Cross-Boundary Municipalities Laws Repeal Bill & Constitutional Twelfth Amendment Bill: deliberations

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Justice and Correctional Services

27 October 2005
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Meeting report

PORTFOLIO COMMITTEES ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT & PROVINCIAL AND LOCAL GOVERNMENT AND SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL AFFAIRS: JOINT MEETING
28 October 2005
CROSS-BOUNDARY MUNICIPALITIES LAWS REPEAL BILL & CONSTITUTIONAL TWELFTH AMENDMENT BILL: DELIBERATIONS


Chairpersons: Ms F Chohan-Kota (ANC)
Mr L Tsenoli (ANC) [Portfolio Committee on Provincial and Local Government]
Kgoshi L Mokoena (ANC) [Select Committee on Security & Constitutional Affairs]

Documents handed out
Constitution Twelfth Amendment Bill [B33–2005]
Portfolio Committee Amendments to Bill
Proposed Amendment to transitional arrangements in Clause 4 – discussed at meeting of 25 Oct

SUMMARY
The Department of Provincial and Local Government indicated that three changes to the municipal demarcations had been proposed by provincial negotiations on demarcations. The Municipal Demarcation Board was asked to expedite the publication of the revised maps because the Committee was under pressure to pass the Constitution Twelfth Amendment Bill within the stipulated time frame. The Committee considered the transitional provisions discussed at the previous meeting and noted that the new Clause 1 reflected the Committee’s decision that a general empowering clause would be inserted in Section 103(3) of the Constitution, and the detail of the transitional arrangement between the releasing and the receiving province would be captured in the Cross-Boundary Municipalities Laws Repeal Bill. Members agreed in principle to the inclusion of a deadlock-breaking mechanism, but awaited a concrete formulation from the Department of Provincial and Local Government.

The references made to the maps in Clause 2 were clarified for ease of reference. Clause 5 of the Bill was amended to stipulate that the proposed Section 103(3), which referred to the Cross-Boundary Municipalities Laws Repeal Bill, would take effect on the date of publication of the Bill. The remainder of the legislation would come into effect on the day of the local government elections.

The Committee’s Report on the remuneration of magistrates was currently in draft form. As the NCOP Members would be in their provinces the following week the report would have to be passed separately by each House. All efforts would be made to then table the Report the week after that.


MINUTES
Introduction by Chairperson
The Chair informed Members that the Committee was meant to pass the Bill today, but that would depend on the agreements reached in the provinces. The negotiations in the provincial co-ordinating councils had resulted in some changes to the maps referred to in the Bill, but they did not have a widespread effect on the Bill as a whole. Essentially only two maps needed to be drafted. She requested Dr P Bouwer, Department of Provincial and Local Government Manager: Legal Services, to inform the Committee of the results of the provincial negotiation process. The Committee would also deliberate on the transitional arrangements in Clause 4.

Outcomes of provincial negotiations
Dr Bouwer indicated that the first change was to the Metsweding District Municipality. The overall placement of the district municipality remained as it currently stood in the 19 August 2005 Government Gazette, but it was proposed that the Nkangala township also now be included in the Kungwini Local Municipality.

The second change was to the Alfred Nzo District Municipality. The boundary of the District Municipality remained as was currently reflected in the 19 August 2005 Government Gazette, save that the inner boundaries of the two local municipalities were being altered. Those changes were however not pertinent to the Bill. New maps would however be required for the Cross-Boundary Municipalities Laws Repeal Bill to reflect the altered inner boundaries of the Matatiele Local Municipality and the Umzimvubu Local Municipality.

The third change was to the West Rand District Municipality, and this change was substantial. The demarcation currently reflected in the 19 August 2005 Government Gazette indicated that Westonaria and Merafong City would move from Gauteng into the North West Province. The result of the negotiations was that only Merafong City would now be located in the North West Province, and thus Westonaria would remain within Gauteng. New maps were thus needed to reflect the change, both for the Bill and the Cross-Boundary Municipalities Laws Repeal Bill.

He stated that those were the only change to the original proposed demarcations.

The Chair asked whether that meant that there were thus only two areas that required new maps, as the Kungwini Local Municipality map would remain as it currently stood.

Dr Bouwer answered in the negative. As discussed at the previous meeting, the Municipal Demarcation Board (MDB) published revised maps, which proposed the inclusion of the Nkangala township into the Kungwini Local Municipality. Those maps thus already exited in Notice 314 of 2005, and the reference to those particular maps could simply be adjusted in the Constitution.

The Chair stated that the MDB would thus have to provide only two new maps to the Committee. The first would be for the West Rand District Municipality, and the second was for the Matatiele Local Municipality.

Mr Hilary Monare, Municipal Demarcation Board CEO, conveyed the apologies of the MDB chairperson for being unable to attend the meeting.

The Chair asked the MDB to explain whether, as Dr Bouwer indicated, it would only have to produce two new maps.

Mr Monare replied that the MDB would in fact have to produce five maps. New maps were also needed for the West Rand District Municipality in Gauteng to reflect the inclusion of Westonaria, and the Southern District Municipality map would have to be amended to reflect the inclusion of Merafong City.

The Chair stated that there would thus be five new maps: two each for the West Rand District Municipality and the Southern District Municipality changes, one for each province involved, and one for the Matatiele inner boundary. She asked the MDB to indicate how long it would take for the new maps to be finalised and published.

Mr Monare responded that the publication could take place next week, but there were a number of other issues that needed to be taken into account as well. The MDB was dealing with its Section 21 Notices, but that process was overtaken by subsequent developments with regard to the maps. If those maps were published there would be uncertainty as to whether the Bill’s legislative process should be followed or whether the lengthy process in Section 26 of the MDB Act should continue.

The Chair confessed that she was not familiar with the inner processes of the MDB, but explained that the Committee’s sole interest was to have the five maps published as soon as possible in order to finalise the Bill. The MDB process would thus continue after the Bill’s passage, and any problems that were identified in the maps that were provided to the Committee for inclusion in the Constitution would then be sorted out at a later stage by the provinces. There would thus be a convergence of the processes at the level of provinces.

She stated that the Committee was running out of time as it needed to receive the maps from the MDB so that it could pass the Bill and then forward it to the provinces as soon as possible, so that they could have sufficient time to address any problems they might have with the demarcations. She asked Mr Monare to indicate the latest date by which the five maps would be made available to the Committee.

Mr Monare replied that the maps could be available by Thursday 3 November at the latest. The major problem was the Government Printers, as they needed a large amount of time to print all the copies. The authorisation of the Minister would be needed to expedite the process, and it was expected today.

The Chair stated that the Committee would then be able to pass the Bill on Friday 5 November at the earliest, and the House would then only be able to pass the Bill on Thursday 11 November if it did not waive the three-day rule. This would be two weeks later than planned.

Mr P Doman (DA) {Portfolio Committee on Provincial and Local Government] stated that the Committee was asking the MDB whether it could not assist the Committee by acting more speedily in publishing the maps. He asked whether the problems lay with the Government Printers, or was the real reason that the MDB processes were so lengthy and cumbersome.

Mr Monare responded that the maps could be provided to the Committee on the next day but the problem was that it needed the Government Gazette number, which the Government printers needed three days to publish. It was for that reason that he indicated that Thursday would be the latest.

The Chair asked Dr Bouwer whether there was anything that his Department could do to expedite the publication of the Government Gazette number.

Dr Bouwer replied that the Department would check if that were possible. He proposed that the MDB hand the maps over to the Government Printers today, so that they could be available by Tuesday already.

The Chair agreed. She stated that she would consult the party whips as to whether Parliament’s three-day rule could be waived, but she was aware that Parliament was very reluctant to waive that rule when it pertained to a Constitutional amendment.

Dr Bouwer indicated that the legislative processes followed by the Justice and the Provincial and Local Government Committees would have to split at that point, because the Provincial and Local Government Committee required not only all five of the new maps but also the new Section 21 notices. In order to buy some time for the Constitution Twelfth Amendment Bill, the Provincial and Local Government Committee could in the meantime finalise the Cross-Boundary Municipalities Laws Repeal Bill, and the two Bills would then once again meet up in the NCOP.

The Chair agreed.

Adv S Kholong, Department of Provincial and Local Government Executive Manager: Administration, informed the Committee that the maps would be provided to MDB by the end of the day.

Transitional provisions in Clause 4
The Chair reminded Members that it was decided at the previous meeting, following the proposal by Mr J Jeffery (ANC) [Portfolio Committee on Justice and Constitutional Development], that a general empowering clause would be inserted in the Constitution, and the detail of the transitional arrangement would be captured in the Cross-Boundary Municipalities Laws Repeal Bill.

Clause 1
Mr J Labuschagne, Department of Justice and Constitutional Development Legal Drafter, stated that the document proposed the inclusion of the arrangement referred to by the Chair in Section 103(3) of the Constitution. The proposal also ensured that the transitional arrangements were effected within a reasonable time to ensure that the process was not dragged out unnecessarily. The proposed Section 103(3)(b) stipulated that the legislation which altered the municipal boundary, in this case the Cross-Boundary Municipalities Laws Repeal Bill, would be enacted and implemented before the Constitutional amendment took effect. This would enable the affected provinces to commence their engagements regarding the transfer of functions etc., but the actual transfer would only take place once the provincial re-determinations took effect in the Constitutional amendment.

Clause 5
Mr Labuschagne noted that the clause proposed an amendment to the short title of the Bill to accommodate the date on which the new Section 103(3) would come into effect. It stipulated that the proposed Section 103(3) would take effect on the date of publication of the Bill, because Section 103(3) in fact referred to the Cross-Boundary Municipalities Laws Repeal Bill. Section 103(3) could come into effect as early as December 2005, but the remainder of the legislation would come into effect on the day of the local government elections.

The Chair proposed the replacement of the phrase "implemented before the amendment" with "implemented before such amendment".

Mr Labuschagne agreed that it could be included.

The Chair asked whether "within a reasonable time" should not instead refer to a specific time period.

Mr Labuschagne disagreed as the circumstances could differ from one province to another, and thus "within a reasonable time" was the most accommodating provision. The specific time frame could however be spelt out in the Act of Parliament referred to, which was the Cross-Boundary Municipalities Laws Repeal Bill.

Dr Bouwer agreed with Mr Labuschagne as it was an objectively measurable term.

The Chair asked the Department of Provincial and Local Government to indicate how many provincial agreements had already been finalised.

Adv Kholong replied that two provincial reports had been made available to date, from the North West and Limpopo provinces. Their substance was in synch with the formulations proposed by Mr Labuschagne.

The Chair indicated that the Committee needed to be kept informed.

Mr S Swart (ACDP) [Portfolio Committee on Justice and Constitutional Development] asked whether the proposed Section 103(3)(b) covered everything that could potentially arise in the Cross-Boundary Municipalities Laws Repeal Bill.

Dr Bouwer responded that everything was covered as the formulation was taken from the local government legislation regarding the Section 21 notices. He requested that he be allowed to respond to certain questions that were raised by Members at the previous meeting. The first was the question by Mr J Jeffrey (ANC) regarding the transfer of civil liabilities to the receiving province. He stated that Mr Jeffrey was correct that the legal process would just be slightly amended to join the receiving province to the claim.

Secondly, Ms S Camerer (DA) raised a question regarding the Registrar of Deeds. He replied that there were in fact nine registrars of deeds in South Africa, and the State Law Advisors proposed the insertion of the phrase "The registrar of deeds having jurisdiction" in the proposed Option 1.

Thirdly, the Chair had proposed that the wording employed in the Black Administration Act be used here, but those provisions were not relevant to this particular debate because it involved the Minister in the process.

Finally, he indicated that the short title of the Cross-Boundary Municipalities Laws Repeal Bill would now be the Cross-Boundary Municipalities Laws Repeal and Related Matters Bill to accommodate the amendments that have been proposed.

The Chair asked Dr Bouwer to explain what would happen in the event that the provinces did not reach an agreement on the transfer of rights, duties etc. before the new demarcations.

Dr Bouwer explained that there were two options. The first was the provincial commission established by the Interim Constitution to advise and mediate these kinds of conflicts. If this model were used then the NCOP could be tasked with providing recommendations or to advise on the conclusion of such agreements, but then an additional oversight mechanism would be needed to enforce it. The second example would be to use the President’s Co-ordinating Council (PCC), established by the Intergovernmental Relations Framework Act, to determine the outcome. The problem here would be that the PCC might be considered as acting as judge and jury in its own case.

The Chair agreed that the PCC could not be employed as the deadlock-breaking mechanism. The NCOP route must be considered, but it was not certain who they would report to. She noted that Members agreed in principle to the inclusion of a deadlock-breaking mechanism and requested the Department of Provincial and Local Government to provide the Committee with an actual draft of the transitional clause as agreed upon before any further discussions took place on the matter.

Long title
The Chair proposed that the adopted wording "within a reasonable time" be inserted in the long title as well.

Mr Labuschagne responded that it was merely consequential, but stated that he would consider its inclusion.

Clause 1
The Chair noted that no concerns were raised with the clause.

Clause 2
The Chair stated that she had two problems with the clause. Firstly, the provincial boundary or that part of the province concerned was not represented by the full map, as implied by the words "represented by the maps" in the provision. Instead those portions were in fact represented by the coloured in portions, and not by the whole map. She stated that the provision must instead refer to those specific portions that were "indicated" in the map.

Dr Bouwer responded that he agreed with the Chair but stated the maps were loaded with information regarding the total provincial boundaries. He proposed the words "comprise the specific geographical areas indicated".

Secondly, the provision did not specify which specific maps, as a collective, constituted the changes to the provincial boundaries. Instead the provision currently suggested that one map constituted the entire province, which was not the case. She proposed that the provision refer to the "total geographical area of provinces" in the interests of clarity.

Dr Bouwer replied that he was of the view that the word "comprise" already implied that the maps needed to be added up. He proposed the insertion of the word "collective" before "geographical areas".

Mr Jeffrey proposed that the MDB produce a single Government Gazette that contained all the maps in it, as that would make things much easier. Even if that were not the standard practice, he believed an exception could be made in this case as the maps were referring to a Constitution Amendment Bill.

Dr Bouwer responded that that might be possible for the Bill, but the Department of Provincial and Local Government would not be able to use a single consolidated Government Gazette for its Cross-Boundary Municipalities Laws Repeal Bill. It would thus create a disjuncture with regard to the maps referred to in each Bill. Secondly, he was not sure whether the mechanism that had been used to date would allow for it.

Mr Robert Willemse, MDB, replied that it could be done, but the only problem was the time factor.

The Chair requested the MDB to consider the proposal. If however it would create further delays then the current route would suffice. She proposed that Clause 1(2) read: "comprise the total geographical areas indicated in the various maps".

Mr Labuschagne replied that he would consider the Chair’s proposal.

The Chair proposed that the references in Schedule 1A include references to the specific notice as well as the Government Gazette in which it appeared. This would clarify the location of the notice.

Dr Bouwer responded that it could be done for clarity as he had done just that in the Cross-Boundary Municipalities Laws Repeal Bill. The references would also refer to the specific national or provincial gazette.

Remuneration of magistrates
The Chair stated that the Committee’s Report on magistrates’ salaries was currently in draft form. As the NCOP Members would be in their provinces the following week the report would have to be passed separately by each House. All efforts would be made to then table the Report the week after that.

The meeting was adjourned.

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