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CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
2 June 1998
LOCAL GOVERNMENT: MUNICIPAL DEMARCATION BILL [B36-98]: DELIBERATIONS
Documents handed out:
Amendments for consideration flowing from discussions in the Portfolio Committee of the afternoon/evening of 1 June 1998.(see Appendix)
In this meeting the committee members went through the Bill and amendments clause by clause. There were few members present at this meeting, but there still was a fruitful debate. The detailed amendments that were agreed upon during this meeting will be made available under Documents handed out in tomorrow's minutes. The political parties have not agreed in their caucuses on the actual wording of the bill, but will hopefully have done so by this afternoon’s meeting at 16.00.
The issues that caused debate were as follows. The chairperson Mr. Y. Carrim started the discussion with clause 8. An issue that was discussed frequently throughout the debate was the independence of the Board. It was mentioned by an ANC MP that there should be an independent selection of panel members, and that what is desirable is that there should not be too many politicians. If there are to be many politicians on the Board, the committees or on the selection committee, a Parliamentary committee might as well have the responsibility of demarcation. This implies that the independence and impartiality of the Board is threatened if there are too many or any political office bearers on the Board or in association with the Board. The NP and the IFP made suggestions to there being 3 MP’s elected on to the Board with full membership and voting opportunities. This debate was to be taken up again at the 4 o’clock meeting.
There were no extensive discussions or amendments made regarding clauses 10, 11 and 12.
In clause 13 Peter Smith (IFP) raised again the issue of the independence of the body.
Clauses 14 and 15 were not discussed to a great extent.
Clause 16 was compared to clause 32. Dr. Olver from the Department stated that clause 32 is subordinate to 16, and that this is so as to enable the Board to enhance its independence.
Clause 17 was not discussed.
Clause 18 created fierce discussions between the IFP and the rest of the political parties. The IFP suggested that the board should co-opt members from the houses of traditional leaders, because this is a statutory body. MP Mr M Bhabha (ANC, NCOP Chairperson of Constitutional Affairs & Public Administration Select Committee) stated that if it should be co-opted because it is a statutory body, then there are very many other bodies that should be dealt with in the same way. Prof. du Toit (ANC) stated that if the traditional leaders, who have special interests in land, should be included on the Board, then all other groups (like farmers) who have special interests in land should also be included. Dr. Olver stated that it is a dangerous road if we are to prescribe who is to be on the Board. And when trying to prescribe, as we have just seen in this debate, there is no end to who and what groups need to be on the Board. Still, he agreed that Mr. Smith raised a valid point regarding the traditional leaders.
Clause 19, 20, 21,22, 23 and 24 were not extensively discussed or amended in this meeting.
The chairperson asked whether or not the department could rearrange the clauses in Chapter 2 in a more logical way. It is up to the department if they want to do this.
Some of the ANC MPs stated that quite a few of the clauses have been discussed during the last day’s discussions, and they were questioning the value of going over and over the same clauses.
The entire clause 25 has been amended by the department over the last few days. Mr. Smith questioned the actual meaning or implications of 25 (b). Dr. Olver stated that this is seen often in this Bill, the fact that actual factors are not stated. He warned against the committee trying to be too specific, trying too much to control the executive and the Board. This can make it impossible to implement and govern. 25 (b) (2) is controversial especially for the IFP. The chairperson wanted a written suggestion from the IFP as to the wording of the sub-clause. An NP MP raised the implications of using the word "unfragmented area" in the sub-clause. He stated that this can have implications for amalgamation of areas where there are several small towns with surrounding rural areas. Mr. Smith stated that sub-clauses a, b, c, and f, will push towards integration. This means that political considerations can lead to an area not being demarcated, and areas not being amalgamated.
Clauses 26-28 were not discussed to a great extent.
Clause 29 raised an interesting situation, where all the MPs were in agreement but where the department felt it was an unrealistic suggestion from the Committee. The MPs in short wanted the notices made regarding public meetings to be advertised or rather broadcast on local radios. This is because in South Africa people listen to the radio more than they read newspapers. The department argued that this would be very expensive. It was stated by ANC MPs that it is not necessary to advertise in that sense, but rather to have the radio announce the date, place and whereabouts of such a meeting.
Clauses 30–39 were not discussed at any length.
Clause 40 raised the issue of the Board’s report. There is a need to ensure that the Board does not need to be accountable to every province and municipality. This would in reality take up too much time of the Board, and make it difficult for it to do its job.
Clause 42 caused ambivalence regarding the powers of the Minister and the Board. The MPs were not in agreement about what the amendments to 42 implied. The opposition parties' concerns were that the Minister will be given too much power to "overturn" a decision made by the Board. Mr. Bhabha and the department stated that sub-clause 42.2 will make these decisions go through the scrutiny of the usual processes in Parliament, therefore the Minister does not have the autonomy that the opposition claims he/she would have.
Mr. Bhabha suggested that it should go through both Houses of Parliament, thus not leaving out the NCOP. Dr. Olver warned again against the committee making the Bill and its control and oversight mechanisms too rigid.
The rest of the clauses (43-46) did not cause debate.
Mr. Carrim stated that there are some outstanding issues that need to be addressed at the 4 o’clock meeting, or tomorrow. These are:
1. Clause 8, and the suggestion from the opposition that 3 MPs should be on the Board. The MPs should be 1 ANC, and 2 from the two largest opposition parties.
2. Section 18 on traditional leaders, and if they should have a specific right to be members of the Board and its committees.
3. Clause 25 in its amended version. Particularly sub-clause 25 (b) (2).
4. Clause 40 and the role of the annual report submitted to the legislature.
Appendix: Amendments to the Bill
AMENDMENTS FOR CONSIDERATION FLOWING FROM DISCUSSIONS IN THE PORTFOLIO COMMITTEE OF 1 JUNE 1998
LOCAL GOVERNMENT: MUNICIPAL DEMARCATION BILL [B 36-98]
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, from line 13, to omit the definition of "municipality" and to substitute:
"municipality" means a municipality mentioned in section 155(6) of the Constitution and includes a municipality which existed when this Act took effect; (xi)
3. On Page 6, in line 22, to omit "section 32 and".
4. On page 6, in line 25 to omit "those" and to substitute "the".
1. On page 6, from line 37, to omit section 4 and to substitute:
4. The function of the Board is to determine municipal boundaries in accordance with the appropriate legislation enacted in terms of Chapter 7 of the Constitution.
1. On page 8, in line 9, after "may" to insert "reasonably".
1. On page 8, in line 14, to omit "11" and to substitute "7".
On page 8, in line 32, before "development" to insert "integrated".
2. On page 8, in line 33, to insert the following subparagraph:
traditional leadership and traditional communities;
3. On page 8, after line 41, to insert the following subparagraph:
4. On page 8, in line 45, to omit paragraph (b) and to insert the following paragraphs:
(b) a person who is placed under curatorship;
(c) a person who is declared to be of unsound mind by a court in the Republic; or"
5. On page 8, in line 46, after "who" to insert "after 4 February 1997".
6. On page 8 in line 48, to omit "(b)" and to substitute "(c)".
1. On page 10, from line 11, to omit "on Constitutional Affairs and Public Administration of the National Council of Provinces" and to substitute "responsible for local government matters".
1. On page 12, in line 27, to omit paragraph (d).
2. On page 12, in line 33, after "is" to omit "appointed as".
1. On page 16, from line 10, to omit paragraph (a) and to substitute for the following paragraph:
(a) must determine municipal boundaries in 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 municipal boundary must be consistent with appropriate legislation enacted in terms of Chapter 7 of the Constitution.
On page 16, from line 23, to omit paragraphs (a) and (b) and to substitute:
(i) on its own initiative
(ii) on request by the Minister or a MEC for local government; or on request by a municipality with the concurrence of any other municipality affected by the proposed determination or redetermination; and
in accordance with priorities and reasonable time-frames for demarcation determined by the Minister in consultation with the MEC's for local government after the Board has been consulted.
1. On page 16, from line 32, to omit paragraph (a) and to substitute for the following paragraph:
(a) will affect 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 area concerned; or
1. On page 18, in line 1, after "in" to omit "a" and to insert "an equitable and".
On page 18, in line 5, after "integrated" to omit "social and economic Planning and"
1. On page 18, from line 9, to omit section 25 and to substitute:
In order to attain the objectives set out in section 24,
the Board must, when determining a municipal boundary, take into Account-
(a) the interdependence of people, communities and economies as Indicated by
(i) existing and expected patterns of human settlement and migration;
(iii) commuting and dominant transport movements;
(v) the use of amenities, recreational facilities and infrastructure; and
(vi) commercial and industrial linkages;
the financial viability and administrative capacity of the municipality to perform municipal functions efficiently and effectively;
(c) the need to share and redistribute financial and administrative resources;
(d) provincial, municipal and traditional authority boundaries;
(e) existing and proposed functional boundaries, including magisterial districts, voting districts, health, transport, police and census enumerator boundaries;
(f) existing and expected land use, social, economic and transport planning;
(g) topographical, environmental and physical characteristics of the area
(h) the need to establish a cohesive, unfragmented area, and more specifically the need to
(i) retain a functionally integrated metropolitan area as a cohesive, unfragmented unit;
(ii) include a rural area in a municipality which has a town as its core if that town has a strong social and economic linkage with that rural area and functions primarily as a service centre for that rural area; or
(iii) include in a municipality which has a city or a large town as its core, any formal or informal settlements or industrial or commercial developments on the fringe of that city or town;
the need for co-ordinated municipal, provincial and national programmes and services, including the needs for the administration of justice and health care;
The administrative consequences of its boundary determination on-
(i) municipal creditworthiness;
(ii) existing municipalities, their council members and staff; and (iii) any other relevant matter.
On page 18, from line 51, to omit Clause 26.
1. On page 20, in line 23, after "affected" to insert "and to the magistrate concerned if any magisterial district is affected".
1. On page 22, in line 6, after "person" to insert "who in its opinion has information which is material to the investigation".
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 resulting from the area of a municipality being 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.
On page 24, in line 31, after "source" to insert "through the National Revenue Fund".
1.On page 26, in line 27, to omit "person, including" and to substitute "member of".
1 On page 26, from line 30, to omit section 42 and to substitute:
(1) The Minister, after the Board has been consulted, may make regulations not inconsistent with this Act or any Act of Parliament.
(a) by prescribing further procedures relating to the performance by the Board of its function;
(b) concerning any matter referred to in this Act which in the opinion of the Minister is necessary or expedient for the effective carrying out or furtherance of the provisions and objects of this Act; or
(c) by prescribing additional factors that the Board should take into account in determining municipal boundaries.
(2) A regulation made under subsection (1)(c) must be published for public comment and must be approved by the Parliamentary committees responsible for local government matters.
1 On page 28, in line 12, after "1998" to insert:
and takes effect on the date on which the Local Government : Municipal Structures Act, 1998, comes into effect.
(2) Chapter 1 comes into effect on the date of the publication of this Act.
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