.
Mr Powell replied that more powers would necessitate greater detail on where the Minister could impose regulations.
Mr Smith declared that the prescribing of a co-ordinating role to the Bill could impinge on existing powers. Guidelines were sufficient to enable improved government interaction and prescription on regulations should be avoided.
Mr Mashudulu asked whether the Provincial Minister would have power to decide on the incorporation of certain nodes that fell outside district councils.
Mr Powell stated that the regulations dealt with an unpredictable context and the legislation sought to establish a foundation of stability to co-ordinate activity. Provincial governments would retain the discretion to determine appropriate composition of forums.
Mr Doman asked whether a reference to regulation or guideline was necessary in clause 44(2).
Mr Powell responded that such a distinction was necessary to serve as an objective basis and avoid the "one size fits all" approach.
Dr Bouwer stated that the use of the word "determinable" in subclause 2(a) was intentional as indicating the various factors that could distinguish municipalities from each other.
Mr Smith asked which organs of state were referred to in clause 44(4)(b).
Dr Bouwer responded that the relevant organs of state would be inserted as defined by the Bill.
Voting on the Bill
The Chairperson read out the motion of desirability.
Mr Smith objected to the Bill in its entirety.
Mr Doman requested that he confer with the DA caucus.
Adv Holomisa stated that objections to the Bill should be voiced at the beginning of the process and such Members should not participate.
The Chairperson signed the Bill that would be presented to the National Assembly in May 2005.
The meeting was adjourned.
SOUTH AFRICAN LOCAL GOVERNMENT ASSOCIATION (SALGA)
Mr L Brown
PC on Provincial and Local Government
Dear Mr Brown
Having considered the amended Bill SALGA would like to propose the following additional amendments, to be communicated to Committee:-
1. Deletion of "and all municipal organs of state" in clause 2(1)(c), as this is a duplication of municipal organs of state, which is in the definition of local governments.
2. Clause 9(1)(d) should be amended to make provision for Part A of Schedule 4 and Part A of Schedule 5 functional areas administered by municipalities in terms of S156(4) of the Constitution.(This issue was raised in our submission).
3. Clause 39 should make provision for a scenario where the Minister is a party to a dispute, and as party, fails to convene a meeting in terms of clause 39(1). (This was also raised in our submission and discussed in the committee)
Otherwise the amended Bill is in order.
Director: Governance and Constitutional Affairs