Cross Boundary Municipalities Laws Repeal Bill: briefing by Department

Meeting Summary

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Meeting report

Introduction by Chaiperson

LOCAL GOVERNMENT AND ADMINISTRATION SELECT COMMITTEE
5 December 2005
CROSS BOUNDARY MUNICIPALITIES LAWS REPEAL BILL: BRIEFING BY DEPARTMENT

Chairperson:
Mr S Shiceka (ANC) [Gauteng]

Documents handed out
Cross-Boundary Municipal Laws Repeal Bill [B36-2005]
National Assembly Proposed Amendments
email
info@pmg.org.za for the following document:
Proposals for Boundary Changes – Government Gazette 28189 31 October 2005

SUMMARY
The Select Committee received an informal briefing from the Department of Provincial and Local Government on the Bill, in order to apprise Members of the latest developments before the joint meeting with the National Assembly Committee on the Bill on the next day. Members raised questions of clarity and no substantive decisions were taken.

MINUTES
Introduction by Chairperson
The Chair stated that Parliament had planned for this Committee to pass the Bill by 14 December 2005, but there was no such guarantee. The aim of today's briefing from the Department of Provincial and Local Government was to allow the NCOP to apply its mind and make possible amendments when it engaged in a joint meeting with the National Assembly on the following day, because the NCOP had the right to see things differently. That right was enshrined in the Constitution. The Bill must be passed as soon as possible because they were needed for the local government elections in 2006. He requested the Department to inform the Committee of the areas in which amendments had been proposed by the National Assembly, so that the Committee was up to speed at the next day's meeting.

Department briefing

Dr P Bouwer, Department of Provincial and Local Government Manager: Legal Services, directed Members to the second and third columns reflected in Schedule 2 of the Bill and informed them that the Notice 1179 of 2005 referred to the Government Gazette of 18 July 2005. The third column referred to Notice 1594 of 2005, the Government Gazette of 19 August 2005 that reflected the new maps which contained the new provincial boundaries. It would greatly assist Members if they bore those two different notices in mind when considering the Bill. The 18 July 2005 Government Gazette reflected official demarcations of municipalities as they currently existed. The 19 August 2005 Government Gazette only reflected the areas in which changes were proposed.

He clarified that the Bill essentially dealt with three categories of municipalities: the first was existing CBMs that would be relocated into a single province, without changing the current municipal boundaries. An example would be the Tswane Metro, as illustrated in the "Category 1 Metro’s and District Municipalities moved as a whole" document, which has a small portion currently in the North West province. The proposal was that the entire Tswane Metro, as currently demarcated, would now fall within the Gauteng province. The arrangements for the first category of municipalities were contained in Schedules 2 and 3 of the Bill.

The second category dealt with the KwaZulu-Natal and Eastern Cape situation, where existing municipalities were being relocated into another province. A good example was the Umzimkulu Local Municipality which currently fell within the Eastern Cape, but which would be disestablished and a completely new municipality would then be established in the KwaZulu-Natal province by its MEC for Local Government.

The third category was existing CBMs which, because of technical reasons, the local municipalities within the district municipality needed to be ‘cut up" and redistributed within that district municipality. The same scheme as followed in the KwaZulu-Natal situation would be followed here, and were dealt with in Schedules 4 and 5 of the Bill.

Long title

Dr Bouwer indicated that this reflected the aims and contents of the Bill.

Preamble

Dr Bouwer explained that this had been was inserted on the advice of the State Law Advisors, and clarified the approach to the legislation. It aimed to clarify that Section 74(4) of the Constitution stipulated that any constitutional amendment was limited only to the specific provision and amendment required, and was not allowed to provide for any consequential and transitional arrangements. It was thus the purpose of the Bill to provide for those consequential and transitional arrangements needed for the Constitution Twelfth Amendment Bill.

Clause 1: Definitions

’cross-boundary municipality’

Dr Bouwer stated that this referred to a municipality that straddled a provincial boundary.

’MEC for local government’

Dr Bouwer informed Members that these terms had been copied from the Municipal Systems Act.

’section 12 notice’

Dr Bouwer explained that once an area was demarcated by the Municipal Demarcation Board (MDB) as requiring a municipality, the process to be followed was that the MEC of that province would have to establish a municipality for that particular area. This had been effected by the notice required by Section 12 of the Municipal Structures Act, which was referred to as a section 12 notice. It contained all the institutional arrangements of that municipality, such as its name, the number of councilors and wards, whether it would be a mayoral or executive municipality, and the category of municipality.

Two different approaches to implementing these section 12 notices had been introduced in 2000. Some provinces published separate section 12 notices for each municipality established. Dr Bouwer digressed with an explanation of the three categories of municipalities established by the Constitution. The Category A municipalities were ‘stand-alone municipalities’, which meant that in a particular geographical area there was only one municipality that had any government power. Those were the metropolitan municipalities, and there were currently six in the country. The Category B and C municipalities were the district municipalities that consisted of local municipalities within that particular area.

In 2000, the government had realised that there were cases which did not warrant the exercise of the full extent of municipal powers. Typical examples were the Kalahari National Gemsbok Park or Kruger National Park. The Portfolio Committee for Provincial and Local Government had at that stage introduced the concept of a district management area which meant that only the district municipality would exercise its powers in that particular area. There would thus be cases in which district municipalities would not contain smaller local municipalities that covered the entire geographic area, but would instead consist of a single district municipality. This would give effect to the constitutional requirement that the country had ‘wall-to-wall coverage’ with either metro municipalities or district municipalities.

Dr Bouwer explained that this was important because there were certain provinces that had created a Section 12 Notice for the district municipality as well as for each local municipality within that district municipality. Other provinces had however opted for a single Sction 12 Notice for the entire district municipality, and that same notice would then also provide for the establishment of local municipalities. It was for that reason that some of the schedules reflected a repeat of the same notice for different municipalities.

Clause 2: Consequential amendments

Subclause 1

Dr Bouwer explained that the transitional arrangements for the existing CBMs required a Section 12 Notice from each of the two MECs, because a joint administration approach had been decided on in 2000. Thus, in the case of the Tswane Municipality, both the Gauteng MEC and the North West MEC would have to issue a Section 12 Establishment Notice. The two notices would be identical, save that one would be issued by the North West MEC whereas the other would be issued by the Gauteng MEC. Consequently, there would be a single demarcation but with two maps published, because the MDB would publish the same map in each of the provinces concerned.

Using the Tswane example again, the purpose of Clause 2(1) would be to deem the demarcation in the Gauteng provincial gazette to be the demarcation of the future Tswane Municipality, with the same municipal boundaries, which would then only fall within the Gauteng province. This provision thus fast-tracked the demarcation process. All those demarcations were listed in Schedule 2 of the Bill. The second column reflected the current demarcation, which was the 18 July 2005 Government Gazette notice. The third column indicated the new designation of the new Tswane Metro, which was reflected in the 19 August 2005 Government Gazette notice. The last column stipulated that the new Tswane Metro would only fall within the Gauteng province.

Subclause 2

He continued with the briefing and indicated that 2(2) stipulated that if the new demarcation was deemed, the MEC would either have to issue a new Section 12 Notice or he would have to amend the existing notice. This involved an elaborate consultation and public comment process. In order to fast-track the process, Clause 2(2) stipulated that the Section 12 Notice of the receiving province would be deemed to be the properly issued notice of the municipality that would now fall only within that receiving province. Thus in the Tswane example, the Section 12 Notice issued by Gauteng in terms of the cross-boundary Tswane would be regarded as the official Section 12 Notice of the new Tswane Metro falling only within Gauteng.

Dr Bouwer stated that there was unfortunately a complicating factor in the Tswane Metro example. The Gauteng province has seized the opportunity in this fast-tracking process by consolidating all the amendments they had effected to their Section 12 Notices since 2000 into a single Section 12 Notice under this provision. This made for ease of reference. This was reflected in the first column of Schedule 3, which indicated the very recent Gauteng Section 12 Notice 3585 of 2005. Other provinces had not done that, and it was for that reason that Schedule 3 would reflect older dates for those provinces’ Section 12 Notices.

Schedule 3 indicated that the Limpopo Province Section 12 Notice for the Sekhukhune District Municipality referred to Notice 302 of 2000, and that Notice 302 of 2000 had been repeated in the schedule for all other Limpopo municipalities that would now be altered. The was because Limpopo had opted to use a single Section 12 Notice for the Sekhukhune District Municipality and each of the local municipalities within its jurisdiction.

Subclause 3

Dr Bouwer informed Members that the Department of Provincial and Local Government had realised in anticipation of the local government elections, that the envisaged municipalities dealt with in the Bill were technically not yet in existence. Wards however needed to be demarcated for the local government elections and Subclause 2(3) allowed the MECs to take any necessary steps to prepare those municipalities for the local government elections. Subclauses 2(1)-(3) concluded all the consequential arrangements that needed to be made for the first category of CBMs.


He stated that, because the MDB would now have to go back and delimit wards, the Department proposed an amendment to this provision which would also include the MDB. This would allow it to take preliminary steps and delimit wards in preparation for the local government elections.

The Chair ruled that the Members be allowed to ask questions at the end of each clause, as that would be the best option.

Mr A Mzizi (IFP) [KwaZulu-Natal] stated that he understood the content of the Bill. He however sought clarity on the relationship between the Bill, which dealt with demarcation of municipalities, and the Constitution Twelfth Amendment Bill, which dealt with provincial boundaries, because the problem on the ground was that although the general public agreed to the abolition of cross-boundary municipalities, they disagreed with the relocation of their municipality into a new province. He sought clarity as to how the Department was harmonising those two issues.

Dr Bouwer replied that the Bill as it presently stood, with the proposed amendments, addressed the consequences of the Constitution Twelfth Amendment Bill, which was presently with the Security and Constitutional Affairs Select Committee. Thus until that Bill was finalised, the Committee must pass this Bill as it currently stood, and cautioned against anticipating any amendments to the Constitution Twelfth Amendment Bill..

Mr Mzizi sought clarity on Dr Bouwer's statement that the provision allowed for a fast-tracking of the usually lengthy process of the delimitation of wards.

Dr Bouwer responded that the bottom line was not really the actual delimitation itself, but also involved the completion of the processes. The MDB would today be publishing the proposed ward boundaries, and would allow for sufficient time for objections to those to be heard. The MDB planned to finalise the ward lists by 23 December 2005. He stated that that process was not being fast-tracked, as the full process was being followed. The Constitutional provisions could not be fast-tracked.

Mr J Le Roux (DA) [Eastern Cape] asked Dr Bouwer to explain whether there were any unforeseen consequences that he had noted as a resutl of the Bill. He stated that his concern was a concern that had been around since the days of colonialism, namely that the rulers of the day drew boundaries that suited their own political agendas, and the consequences were so severe that they even resulted in wars.

Dr Bouwer replied that the Bill made all attempts to accommodate the unforeseen consequences, especially the new proposal received from the National Assembly regarding the transfer of functions between the releasing and receiving province. He stated that unforeseen consequences could include things such as natural boundaries, like a river, and that could not be foreseen in the Bill.

The Chairperson sought clarity on the roles to be played by the MDB, the MECs and the Independent Electoral Commission (IEC).

Dr Bouwer responded that certain provisions in the Bill related to entities that had not yet come into existence, namely the so called deemed demarcations of municipalities. In those cases, such as the Alfred Nzo District Municipality in its new configuration of Matatiele and Umzimvubu Local Municipalities, the MEC must now determine the number of councillors and wards in that new configuration which would only come into existence on the day of the local government elections. Likewise the IEC must now commence the designation of the voting districts along the demarcation lines that were now determined in the legislation, and they were thus doing that in anticipation of the outcome of this legislative process. The same applied to the voters roll, in which voters now had to be aligned according to the new realignment of provincial boundaries.

He used Tswane Metro an as example to indicate that its municipal boundaries will not change, nor will service delivery within that municipality, as it was one complete municipality with its full cohesion of communities. The only thing that would happen, as a result of the legislation, was that the municipal boundary would be realigned so that it now only fell within the Gauteng province. Thus many of the concerns raised by people on the ground regarding the continuity of services were unfounded as those services would continue to be provided by the municipality, as only the municipal boundary was changed..

Mr Mzizi reiterated his concern that there did not appear to be sufficient consultation between the MDB and the communities regarding the new boundaries, and that reminded him of the unilateral and exclusionary practices of the regime of the past. The reality of the matter was that the actual consequences of the new boundaries were not properly explained to communities.

The Chair agreed with Mr Mzizi’s concerns but stated that it should properly be raised during discussions on the Constitution Twelfth Amendment Bill, as this Bill dealt merely with the consequential matters.

Subclause 4

Dr Bouwer informed Members that this provision dealt with the second category of CBMs, as explained earlier. Subclause 2(4) followed the same principles as the previous portions of Clause 2, save that this provision did not deal with a finalised current municipal demarcation that could simply be transplanted. In this case, the Municipal Demarcation Board (MDB) had to arrive at proposed demarcations. Thus all the demarcation proposals for this category of CBMs would refer to the 19 August 2005 Government Gazette notice, which was reflected in the first column of Schedule 4.

The Umzimkulu Local Municipality provided a good example. Umzimkulu was the small ‘island’ in the Eastern Cape that fell within the KwaZulu-Natal province, and was completely surrounded by the KwaZulu-Natal province. The MDB could not even begin to make preliminary demarcations for the new Umzimkulu Local Municipality that would fall within KwaZulu-Natal, because its relocation into a new province was not yet supported by a Constitutional amendment. Thus subclause 2(4) employed the notion of a proposed demarcation which, when read together with the Constitution Twelfth Amendment Bill which complemented the realignment of the provincial boundaries, would then constitute the proper demarcation of the Umzimkulu Local Municipality. The wording of 2(4) was identical to that of 2(1), save that 2(4) referred to the "proposed demarcation".

He stated that 2(4)(b) now stipulated that the proposed Section 12 Notice published by the MEC would be fast-tracked to become the proper Section 12 Notice on the day that the provincial boundaries were redrawn by the Constitution Twelfth Amendment. Clause 2(4)(b) should be read with Schedule 5.


Mz N Ntuli (ANC) [Kwazulu-Natal] sought clarity on the status of the Matatiele municipality.

Dr Bouwer replied that the Local Municipality of Matatiele fell under this category of municipality. He stated that the effect of the new proposed demarcations was that the geographical size of the Eastern Cape province would increase with the inclusion of Matatiele. Matatiele could however be reconfigured as the entire magisterial district of Maluti, which currently formed part of Umzimvubu Local Municipality, was to be excised from Umzimvubu Local Municipality and included in Matatiele. Thus the size of the Matatiele Local Municipality would also be increased. He stated that Matatiele currently had only five councilors, but with the proposed inclusion of Maluti, it would consist of 48 councilors. It was important for Members to note that the proposed inclusion of Maluti was supported by all concerned, even the Matatiele municipality itself.

He stated that the other area of reconfiguration was the Bohlabela District Municipality, which comprised the Maruleng Local Municipality and the Bushbuckridge Local Municipality. The proposal regarding the new provincial boundary was that Maruleng be located in the Mopani District Municipality in the Limpopo Province, and that Bushbuckridge be located as a Local Municipality in the Ehlanzeni District Municipality in Mpumalanga.

The new proposed schedules did not include the correct Section 12 notice for the Gauteng Province to reflect the West Rand District Municipality as excluding the Merafong municipality. Dr Bouwer stated that he had been informed by the officials that they were preparing the Section 12 notice, which would be published today. He stated that he would have to effect that small change to the schedule in the proposed Section 12 notices.

Mr Mzizi asked to which province Matatiele originally belonged.

The Chair stated that the national archives would have to be consulted on the matter.

Dr Bouwer continued with the briefing and informed the Committee that 2(4)(c) was identical to 2(2)(b), and 2(4)(d) allowed for the preliminary steps that needed to be taken in anticipation of the local government elections. These were all the consequential arrangements that the Department of Provincial and Local Government had identified as being necessary to fast-track the local government compensation changes that arose from the realigning of the provincial boundaries in the Constitution Twelfth Amendment Bill.

He added that those municipalities were considered the successors in law of the preceding municipalities. The National Assembly proposed amendment to 2(4)(d) was to include a reference to the MDB.

Mr Mzizi stated that he was under the impression that all political parties were expected to have submitted their lists to the IEC by 19 January 2006. He asked whether any amendments effected to the Bill would affect the timeframe of that IEC process.

Dr Bouwer responded that 19 January 2006 was within the time period the IEC was working with. Thus the date of elections, that would fit into that model, would be proclaimed in early 2006. The decision was thus taken to only announce the date of 19 January 2006 at this stage, to allow the processing of the two Bills to be completed and the delimitation processes, and then when the final date was proclaimed the other processes would kick in. There was thus pressure on Parliament to finalise the Bills by the week commencing 12 December 2005.

The Chair asked whether there was the possibility of any major changes to the wards. Secondly, he asked whether the IEC had devised a process or a period to allow for the registration of voters of any new wards as a result of the redetermination of boundaries. .

Dr Bouwer replied that the IEC had assured his Department that once those matters had been finalised, the IEC would have targeted registration to realign the particular wards. The IEC indicated that those wards were very few in number, totalling three of four small wards. The IEC indicated that it would physically visit those communities on a door-to-door basis to re-register those voters. He stated that he was speaking under correction, but he believed the IEC indicated that it would conduct that process during the week of 14th January 2006.

Clause 3: Repeal of laws

Dr Bouwer indicated that this clause outlined all the legislation on cross-boundary municipalities that would need to be repealed. The list of legislation was reflected in Schedule 1 of the Bill.

Clause 4: Savings

Dr Bouwer explained that the clause effectively dealt with the relationship between the State and its citizenry. It was effected when the government had realised the impact that the realignment of municipalities would have on the local government dispensation. Clause 4(1) provided, for example, that people with North West vehicle registration plates could continue to use those for the time being, and the trading licences of traders in the North West province would remain in force during the transitional period until the Gauteng province made new arrangements. The provision placed no timeline on the transfer of the right, obligation etc to the receiving province.

Dr Bouwer said that 4(2) stipulated that the MEC could amend the Section 12 Notice to regulate any legal, practical or other consequence that could arise as a result of the transition. This provision was aimed at accommodating any funds that needed to be transferred from one municipal area to another. This did not relate to a provincial function or the transfer of provincial funds. The clause was thus a ‘catch-all provision’ aimed at catering for any possible future eventuality.

The Chair stated that the real issue in this clause, really, was whether members of a community that was currently in the Gauteng province would still receive ARV treatment if their municipality was now moved to the North West province, which did not provide ARV treatment. The real issue was thus whether service delivery would continue unhindered and unaffected.

Kgoshi L Mokoena (ANC) [Limpopo] stated that there were some provinces and municipalities that specialised in fiscal dumping, with the result that the funds that should have been used to provide services in fact went to waste. He asked whether all such liabilities would be transferred to the receiving province. He questioned whether specific exemption should be created for receiving provinces to accommodate such problems.

The Chair stated that the NCOP must exercise an oversight role of such matters.

Adv S Kholong, Department of Provincial and Local Government Executive Manager: Administration, responded that the budget for provision of services was derived from the national fiscus. Government did not however want a situation in which there was a break in service delivery. There were inter-provincial co-ordinating committees that were currently taking stock of assets and liabilities within each province, as well as the services that were currently being rendered. This was aimed at avoiding the creation of a vacuum in service delivery the day after the services were transferred to the receiving province.

He stated that both municipalities were audited as independent entities and, invariably, the auditing of that municipality’s internal financial arrangements will remain as is even when it was transferred to the receiving province.

Dr Bouwer added that Clause 4 dealt with permits and licenses etc. and the Justice and Constitutional Affairs Portfolio Committee recognised that the tabled version of the clause did not adequately cover all necessary consequences relating to the transfer of functions etc from one province to another. That Committee inserted various options to regulate the transfer of provincial responsibilities, which appeared to be the focus of this debate. Three options were given and that Portfolio Committee took the decision that the transitional arrangements should not be contained in the Constitution Twelfth Amendment Bill, but instead in this Bill. The options were contained in the amendments that have been circulated to Members.

He explained that the amendments proposed the insertion of a new Clause 5 to deal with transitional arrangements relating to provincial functions, assets and liabilities. The new 5(1) stipulated that any function or service, as well as any asset, right or obligation associated with the function or service would be transferred from the releasing province to the receiving province. The Portfolio Committee was however aware of the practicalities, and for that reason it formulated the proposed 5(2) which allowed the administration of the two provincial governments to enter into an implementation protocol. This was a new concept provided for in the Intergovernmental Relations Framework Act, and allowed the two provinces to reach agreement for the releasing province to continue to exercise the function or providing that service from its own resources.

To that end co-ordinating committees had been established between the affected provinces, to consider the matter and draw up the arrangements where necessary. In the event that the provinces could not reach agreement, 5(3) envisaged a role played by the NCOP by mediating a solution to the problem. The date of elections would only be announced on 1 March 2006, and there was thus sufficient time for those agreements to be concluded and implemented. He stated that it could take some time to finalise such agreements and it was for that reason that 5(3)(b) stipulated that they must be finalised within two months after the commencement of Sections 2-4 of the Constitution Twelfth Amendment Act. Thus, essentially, the NCOP can still try and mediate up to two months after the local government elections. However, 5(3)(c) stipulated that if no agreement was reached then 5(1)( would apply. Dr Bouwer informed the Chair that the provision did thus grant a substantial oversight role to the NCOP, and it was up to the Committee to decide whether it would want to extend or weaken that role.

Dr Bouwer explained that 5(4) stipulated that the implementation of the agreements entered into by the provinces would be overseen by the President’s Co-ordinating Council, because they were rather high level agreements. The proposed 5(5) was merely a legal arrangement that stipulated that any immovable property that changed hands must be entered into the deeds registry by the relevant Registrar of Deeds.

He informed Members that the new Clause 5 was proposed by the Justice and Constitutional Affairs Portfolio Committee and had not yet been considered by the Provincial and Local Government Portfolio Committee, but would most likely be discussed at the following day’s meeting.

A Member (ANC) asked whether the principle of "funds follow function" applied to this clause.

Dr Bouwer answered in the affirmative, as captured in the proposed 5(1)(b). He stated that the re-alignment of the equitable share was currently being evaluated by the Department of Provincial and Local Government and National Treasury. Flagship projects of certain provinces have been identified, and agreements had been reached that those provinces would complete those projects with the resources that have been allocated to it, and would only be transferred to the receiving province upon completion. The same would apply to long-term contracts, such as housing contracts.

Mr Le Roux stated that although Dr Bouwer indicated that all the effected parties agreed to the reconfiguration of the Matatiele municipality, the fact of the matter was that there was no agreement on the relocation of the municipality in the Eastern Cape province. That was a much larger problem, and he was concerned that the dispensation was not allowing sufficient time for the transition to ‘gel’ as the process was for too hurried.

The Chair ruled that that issue related to the Constitution Twelfth Amendment Bill, and would be held over for discussion at the meeting on that piece of legislation on Monday 12 December 2005.

Adv Kholong replied that the Portfolio Committee did hold public hearings at which a number of stakeholders from the Matatiele area made submissions. Notwithstanding the uproar reported in the media, the fact was that at that public hearing many of the Matatiele district stakeholders actually supported the proposal that it be located in the Eastern Cape province. He was thus of the view that the constitutional principle of adequate public consultation had been abided by.

Kgoshi Mokoena asked Dr Bouwer to explain what process would have to be followed should the NCOP propose amendments to this Bill. He asked whether the NCOP and National Assembly would have to vote separately on the Bill.

Dr Bouwer responded that the Portfolio Committee on Provincial and Local Government must consider this Bill together with the amendments. If that Committee passed the Bill, with or without amendments, it would only be debated in the National Assembly on 13 December 2005. That meant that this Committee would have to consider the B version of the Bill, as adopted by the National Assembly, basically on that very afternoon or on the morning of 14 December 2005. Should the NCOP propose amendments the Bill would have to be referred back to the National Assembly, and he was under the impression that a sitting was scheduled for the National Assembly after the sitting on 14 December 2005.

Kgoshi Mokoena sought clarity on the reason for the inclusion of the word "must" in the proposed 5(3)(b). The current phrasing appears to instruct the NCOP to perform this function, which is not the desired approach.

Mr Ntuli asked Dr Bouwer to explain who exactly was giving that instruction to the NCOP. He preferred a monitoring or oversight role, and not an obligatory "must".

The Chair proposed that the "must" be replaced with "mandated to".

Dr Bouwer replied as explained earlier, the proposed Clause 5 had not yet been interrogated by the Provincial and Local Government Portfolio Committee, but a role for the NCOP in the Clause 5 process was mooted by the Justice and Constitutional Development Portfolio Committee. Guidance was thus required from this Committee on the role of the NCOP, as the proposals in Clause 5 were not cast in stone. He encouraged Members to express preferences in this regard, as it would greatly assist him in drafting a provision that was satisfactory to all.

The role given to the NCOP in the proposed 5(3)(a) must be debated by the Committee. It was however agreed that there was no sense in referring a matter to an entity if that entity did not have the concomitant obligation to take positive steps in response to that referral. Thus if "may" were used instead, it would not create a concomitant obligation on the NCOP to do anything about the referral. He stated that a softer formulation such as proposed by the Chair could be adopted but, even if it were adopted, it ran the risk of not placing a definite obligation on the NCOP to act.

Kgoshi Mokoena asked Dr Bouwer to explain how the Bill will affect the existing management areas, such as the boundaries in the Kruger National Park, as the Bill was silent on those.

Dr Bouwer responded that the new proposal was to locate the new provincial boundary along the Oliphants River, which was basically in the middle of the Kruger National Park.

Kgoshi Mokoena suggested that the hullabaloo reported in the media about the provincial relocations was not because the community disliked the physical relocation to the particular receiving province, but was instead the concern that the administration of the relevant receiving province was significantly worse than their current provincial administration.

Secondly, he stated that their was also a call in the public media for a review of the need for those provinces that are under-performing and not meeting satisfactory service delivery standards. The Deputy President herself indicated that it was on the cards

The Chair asked whether service delivery standards would be maintained in the releasing province during the transferal period to the receiving province.

Adv Kholong replied to the three questions by stating that government was indeed concerned with the pace and quality of service delivery in all three spheres of government. There was a growing understanding of the danger in assuming that one sphere was necessarily better off than the rest, and that one sphere can learn from another. It was for that reason that interprovincial co-ordinating committees were established to ensure communication between the spheres to ensure the relocation of boundaries was s smooth process, and to prevent any gaps in service delivery.

He stated that if there were problems in a specific province with regard to service delivery, then the specific capacity, skills and resource constraints in that provincial administration must be addressed. This must be continuously worked on to improve the service delivery standards across government.

Mr D Worth (DA) [Free State] sought clarity on the transfer of movable assets, such as ambulances, as the proposed Clause 5 was silent on that.

Dr Bouwer responded that all assets that were associated or connected with a particular service or function would vest in the receiving province, which included the movable assets.

Mr N Mack (ANC) [Western Cape] asked whether an agency that was providing a specific function to a Local Municipality, such as the tarring of roads, would then move to the receiving province as well when the Local Municipality was relocated. He asked how that would affect the financial resources of District Municipalities.

Dr Bouwer replied that his Department had already begun work on the amendment of authorisation notices, which detailed the division of powers between District Municipalities and Local Municipalities. The proposals would be discussed within the Department and finalised within the next two weeks.

Mr Mack clarified his concern by explaining that he foresaw trade union problems if a plumber for example charged a certain rate in the current province, but was then forced to reduce his rate under the new rates set by the regional structure in the receiving province.

Dr Bouwer responded that his understanding of labour law was that a tariff applied across the board in the specific sector. He reiterated that only the Matatiele and Umzumvubu Local Municipalities were being reconfigured, and all others remained intact. One of the positive aspects of the entire process was that, as far as possible, the reconfiguration of Local Municipality had not been changed substantially.

Adv Kholong added that the remuneration of councilors was regulated in the Remuneration of Political Office Bearers Act. The municipalities that were being shifted from one province to another were being relocated as whole entities, and the Department did not anticipate such substantial changes in the levels of remuneration.. Furthermore, the relocation would signal a new term of office for those new councillors, and thus no pre-existing rights would be affected in any fundamental manner. He explained that the terms of employment for officials employed by municipalities did not change when the municipality was moved to another province, because the municipality remained intact and they remained employed by that very municipality.

The remuneration of public servants was determined by the Public Service Act, and that included provincial officials. The legislature ensured that the rights of officials will not be adversely affected.

Dr Bouwer added that that was spelt out in Section 14(3) of the Structures Act

Clause 5: Short title and commencement

Dr Bouwer indicated that the clause stipulated that the provisions that allowed the MECs to make preparations for the local government elections would immediately come into effect upon promulgation of the Bill. The remainder of the provisions in the Bill would only come into effect upon a date determined by the President, which would be the same date for the Constitution Twelfth Amendment Bill.

The meeting was adjourned

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