Constitution Twelfth Amendment Bill: Negotiating Mandates

NCOP Security and Justice

30 November 2005
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Meeting Summary

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Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
30 November 2005
CONSTITUTION TWELFTH AMENDMENT BILL: NEGOTIATING MANDATES

Chairperson: Mr L Kgoshi

Documents handed out:
Constitution Twelfth Amendment Bill [B33B-2005]
Constitution Twelfth Amendment Bill [B33A-2005] Portfolio Committee amendments
Constitution Twelfth Amendment Bill [B33–2005] as tabled
Negotiating mandate – Eastern Cape
Negotiating mandate – Gauteng
Negotiating mandate – KwaZulu Natal
Negotiating mandate – Limpopo Province
Negotiating mandate - Mpumalanga Province
Negotiating mandate – Western Cape

SUMMARY
Provincial delegates presented the Committee with their negotiating mandates. While most provinces had approved the Bill without amendments, Gauteng had requested an amendment. Public hearings had revealed that the people in Merafong City wanted to be part of Gauteng and not North West. This presented a problem because in terms of the Constitution, provinces could not effect amendments, but could only approve or reject them. The issue was not resolved at the meeting and provinces as well as the Department were requested to further discuss the matter so as to arrive at a solution that would enable provinces to draw up final mandates in order for the Bill to be approved by the NCOP.

MINUTES
The Chairperson requested Members to prioritise these meetings dealing with the Constitution Twelfth Amendment Bill since it dealt with an amendment to the Constitution.

Negotiating mandates as received from the provinces
Eastern Cape
Mr A Manyosi (ANC Eastern Cape) reported that the province had been briefed on the Constitution Twelfth Amendment Bill. Meetings had been held with all the stakeholders who would be affected. The Bill was then discussed by the Committee and the House. During the deliberations it was revealed that some of the opposition parties had not been in favour of the amendment. A division was called for and after ‘democratic processes’ had taken their course the delegation was given the mandate to support the Bill.

Mr S Shiceka (ANC Gauteng) asked whether the province had held public hearings. A week or two before the formal presentation of the Bill, television reports indicated that the Eastern Cape had been conducting public hearings. He commented that the province had been ‘very creative; in taking initiative in holding public hearings even before the Bill had been formally presented at the NCOP. Were the television reports accurate? What processes did the province adhere to?

Mr Manyosi said that the Report of the Portfolio Committee on Local Government and Traditional Affairs (Eastern Cape) indicated that public hearings had been held from 14 to 16 November. During these hearings special focus had been placed on traditionally marginalised communities. The Committee visited these communities to ensure that some of these communities’ concerns and fears were addressed. There were a few individuals who were in favour of remaining a part of KwaZulu Natal. Some business people had divided interests. Some bought their stock in KwaZulu Natal while the customers came mainly from the Eastern Cape. He emphasised that the customers wanted to remain in the Eastern Cape.

The Chairperson asked whether this meant that the majority of people in the Eastern Cape wanted the Matatiele Local Municipality to remain in the Eastern Cape and that there were a few business people who would prefer to remain part of KwaZulu Natal.

Mr Manyosi reiterated that the affected communities had been consulted and the majority supported their proposed incorporation in the Eastern Cape. Those in Umzimkulu also had no qualms about being incorporated in KwaZulu Natal.

Free State
Mr D Worth (DA Free State) said that despite the fact that the Free State was one of the two provinces that would not be affected by the Bill because it did not have transprovincial boundaries there had been much interest in it. The Bill was discussed extensively. All opposition parties supported the principle that transprovincial municipalities should be done away with but some commented that they were unhappy with the process that had been followed. The Free State Province supported the Bill.

The Chairperson reminded Members that Provinces were only expected to submit negotiating mandates. Final mandates would only be submitted at a later stage.

Gauteng
Mr Shiceka said that the Committee had been satisfied with the brief by the delegates from the NCOP. Joint public hearings had been held with the North West Province. The two provinces agreed that there were certain sections of the Bill that needed more discussion. It was important that when relocations and demarcations were indicated this was accompanied by a clear and transparent process. The province supported the removal of cross boundary municipalities. The public hearing also indicated that the majority of the people wanted to remain in Gauteng. Only the ANC Youth League presented a different view. He said that since the province believed in a constitutional democracy and that the views of the majority should be taken into consideration. It therefore agreed that the people of Merafong should remain part of Gauteng. The province therefore did not agree with the Bill’s proposed amendment that Merafong should be part of the North West Province. The Province felt very strongly that he Merafong municipality should remain part of the West Rand district.

Mr M Mzizi (IFP Gauteng) said that Mr Shiceka had adequately reported on the mandate they had received from the province. It was up to other provinces to now discuss the matter.

Dr Petra Bouwer (DPLG Executive Manager Compliance and Legal Services)
reminded the Committee that the Constitution Twelfth Amendment Bill was supposed to be adopted by the provinces. The NCOP would then consider the Bill. The number of provinces required to adopt the Bill was greater than the number required to adopt it in the NCOP. Seven provinces would be affected by the Bill, yet only six needed to support it in the NCOP.

He said that it was difficult to understand what the negotiating mandate from Gauteng was referring to. The province was proposing amendments. He said that if the NCOP was in a position to amend a constitutional amendment, it would mean that the council would have the ability to undermine what had already been adopted by the provinces. On advice from the state legal advisors the DPLG has consistently indicated that the provinces had to consider whether to adopt the Bill, after which he NCOP would vote on it. The NCOP could not, at this stage, effect amendments since this would mean that they would be able to undermine what had been decided by the provinces. He said that he did not think that the process allowed for amendments to be proposed in the NCOP. It was difficult to evaluate what was being proposed by the Gauteng province since the Department did not yet know what the seven effected provincial legislatures had decided regarding the matter. The State law advisors have confirmed that the seven effected provincial legislatures could only vote for or against the Bill. They could not propose amendments. In the absence of some indication of what had been adopted or rejected by the provincial legislatures it was difficult to evaluate negotiating mandates.

The Chairperson referred Dr Bouwer to item 10 of the Gauteng submission which indicated that ‘subject to section 74(8) of the Constitution the Portfolio Committee on Local Government will support the Bill on condition that the municipal area of Merafong was included in the municipal area of the West Rand District municipality of the Gauteng Province’. To his understanding the province was doing exactly what Dr Bouwer had indicated they could do.

Mr Mzizi said that Dr Bouwer’s dilemma could be understood. He said that the Gauteng legislature had met and joint public hearings had been held. Delegates were going to convey the outcomes of the joint public hearings to their provinces. He said that the premiers had said that they would abide by the statement made by the Committees to the legislature. It was unknown as to whether the North West province shared the same views. He said that the province had been given this particular mandate and it should be debated to see how far it could be taken.

Mr Shiceka said that the Bill had been passed by the National Assembly. While the Gauteng legislature approved of the removal if the transprovincial boundaries it was concerned as to whether the amendment of the boundaries enjoyed the support of the people who would be affected. He said that the province had undertaken a ‘scientific process’ to ensure that all those who would be affected presented their views. The majority of people felt hat Merafong should remain in the Gauteng province. He was aware that even if the NCOP approved the Bill, but a province rejected a section of the Bill, that particular section would lapse.

Dr Bouwer said that Mr Shiceka had correctly summed up the legal position. The Province could reject the amendments affecting that province.

He went on to explain the impact the province’s rejection of the amendments regarding Merafong would have on the Bill. Merafong was a cross boundary local municipality. If Gauteng voted against that particular part of the Constitution Twelfth Amendment Bill this did not mean that Merafong would become part of Gauteng. Looking at the maps of July 18 the provincial boundary between the North West and Gauteng ran through the middle of Merafong. If Gauteng rejected the amendments it meant that half of Merafong would remain in Gauteng, while the rest would have to be redemarcated to fall somewhere within the North West. This part would not necessarily be a local municipality on its own but might be incorporated in another local municipality. Khutsong would then form part of Gauteng, while Fochville and the mines in that area might fall in the North West province. There would be many legal ramifications that would flow from Gauteng’s rejection of the Bill. The implications on Merafong should be taken into consideration as well. Only those parts of Merafong currently in Gauteng would remain there.

Mr Shiceka asked Dr Bouwer to explain what he meant when he said ‘half’. What was this estimate based on? He said that in his opinion the major part of Merafong fell under Gauteng. He asked whether the Department considered a Merafong that included Fochville, Wedela, etc. Has the Department considered placing all areas pf Merafong in Gauteng if the majority of people in Merafong wanted to be part of the province? He said that there was nothing complicated regarding this matter. If everyone wanted to find a solution, a solution could be found. He said that the people in the area could get involved in ‘unbecoming activities’ if their concerns were not addressed. He said that the anger of the people of Merafong, because of this matter, has been witnessed. He asked what other permutations have been considered for a scenario in which a province did not accept the proposals made in the Bill. He said that there was still room for negotiations. It might still be possible to persuade the province to reconsider its position.

The Chairperson added that the province might still be able to persuade other provinces to support its amendments so that the NCOP would adopt the amendments as proposed by Gauteng.

Mr Mzizi asked whether Fochville, Khutsong and Wedela were not part of Merafong City. Was there any way for them to remain part of Merafong?

Dr Bouwer said that looking at the map it looked as though that about half of Merafong City was in Gauteng and the other part in the North West. He said that it might be opportune for the State law advisors to reiterate the legal opinion which was also supported by the parliamentary law advisor. Other permutations would be dictated by the legal process prescribed by the Constitution.

Mr Shiceka said that the municipality was currently under one province. Yet in terms of other functions such as health and education it became a cross boundary municipality. Merafong municipality accounted to Gauteng. Provincial services however were provided by two provinces. Merafong fell under one district – the West Rand district. If Gauteng decided that the Merafong should be in one province. Why could the North West province then not hand over the provincial functions and assets to the Gauteng province? This would give a clear indication that the provincial legislature was taking the opinion of those on the ground into consideration. It would also demonstrate that the legislature, as an institution was an institution that listened to the views of the people of the ground, provided that these views did not conflict with its principles.

Advocate R Razack from the State Law Advisor’s office attempted to clarify the legal processes that govern the amendment of the Bill. She said that she was sensitive to the issues that were being raised and the political questions that were being posed. She respected that these were issues that needed to be addressed. It was necessary to isolate the legal constraints of the process however.

She said that it was important to remember that the Committee was dealing with the Section 74 amendment to the Constitution. This section dealt with Bills that amended the Constitution. The Committee was dealing with a Bill that envisaged Section 74(3). She said that the whole section 74 went into the entire process with regard to how these amendments had to be dealt with in the Houses, etc. She said that it was Section 74 (8) that appeared to be causing the problem in the process. She said that amongst other things Constitution Twelfth Amendment Bill contained amongst other things a schedule containing various maps that propose different geographical demarcations for provinces.

The Chairperson requested Advocate Razack to address the processes that should be followed by and affected the NCOP. He asked what the impact of the public hearings was. Was the process in the NCOP just a ‘PR exercise’?

Ms Razack said that she merely wanted to point out that there were opportunities for comments to be made before the bill arrived at the NCOP level. Once the Bill comes before the NCOP, Section 74 (8) came into effect. The provincial legislatures could now either approve or reject it. The section gave legislatures veto powers. Neither the NCOP nor the provincial legislatures could effect amendments to the Bill that has been passed by the National Assembly. She said that Section 74 (8) was supplemented by the rules of Parliament. There was no provision for mediation. A six pronged majority in the NCOP was insufficient to sustain a rejection by a provincial legislature on a part of the Bill that affected that legislature. She said that in the Gauteng North west case if one province approved the Bill and the other did not the ‘no vote’ would prevail. She said that if the NCOP could effect amendments there would be no procedural safe guard to ensure that the provincial concerns would be adequately captured. If an amendment was proposed there was no procedural safeguard in the Constitution to ensure that the amendment should reflect what was happening in the provinces. She emphasised that in terms the process, the the provincial legislature could not, at this stage propose any changes. This was not a political constraint but a legal one.

Advocate s Khulong (DPLG) that as far as the practical implications emanating from the Gauteng province: Merafong as it is would have to be disestablished because it was split between two provinces. He said that if the province was saying that while it was in agreement with the principal which said that cross boundary municipalities should have to be disestablished, but that it did not agree with the aspect relating to Merafong, it would mean that Merafong would have to be cut into half. Has the Department considered other scenarios? He said that the Department was faced with the options of demarcating the area in either Gauteng or the North West. He said that the request to have some portions of the municipality could be integrated into a particular province talked to the fundamental principles that underscores the ‘vision of the State in terms of where it wanted to take local government. He said that he Department wanted to retain local municipalities as coherent units because of the socio economic and demographic imperatives applicable in those municipalities. Breaking Merafong into ‘different pieces’ was an ‘unenviable option’.

Mr Shiceka responded that the province’s submission presented evidence that this request came from the people. He said that in all meetings that had been held the Department has been requested to give motivation for some of the reallocations. He said that scientific views would have to be presented to convince the province of the reallocation of the boundaries as proposed by the amendment. In the absence of this, how did the Department intend to convince provinces? He said that what the public wanted should be enough to persuade the Department to see things differently. He said that he noted that provinces could not make amendments. Did this mean that if the public was not happy, the Department would impose its will on them or did it mean that the Department would come up with an alternative approach that would be in accordance with what people wanted? He again reminded those present that South Africa was a constitutional democracy which believed that the majority should rule. Mr Shiceka said that he thought that it would be best to agree to consider solutions at a later stage. Solutions would have to be arrived at. He reiterated that he was merely a messenger of what the people of Gauteng wanted.

The Chairperson said that he was pleased that Mr Shiceka was speaking to the mandate that he had received from his province. He agreed that the matter should be dealt with at a later stage. The province has spoken. The mandate they had given could not simply be changed by the Committee but could only be changed by the province itself.

Regarding the provision of social, emergency services, etc, Adv Khulong said that the Bill made provision that the infrastructure that resided with a particular province would upon the realignment of provincial boundaries be transferred to the receiving province. A vacuum would not be created with regard to provincial services. Communities should not be unduly apprehensive with regard to changes that would occur. He reminded Members that cross boundary municipalities have been very challenging themselves; this was why they were being done away with.

The Chairperson said that in Bushbuckridge and Khutsong people were aware that services would be provided. Their concerns were around who would be delivering these service.

Mr Mack said that he was very concerned that the NCOP did not have any powers to amend. Delegates to the NCOP represented their provinces and had to report on what grievances provinces had. Did the fact that they had no power to amend not detract from this function? He said that it was imperative that delegates went back to their provinces to get heir views on certain issues, yet when amendments people requested were raised the NCOP was told that it could not make amendments.

The Chairperson concurred with Mr Mack that it was not acceptable that the NCOP was just there to say ‘yes’ or ‘no’.

Adv Razack said that the NCOP’s power to amend extended to every part of the Bill except the part where only the provincial legislatures had the right to say ‘no’. Provincial legislatures were voting on only the parts that effected their specific boundary or border. The province in this case had the veto power over the NCOP and the NA. She said that it was only as far as those aspects that fall under Section 74 (8) were concerned, that legislatures did not have the power to amend but only a veto power.

The Chairperson asked what would happen if Gauteng said that it wanted Merafong to remain where it was and Mpumelanga objected to being reduced to only three districts. What would happen in the NCOP?

Adv Razack responded that this was exactly the point she was trying to make. The NCOP was not allowed to propose amendments since there might be conflicting amendments coming through. In such cases there was no way in which to determine which amendment was more valid. In order to diffuse this conflict, while still not taking away autonomy from the provinces, the provisions said that the province had the right to decline a particular process relating to that province. If the province wanted to bring changes afterwards another constitutional amendment would have to be proposed at a later stage to try and incorporate those concerns.

Dr Bouwer added that the Committee has been at a bit of a disadvantage. The Department had envisaged that the Constitution Twelfth Amendment Bill and the Cross Boundary Municipalities Laws Repeal Bill would be processed together. Although they were not interdependent, they were somehow related to each other. One aspect that would start to address some of the concerns raised in the Gauteng submission was that the cross-boundary Bill would contain transitional arrangements relating to transfer functions, service delivery, etc. This was being debated in the portfolio committee at the moment.

The select committee was in a disadvantaged position because the Department could not at this stage give a final position regarding these transitional measures. Dr Bouwer said that it was unfortunate that these two Bills would now meet up towards the end. Current proposals said that assets, liabilities, obligations, etc would be transferred from the releasing to the receiving province to ensure continuous service delivery. In cases where the releasing province would be in a better position to continue the delivery of a particular service the two provinces could enter into an agreement whereby the releasing province would continue the delivery of services. The releasing province would then deliver the service on behalf of the receiving province for the time being. The current proposals which were being considered by the portfolio committee on the consequential arrangements which would support what was being proposed in the Constitution Twelfth Amendment Bill would allow for cooperation between receiving and releasing provinces. This addressed the issue of legislative support for the transition which select committee had not yet discussed. This was being provided for in a cross-boundary laws repeal bill. Unfortunately, even officials were at a bit of a disadvantage because various options were still being discussed by the Portfolio Committee

The Chairperson assured the Committee that the matter would be taken up at a later stage. He said members were not requested to consult with the public for no reason. The public hearings were not ‘just a PR exercise’.

Mr Manyosi said that agreed with Mr Shiceka that more work needed to be done regarding the Gauteng matter before one could get to the final mandate. He commented that virtually throughout all of the Gauteng province’s negotiating mandate there was talk of the portfolio Committee. The final mandate should say that the provincial legislature as a whole (and not just part of it)) approved or rejected the mandate.

Mr Govender (KwaZulu Natal) asked whether a province could make a pronouncement regarding this matter without having consulted the communities concerned.

Mr Manyosi commented that it was appropriate to listen to the explanation of the legal as well as technical implications of the redemarcation and then amendment itself. He said that the Committee should not lose sight of the fact that the Bill itself was the result of political processes. State law advisors do the drafting after trying to internalise and digest the intentions of those who were involved in politics. Their art was to draft; political parties had to express their intentions. Since these were negotiating mandates the Committee should continue to exhaustively debate the implications, and then allow for the political processes to take their course.

Mr C Ntuli (ANC KwaZulu Natal) asked whether public hearings regarding this matter were compulsory. Mr Govender (KwaZulu Natal) asked whether a province could make a pronouncement regarding this matter without having consulted the communities concerned. He said that on his opinion the people of the affected communities should have a say since this matter would affect their lives.

Dr Bouwer said that it depended on the rules of different legislatures; it might thus differ from province to province. He said that the political expectation had from the beginning been that provincial legislatures had to engage with communities.

Mr N Mack (ANC Western Cape) said that he was aware that the mandates being presented were negotiating mandates. Even though the Bill would not affect the Western Cape the Western Cape supported it without amendments. It would like to be afforded the opportunity after hearing the other mandates to return to the province and to then come up with a final mandate. The Province saw this change to the Constitution as a matter of great concern to the whole country. He said that although this Bill might not affect the Western Province at this moment, it might in the future.

KwaZulu Natal
Mr Ntuli reported that the Constitution Twelfth Amendment Bill had been discussed extensively in the KZN provincial legislature on the 29 November. The province supported the amendment

Mr Govender added that during the debate in the provincial legislature there had been a division which resulted in the provinces negotiating mandate in support of the amendment.

Limpopo Province
The Chairperson reported that the province consulted all people who would be affected by the Bill. People agreed that the Cross boundary municipalities should be done away with on condition that they were allowed ’to belong to a province that they would feel comfortable in’. People in Bushbuckridge agreed that due to the proximity of Mpumalanga they were comfortable with becoming part of this province. They were concerned however that their district would be disestablished. The Province sympathised with their dissatisfaction but was aware that it could not dictate to the Mpumalanga legislature with regard to which municipalities to integrate into districts. Limpopo did a good job. They did their homework. They did not take a decision in ‘some air conditioned office’. The province approved of the proposals in the Bill.

Ms F Nyanda (ANC Mpumelanga) requested clarity on the Limpopo provinces’ unanimous support of the proposal. The Chairperson confirmed that all affected parties agreed that cross boundary municipalities should be done away with.

Mr Shiceka said that it was important to present the views of the people on the ground. ‘We must always remind ourselves that we are here because of the people’. He said that people sometimes thought that they were in positions because their own cleverness, forgetting who placed them where they were. He commented that the Chairperson in his capacity as the Limpopo delegate supported the Bill with regards to provincial boundaries but that certain provisions would need to be made. The Committee had to ensure that the ’voice of the people found expression’.

Mr Shiceka commented that in terms Section 155 of the Constitution a national law was required to create different types of municipalities. He requested the legal experts present to comment on the questions raised by the people of Bushbuckridge wit regard to the authority responsible for the establishment of districts. Did this authority lie with provincial government or municipal demarcation board? The Committee needed to know who was in charge of this matter so that it could engage wit the relevant authority.

Adv Khutlong responded that as far as the executive was concerned the internal organisation of municipalities would not be cast in stone with the removal of cross boundary municipalities and the realignment of provincial boundaries. In the medium to long term these structured could still be rearranged as the Department continued to assess the delivery of critical services by the new structures. This would include the organisation of districts. In terms of the Constitution this was a responsibility of the demarcation board.

Mr Shiceka proposed that the Committee request the Demarcation Board who was working with the demarcation board of Mpumelanga to consider the permutation that would consider establishing a district of Bushbuckridge linked with the surrounding areas.

The Chairperson said that people of both municipalities knew exactly what they wanted. In the public hearings it had been clear that people were not happy that their district would be disestablished. He said that when the Bill was finalised the Committee would come up with a resolution.

Mpumalanga
Ms Nyanda (ANC Mpumalanga) reported that during their public hearings the province experienced very few hiccups. She said inn Groblersdal some were happy and some were not. In the end an agreement in support of the Bill could be reached. The delegate to the NCOP had been given the negotiating mandate to approve the Bill.

The Chairperson noted that the recommendation by Mpumalanga indicated that the delegates to the NCOP were conferred with authority and mandated to negotiate in favour of the Bill ‘subject to the above-mentioned proposals’. What were these proposals? Mr Ntuli also requested clarity on the proposals mentioned in the province’s mandate.

Mr Mzizi commented that he hiccups and disputes had probably been resolved. If they had not been resolved how would the Committee resolve them? This would probably be a dilemma that would have to be faced at a later stage.

He also requested clarity with regard to the fact that people walked out of the hall during the public hearing held in Kungwini because they felt that all parties were not participating.

Ms Nyanda responded that because Gauteng members of the legislature were not present because they were of the impression that Mpumalanga was going to request their incorporation in Mpumelanga. As soon as it was evident that Gauteng had not been represented many participants left the hearing.

She reported that in Groblersdal some of the business people and farmers wanted to fall under Mpumelanga while others wanted o be part of Limpopo since the provincial legislature was nearer to them.

Northern Cape
The Chairperson reported that the standing Committee on constitutional affairs considered the Bill, was briefed by the delegate and conducted public hearings in the affected areas. The Communities in both areas expressed overwhelming support for the Bill but concerns were raised by the Vaalhaarts community y regarding the socio economic impact the Bill would have. The relevant stakeholders would have to ensure that these Communities would endure no unnecessary hardship. The province supported the Bill without any amendments.

Mr Shiceka requested that the delegate from the Northern Cape should at the next meeting giving clarity on the concerns raised by the Vaalhaarts community. The Department of provincial and local government has spoken about transitional arrangements that would ensure no disruption with regard to service delivery. This process would have to be monitored by the Committee.

Mr Worth asked where the public hearings in the Northern Cape had been held since this province would be most affected by the amendments. The chairperson said that Mr Fielding, the delegate from the Northern Cape would respond at the next meeting.

North West Province
Mr Kholwene reported as an alternate form the Northern Province, on behalf of the permanent delegate, Mr A Moseki. The Province had concerns relating to the depopulation of the province that would result from the realignment of boundaries. It was also concerned about the negative financial impact such a shift in the population would have. Another concern related to some areas that were not properly indicated in the demarcation process, this related especially to the Eastern region. People had not been adequately consulted in the demarcation process. The select committee would resolve to support the intentions of the Bill. The Northwest had begun their public gearings the day before.

The Chairperson requested clarity regarding the province’s support of the ‘essence and intentions’ of the Bill. Mr Kholwene said that the Province had nothing against the essence of the Bill. It was hard for him to go beyond the way the province had stated it in the mandate.

Mr Mzizi commented that engagements with the people on the ground had not been done intensively by the province. The mandate was very silent on other key areas such as the issues around Merafong City. The province had been present at the public hearings held in conjunction with Gauteng. It had supported the views of the people who had said that they did not want to be part of the North West, yet they were now silent on the matter.

Mr Shiceka commented that if the alternate was not in a position to answer questions around the province’s ‘deafening silence’ regarding the Merafong issue, the permanent delegate should be requested to respond to the matter.
Mr Kholwene responded that at the time he had read through the Gauteng mandate he had realised hat he was in a very difficult position. The Gauteng mandate gave a particular reflection regarding the participation of the North West as well as the position of ‘some other organisation’ within the province. He said that he ‘could not figure it out at all’. He would take Mr Shiceka’s advice, since that might serve him better.

The Chairperson requested Mr Kholwene to give clarity on the province’s formal position regarding Merafong City. Mr Kholwene said that since the mandate was silent on the matter it might be better if he made further consultations regarding the matter.

Western Cape
Mr Mack reported that the province had been briefed and had invited public comment. He made clear that the mandate he was presenting was a negotiating mandate. Province supported the Bill with no amendments.
He said that he requested the right give a report to the Governance Committee with regard to this meeting especially since they were discussing an amendment to he national constitution. He emphasised that although the province would not be affected by the amendment now, it might be in the future. This was why the Western Cape was taking such active participation in the debate around the issue.

The Chairperson emphasised that transcripts of the discussion be submitted to provinces before final mandates would be considered. As far as the Gauteng issue he said that provinces should be allowed to discuss the matter. The Committee would engage with the Department to see how this situation would be resolved. Gauteng would need to report back to the people with regard to how their proposal had been received.

Mr Shiceka said that when the issue was being discussed special attention should be given to supplying Gauteng with substantive and compelling reasons that would\d persuade the province to alter their view. He said that the time of ‘bulldozing’ and imposition was over.

The Chairperson said that the Department should also discuss the Gauteng issue amongst themselves. The Committee would expect a report on the Gauteng issue as well as on the issues raised by the other provinces at the next meeting.

Mr J Labuschagne (DPLG) reminded the Committee that provinces were not only expected to give final mandates to their delegates but also had to approve the Bill In terms of the Constitution provinces had to approve the Bill. The NCOP thus required final mandates as well as approval of the Bill. The NCOP may not pass the Bill unless the effected provinces have not approved those parts of the Bill which affected them.

Adv Razack added that the approval was only required with regard to the affected provinces.

Dr Bouwer concurred that Section 78(4) said that the NCOP could only pass if the effected provinces have adopted the Bill. The Department had submitted a proposed draft resolution at the last meeting. To his understanding the matter shat had been discussed at the meeting only related to the mandates for NCOP proceedings. These proceeding should not be proceeded with unless the province approved the Bill.

The Chairperson reiterated that the affected provinces needed to adopt the Bill and then send their final mandates. He said that this would be conveyed to the provinces. He added that there would be some negotiations before final mandates would be submitted. He urged provinces to ensure that by 12 December the issue would be resolved so that he Bill could be passed on 14 December.

He said that the Committee’s annual report would be considered at the next meeting.

The meeting was adjourned.

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