Local Government: Municipal Demarcation Bill & NCOP Amendments to Remuneration of Public Office Bearers Bill : briefing

Meeting report

CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
5 May 1998
LOCAL GOVERNMENT: MUNICIPAL DEMARCATION BILL (B36-98) & NCOP AMENDMENTS TO REMUNERATION OF PUBLIC OFFICE BEARERS BILL (B16B-98): BRIEFING

Documents handed out:
NCOP amendments to Remuneration Of Public Office Bearers Bill (Appendix)
Remuneration Of Public Office Bearers Bill [B16B-98]
Local Government: Municipal Demarcation Bill [B36-98]
These bills can be found at http://www.polity.org.za/gnu/gnuindex.html

SUMMARY
This meeting of the Portfolio Committee on Constitutional Affairs and Public Administration considered two topics.

From 0930 to 1230, the committee was briefed by Dr. Olver, Deputy Director-General of the Department of Constitutional Development and Provincial Affairs on the provisions of the Local Government: Municipal Demarcation Bill (B36-98). Committee members asked numerous questions and raised several concerns during the briefing.

From 1230 until 1300, the committee was briefed by the Director-General of the Department of Constitutional Development and Provincial Affairs on the amendments proposed recently in the National Council of Provinces to the Remuneration of Public Office Bearers Bill (B16B-98). Little discussion followed the second briefing.

The meeting began with an explanation of several committee administrative matters by the chair, Mr. Carrim of the ANC. At the end of the meeting, several opposition MPs’ expressed a desire for additional and more timely information and documentation from the Department and committee clerk. More extensive explanation is provided in the detailed minutes below.

DETAILED MINUTES
Part 1: Committee Administrative Matters
The chair opened the meeting by noting that a program for the committee’s agenda from May through September has been compiled and will be distributed to members shortly. The committee will meet on 12 and 19 May from 0900 until approximately 1300 to review the budget of the Department of Constitutional Development and Provincial Affairs. The committee will hold public hearings on the municipal demarcation bill on 26 and 27 May. The chair hopes that the bill will be finalized and passed by 12 June so that the process of preparation for local elections can begin.

The chair noted that the committee’s budget had been reduced by 80%, eliminating the possibility of state-funded study tours. The committee is considering submitting proposals to donors for study tour funding, but the government wants to ensure that tangible products will result from such a tour.

Committee visits to the provinces have been scheduled for late September or early October.

Part 2: Briefing on Local Government: Municipal Demarcation Bill
Mr. Olver, Deputy Director-General for Local Government in the Department of Constitutional Development and Provincial Affairs, began his briefing with an explanation of the three major stages that must be completed in order for local elections to be held. They are:
1) Demarcation of municipal boundaries by an independent authority, as required by the Constitution
2) Establishment of local government in all municipal areas demarcated by the provincial governments, which are granted sole authority for this establishment by the Constitution. The Department anticipates that these will be established by provincial proclamation. Establishment entails declaration of each municipality’s:
name
area
type/category (this will have been determined by the demarcation board)
assets and liabilities
staff
by-laws
3) Erection of election machinery in each municipality by the Independent Electoral Commission

Dr. Olver stated that the demarcation bill must be finalized and passed before this process can begin. The next piece of legislation necessary, he said, would deal with the second step of the process: establishment of municipalities by the provincial legislatures.

Dr. Olver noted that the demarcation board was a permanent body. After serving its initial purpose of demarcating municipalities nationwide, it would continue to exist for purposes of subsequent redemarcations as necessary.

Dr. Olver then started his discussion of the municipal demarcation bill, drawing members’ attention to key and/or controversial provisions of each of the bill’s three chapters in turn. After each chapter, questions were raised by committee members and discussion ensued.

Chapter 1 Briefing
Dr. Olver suggested that all members consider whether the bill meets the requirements set out in the Constitution.

Dr. Olver noted that the bill is intended to ensure that the demarcation board will be fully independent and will have knowledge of circumstances in all provinces. The bill also allows for non-’experts’ who have extensive community-based knowledge and experience to be included on the board.

Dr. Olver said that the Department believes that the board members’ jobs will initially be full-time, but will be reduced to part-time posts once the initial nationwide demarcation is completed. He noted that the size of the board can be reduced by not appointing a replacement when a position becomes vacant.

The bill allows the President to remove a board member only on grounds of "misconduct, incapacity, or incompetence."

Chapter 1 Questions and Discussion
The chair asked why the demarcation board is responsible for the external boundaries of municipalities while the IEC is responsible for delimiting the internal boundaries (wards) of each municipality.

Dr. Olver responded that the legislation to establish the IEC assigned it responsibility for delimiting wards. The Department believes that the board should collaborate closely with the IEC. He noted that suggestions have been made that the IEC transfer its delimitation responsibility to the board. This option is still being discussed.

Mr. P. Smith of the IFP asked if it was necessary to state explicitly in the bill that the board’s responsibility was limited to external municipal boundaries. Dr. Olver responded that this was already evident in the wording of the bill.

Mr. Smith asked Dr. Olver to explain why a representative from the Commission on Gender Equality and a member of the NCOP had been included on the selection committee that would choose members of the demarcation board. Regarding the Gender Commission representative, Dr. Olver replied that it was vital to introduce a gender perspective into the process as there were numerous gender-related dimensions in the selection procedure that might be overlooked or neglected by other members. Regarding the NCOP representative, Dr. Olver noted that the Department considered it important to have representation from each branch of government. The bill designated the Chair of the NCOP Committee on Constitutional Affairs and Public Administration because the NCOP legislators are supposed to be better acquainted with the needs and challenges of the provinces, and this committee has been closely involved in the development of the demarcation legislation.

Chapter 2 Briefing
Dr. Olver offered a brief overview of Chapter 2 of the bill. He noted that the lengthy list of factors to be considered by the board when making demarcation decisions could be problematic, recognizing that the more factors that are included, the less likely board members are to pay attention to them.

Dr. Olver also noted the intention to harmonize municipal boundaries as much as possible with boundaries of areas established for other purposes, including magisterial districts and health districts. He stated that discussions are underway with the justice and health departments, among others, to facilitate this alignment.

Chapter 2 Questions and Discussion
The chapter 2 questions and discussion centered on three major issues - subsection 23(2), the criteria for demarcation, and the mechanism for reviewing the board’s demarcation decisions - as well as several minor issues.

Subsection 23(2) caused confusion among members. Section 23 is entitled "When boundary determinations take effect." Subsection 23(1) stipulates "Once the Board has determined a municipal boundary it must without delay send particulars of the determination to the Electoral Commission." Section 23(2) identifies two ways that date of a boundary determination takes effect. If the Electoral Commission decides that the boundary determination "will not materially affect the representation of voters" in the area council, then the MEC for local government in the province can simply publish a date in the Provincial Gazette on which the new boundaries will come into effect. If, however, the Electoral Commission decides that the boundary determination "will materially affect the representation of voters in the council of any of the municipalities affected by the boundary determination," the determination will take effect "from the date determined by the MEC for local government by notice in the Provincial Gazette taking into account the date of the next election in the municipality concerned." It might not be possible for the determination to take place immediately after the next election, Dr. Olver explained, because of the logistical complications that may be involved in transferring staff, responsibilities, and liabilities from the previous municipalities to the new ones. Dr. Olver noted that the Department was open to suggestions of rewording of subsection 23(2) to reduce confusion.

Mr. Eglin of the DP asked if this section applied only to the forthcoming municipal elections. Dr. Olver stressed that this bill puts into place a mechanism for demarcation that is intended to endure long beyond the coming election.

Dr. Olver said that a question is implicit in Clause 23 and must be dealt with by Parliament: the question of whether special elections would be held when new boundaries are demarcated in the years after the 1999 elections. Mr. Smith of the IFP expressed his belief that redemarcation cycles should be timed to precede elections so as to obviate the need for special elections. Dr. Olver stated the Department’s position that redemarcation of municipal boundaries should be allowed at any time.

The chair noted that this briefing was not the appropriate forum for lengthy debate on individual clauses and suggested that the committee move on to questions on the remainder of the bill.

Mr. Watson asked why "the will of the people" was not included on the list in section 25 of factors the board should consider when making demarcation decisions. Mr. Smith asked a related question: why is the product of the public input process provided for in section 27 not included in the section 25 list of factors?

Dr. Olver replied that binding the board to the views of particular communities or the public in general was problematic. He noted that the demarcation process would be hotly contested in some areas, and including "the will of the people" as a binding factor could result in litigation against the board by parties aggrieved with demarcation decisions. Mr. Smith noted that including public input as a factor need not make it any more or less binding than any of the other 20+ factors on the list. Dr. Olver suggested that the committee discuss this matter further at a later date.

Mr. Eglin of the DP expressed serious concern over the length of the list of factors. In addition to ignoring certain key concerns including education and safety and security, the list could open the board or the government to litigation by parties displeased with the demarcation decisions in their areas. He suggested that the list be kept as short as possible.

Dr. Olver replied that the board was being established primarily to prevent political gerrymandering. The Department believed it was important to include a thorough list of non-political criteria for the demarcation decisions. Dr. Olver also noted that other Departments had requested that the board consider their boundaries. He said that the Department was willing to consider "cleaning up" the list.

Mr. Watson of the NP stated that it seemed inappropriate that the only body which was authorized to review the board’s demarcation decisions was the board itself. Dr. Olver responded that this was necessary because the Constitution gives the board final authority to determine boundaries. Thus any appeals body would be unconstitutional. Mr. Smith suggested that the board could establish an internal appeals tribunal that reviewed decisions of the board which were questioned.

The chair asked what process of appealing demarcation decisions is followed in other countries. Dr. Olver replied that the process varies widely. In the UK, he said, the board publishes its suggestions first, then garners public input before finalizing its decision. There is no appeal from it final decision. The problem with this approach, he explained, was that it was more expensive and time-consuming. However, he noted that the Department would be guided by the deliberation of the committee on this matter.

Mr. Smith asked if settlement of disputes that may arise over the transfer of staff from one municipality to another was covered by the Labour Relations Act. Dr. Olver replied that in the Department’s opinion, the LRA does provide an adequate framework to settle these disputes.

Mr. Eglin expressed concern at the use of the term ‘Formal Investigation’ to refer to the fact-finding missions that the board may need to undertake. He suggested using the term ‘Inquiry’ instead. He also expressed concern that the bill gave the board the right to summon anyone and did not describe the persons whom the board could legitimately call: those with evidence and information material to the decision. Mr. Eglin also asked if parties could make oral submissions to the board.

Dr. Olver stated that the board would only accept written submissions, but would be in contact with interested parties as necessary and might afford some parties opportunities to testify orally. He invited Mr. Eglin to put his suggestions into writing for consideration as amendments to the bill.

Mr. Hlangwa of the IFP asked if legal representation was to be allowed when interested parties presented their views to the board. Dr. Olver said that any South African has a right to seek legal advice, but the board would not pay for other individuals’’ or organizations’ legal fees.

Mr. Smith of the IFP asked if the Department anticipated that the board would establish provincial boards or committees to deal with demarcation in each province. Dr. Olver stated that his belief that the board would organize itself into functionally-defined committees rather than spacially-determined committees, e.g. committees for demarcation of metropolitan areas, of rural districts, etc.

Mr. Watson expressed concern that some provinces had already established provincial demarcation boards. Dr. Olver explained that these boards were temporary entities established to deal with problems during the GNU period and would not continue.

Chapter 3 Briefing
As time was short, the briefing on Chapter 3 was very succinct and does not merit repetition here.

Chapter 3 Questions and Discussion
Several questions were asked around the topic of funding for the board. The bill states that if it requires more resources than the government allocates, the board may seek additional funding "from any other source."

Mr. Smith suggested that "any other source" be revised to exclude contributions by parties or other political organizations. Mr. Eglin noted that the board should not be allowed to accept donations from corporations that would have an interest in the decisions made by the board.

Mr. Watson suggested that any foreign funding should be channelled through the National Revenue Fund. At the end of the financial year, any unspent portion of the funding would be returned, along with the rest of the board’s allocation, to the National Revenue Fund.

The chair stated that the issue of outside funding was an important matter that should be discussed at greater length in a subsequent meeting.

The chair thanked Mr. Olver for his briefing and shifted attention of the committee to the next matter on the agenda.

Part 3: Briefing on Amendments Proposed by the NCOP to the Remuneration of Public Office Bearers Bill
Mr. Titus, Director-General of the Department on Constitutional Development and Provincial Affairs, briefed the members on the amendments to the Remuneration of Public Office Bearers Bill proposed recently in the National Council of Provinces. As time was running short, there was little discussion.

In response to a question raised by Mr. Smith of the IFP, Mr. Bhabha of the NCOP explained that the bill had not yet been voted on by the NCOP and so could be amended by the Portfolio Committee.

Mr. Eglin of the DP requested that the bill be amended to impose an upper limit on the salaries of local councillors, as the current wording of the bill does not guarantee such a limit.

The chair stated that further discussion and finalization of the remuneration bill was scheduled for the committee’s 19 May meeting.

Part 4: Opposition MPs’ Concerns Regarding Information and Documentation
Mr. Watson of the NP expressed concern that the committee is being forced to act too quickly, without adequate time to consider legislation. He stated that the Department is not providing committee members with drafts of legislation being developed early in the drafting process. He expressed dismay that people other than MPs are in possession of drafts of a major bill that the committee will consider next month (the bill concerning the establishment of municipalities) while he has received nothing. He stated that he felt the committee was being put into the position of rubber-stamping legislation drafted by bureaucrats.

In response, the chair noted that the committee had spent three hours reviewing the demarcation bill and would be holding additional public hearings on the bill on 26 and 27 May. The chair stated that he had asked Dr. Olver to distribute copies of the draft bill on establishment of municipalities as soon as possible.

Mr. Smith of the IFP asked if minutes of the committee’s meetings were kept, and if so, if they could be distributed to the members.

The chair noted that he had been waiting for the resolution to this effect. He asked the committee clerk to record and distribute minutes of the committee’s meetings henceforth.

The chair also observed that a representative from the Parliamentary Monitoring Group was present documenting the meeting’s proceedings. The PMG representative explained the purpose and work of the PMG and encouraged members to utilize the PMG Web site.

The chair adjourned the meeting.

Submitted by Mark Lorey
5 May 1998


Annexure 1:
AMENDMENTS AGREED TO
REMUNERATION OF PUBLIC OFFICE BEARERS BILL
[B16-95]

CLAUSE 1
1. On page 1, in line 13, to omit "until 30 April 1999".

CLAUSE 5
1. On page 8, in line 14, after "President" to insert "after consultation with the Premier concerned".

2. On page 8, from line 30, to omit subsection (2) and to substitute:
(2) Despite the provisions of subsection (1), a traditional leader is in addition to his or her salary as a traditional leader, entitled to an allowance as determined by the President by proclamation in the Gazette, in respect of his or her membership of a provincial House of Traditional Leaders, the Council of Traditional Leaders and a Municipal Council, taking into account the criteria listed in paragraphs (a) to (h) of subsection (1).

3. On page 8, in line 40, to omit "or" and to substitute "and".

4. On page 8, in line 43, after "Minister" to insert "after consultation with the Premier concerned".

5. On page 8, after line 44, to insert the following subsection:
(5) Despite the provisions of subsection (1), a member of the Council of Traditional Leaders shall be entitled to an allowance as determined by the President by proclamation in the Gazette for actual work performed with effect from 10 April 1997 until a determination is made in terms of subsection (1).

CLAUSE 7
1. On page 12, from line 12, to omit subsection (2) and to substitute:
(2) Despite the provisions of subsection (1), a member of a Municipal Council is, in addition to his or her salary as a member of the Municipal Council to which he or she has been directly elected, entitled to an allowance in respect of his or her membership of any other Municipal Council, and such allowance shall be determined by such other Municipal Council in consultation with the member of the Executive Council responsible for local government in the province concerned by resolution with a supporting vote of the majority of its members, taking into account the criteria listed in paragraphs (a) to (i) of subsection (1).

2 On page 12, from line 18, to delete subsection (3) and to substitute:
(3) The salaries and allowances of members of a Municipal Council is determined by that Municipal Council concerned by resolution of a supporting vote of a majority of its members, in consultation with the member of the Executive Council responsible for local government in the province concerned, having regard to-

(a) the provisions of subsection (1);
(b) the upper limit as set out in the said notice; and
(c) the financial year of Municipal Councils.

CLAUSE 8
1. On page 14, in line 11, after "shall" to insert "subject to any other Act of Parliament".

CLAUSE 9
1. On page 14, in line 47, after "shall" to insert "subject to any other Act of Parliament".