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JUSTICE AND CONSTITUTIONAL DEVELOPMENT, AND PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEES
2 November 2005
CONSTITUTIONAL TWELFTH AMENDMENT BILL: ADOPTION
Chairperson: Ms F Chohan-Khota (ANC)
Documents handed out:
Constitution Twelfth Amendment Bill [B33A-2005]
Constitutional Twelfth Amendment Bill [B33 – 2005]: Draft 2 and 3 [email firstname.lastname@example.org]
The two Committees met to deliberate on the proposed Constitutional Twelfth Amendment Bill. Certain amendments arising from recent debates were outlined by representatives of the Department of Provincial and Local Government. Five new maps had been published within one Government Gazette to facilitate easy reference.
Significant debate occurred with regard to geographical areas, as opposed to municipal and provincial boundaries, as indicators of specified areas. No reference to municipal boundaries was made within the Bill as permanence of arrangements was required. Two schedules were published with Schedule One referring to new maps and Schedule Two to maps that had not changed.
The Bill was adopted with five abstentions and no objections. It will be debated in the National Assembly on 8 November 2005.
The Chairperson stated that new maps had been produced within one Government Gazette to facilitate easier reference. Members would consider certain proposed amendments to the Bill.
Dr T Delport (DA) asked that the process to adopt the Bill not be rushed and that Members remained sensitive to certain issues.
The Chairperson and Mr J Jeffrey (ANC) concurred that extensive debate on the Bill had occurred and the Committee should strive to complete the process as soon as possible. The recent debate had resulted in the alteration of five maps now included within one document.
Clause 1 (1): Geographical Areas of Provinces
Mr Laubuschagne (DPLG Legal Advisor) stated that only the shaded parts were relevant within the maps.
The Chairperson asked why "geographical areas" was used following the reference to "areas". Dr P Bouwer (DPLG Chief Director: Legal Services) agreed that "geographical" should be included in the first usage.
Ms S Camerer (DA) asked whether the word "collective " was relevant. She felt that the wording was clumsy. The Chairperson suggested that "comprises" could be more appropriate.
Mr P Smith (IFP) noted that "area" was used three times with different meanings in each case. Area referred to total space and not boundaries. Dr Bouwer responded that "area" referred to the geographical areas of provinces as similar to the model used in the interim constitution.
The Chairperson asked whether "composite" was more suitable. Dr Bouwer recommended that "comprised the sum of geographical areas " replace the existing wording. Mr Jeffrey supported the use of "sum of" and "consist of " instead of "comprise".
Dr Delport proposed that "total geographical areas identified in various maps" be included. The re-determination of a geographical area would result in the alteration of provincial boundaries.
Ms Camerer proposed "the geographical area of a province comprises the total of the geographical areas represented in the relevant maps for that province".
Dr Bouwer reminded Members that the purpose of the exercise was to determine a boundary by fixing a specific space.
Mr Smith proposed that two clauses be conflated into one and that identified geographical areas be referred to within the respective maps.
Dr Bouwer asked whether "reflected" should be included and proposed "the geographical areas of the respective provinces comprises the sum of the identified geographical areas reflected in the various maps".
The Chairperson asserted that "represented" should be present.
Adv Kholong (Department Executive Manager: Administration) suggested that the maps of municipalities be referred to in the sense that municipalities were ‘building blocks’.
The Chairperson stated that this would be inappropriate as municipalities could collapse in future and the Committee should avoid the need to amend the constitution on each occasion. Municipal boundaries should be viewed as flexible. The Bill should refer to geographical areas as opposed to municipal boundaries.
Dr Delport asked why a provincial map could not be referred to in order to avoid unnecessary complications. The Chairperson responded that the current approach was to build the geographic area of a province. The removal of cross-boundary municipalities would reduce the need to alter the geographical area of a province.
Mr Jeffrey agreed that municipalities were likely to change in future and metropolitan areas (Metros) could increase in size. Any reference to municipalities should be removed from the constitution. Members should consider land area rather than municipal boundaries.
Mr Smith asked whether water boundaries such as the sea would be considered as boundaries for certain municipalities. The definition of "area" remained a concern.
Dr Bouwer stated that the boundaries of provinces were currently defined with reference to geographical areas and a vehicle was needed to change provincial boundaries. Geographical areas were the appropriate vehicle to facilitate changes.
Mr Smith asked whether the Bill should refer to boundaries as opposed to areas of maps. The boundary would be defined as the place where two areas intersected.
The Chairperson asked whether such an approach would reintroduce the problem associated with municipal boundaries. She reminded Members that the Bill sought to impose permanency.
Dr Bouwer proposed the final wording as "the geographical areas of respective provinces comprise the sum of the indicated geographical areas reflected in the various maps referred to in the notice listed in Schedule 1A".
Mr Laubuschagne stated that the Bill would ensure that transitional arrangements would be provided in an Act of Parliament as opposed to within the Constitution.
Ms Camerer sought clarity on the wording of 3(a) and asked whether "practical" was suitable. The Chairperson stated that the word referred to practicalities on the ground such as agency agreements and service delivery arrangements. Dr Bouwer added that the consequences would be limited to those of a legal nature.
Mr Smith asked how the Act could be implemented before the completion of the constitutional amendment. The Chairperson asserted that certain changes were required prior to transfer of areas from one province to another. Certain key functions such as service agreements had to continue prior to the transfer of areas.
Mr Smith asked whether financial issues were covered within the clause. Dr Bouwer replied that financial issues were regarded as practical consequences and were covered within the Bill. Comprehensive wording had been used to cater for all eventualities.
Ms Camerer asked for an example of a ‘practical consequence’. Dr Bouwer referred to the use of an ambulance from one province in another on the day of the implementation of the legislation. He asked whether a transfer of assets could be deemed to have transpired. The Bill should ensure that the ambulance was returned to the original province.
Ms Camerer asked how practical consequences would be challenged by aggrieved parties. Mr Laubuschagne stated that two schedules had been produced, with Schedule One containing new maps and Schedule Two containing maps that had not altered. A map related to the Eastern Cape and the transfer of Western Areas into Gauteng were included in Schedule One. The Municipal Demarcation Board (MDB) counterproposals had been accepted and published within respective Provincial gazettes and therefore no new maps pertaining to such proposals were required. The maps in Schedule One and Two had been checked by the MDB and could be regarded as correct.
The Chairperson declared that the Bill would be debated in the National Assembly on 8 November 2005. The Adoption Report was read out. Ten Members were in favour, five abstained and none objected. The Bill was therefore adopted.
The meeting was adjourned.