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PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE, LOCAL GOVERNMENT AND ADMINISTRATION SELECT COMMITTEE, JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE: JOINT MEETING
6 December 2005
CROSS-BOUNDARY MUNICIPALITIES LAWS REPEAL BILL: DELIBERATIONS; CONSTITUTION TWELFTH AMENDMENT BILL: PROGRESS REPORT
Chairperson: Mr S Tsenoli (ANC)
Documents handed out:
Executive Summary: Language Policies Relating to Parliament
Cross-Boundary Municipalities Laws Repeal Bill [B36-2005]
Cross-Boundary Municipalities Laws Repeal Bill: Proposed Amendments [please email email@example.com]
Constitution Twelfth Amendment Bill [B33B-2005]
In acknowledgement of "local government week", each party briefly discussed its views on the progress that had been made since the democratic local government dispensation had been implemented.
The Department provided a brief update on the status of the Constitution Twelfth Amendment Bill.
The Department guided the Members through the proposed amendments to the Cross-Boundary Municipalities Law Repeal Bill. Westonaria would no longer be relocated to the North West province although Merafong would still be relocated to the North West. The most important amendment was the proposed new clause on the transfer of provincial functions, assets and liabilities from a releasing province to a receiving province. It stipulated that the responsibilities of a releasing province, in an affected area, should be transferred to a receiving province, except in cases where the affected provinces had brokered an agreement for the releasing province to continue to render services on an agency basis. If there was a dispute around such agreements, these disputes should be referred to the National Council of Provinces which would assist the provinces to reach an agreement and resolve their differences. The Committee agreed to the amendments suggested by the Department and also proposed a few minor amendments to the new clause. The finalised amendments would be presented the following day for voting on these and the entire Bill.
The Chairperson noted that local government week was being celebrated. Indeed, local government week was being used to mark the fifth anniversary of the implementation of the democratic local government dispensation. The Chairperson stated that it would be appropriate for the various parties to reflect upon the past five years.
Mr M Mzizi (IFP, Gauteng) stated that much progress had been made around local government. However, much of the work, which had been undertaken during the period of the interim constitution, had been done hastily. This had resulted in problems, such as cross-boundary municipalities. Indeed, the Parliament now faced the challenge of dealing with cross-boundary municipalities.
Mr I Mfundisi (UCDP) commented that a certain amount of progress had been made over the last five years. However, there were also many problems. The role of traditional leaders had not been properly accommodated in the local government system. He added that the issue of cross-boundary municipalities had initially been raised in 2002. He felt that more work should have been done in the interim to address the issue of cross-boundary municipalities. If this had taken place, the protests amongst certain affected communities could have been avoided. Mr Mfundisi noted that poor service delivery at the municipal level was also a challenge. Another problem was that certain municipal officials were only interested in self-enrichment. He added that, hopefully, there would be greater progress around local government over the next five years.
Mr W Dorman (DA) stated that reducing the number of municipalities to 284 over the past five years was a major achievement. He added that there had been a great deal of transformation at the local government level over the past five years. However, the DA believed that the transformation of municipal personnel had been overzealous. As a result, many skilled municipal officials had left the local government arena. In addition, poor service delivery had been a problem. Indeed, poor service delivery had been caused by certain municipal officials not performing their duties properly.
Mr Dorman added that, over the past five years, the Portfolio Committee had passed numerous Acts that were aimed at placing local government on a sound base. The Portfolio Committee’s oversight role had also been performed well. This included producing a report on the problems that existed around local governments.
Mr M Likotsi (PAC) noted that there had been some successes and some failures over the past five years. He pointed out that there had been insufficient research around certain areas of local government. This often resulted in the Portfolio Committee learning through a process of trial and error.
Mr S Shiceka (ANC, Gauteng) responded that there had been sufficient research around local government issues. South Africa was the only country with an autonomous, yet integrated local government system. In fact, many foreign countries visited South Africa to study its local government structures.
Mr Likotsi commented that the PAC felt that the implementation of the mayoral executive systems had caused certain problems. For example, some mayoral executive structures had abused the power that they had been given. Mr Likotsi added that the PAC believed that it would be beneficial if a proportional representation system was implemented in the mayoral executive committees. This would allow opposition parties to be represented on these mayoral executive committees. It would also allow the opposition parties to play an oversight role.
Mr Likotsi added that, due to a lack of resources, many of the ward committees had not yet held elections. As a result, some of the ward committees were not representative of the communities’ wishes. Added to this, the ward councillors often dominated the ward committees.
Mr Likotsi pointed out that the Portfolio Committee relied on the Municipal Demarcation Board when it dealt with municipal boundaries. However, the opposition parties did not have representation on the Municipal Demarcation Board. Indeed, it was only the majority party that had representatives in entities such as the Demarcation Board and the South African Local Government Association (SALGA). Problems arose when these representatives did not perform their duties properly. Indeed, the Demarcation Board should have undertaken more work around cross-boundary municipalities. This could have avoided the dissatisfaction that certain affected communities felt.
The Chairperson responded that the Demarcation Board had been created as an independent entity, which was responsible for determining municipal boundaries. The people that the Demarcation Board selected to employ, was its own internal business. Added to this, SALGA acted in a manner that represented councils and councillors.
Mr R Bhoola (MF) stated that the transformation of the local government over the past five years had been a major achievement. Added to this, certain free basic services, and support for the indigent had been rolled out by the municipalities. However, the MF was concerned about issues surrounding the overcrowding and movement of squatters. Sufficient land needed to be acquired to address the problem of squatting. In addition, the local governments needed to become involved in the schools’ nutrition programme, creating a market for agricultural produce, and assisting in adult basic education training initiatives.
Mr S Shiceka commented that much had been achieved over the past five years, especially in terms of ensuring that the Constitutional provisions were advanced. Areas of weakness were being addressed through initiatives such as Project Consolidate. In addition, progress had been made in ensuring that people participated in local government structures through the ward committees. Nonetheless, ward committees needed be provided with greater resources. Mr Shiceka added that communities were also participating in the Integrated Development Plans (IDPs).
Mr Shiceka added that the executive governance system had been implemented to improve service delivery. He stated that corruption was not linked to the greater powers, which the executive governance mechanisms had been given. There was no mayor or councillor in South Africa that had the power to take decisions around procurement. The Public Finance Management Act (PFMA) also prohibited councillors from being involved in procurement decisions.
The Chairperson stated that the challenges that local governments faced would be examined and addressed.
Language Policies Relating to Parliament
The Chairperson had ensured that all the Members had been provided with the Language Policies Relating to Parliament document. He stated that Bills should be available in all the official languages. He felt that the Department also needed to make copies of its Bills available in all the official languages – this included the Cross-Boundary Municipalities Laws Repeal Bill. Indeed, Committees should insist that Bills be presented to them in the various official languages.
Dr P Bouwer (Department of Provincial and Local Government: Legal Services Manager) responded that the Department had adopted a language policy, which involved rotating the official indigenous languages, alongside English, to produce its Bills. For example, one Bill would be produced in English and Zulu, the next Bill would be produced English and Xhosa, while the Bill following that would be produced in English and Afrikaans. However, Bills could only be amended in the languages in which they had been produced. The Department had produced the Cross-Boundary Municipalities Laws Repeal Bill in English and Afrikaans. Hence, any amendments to the Bill could only be made in English and Afrikaans.
Update on the status of the Constitution Twelfth Amendment Act
Dr Bouwer stated that the Sowetan Newspaper had reported that the Gauteng legislature had confirmed its support for the proposals in the Constitution Twelfth Amendment Bill. Hence, all the provinces were supportive of the Amendment Bill. He added that the Select Committee would be considering the Constitution Twelfth Amendment Bill on the 12th of December. The Cross-Boundary Municipalities Laws Repeal Bill complemented the Constitution Twelfth Amendment Bill.
Amendments to the Cross-Boundary Municipalities Laws Repeal Bill: Deliberation
Dr Bouwer guided the Members, clause by clause, through the proposed amendments to the Cross-Boundary Municipalities Laws Repeal Bill.
Amendments to Clause 2: Consequential Arrangements
Dr Bouwer noted that it was necessary to make last minute adjustments to certain municipal boundaries, such as Matatiele, in preparation for the municipal elections. In order to accommodate this, it was proposed that the phrase "MEC for local government and the Electoral Commission" be removed from sub-clause 3 and sub-clause 4 (d) of Clause 2, and replaced by the phrase "MEC for local government, the Municipal Demarcation Board and the Electoral Commission".
Mr Smith enquired whether this amendment would empower the Municipal Demarcation Board to make the necessary adjustments to the affected municipal boundaries. Dr Bouwer responded that the amendment would empower the Municipal Demarcation Board and the Electoral Commission to undertake the necessary work in preparation for the local government elections
Insertion of a New Clause to follow Clause 4
Dr Bouwer stated that the proposed new Clause related to the transfer of provincial functions, assets and liabilities. The new Clause allowed all the responsibilities of a releasing province to be transferred to a receiving province (from the date of the elections), except in cases where the affected provinces had brokered an agreement for a releasing province to continue to render services in an affected area on an agency basis. Added to this, the new Clause made provision for the assets, rights, obligations, duties and liabilities associated with provincial service delivery, in an affected area, to be transferred to the receiving province.
Dr Bouwer explained that sub-clause 2 made provision for a releasing province and a receiving province to enter into a protocol, prior to the commencement of sections 2 and 4 of the Constitution Twelfth Amendment Bill, whereby a releasing province could continue to deliver provincial services in an affected area on an agency basis; or transfer staff, involved in provincial service delivery in an affected area, to the receiving province.
Dr Bouwer noted that Inter-Provincial Co-ordinating Committee had been established to examine the implications of the realignment of provincial boundaries and to facilitate the establishment of the protocols between the affected provinces. Nonetheless, the Department realised that there could perhaps be conflict between the provinces around the establishment of the protocols. In order to address this, the Department had formulated sub-clause 3. Indeed, sub-clause 3 (a) stipulated that if an agreement on the content of an implementation protocol cannot be reached by any of the affected provinces, then "the matter must be referred to the National Council of Provinces". Sub-clause 3 (b) added to this by stipulating that "the National Council of Provinces must assist the provincial governments in any manner necessary to reach agreement within two months after the commencement of sections 2 to 4 of the Constitution Twelfth Amendment Act". Sub-clause 3 also made provision for the releasing provinces to continue to deliver relevant services, for the two month period, if a dispute was referred to the NCOP. This would ensure that services were not disrupted in the affected area.
Dr Bouwer explained that sub-clause 4, of the new Clause, stipulated that the President’s Co-ordinating Council would be responsible for the co-ordination of the implementation of the protocols.
Dr Bouwer noted that sub-clause 5 was a technical sub-clause, which related to movable assets that would have to be transferred from a releasing province to a receiving province.
Ms L Mashiane (ANC) was concerned about the provisions of sub-clause 2 (a), which allowed a releasing province to continue to provide services to an affected area, on an agency basis, if it was agreed to by a receiving province. She felt there should be a cut off date whereby a releasing province would have hand over all the responsibilities to the receiving province. She was worried that some releasing provinces would perhaps want to remain involved, indefinitely, in an affected area because of the finances that could be generated from providing services on an agency basis. Dr Bouwer responded that a releasing province could only provide services on an agency basis, in an affected area, if it was agreed to by the receiving province. It was unlikely that a receiving province would want a releasing province to provide services, and have an influence, in an affected area for an extended period. Dr Bouwer added that certain problems could arise if a cut off date was stipulated. The allocation of finances for the affected areas and provinces could only be adjusted in the 2006/07 financial year. As a result, the releasing and receiving provinces would need to co-operate around issues in the affected areas until at least 2006/07. The aim was for effective service delivery to continue in the affected areas
Mr S Mashudulu (ANC) pointed out that the Municipal Assistance Act allowed for the Demarcation Board to assess the capacity of an entity to deliver services on an agency basis. He asked whether this Act could be used in terms of provincial governments providing services in the affected areas. Mr Bouwer replied that the stipulations in the proposed new Clause related to provincial governments’ service delivery and not local governments’ service delivery. Indeed, the new Clause was linked with the provision in the Constitution that allowed one organ of the state to act as an agent of another.
The Chairperson asked whether there would be any dispute mechanisms that provinces could use before referring a protocol dispute to the NCOP. Adv C Kholeng (Department of Provincial and Local Government: Legal Services) replied that the Inter-Provincial Co-ordinating Committee would audit the assets, personnel capacity and liabilities that needed to be transferred. In addition, the Co-ordinating Committee would facilitate the agreements between the affected provinces under guidance of the premiers. If a Co-ordinating Committee failed to ensure an agreement between affected provinces, then the matter would be referred to the NCOP. The NCOP could then assist the provinces to try to resolve the impasse.
The Chairperson enquired whether the NCOP’s oversight role would be comprised if it had to deal with such impasses. Mr Mzizi felt that there was a danger that the stipulations in the new proposed Clause could possibly force the NCOP to impose agreements on provinces, which had failed to finalise the protocols. The provinces needed to reach agreements by themselves. Dr Bouwer responded that the NCOP would not be imposing decisions on provinces. The aim was for the NCOP to mediate between two affected provinces that were in disagreement. Indeed, the NCOP would be mandated to assist the provinces, in any manner, to reach an agreement.
Mr Mzizi asked whether there would be any mechanisms to resolve a dispute, between two provinces, if the NCOP’s intervention failed. Dr Bouwer responded that sub-clause 3 (c) stipulated that if the protocol agreements were not concluded after two months of the commencement of sections 2 and 4 of the Constitution Twelfth Amendment Act, then sub-clause 1 would apply without any exception. Dr Bouwer added that the Department had also considered using the President’s Co-ordinating Council to deal with disputes around the protocols. However, the reality was that the new Clause would have a short life span. Hence, it was not practical to use the President’s Co-ordinating Council to resolve impasses. Indeed, a body would be required to act swiftly to resolve possible disputes between affected provinces.
Kgoshi L Mokoena was concerned that the deadline of two months could place a great deal of pressure on the NCOP to resolve any possible disputes around the implementation protocols. He asked why the period of two months had been selected as the stipulated period. Dr Bouwer responded that the implementation protocols needed to be implemented before the elections. The provinces would be given two months to finalise the implementation protocols. If two provinces could not agree on the content of a protocol within these two months, then they would have to refer the dispute to the NCOP. The NCOP would then have two months to assist the provinces to reach an agreement. The period that the NCOP had, to assist affected provinces reach an agreement, needed to be the same length as the initial two months implementation period. It would not make sense if the implementation period was two months, and the dispute resolution period was, for example, four months. Dr Bouwer added that the NCOP dispute resolution mechanism could not be used by affected provinces if they had not worked towards achieving a protocol agreement prior to the municipal elections.
Mr J Le Roux (DA, Eastern Cape) stated that the two months, which the NCOP would have to assist provinces reach a solution, was important because one could not have any unresolved issues around the affected areas. Hence, the new Clause needed to be implemented.
The Select Committee had raised a concern about the use of the word "must" in sub-clause 3 (b) of the new Clause. They were concerned that that it could perhaps place an unrealistic expectation on the NCOP to ensure that affected provinces reached an agreement around protocols. Mr Bouwer replied that one needed to use the word "must" in sub-clause 3 (b). If a discretionary word such as "may" was used, the stipulations in sub-clause 3 (a), which stated that the provinces had to refer a protocol dispute to the NCOP, would not make sense.
The Chairperson asked whether the NCOP’s role in resolving possible disputes, between affected provinces, had to be outlined in the new Clause. Was it not automatically the responsibility of the NCOP to assist in the resolution of disputes between the provinces? Dr Bouwer replied that the NCOP could automatically monitor processes involving the provinces. However, it was important to place an obligation on the provinces to refer any dispute, around the content of the protocols, to the NCOP. Hence, the stipulations in the new Clause were an essential requirement.
Mr Shiceka suggested that the word "must" be replaced by the word "mandated" in sub-clause 3 (b). The Joint Meeting agreed that the word "must" should be replaced with "mandated". Adv Kholeng replied that the word "must" could be replaced with the word "mandated". This amendment could address some of the concerns that the Members had raised.
Adv Kholeng noted that the NCOP should not be unduly apprehensive about the new Clause. The Inter-Provincial Co-ordinating Committee would be working towards ensuring that the provinces enter into implementation protocols. In addition, the Ministry and the Department would also be assisting the affected provinces to reach agreements. The NCOP would only become involved in the process in the unlikely event that there was a dispute around a protocol between a releasing province and a receiving province.
Mr Shiceka stated that the NCOP was a body of the provinces. In fact, the NCOP’s main areas of concern were the provinces and local government. As such, the NCOP had a responsibility to ensure that provinces implemented agreements and functioned properly. Hence, the stipulations in the new Clause were sound. As a result, Mr Shiceka, Mr Dorman and Ms Mashiane stated that the NCOP could act in accordance with the provisions in the new Clause.
Amendments to the Old Clause 5: Short title and commencement
Dr Bouwer noted that due to the proposed insertion of the new Clause, the short title of the Bill would need to be amended from "Cross-Boundary Municipalities Laws Repeal Act, 2005" to "Cross-Boundary Municipalities Laws Repeal and Related Matters Act, 2005". A small number of other technical amendments to the Old Clause 5 had also been proposed.
Dr Bouwer added that the old Clause 5 would become Clause 6.
Amendments to Schedules 2 to 5
Dr Bouwer commented that it was difficult to amended Schedules line by line. As a result, the Department had proposed that that the original Schedules 2 to 5 should be replaced by new Schedules 2 to 5 to reflect the amendments.
The major changes to the Schedules were that the references to the Metsweding District Municipality and the Kungwini Local Municipality were removed from Schedule 2 and Schedule 3 and relocated to Schedule 4 and Schedule 5. Dr Bouwer noted that references to Westonaria had been removed from Schedule 4 and Schedule 5. A reference to Westonaria would have to be inserted into Schedule 3. This particular amendment would be presented to the Joint Meeting on 7 December for the Members consideration. These changes had been necessary due to the fact that Westonaria would no longer be relocated to the North West province. However, Merafong would still be relocated to the North West.
A number of other technical changes were also made to the reference in the Schedules. For example, all the schedule notice numbers, of the reference to the various municipalities, were altered from 1594 to 1257 in Schedule 4. Added to this, the map numbers in Schedule 4 were changed. Technical changes were also made to references in Schedule 5, which included making reference to new Section 12 Notices.
Mr Smith enquired whether equitable shares, grants and transfers would be automatically transferred from the releasing province to the receiving province in an affected area. Dr Bouwer replied that these issues were administrative processes. The Department and the National Treasury were working towards re-aligning equitable shares. The provincial allocations had already been made for the upcoming financial year. As a result, it was important that the implementation protocols were finalised.
Mr Smith asked what the status of existing provincial laws and ordinances were in areas that were being transferred from one province to another. Two provinces could have different laws and ordinances. For example, a releasing province could have a dog pound law, while a receiving province might not have a dog pound law. If an affected area was transferred from a province that had a dog pound law, would the dog pound law still apply to the affected area, even if its was transferred to a receiving province that had no dog pound law?
Dr Bouwer replied that Clause 4 of the Bill addressed such a situation. It stipulated that any licence authorisation or ordinance would continue to apply in an affected area until it had been changed by the receiving province. Hence, an existing law would remain in force in an affected area until it had been explicitly changed by the receiving province.
The Chairperson noted that the Provincial and Local Government Portfolio Committee, the Local Government and Administration Select Committee, and the Justice and Constitutional Development Portfolio Committee agreed with the proposed amendments that the Department had outlined. The outstanding amendments, including the one that had been suggested by the Members, would be considered on the 7th December.
The Chairperson noted that the Committees had received submissions from people in the affected areas. As a result, the Chairpersons of the Committees had jointly decided to write to the affected provinces. The letter that they had written highlighted the need for the affected provinces to consider the submissions that the Committees had received. This was necessary because the provinces would be voting on the Constitution Twelfth Amendment Bill. Indeed, the letter had been signed by all the Chairpersons of the Committees that were present at the Joint Meeting. In fact, the provinces had already considered the submissions that were presented to the Committees.
Kgoshi Mokoena asked why the Chairperson of the Select Committee on Security and Constitutional Affairs had not been asked to sign the letter. The Select Committee on Security and Constitutional Affairs was also involved in the processes around the Constitution Twelfth Amendment Bill. The Chairperson apologised for the oversight.
Mr Mzizi was concerned that the media often stated that a Bill had been passed by Parliament when it had been passed by the National Assembly. However, Parliament was comprised of the National Assembly and the NCOP. The NCOP was not merely a rubber stamp. Mr Mzizi and the Chairperson added that people needed to be educated about how Parliament operated. The Chairperson noted that certain Bills had to be passed by both the National Assembly and the NCOP before they were finalised. The media and the public needed to be educated about this.
The Chairperson stated that the elimination of cross-boundary municipalities was aimed at improving service delivery. The elimination of cross-boundary municipalities would also form part on the ongoing process of rebuilding the local government system in order to achieve the Constitutional requirements, as outlined in the Bill of Rights.
The meeting was adjourned.