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CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
10 June 1998
DRAFT LOCAL GOVERNMENT: MUNICIPAL STRUCTURES BILL: BRIEFING
Document handed out:
This bill will be tabled on 30 June 1998. Immediately thereafter, advertisements will be published regarding public hearings on this bill scheduled for 21 & 22 July 1998. The hearings programme will be drawn up on 15 July in a meeting chaired by Melanie Verwoerd.
Dr Olver, Deputy Director-General of Constitutional Development, briefed the committee on the draft bill and went through it section by section. It is the second in a suite of bills covering municipalities (the first was the Local Government: Municipal Demarcation Bill [B36-98] and the third will be the municipal systems bill dealing with administrative systems that underpin these structures). Consultation had been sought with the MECs (MINMEC), SALGA and the relevant ministers and their views are reflected in this draft.
Peter Smith (IFP) outlined his party’s problems with this Bill in terms of the Constitution.
The Bill is derived from Sections 155 to 164 of the Constitution.
In order to make the Bill more readable, the categories of councils are named (ie metropolitan, local and district rather than merely being referred to as A, B and C respectively.)
There are five chapters:
CHAPTER 1 has three parts.
Part 1: Powers of MECs for local government
This covers everything related to the act of establishment of municipalities by the provinces.
Section 2 outlines the powers of MECs to establish municipalities by means of a notice in the Provincial Gazette. Thus the actual establishment will be an executive action as opposed to establishment by means of a Provincial Act.
Section 3 regulates the effects of this municipal establishment on existing municipalities (This section was dropped out of the original B36 98 and is now covered here).
Section 4 and 5 cover the bulk of the work needed after the establishment of a municipality which will be amendments required to restructure municipality type and to alter status and name of municipality, number of councillors and area committees and to distinguish between full-time and part-time councillors. The MEC FOR LOCAL GOVERNMENT is not bound to consultation here though in practice consultation will take place.
Section 6 covers the repeal of Section 2 notices.
Part 2: Categories of Municipalities.
Section 8 outlines non-metropolitan councils ie local and district municipalities
Section 9 deals with exceptions to Section 8 ie sparsely populated areas such as the Richtersveld where settlements are too dispersed and no local authorities exist. Based on a recommendation of the Demarcation Board, the Minister may declare these exceptions. They will be a district municipality (Category C) without a local municipality (Category B) underneath them. Section 155 (1) (c) of the Constitution caters for this.
Part 3: Types of Municipalities
This clarifies the variation of types of municipalities within metropolitan, local and district categories.
Metropolitan municipalities have a variation of four types:
either an executive committee with or without area (ward) committees
or an executive mayor with or without area (ward) committees
Local and district municipalities can have:
Either an executive committee
or an executive mayor
or neither, this is known as simple type (council not big enough to have either)
CHAPTER 2 deals with the election of municipal councils.
Part 1: Composition, election and membership
Section 15 provides for the numbers of councillors per council based on registered voter population. Provision for a variation in the size of councils is made in that the MEC can deviate from the schedule under certain conditions. The upper limit is 150 councillors which Dr Olver acknowledged might be stingy. (He referred committee members to the Sutcliffe Report which recommended a figure of 300 which the Department considered excessive.)
Section 16 outlines the qualifications for councillors and when the MEC can exempt someone from disqualification.
Section 17 is a technical section dealing with the electoral system as outlined in Schedule 1. Further briefing will be required on this.
Section 18 deals with the timing of elections every four years. It permits ministers to stagger elections but the aim is a single date that should coincide for all provinces.
Section 19 sets out the circumstances for when a special election must be held. (Based on a request by the Department of Home Affairs, the term "special elections" will be replaced by "by-elections" in future).
Section 23 outlines the conditions for when a municipal council can be dissolved by itself and by the MEC for local government.
Section 24 looks at the system of delegations which Dr Olver sees as fundamental to the proper functioning of a municipal council.
Part 2: Speakers of municipal councils
The role of the speaker is to maintain discipline amongst councillors and to provide oversight by holding executive structures to account.
Dr Olver commented that there did seem to be a gap in terms of outlining privileges.
CHAPTER 3 looks at the internal structure of councils which is the committee systems.
Part 1: Executive committees
The number of members ranged according to municipal size might need revision though exceptions are provided for if the size of the Exco needs to be increased/decreased.
Section 32 gives its set of functions, Section 33 deals with the election of members and Section 36 with the election of its mayor (here mayor is used in its executive sense and is the chairperson of the Exco).
Part 2: Executive mayors
Part 2 repeats of the layout of Part 1.
Section 48 provides for a mayoral committee. Executive mayors with their mayoral committee function like a presidential system with a cabinet.
Part 3: Area committees in metropolitan municipalities
The demarcation board must demarcate the areas so that functional demarcation is ensured and to avoid political manipulation of areas. The establishment of area committees is covered in Schedule 4.
Part 4: Ward committees
These serve an advisory role to the ward councillor. All wards must have a ward committee. Section 62 deals with its powers and functions.
Part 5: Other committees
These are functional committees (for example dealing with finance, engineering etc).
Part 6: Participation of traditional leaders
Traditional leaders in areas that observe a system of customary law may participate in the meetings of district and local councils. The MEC can prescribe the role of the traditional leaders. The number of traditional leaders should not exceed 10% of the number of councillors but with the minimum of one.
Part 7: Chief executive officers
CHAPTER 4 outlines the powers and functions of municipalities.
Section 73 assigns a string of powers to district councils and everything else vests in the local council.
Section 76 deals with developing municipalities. These are local municipalities that lack financial and administrative capacities. It is the obligation of district municipalities to build up these developing municipalities, progressively increase their powers and report to the MEC on their progress.
CHAPTER 5 contains the five schedules.
Schedule 5 is particularly important as it is the code of conduct for councillors.
Questions by committee members:
Committee members needed time to peruse the document and had no questions of clarification.
Mr P Smith of the IFP requested permission to raise objections to the bill though time was tight. The chairperson agreed as he thought it was important that the Department be alerted to these objections as early as possible.
Mr Smith said that the Bill appeared to be in contradiction to the Constitution. He listed the instances:
The typology was incorrect. The committee-based system is an internal procedure that is not subject to provincial determination
The metropolitan ward and area committees are not a committee of council according to Section 152 of the Constitution.
Provinces cannot determine area committees (area committees and ward committees are not subject to national legislation and thus cannot be given to a province to regulate; this is the power of the metropolitan council to regulate.
The demarcation board cannot delimit the boundaries of an area committee.
At this point the Select Committee joined the meeting in order for the two committees to meet jointly on the Remuneration of Public Office Bearers Bill [B16F-98].
Document handed out:
Letter from State Law Advisor, dated 2 June 1998
Letter from Department of Constitutional Development, dated 3 June 1998
Letter from the President of the Republic, dated 4 June 1998
Announcements, Tablings and Committee Reports, 4 June 1998
Letter from Department of Constitutional Development, dated 8 June 1998
Legal Opinion from the Department of Justice
The Chairperson of the Portfolio Committee, Mr Carrim, opened the discussion by saying that it was the first time that a bill had been returned to that committee from the President, after it was passed by the National Assembly. He then handed over to the Director-General of the Department of Constitutional Development, Mr Titus, who isolated the problem with the Bill. He said that no framework existed in the Bill for the remuneration of Traditional Leaders. Hence the Bill was unconstitutional. He added that, as a result of the complexity of the matter, no amendments would be tabled today. The Chief State Law Advisor (Mr Daniels), the Department's Law Advisors, the Parliamentary Law Advisor (Mr Meyer) and the President's Law Advisor (Prof. Haysom) would meet and work through the issues of the Bill.
Mr Moosa, ANC, speaking as the permanent delegate of the Gauteng Province, said that his province was relying on the "quick passage" of the Bill. He explained that the Gauteng MECs did not receive a salary increase last year, as there was no legislative framework in place. Hence they were anxious to resolve the problems with the Bill as they wanted to be remunerated correctly.
Mr Smith (IFP) and Mr Watson (NP) gave possible suggestions as to how the Bill could be "fast-tracked". However, Mr Daniels (Chief State Law Advisor) informed the committee that the problem was a lot more complex than it looked on the surface. It was not merely a matter of amending the section highlighted by the President, the Bill had to be looked at in its entity. More time was needed to work through the issues with the Department and the President's Law Advisor.
The Chairperson ended the meeting by saying that the advisors concerned should meet, process the Bill expeditiously and then bring it before the committee.
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