Local Government: Municipal Demarcation Bill: deliberations

Meeting report

CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
1 June 1998
LOCAL GOVERNMENT: DEMARCATION BILL [B36-98]: DELIBERATIONS

Documents handed out:
Opinion on the Constitutionality of the Local Government: Municipal Demarcation Bill (Appendix 1)
Amendments for consideration flowing from discussions on 26/5/98 (Appendix 2)

SUMMARY
The committee discussed a set of amendments to the Local Government: Municipal Demarcation Bill (B36-98). The amendments had been developed over the weekend (30-31/5/98) by the Department of Constitutional Development and Provincial Affairs in response to submissions made to the committee by the Cape Metropolitan Council and other interested parties. The committee discussed the amendments one by one. Department representatives agreed to draft a revised set of amendments based on the input of committee members. The draft amendments were to be made available by 3:00 in the afternoon so that each party’s caucus could examine them in detail and develop its position.

MINUTES
The meeting began almost an hour after it was scheduled to start. The chair, Mr. Y. Carrim of the ANC, explained that the delay was caused in part by a meeting of a smaller group of committee members convened to discuss the complex issues regarding the constitutionality of the Bill. These issues had been raised during the debate between two teams of lawyers which had taken place at the committee’s meeting on Friday, 29/5.

The chair opened the meeting by discussing the proposed timetable for consideration of the Bill during the week. He noted that the committee should vote on the Bill by Thursday, 4/6, as the Bill may be debated before the full assembly on Friday, 5/6.

At the request of the chair, Dr. Olvers, Assistant Director-General of the Department of Constitutional Development and Provincial Affairs, drew the committee’s attention to the key provisions in the set of proposed amendments. The chair then opened the floor for comments on the proposed amendments.

Professor D. du Toit of the ANC noted that the amendments referred repeatedly to the Municipal Structures Act of 1998, a bill which has not yet been promulgated or passed. He asked if it was constitutional to pass legislation referring to other legislation not yet in effect.

The Department’s Director-General, Mr. Titus, replied that it was not necessary to pass the Municipal Structures Bill before the Demarcation Bill. Dr. Olvers said that the demarcation board would not be able to begin its work until the passage of the Municipal Structures Bill, expected in late September 1998. However, he said it was constitutional and appropriate to hire the board as soon as possible so that they can be adequately prepared for their tasks. Another Department official confirmed that there were precedents in South African history for passing a bill that contained reference to legislation not yet passed.

Professor du Toit and Mr. P. Smith of the IFP expressed concern that the definition of types of municipalities (A, B, C) was to be undertaken in the Structures bill rather than the Demarcation Bill. Dr. Olvers explained that this sequence of events was practical and appropriate given the tight timeframe and the requirements of the demarcation process.

The chair asked if the requirement to demarcate municipalities in advance of the 1999 municipal elections is constitutional or political. A Department representative stated that the constitution requires a demarcation process but does not specify a time limit for this process. The representative explained that the demarcation process would continue after the 1999 municipal elections if the process was not completed before the elections. The chair stated that the ANC was willing to accept "substantial" demarcation before 1999 but did not insist on a specific number of demarcated units.

Dr. Olvers noted that the Demarcation Bill does not cover the question of how elections for municipalities will be held after the 1999 nationwide municipal elections. He noted that the committee would need to decide during the debate on the Municipal Structures Bill if special by-elections would be held after post-1999 demarcations, or if the previous boundaries would remain in effect until the nationwide municipal elections of 2004.

Mr. P. Smith of the IFP expressed concern that the use of the terms ‘objectives’ and ‘factors’ in the place of the term ‘criteria’ in the Bill might be unconstitutional. Dr. Olvers explained that the Department had decided to divide ‘criteria’ into the two categories, one higher-level and one lower-level. According to legal experts consulted by the Department, the two categories together constitute the ‘criteria’ required by the Constitution.

Mr. P. Smith noted that he had previously expressed concern over the length of the list of factors the Demarcation Board should consider in making its demarcation decisions. The chair noted that the list had been shortened significantly by the amendments. Dr. Olvers confirmed that the number of factors had been reduced from 16 to 8 through consolidation.

The chair asked that members of the committee comment on substantive matters rather than focusing on minor points of an academic nature.

Mr. P. Smith asked if the Department had considered including numeric objectives for the Demarcation Board in the Bill. Dr. Olvers said that the Department was reluctant to set specific targets, recognizing the unpredictability of the demarcation process.

Mr. W. Watson of the NP suggested that sections 33 and 34 be amended to make the name of the highest-ranking staff member of the Demarcation Board consistent. He suggested replacing the term ‘manager’ where it appeared with the term ‘chief executive officer.’

The chair closed the meeting, announcing that members should reconvene at 3:00 to receive copies of the set of amendments revised by Department officials to reflect the ideas expressed during the meeting. Following party caucuses, committee members were asked to reconvene in the late afternoon to continue discussion of the Bill.

Annexure 1: OPINION ON THE CONSTITUTIONALITY OF THE LOCAL GOVERNMENT: MUNICIPAL DEMARCATION BILL (B 36-98]

1. Section 155(3)(b) of the Constitution requires national legislation to 'establish criteria and procedures for the determination of municipal boundaries by an independent authority'. The provision expressly requires certain criteria to be laid down in national legislation (that is either an Act of Parliament or subordinate legislation such as regulations). It also implicitly requires the establishment of an independent authority to demarcate municipal boundaries. The Local Government: Municipal Demarcation Bill fulfils both of these requirements.

2. To be constitutional the Bill must -
(a) establish an independent body;
(b) establish criteria and procedures for the determination of boundaries and/or delegate the power to establish criteria or procedures in subordinate legislation; and
(c) not infringe any other constitutional provision.

3. Two concerns have been raised about the Bill. The first is that clause 25(n) of the published Bill conflicts with sections 155(3)(b) and 154(2) of the Constitution because it allows policy rather than legislation to constitute demarcation criteria. This, it is argued, both conflicts with the requirement of' legislation' in section 155(3)(b) and avoids the requirement of 'publication for comment' found in section 154(2). This concern is fully addressed by the deletion of clause 25(n). The inclusion of a provision (in clause 42) allowing the Minister to add to the criteria which the Board should take into account in the process of delimitation complies with the Constitution as such 'factors' would constitute 'national legislation' in terms of section 155(3)(b) of the Constitution and would clearly have to be published for comment in terms of section 154(2) of the Constitution.

4. The second concern with the Bill as published is that it infringes another constitutional provision. More specifically, it is argued that the Demarcation Bill makes it impossible to comply with the constitutional requirement in section 155(5) of the Constitution that provinces be given the power to determine the 'types' of municipality that should be established in the province. Clauses 26 and 25(j)(i) of the Bill, read together, suggest that a metropolitan area would be a Category A municipality. Thus a 'metro' is a Category and not a 'type'. This, it is argued, 'unconstitutionally' restricts the provinces' power to determine types because a metro must be a type.

Support is claimed for this argument by reference to the Local Government; Municipal Structures Bill. That Bill, it is asserted, draws up a menu of types of municipality which infringes section 160 of the Constitution. Because the Municipal Structures Bill relies on the committee system to define types it is claimed to infringe the institutional integrity of municipalities which is protected in, among other places, section 160 of the Constitution.

5. Whether or not the menu of types of municipality set out in the Municipal Structures Bill is constitutional does not obviously affect the constitutionality of the Demarcation Bill. This would be the case only if a provision of the Demarcation Bill itself was linked to an unconstitutional understanding of types.

6. There are two provisions in the Demarcation Bill as published that are committed to an understanding of categories and types which describes a metro' as a category rather than a type. As mentioned above, these are clauses 25(j)(i) and 26. In my opinion this understanding does not necessarily lead to an unconstitutional conception of types. On the contrary, metros, as category A municipalities, may themselves be of different types.

7. Nevertheless, whether or not the provisions in question (clauses 25(j)(i) and 26) paved the way for an unconstitutional menu of types has become academic. The deletion of the word 'single' in clause 25(j)(i) and the deletion of clause 26 from the Bill means that metropolitan areas could be either category A or category C municipalities. Issues relating to categories and types are now left to be dealt with in another piece of legislation.

8. In conclusion, while I do not think that the challenges to the Demarcation Bill in its published form were valid, the proposed amendments clearly address the concerns that were raised about its constitutionality.

Christina Murray

31 May 1998

Appendix 2: Amendments to Bill

AMENDMENTS FOR CONSIDERATION FLOWING FROM DISCUSSIONS IN THE PORTFOLIO COMMITTEE

LOCAL GOVERNMENT: MUNICIPAL DEMARCATION BILL

[B 36-98]

CLAUSE 1

1. On page 6, in line 10, to omit "section 26(1)" and to substitute "the Local Government: Municipal Structures Act, 1998".

2. On page 6, in line 13, after "municipality" to insert "as defined in section 10B of the Local Government Transition Act, 1993 (Act No.209 of 1993) and a municipality".

CLAUSE 4

1. On page 6, after line 38, to insert the following subsection:

(2) In exercising its function, the Board must apply the objectives and factors set out in sections 24 and 25.

CLAUSE 7

1. On page 8, in line 32, before "development" to insert "integrated".

2. On page 8, after line 41, to insert the following subparagraphs:

(xii) transport planning; or

(xiii) knowledge of traditional leadership.

3. On page 8, in line 46, after "who" to insert "after 4 February 1997".

On page 8 in line 48, to omit "(b)" and to substitute "(c)".

CLAUSE 21

1. On page 16, from line 10, to omit paragraph (a) and to substitute for the following paragraph:

(a) must determine municipal boundaries for the whole of the territory of the Republic; and

2. On page 16, after line 13, to insert the following subsection:

(2) Any determination or redetermination of a boundary for a municipal area must be consistent with the category of municipality for that area as determined in terms of Part 2 of Chapter 1 of the Local Government: Municipal Structures Act, 1998.

CLAUSE 22

1. On page 16, after line 27, to insert the following paragraph:

(c) on request by a municipality with the concurrence of any other municipality affected by the proposed determination or redetermination.

CLAUSE 23

1. On page 16, from line 32, to omit paragraph (a) and to substitute for the following paragraph:

(a) will materially affect the proportionality of the representation of voters in the council of any of the municipalities affected by the boundary determination, the determination takes effect from the date of the next election in the municipality concerned; or

CLAUSE 24

1. On page 18, from line 5, after "integrated" to insert "land use".

CLAUSE 25

1. On page 18, in line 13, after "commuting" to insert "and dominant land transport movements".

2. On page 18, in line 15, to omit subparagraph (v) and to substitute:

(v) the use of amenities, recreational facilities and infrastructure; and

3. On page 18, in line 17, after "financial" to insert "viability".

4. On page 18, from line 19, to omit paragraphs (c), (d), (e), (f), (g), (h) and (i) and to substitute:

(c) the need to share and redistribute financial and administrative resources;

(d) existing boundaries and proposed functional boundaries, including municipal, provincial, magisterial district, voting district, traditional authority, health, transport, police, and census enumerator boundaries;

(e) existing and expected land use and transport planning;

(f) topographical, environmental and physical characteristics of the area;

5. On page 18, in line 29, to omit "single".

6. On page 18, in line 31, to omit "such in" and "single".

7. On page 18, from line 39, to omit paragraphs (k) and (I) and to substitute:

(g) the need for co-ordinated municipal, provincial and national programmes and services, including the needs of administration of health care and justice;

8. On page 18, in line 43, to omit subparagraph (i) and to substitute:

(i) municipal creditworthiness;

9. On page 18, from line 46, to omit paragraphs (n), (o) and (p).

CLAUSE 26

1. On page 18, from line 51, to omit Clause 26.

CLAUSE 21

1. On page 20, in line 23, after "affected" to insert "and to the magistrate concerned if any magisterial district is affected".

CLAUSE 31

1. On page 22, in line 6, after "person" to insert "who in its opinion has information which is material to the investigation".

CLAUSE 32

1. On page 22, from line 21, to omit section 32 and to substitute:

Demarcation affecting existing municipalities.

32. The legal, practical and other consequences when the area of a municipality is wholly or partially incorporated in or combined with the area of another municipality, must be dealt with in terms of the Local Government: Municipal Structures Act, 1998.

CLAUSE 31

1. On page 24, in line 31, after "source" to insert "via the National Revenue Fund".

CLAUSE 41

1. On page 26, in line 27, to omit "person, including" and to substitute "member of".

CLAUSE 42

1. On page 26, from line 30, to omit section 42 and to substitute:

42. The Minister, after the Board has been consulted, may make regulations not inconsistent with this Act or any Act of Parliament-

(a) by prescribing procedures to further facilitate the performance by the Board of its function; or

(b) by prescribing any additional factors that the Board should take into account in determining municipal boundaries.