Constitution Twelfth Amendment Bill; Cross-Boundary Municipal Laws Repeal Bill: briefing and deliberations

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT & PROVINCIAL AND LOCAL GOVERNMENT
PORTFOLIO COMMITTEES; SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE: JOINT MEETING
19 October 2005
CONSTITUTION TWELFTH AMENDMENT BILL; CROSS-BOUNDARY MUNICIPAL LAWS REPEAL BILL: BRIEFING AND DELIBERATIONS

Chairperson: Ms F I Chohan-Khota (ANC)

Documents handed out:
Department of Provincial and Local Government (DPLG) on Realignment of Provincial Boundaries Government Maps from the Municipal Demarcation Board
Maps as published in Government Gazette Vol. 481 18 July 2005 (available at www.info.gov.za)
Maps as published in Government Gazette Vol. 482 19 August 2005 (available at www.info.gov.za)
Table of Municipalities and Names of Areas Incorporated/Disestablished Municipalities
Cross-Boundary Municipalities Laws Repeal Bill [B36-2005]
Constitution Twelfth Amendment Bill [B33–2005]
Northwest Provincial Gazette
The Municipal Demarcation Board Maps:
Gauteng/Limpopo province
Mpumalanga/Limpopo province
Gauteng/Mpumalanga province
KwaZulu-Natal/Eastern Cape province

SUMMARY
The Committee was briefed on the Cross-Boundary Municipal Laws Repeal Bill and the Constitution Twelfth Amendment Bill 2005. The first Bill aimed to repeal all constitutional provisions dealing with Cross Boundary Municipalities. The second Bill would insert definitions of the provinces into the Constitution by reference to municipal demarcation maps contained in the official notices. Two parallel processes were identified as being relevant to the proceedings. One was the demarcation of municipalities being carried out by the Municipal Demarcation Board. The other was the decision by the Committee on passing the Bills before them to redefine the district and provincial borders by amendment to the Constitution. These processes were linked as municipalities were used as the building blocks upon which geographical areas making up such districts and provinces were decided and would be defined in the Constitution.

As these processes were occurring in parallel, it was hoped that issues would be resolved through the public consultation process of the Municipal Demarcation Board (MDB). If the results of this were not available to the Committee in time such issues would have to be resolved through the process of the Bill from the Committees to the National Assembly, to the legislatures of the Provinces, and finally to the NCOP. If changes were made to the proposed maps the Committee Members would need to be supplied with reasons to enable them to make their decision.

Members of the Committee raised concerns that processes were underway to anticipate problems resulting from changes in district boundaries in relation to employment contracts, service contracts and the assurance of public services for those who had moved between districts. Coordination Committees had been set up within each of the provinces to deal with such potential issues.

MINUTES

Cross-Boundary Municipal Laws Repeal Bill; Constitution Twelfth Amendment Bill: Provincial and Local Government Department briefing
Mr S Kholeng (General Manager: Integrated Development Systems, DPLG) briefed the Committee on both Bills. He began by outlining the background to the Bills. The President’s Co-ordinating Council (PCC) had resolved to do away with Cross Boundary Municipalities (CBMs) in 2002 with the objective that service delivery would be enhanced. The proposed demarcations were as a result of those observations and subsequent investigations and consultations. A challenge was that provinces had different departments for similar functions resulting in poor accountability for service delivery. The aim was to repeal all constitutional provisions referring to CBMs in order to allow for smooth transitional arrangements consequent to the constitutional amendments.
The Twelfth Constitutional Amendment Bill would insert into the Constitution definitions of the provinces with reference to the municipal demarcation maps contained in official notices. The provisions and schedules of the CBM Laws Repeal Bill were described in some detail. Various examples of the proposals were provided.

The need for public consultation and various constitutional and legal considerations were highlighted.
The conclusion given were that CBMs had proved unworkable in the new system of local government. As a result the government had a vision that in the next term of municipalities, service delivery would not be hampered by such problems with CBMs. On this basis it was recommended that the Committee note the presentation of the policy rationale for the Constitution 12^th Amendment Bill under consideration.

Dr P Bouwer (Executive Manager: Legal Services, DPLG) explained that the Municipal Demarcation Board (MDB) had adopted an approach to effect changes to boundaries whereby every time a map was published amendments would be added. The Department of Provincial and Local Government (DPLG) had requested that they publish composite maps showing all the amendments since 2000. This was published in the Government Gazette Vol. 481 on 18 July 2005. This reflected the municipalities as they currently existed. In order to begin working on realignment so that all current Cross Border Municipalities (CBMs) would only be located in one district, the DPLG had requested that the MDB prepare proposals which were published in the Government Gazette Vol. 482 on 19 August 2005. The Bill proposed that where there were no changes the maps in the 18 July Gazette would be reflected, and where there were changes, the maps in the 19 August Gazette would be reflected.

CBMs were provided for in the Constitution and supporting legislation was adopted in 2000 to give effect to this. The model decided on was a joint administration model. In order to establish a CBM the cooperation of both districts and their executives was required. A municipality was established by serving a notice under Section 12 of the Municipal Structures Act. To refer to such notices as ‘Section 12 notices’ had become the accepted terminology. Under the joint administration model two sets of Section12 notices were required in respect of the CBM. Under Schedule 2 of the Bill demarcation done in respect of an existing municipality would be deemed done in respect of the new municipality. The relevant Section12 notice would be deemed the only one relevant to that municipality.

There was also a political instruction to look at a boundary issue between Eastern Cape and Kwa-Zulu Natal. A small enclave of the Eastern Cape called Umzimkhulu fell within the physical territory of Kwa-Zulu Natal. This was unworkable as the provincial administration had to move through the territory of another province to reach their own territory. The proposal was that Umzimkhulu should form part of Kwa-Zulu Natal which was easy from a demarcation point of view. The other proposal was that the municipality of Matatiele join Umzimvubu to become a District Municipality of the Eastern Cape. In this way, the current Alfred Nzo District Municipality of the Eastern Cape, which consists of Umzimkhulu Local Municipality and Umzimvubu Local Municipality would lose Umzimkhulu to Kwa-Zulu Natal but would gain Matatiele from Kwa-Zulu Natal. The MDB had produced a map showing these proposed changes (Map 11 of the July Gazette). In order to complete the picture, Kwa-Zulu Natal had been requested to register a Section 12 notice to show what a notice in such circumstances would entail. This could be found at Schedule 5 of the Bill. It was proposed that such documentation provided a complete picture to Parliament. It was hoped that Parliament would elevate this to a proper demarcation and a proper Section 12 notice.

Discussion
The Chairperson pointed out that the areas in question were not in fact CBMs. This was in fact a clean-up exercise. There was a need for the Committee to be presented with a list of which areas fall into which categories. The first category should be those CBMs which were affected and into which Province they would be placed. The second category should be those areas which were not CBMs but would in any case be changed during the exercise.

Mr Bouwer stressed that there were in fact three categories. Those CBMs which were being taken as a whole and moved into one province formed the first category. The second was CBMs which would be split up and shared between provinces. The third category was those areas which were not technically CBMs as already exemplified. He pointed out that the legal action required in order to establish new municipalities was the same for the second and third categories.

Mr J Jeffrey (ANC) asked for clarity about the Constitutional Amendment Bill with respect to the section on defining provinces. Provinces were determined by maps published in government notices. The amendment referred to both the July notice and to changes found in the August notice. Would it be appropriate to have the Constitution referring to what were essentially produced as proposals? What were the board doing with these proposals? Were they going to come out with a new gazette? What if different proposals were suggested? What would be referred to in the Constitution?

A further concern was directed to the DPLG. Had a process been undertaken to deal with the problem that populations of districts would change as a result of these boundary changes? Would money granted to deal with the needs of the people follow them to their new provinces? Would there be capacity problems in the service of those who had moved to new provinces?

The Chairperson added to this point by enquiring about the status of employment contracts between people and the district with which they were employed. Would these be affected by the changing boundaries?

Mr Peter Smith (IFP) asked what the legal status of the two proposals was and how each process would affect the other. How were the two to be harmonised? Should the demarcation process be finalised and the political agreement between the provinces concerned be completed before the Bill continued to be processed?

Mr Kholeng answered that two things were being dealt with. The first was the realignment of boundaries. The second, as seen in Schedule 1A, was defining the Republic of South Africa. Provinces should be understood as geographical spaces. A basis on which to do this were the building blocks provided by the districts and municipalities. For this reason it was immaterial whether the maps were proposed or not as the geographical area of the provinces would remain unchanged regardless of the demarcation of municipalities between them.

This related to the question on the process of the MDB. The MDB had constitutional and legal responsibility to deal with municipal boundaries. However, Parliament had responsibility for districts and provinces. Therefore the process followed by the MDB was related but dissimilar. As the proposed amendment removed the possibility of CBMs, the MDB could only delineate municipal boundaries within provinces.

With respect to the arrangements pertaining to service delivery, provisional arrangements were in place. Possible scenarios had been anticipated. Provinces had created Coordinating Committees to consider possible arrangements, for example with staffing and assets, necessitated by any changes to boundaries.

Mr Bouwer pointed out that the Constitutional Amendment Bill and the CBM Repeal Bill were independent pieces of legislation. Because municipalities had been used as building blocks to define districts within provinces, a relationship between the two had been created. The MDB could not determine provincial boundaries. These were political decisions requiring political proposals. Did those published in the August Gazette represent these? The MDB needed to look at these.

With reference to the Coordination Committees, matters such as the realignment of equitable shares had been looked at by the DPLG and the National Treasury. Municipal Infrastructure Grants would also need to be adjusted as provincial functions would be affected. The latest information from the provinces was that these issues were being looked at. As these would affect the Constitution 12^th Amendment Bill it might be necessary to look at a transitional arrangement for the purpose of transferring these provincial functions. For example with long term contracts for the building of roads or the provision of housing, the contractors should not be able to walk away from these using the amendment as a loophole.

The Chairperson requested a full report on this so that the Committee could consider it.

Mr Smith asked for clarity on which of the two parallel processes would take precedence and how the two were meant to fit with each other.

The Chairperson said that there was a public consultation process underway. Part of the difficulty in realigning boundaries was the political hot spots. Clearly therefore, should the affected parties find a different solution to those proposed this would provide an attractive alternative as a political solution. The maps should therefore be understood as a reference point by which to table legislation. The process was underway. There was a problem in that the timeframe was tight so if such issues were not resolved the Committee would have to pass it with the present proposals and any remaining problems would have to be thrashed out in the provinces or at the NCOP. If changes were made at this stage it would return to the Committee for further analysis. The main point was that the Committee could not wait for the MDB to finalise their demarcation at this stage.

Imam G Solomon (ANC) asked how the view of civil society, in particular businesses that would be affected, was being taken into consideration.

The Chairperson underlined the importance of this given that every person in any place tended to have a firm view about where they wanted to be.

Mr Kholeng replied that it was not possible to deal with every objection but that a broad consensus would arise out of this process.

Mr Jeffrey asked what would happen if the districts themselves changed and these maps were solidified by reference in the Constitution. Would a further constitutional amendment be needed? Would it not be easier to define provinces on district and metro building blocks but leave flexibility in amendments of these without the need for constitutional amendment, for instance by referring to a legal entity rather than a geographic area thus allowing geographic flexibility?

The Chairperson replied that the worth of these maps lay in the geographic areas represented rather than the boundaries internal to them.

Mr B Magwanishe (ANC) asked what the NCOP would do if they found themselves with two maps, one from the MDB and one from the DPLG. What efforts were being made to consult effectively between the two processes in order to speak with one voice?

The Chairperson explained the two separate processes occurring. One was under the auspices of the MDB in determining the demarcation of the municipal borders, and the other dealt with the provincial boundaries as laid out in the Constitution. The two were linked in the sense that provincial boundaries were defined in terms of municipalities. The process of consultation embarked upon by the MDB had value to the Committee as the areas of contention they might resolve through engaging the public and affected parties could resolve political issues over territory. Similarly such issues might be resolved through the process of channelling legislation which must begin with the Committee. The Committee will pass the amendment. It will move to the National Assembly. It will then be sent to each of the Provinces for their Legislatures to digest. It will end up with the NCOP. If any changes were made it would return to the Committee. There were therefore two opportunities for consensus to be reached on problematic areas. The process of public engagement was ongoing.

Mr Smith asked whether a representative from the MDB could give a synopsis of their timetable.

Mr L Tsenoli (Chairperson for the Portfolio Committee on Provincial and Local Government) thought the question raised about civil society was related to the responsibility of Members of Parliament from these areas to raise these issues within these communities. Too often once such issues had been finalised, people said they were not properly consulted. This should be avoided. What was the likelihood of legal challenges as a result of the process?

Mr Bouwer answered the question about the use of geographical area by stating that a belts and braces approach was being adopted. The wording used was very deliberate. To refer to the ‘geographical area’ represented by those maps meant that if the question was raised as to what would happen if the boundaries changed, there would always be certainty about the geographical areas in question as these could never be changed.

As to the link between the two Bills, although the two were independent both were submitted to all nine legislatures for their views, even if they were not to be affected. As a result of this parallel consultation, the Section 75 issue in the Repeal Bill was accompanying the Constitutional Amendment Bill through the process ‘like the tail of the dog’. It was useful to have the whole picture on the table.

Mr Kholeng replied to the question on civil society. There was general consensus on the principle of doing away with the CBMs. The challenge came in how to achieve this. The issue had been in the public domain since 2002 and there had been numerous debates. The consultation had therefore been substantive and, in his view, effective. The process was also continuing.

Mr Bouwer responded to the question on potential legal challenges. There was always a risk of legal challenge. However, this would be limited to the constitutional amendment itself, rather than the demarcation process. The constitutional amendment could not contain transitional arrangements over and above the amendment itself.

Dr V Mlokoti (MDB chairperson) took the Committee through the timetable the MDB were working towards. The cut off day for submissions to the board had been 26 September 2005 and this had been kept to. Further objections were to be received until 19 November 2005 in order to satisfy the 30-day requirement. Assuming everything went as expected and no changes were made to outer boundaries, 14 days would be given to the public to indicate their views on the proposed municipal boundaries, meaning that the final day would be 9 December 2005.

Mr Jeffrey requested copies of maps showing any changes made by ministers, to be accompanied by reasons for these changes. He referred to the submission that there might be legal as well as political reasons for disagreeing with ministers’ recommendations and expressed the need to be informed of these in order to allow correct decision making.

The Chairperson agreed some sense was needed as to why any changes made to the original proposal were in fact made. She stressed the need to process the legislation quickly in order to enable the next steps to occur and for the process to be able to be completed this year.

The meeting was adjourned.