Local Government: Municipal Structures Bill : response to submissions

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Cooperative Governance and Traditional Affairs

28 July 1998
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Meeting report

CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
29 July 1998
LOCAL GOVERNMENT: MUNICIPAL STRUCTURES BILL : BRIEFING

Document handed out:
Summary of Public Submissions on Municipal Structures Bill [B68-98] (see Appendix)

SUMMARY

This meeting was a continuation of the briefing of the Portfolio Committee on Constitutional Affairs on the Municipal Structures Bill [B68-98] by Dr. Olver, assistant director-general in the Department of Constitutional Development and Provincial Affairs. During the 90 minute meeting, Dr. Olver completed a presentation offering an overview of the key provisions of the Bill and began a clause-by-clause discussion of the Bill. Only Chapter 1 was discussed before time elapsed. The clause-by-clause discussion will be completed at the committee’s meeting on 5 August.

DETAILED MINUTES
Dr. Olver drew the committee members' attention to the document, Summary of Public Submissions on Municipal Structures Bill, which the Department had compiled of all the comments and suggestions presented to the committee during the hearings of evidence on the Municipal Structures Bill the previous week. Dr. Olver stated that the Department would develop a list of suggested amendments to the Bill based on the suggestions it considered appropriate and realistic. Dr. Olver asked the Chairperson when the committee would like to receive the Department’s proposed amendments. The Chairperson responded that the committee would need time to develop its own amendments and would notify Dr. Olver soon of the appropriate time for the Department to submit amendments.

The Chairperson noted that it would be helpful for the committee to visit several district and rural councils before making final decisions on the Municipal Structures Bill.

Dr. Olver resumed his discussion of the Bill by explaining the maximum and minimum numbers of councillors envisioned for each type of municipality: 60-180 for a category A (conurbation) and 3-60 for categories B and C. The actual number of councillors in each area is to be determined by the number of registered voters in the area. The Department believed a number of approximately 11,000 registered voters to be appropriate; numbers approaching or exceeding 20,000 voters per councillor are too large. The Bill does allow the MEC to alter the size of the council to cater for special circumstances.

The Chairperson asked Dr. Olver to explain why the Department had tied the number of councillors to the number of registered voters rather than to overall population. Dr. Olver offered two reasons. First, tying the number of councillors to registered voters provides a strong incentive to localities to register as many voters as possible. Second, while the census is performed only every 5 years, the registered voters roll is likely to be updated more frequently and therefore may provide a more accurate barometer of population change in an area.

Dr. Olver next discussed the provisions of the Bill concerning ward committees. Establishment of these committees, intended to serve as advisory boards for a ward’s councillor, was now discretionary rather than compulsory in the Bill. The Bill envisions ward committees to be a size of ten persons, elected through a procedure determined by the local council. Because there have been both successes and failures with ward committees, more experimentation with the structure was needed. The Department will watch experiments with ward committees carefully. If the concept works well, legislation to formalize the committees will be introduced several years after the committees are established. Dr. Olver suggested that it would be appropriate for the Portfolio Committee on Constitutional Affairs to debate the ward committee issue. In response to a question from Dr. Du Toit of the ANC, Dr. Olver stated that neither ward councillors nor ward committee members were required to be residents of the ward.

Dr. Olver then discussed the provisions of the Bill involving traditional leaders. He stated that the Bill does not attempt to restrict the participation of traditional leaders in government. Instead, it seeks to create a structured relationship between traditional leaders and local government. The legislation entitles traditional leaders to participate, but limits their membership on the council to no more than 10% of councillors.

Dr. Olvers next explained the electoral system devised to elect municipal councils. According to this system, 60% of councillors will be elected directly from wards demarcated by the Independent Electoral Commission. The other 40% of councillors will be elected through a separate ballot on which voters choose a party. This 40% will be chosen so as to ensure that the council’s total party distribution reflects the partisan proportionality of the second ballot. Dr. Olver noted that this type of two-ballot system works well in other countries and is Constitutional in the Department’s opinion.

Dr. Olver stated that the Department held the view that ward councillors were elected as individuals and should therefore be allowed to change party allegiance if they wish. However, he observed that this could create problems maintaining the overall proportionality of the council.

This marked the completion of Dr. Olver’s presentation on the Bill. At the Chairperson’s request, Dr. Olver began explaining the Bill clause by clause, starting with Chapter 1.

Mr. Smith of the IFP asked if the ‘core’ city in a metropolitan area was defined geographically or functionally and received the answer "functionally."

Mr. Eglin of the DP believes that the Bill may be unconstitutional because local councils do not have the right to choose their own form of structure and instead must rely on the provinces to do so.

Dr. Olver responded that the sections of the Bill which spur this controversy were declared fully constitutional by legal experts.

The Chairpersonperson asked Dr. Olver how long the provincial legislatures would need to draft a Bill establishing a type (A, B, or C) for each municipality in the province. Dr. Olver believed the process would require at least two months and perhaps more in order to allow adequate time for public comment and for thorough discussion by the provincial assembly.

The Chairperson brought the meeting to a close at 11h00.

Appendix: Summary of Public Submissions on Municipal Structures Bill

SUMMARY OF SUBMISSIONS ON THE LOCAL GOVERNMENT:

MUNICIPAL STRUCTURES BILL TO THE PORTFOLIO COMMITTEE:

ON 21 AND 22 JULY 1998

ELECTORAL INSTITUTE OF SOUTH AFRICA

(a) Alleges that the use of the expression "consult" in clause 12(4) is problematic as it is not defined. Suggests that the expression be altered to "in consultation with". See also clause 16(2).

(b) Suggests that the expression "assignment" in the heading to clause 28 should be altered to "delegation" as that clause deals with delegation.

(c) Alleges that clause 38 does not clearly state that council must elect the members of its executive committee from amongst the members of council. Clause 38(1) however clearly provides only councillors can be elected to an executive committee.

(d) Indicates that presently only 19% of all councillors are women and that they are therefore under–represented. Suggests the electoral system be amended to one of 50% proportional representation and 50% ward representation to increase the representation of women.

(e) Alleges that the proposed upper limit of 150 councillors is excessive. Suggests that the maximum number of councillor for the largest municipality should be no more than 100.

(f) Alleges that the value of a two vote system as proposed in item 11 of Schedule 1 is debatable as the overall effect of this is negligible. Costs could be reduced if only a single vote is permitted. If a voter votes for an independent candidate the vote would be automatically discounted in the determination of the PR result, as specified in formula contained in item 14 of Schedule 1.

(g) Suggests that PR lists should permit the inclusion of the names of persons who are ward candidates. The name of a candidate on the PR list who wins a ward is automatically deleted from the PR list – Item 13 of Schedule 1.

(h) Agrees with the allocation of PR seats as prescribed by items 15 and 18 of Schedule 1.

2. FINANCIAL AND FISCAL COMMISSION

(a) Alleges that there are no clear criteria for the determination of the different categories of municipalities. The submission appears to confuse criteria for the demarcation process and criteria for the determination of categories. It would however appear that the aim of the submission is to ensure the creation of municipalities which will be economically efficient and will ensure sustainable and integrated communities. The provisions of section 25(b), (c) and (d) of the Demarcation Act, are aimed at ensuring the demarcation of economically viable municipalities.

(b) Emphasises the importance of determining municipal boundaries that will ensure and protect the financial integration of local government. Questions whether the establishment of development types of municipalities will contribute to financially viable municipalities.

(c) Suggests that the Code of Conduct should be amended to include a requirement that the responsibilities of councillors should include the gathering of financial information, and where this is not possible, to seek the necessary capacity and training to do so.

(d) Suggests that a requirement be included in the Code of Conduct that councillors and officials need to ensure that relevant decision making processes are consultative and inclusive as possible.

(e) Suggests that a clearer definition of "sparsely populated areas is required". There are no specific proposals in this regard.

3. ROYAL BAFOKENG NATION

(a) Request that where municipal service delivery is taking place by an entity other than a municipality (in the strict sense) some other arrangement should be put in place. Suggests that –

- the MEC may under certain circumstances, recognise and designate a traditional authority as a municipality; or

- a district or local municipality be authorised to appoint a traditional authority as its agent in a particular area.

4. JOHANNESBURG METROPOLITAN COUNCIL

(a) Request that the Johannesburg Metropolitan Council be defined as a category A municipality.

(b) Suggests that the Executive Mayor should be directly elected or alternatively that the Executive Mayor be compelled to exercise his or her executive authority "together with" the other members of the "mayoral committee" or "cabinet".

(c) Points out that if the number of councillors is restricted to 150 this would result in approximately 90 ward councillors which in turn would result in between 20, 000 to 40, 000 people per ward in the case of the Metro. Proposes that serious consideration be given to making ward councillors full-time and to adjust the maximum number of councillors to 200.

 

(d) Furthermore suggests that wards be limited to 16 and that each ward should have 5 ward councillors. Submission contains a proposal on how to achieve the 16 ward system.

(e) Proposes that clause 79 be amended to provide that the CEO is accountable to the Council or any of its structures.

SOUTH AFRICAN MUNICIPAL WORKERS UNION

(a) Objects to the fact that only the MEC in the province concerned is consulted, before the Minister decides that an area must have a Category A municipality. Suggests that institutions such as the NCOP or MINMEC should be consulted – Clause 4(2).

(b) Suggests that when the Minister designates an area as a metropolitan area, he should not do so by designating the "core city" but should rather do so by designating the "core existing municipalities". – Clause 5(2).

(c) Suggests that the criteria for the declaration of a sparsely populated area should be more specific and should be linked to issues such as distance and lack of integration with neighbouring areas, which will make it inadvisable to include such area in other areas – Clause 6(2).

(d) Express strong opposition to the whole notion of executive mayors and requests that it be deleted from the Bill in its entirely and if not that national legislation should spell out criteria and circumstances which would permit an executive mayor.

(e) Objects to the fact that only the MEC and municipalities are consulted regarding the matters to be dealt with in the establishing proclamation referred to in clause 12(3). Proposes that a draft notice be published for comment and that public hearings should be held on the matter.

(f) Proposes that clause 13 be amended to provide that the conditions of employment of staff transferred to a newly established municipality, should not be less favourable than their existing conditions of employment.

(g) Objects to the provisions of clause 13(2)(b)(iii) which provides for the retranchment of staff. Suggests that this provision be deleted and replaced by a provision that with effect from the date on which the process of demarcation is initiated in terms of section 22 of the Demarcation Act and for a period of no less than 6 months after the notice establishing the municipality in terms of clause 12, a moratorium on the retrenchment of staff will prevail. Does not consider that there are any circumstances where retrenchment can be justified in an amalgamation. It should further be borne in mind that employees may make claims of having been dismissed because of a technical transfer from one employer to another.

Proposes that clause 13(5) be amended by the addition of the following words " and any applicable agreements of the South African Local Government Bargaining Council".

(h) Should a time limit not be placed on the rationalisation process of say a year?

(i) The amending notice referred to in clause 15 should be subject to the same procedures required for a clause 12 notice. See paragraph (e) above.

Proposes that a provision be inserted in Part 1 of Chapter 3 which will enable the electorate to re-call a ward councillor. A fairly detailed proposal in this regard is contained in the submission. If the proposal is rejected then it is requested that provision should be made for the recall and replacement by a party where the councillor was a party candidate and where a candidate changes from an independent to a party candidate or from one party to another they should be forced to contest a new election.

(k) Requests that provision be made in clause 24 for a vacancy at district level when a local council withdraws a councillor from the district council.

(l) Requests that clause 27(5) be amended to include a provision requiring that any proposal which has as its intention the internal restructuring of the personel, must be reported on by the executive committee or executive mayor.

(m) Provision should be made in clause 28(3) for some mechanism whereby councillors and mangers can be held liable where they do not exercise their delegated power with reasonable coution or go beyound their delegated powers.

(n) Proposes that the speaker should be elected anually.

(o) All councils except the very smallest should be permitted to have executive committees, if the concept of executive mayor is done away with Clause 31.

(p) Questions the meaning of the word "parties" in clause 38(2).

(q) All provisions dealing with executive mayors should be removed as they are of the opinion that it does not comply with section 160(8) of the Constitution. Proposes that all the provisions that apply to executive committees should apply to mayoral committees.

(r) Proposes that the Demarcation Board should hold a formal public investigation and then advise the council regarding the establishment of metropolitan local councils.

(s) Should the appointment of committees by metropolitan local councils not be subject to regulation by the Metro Council?

(t) Proposes that ward committees should possibly be obligatory.

(u) Alleges that the delegations contemplated in clause 70(c) is much to wide.

(v) Proposes that clause 79(1)(f) and (g) be combined to read "the management of council staff in terms of the policies of the Council.

(w) Proposes that in clause 81(1)(b), (c) and (d) the words "that effects more than one municipality" should be deleted. Further that 81(d) should include all waste disposal sites in the area.

(x) Proposes that clause 83(1) be amended by the addition of the following "in the provision of services, the promotion of economic development and the strengthening of institutional support capacity of the district".

(y) Clause 82(2)(a) and (b) should be amended to provide that local councils should also co-operate with each other and with district councils, and further that a provision be added to clause 81 which will give district councils the power of "integrated planning of human resources development and industrial relations of both the district and local councils".

(z) Opposed to local municipalities of developing types (clause 84) which clearly lacks any resources and infrastructure.

NORTH WEST PROVINCE

(a) Proposes that clause 10(b) be amended to change a "district executive mayor type" to a "district chairperson type", and furthermore proposes that a "district rural chamber type" be added to clause 10.

(b) Proposes that clause 13(2)(b)(iii) be deleted as the retrenchment of staff should not be the responsibility of the MEC.

7. HELDERBERG MUNICIPALITY

(a) Alleges that the increase of the minimum and maximum number of Councillors in a metropolitan Council (clause 18(1)(c)) to 60 and 180 is to drastic.

No suggestions.

(b) Alleges that the MEC should not have the power to exempt a person from a disqualification mentioned in section 158(1)(a) of the Constitution to be a member of a municipal council and that this may be subject to political manipulation (Clause 19(2)).

No suggestions.

(c) Alleges that it is naïve to expect that a majority party in any Council, but particularly in a metropolitan council, which has all authority vested in it, will develop adequate checks and balances in its delegation system (Clause 28(1)).

Suggests that checks and balances be built into the legislation.

(d) Alleges that there is no mechanism allowing for any appeal by a metropolitan local council against unreasonable withholding of powers and functions by a metro council and that no majority party in a metro council will give up any functions and powers under these circumstances (Clause 60).

No suggestions.

(e) Alleges that a body established by statute (ward committees) as an elective body should have the criteria for the election laid down. Allowing a council to make its own rules for the election of ward committees is open to political manipulation and will increase the likelihood that these communities will be lacking in credibility.

No suggestions.

(f) Alleges that it is unacceptable that the council can dissolve ward committees on the subjective grounds that it fails to fulfil its objectives (Clause 74).

Suggests that the community should have the power to dissolve a ward committee.

(g) Alleges that if ward committees are established by statute their administrative costs must be born by the council otherwise there will be discrepancies between areas and loss of credibility.

No suggestions.

(h) Alleges that a majority party will always excuse members of its own cacuss from meetings and always refuse to excuse members of the opposition. (Schedule 5, Item 1(1)). As the clause stands it has the potential for causing problems in councils.

No suggestions.

(i) Alleges that a councillor who is absent from three or more meetings without leave of absence must be removed from office but with the right to appeal to Council, which appeal should be dependent on obtaining a two thirds majority of the whole council for its success. (Schedule 5, Item 1(2)).

8. PRETORIA METRO

(a) Alleges that for purposes of applying the criteria to determine the category of a municipality it will only be constitutionally fair to consult with all affected municipalities (Clause 4(2)).

Suggests that clause 4(2) be redrafted to read: "for the purposes of applying the criteria referred to in subsection (1) the Minister must consult with the MEC for local government in the province concerned, the Demarcation Board and the relevant municipal council that will be affected by such decision".

(b) Alleges that the word "single" in clause 5(1) should be deleted.

(c) Alleges that it should not be prescribed for a metropolitan area to have a category A municipality, but that a metropolitan area should in consultation with the Minister, and in support of the MEC in accordance with the criteria, decide on the category of municipality to be declared (Clause 5).

(d) Proposes that clause 8 should describe the types of metropolitan municipalities as:

· A metropolitan municipality (with an executive committee) that has the power to establish metropolitan local councils; and

· A metropolitan municipality (with an executive mayor) that has the power to establish metropolitan local councils.

Furthermore suggests that paragraphs (a) and (c) be redrafted and the remaining portion (b and d) of clause 8 be renumbered to (a) and (b) as the types of metropolitan municipalities need to correspond with the Constitutional stipulations in this regard.

(e) Suggests that clause 11 be redrafted to read as follows:

"Provincial government in consultation with the relevant organised local government body must determine for each category of municipality the different types of municipalities that may be established in that category in the province".

(f) Alleges that the issues surrounding the staff of any disestablished municipality should be dealt with in accordance with the stipulations of the LRA and LGTA as amended in close consultation and negotiation with the affected staff and their representative unions. (Clause 13).

Suggests that clause 13(5) should be amend as follows:

Add "….. provided that proper consultation between the MEC and the relevant municipality has taken place".

(g) Alleges that the maximum of 180 Councillors provided for a metropolitan municipality seems to be excessive and it is suggested that the maximum number of metropolitan councillors be in accordance with a prescribed formula that is affordable for the metropolitan municipality (clause 18).

Suggests that clause 18(1)(c) be amended to cater for the prescribed formula referred to in clause 18(1)(a).

(h) Alleges that the Councillors elected for a metropolitan municipality needs to be properly remunerated. Provision therefor should be made to cater for maximum remuneration levels to be in line with the remuneration criteria to be determined by the Commission on the Remuneration of Public Office Bearers. A link needs to be established between the Commission’s responsibilities and new municipal legislation (clause 20).

(i) Suggests that the setting of a date for a by-election in terms of clause 22(3)(c), if not deleted, must be subject to the provisions of clause 22(1)(c).

(j) Suggests that clause 28(1)(a)(vi) be amended to read:

"CEO and officials".

(k) Proposes that clause 38(2) needs to be amended to make provision for the composition of an Executive Committee through fair representation of parties on the Council.

(l) Suggests that clause 34 be amended to mandate the Council to elect a member of its Council as the Mayor of the municipality.

(m) Points out that it appears that the committees mentioned in clause 49 are the same as referred to in clause 76. If this is so, clause 49 can be deleted.

(n) Suggests that a formula should regulate the determination of the number of wards as contemplated in item 3 of Schedule 1.

(o) Proposes that the period of 3 months in item 9 of Schedule 5 should be altered to one month so as to bring it into line with generally accepted credit control measures.

10. SOUTH AFRICAN AGRICULTURAL UNION

(a) In favour of a single third tier local government system for rural areas.

(b) Sparsely populated areas definition problematic.

(c) Supports the principle of amalgamation of municipalities in commercial farmland and other areas with their surrounding hinterland.

(d) Provincial legislation must determine for each category of municipality the different types of municipality and the amalgamation option that may be established in that category in the province, in consultation with the local community.

(e) Supports a Council-Manager form: the district council acts both as legislature and executive.

(f) If the amalgamation option in a specific area has been chosen an advisory committee must be established to advise the council on rural matters.

(g) Schedule 1, Delimitation of wards: Criteria.

Only areas, with distinctively similar circumstances and have similar needs, should be grouped together.

(h) A district should be demarcated into wards.

(i) Concerned about the gender clause. The most competent person should be considered.

11. NATIONAL LAND COMMITTEE

(a) Concerned about loose drafting

(b) Concerned about the latitude given to provincial governments in determining the affairs of local government.

(c) Concerned about the interventionary powers of MEC’s. These powers may well be in conflict with constitutionally determined provisions governing intervention by provinces in local government affairs. Proposes that the consultation process referred to in section 82 be carried through the Bill in cases where MEC’s are called on to make decisions regarding the functioning of local government.

(d) Definition of sparsely populated areas problematic. Proposes ward system in districts.

(e) Proposes strengthening of ward committee provisions. Should be mandatory for municipal structures to consult with ward committees on certain issues.

(f) Section 77 should provide clearer guidelines for the participation of traditional leaders. Preferably such guidelines should refer to an advisory (non-officio) status on municipal structures.

(g) Strengthen the provision on the representation of women: "must ensure".

12. GENDER ADVOCACY PROGRAMME

(a) GAP’s concerns can be summarised as follows:

- The provision for a gender quota on party lists in the Bill is not enforceable, and thus not adequate;

- The Bill does not provide for a strategy to increase the representation of women in executive and decision-making positions;

- The Bill fails to promote the increased participation of women in local governance in the longer term by not making provision for the equal and fair representation of women on ward committees;

- The Bill does not make provision for the establishment of gender structures.

(b) The following recommendations are made:

- the current formulation regarding a gender quota on party lists must be altered to ensure that political parties have to comply with this. This requires a mechanism of enforcement;

- the ward system cannot be ignored. The composition of ward committees should be representative of the community;

- consider measures to increase women’s representation in executive positions on the council.

13. TRANSVAAL AGRICULTURAL UNION

(a) Proposes category A municipalities in rural areas. For example Northern Province should have two category A municipalities.

14. NYANGA LOCAL SUBMISSION COMMITTEE IN ASSOCIATION WITH KHULULEKANI INSTITUTE FOR DEMOCRACY

(a) Not applicable. Comments refer to the White Paper on Local Government.

15. PROVINCIAL ADMINISTRATION: WESTERN CAPE, DEPARTMENT OF HEALTH

(a) Reservations about the size of metros and do not believe they will be able to deliver health services efficiently or responsively. Should the megacity option be implemented will have to review whether to decentralise district health services. Supports a two tier system which gives financial redistributive powers to the higher Metro level.

(b) Cautions against the use of the wording "sparsely populated".

(c) Assignment of municipal health services premature. It is proposed that the decision on municipal health services be specified in national health legislation or be put on hold until the health sector has made a final decision on this issue.

(d) Supports the principle that members of district councils are appointed by local councils.

16. ORGANISATION FOR TRADITIONAL LEADERS OF SOUTHERN AFRICA

(a) Objects to MEC’s powers to regulate the position of Chiefs in regard to municipalities.

(b) Reject the Bill in so far as it relates to the institution of Chiefs and Traditional Authorities.

17. FAIR SHARE

(a) The Bill seems to regard local government more as a tier, than a sphere of government. The powers given to the provincial MEC of local government appears much to dominant.

(b) The powers that may be afforded to executive mayors may have short-term benefits, but afford too much power to an individual and may limit joint decision-making with councillors.

(c) Loss of community identity and hard-fought local priorities for marginalised groups may be overlooked and nulified by superseding municipalities as proposed for sparsely populated areas and category B (developing) municipalities. Section 6(2)(a) and (b); section 13-16; Schedule 2 (1);(10)

(d) The sweeping powers of district councils in sparsely populated areas and the electoral system in these areas need to be re-examined.

(e) Stronger attitude towards gender equity needed.

18. URBAN SECTOR NETWORK

(a) There is an over-emphasis on the structuring of new councils but little detail on the dynamic process of establishing them.

(b) The criteria to determine municipalities (section 2 and 3) are sparse. Criteria to determine category B and C should be included. On the application of criteria, inadequate consultation is a major concern.

(c) A lack of representation at a primary level in sparsely populated areas is a major concern.

(d) There seems to be a lack of a clear definition of the ultimate power of the Demarcation Board, especially vis-a vis its relationship with the Minister and more generally in the link between the Demarcation Act and the Bill. The role of the Demarcation Board in the categorisation of municipalities should be defined to ensure clarity on what exactly their role in the process of categorisation, specifically as it relates to the demarcation process outlined in the demarcation Act is.

(e) Concerned about consultation as such being undefined. It is also a major concern that there is no consultation of communities in the process of establishing municipalities beyond that envisaged in the demarcation process.

(f) Section 28 does not provide councils with guidance on how they should decide to decentralise powers and functions, through for example a critical weighting of criteria within a given process.

(g) Unclear as to the nead of institutionalising the system of speakers.

(h) The Bill should provide an outline of functions for metropolitan local councils and wards.

(i) Takes issue with section 77 in as much as the mode of participation of traditional leaders in local government is entirely a matter for provincial MEC’s.

(j) Concerned about section 84 and a developing municipality. This section misconstrues the nature of provincial interventionary power.

19. CONSTITUTIONAL DEVELOPMENT COMMITTEE OF THE COUNCIL OF TRADITIONAL LEADERS

(a) Alleges that the bill is urban biased in view of the definition of municipality and that it does not contain any definition of traditional authority.

Suggests that definitions such as "Traditional Leader" and "Traditional Authority" be included.

(b) Alleges that the definition of "ward" should also provide for traditional Communities.

(c) Alleges that at local level three different structures should be recognised:

- Metropolitan Local Government

- Town/village municipal council

- Traditional Authority

(d) Alleges that each and every administrative area within an area of a traditional authority, must constitute a ward and that the municipal area within a magisterial district must constitute a separate primary authority. Traditional heads of administrative areas should be ex officio members of the traditional authority.

(e) Alleges that councillors of traditional authority should be democratically elected from each ward within its area of jurisdiction.

(f) Alleges that councillors at primary level should elect representatives to the regional authority (district council) to represent their constituencies. The heads of traditional authorities should be members of regional authorities as well as mayors of stand-alone towns or villages and a representative of municipal councillors.

(g) Alleges that in areas under the jurisdiction of the Kings or Queens, he or she should be the chairperson of such Regional council.

(h) Alleges that in areas where there are traditional authorities and in respect of which there is no monarch, all councillors and traditional leaders should elect amongst themselves the chairperson of such an authority.

(i) Alleges that the Government, in consultation with the Regional Authority/District Council concerned, should appoint a Chief Executive Officer accountable to Parliament and the Auditor General.

(j) Alleges that the Chairperson of both the traditional authority and the regional authority should always act in consultation with their councillors.

(k) Alleges that a Department of Traditional Affairs and Rural Development be established separate from a Department of Local Government and that this power be given to MEC in consultation with House of Traditional Leaders.

(l) Alleges that similar provisions as for Municipal Councils Chapter 3 be made for traditional councils.

(m) Alleges that councillors of traditional authorities must be elected.

(n) Alleges that the electoral system provided for in schedule 1 and 2 must accommodate for a system suitable for rural areas.

(o) Alleges that persons who should be eligible to be councillors must only be those who permanently reside in the area.

(p) Alleges that clause 77 limits the role of traditional leaders in the local sphere.

(q) Are opposed to the idea that the MEC should identify traditional leaders to serve in municipal councils on the grounds that this would subject traditional leaders to manipulation by politicians thereby compromising the stature of traditional leaders.

(r) Alleges that the "Mayor" in rural areas governed by traditional authorities be regarded as traditional leaders and the wards in traditional authorities is to be administered by persons appointed by traditional leaders (amaphakathi and iduna etc.).

(s) Alleges that in respect of traditional authorities the secretaries of such authorities must be recognised as chief executive officers and must be given the necessary training to be able to improve service to the communities and be accounting officers and head of administration, in the same way town clerks are recognised in urban areas.

(t) Proposes that traditional authorities should exercise the functions and powers of municipalities within traditional authorities.

(u) Proposes that traditional authorities should have the necessary infrastructure to enable them to administer the affairs of the people properly.

Suggests that such infrastructure should include:

- Modern buildings (office accommodation and community health);

- Furniture and fittings;

- Office equipment; and

- Transport etc.

(v) Proposes that a Ministry of Traditional Affairs and rural development need to be established.

(w) Alleges that each locality within each administrative area must have a councillor. This will ensure that the needs of each and every community are all taken into account. They are opposed to an idea that a locality (ward) should not have a representative (Schedule 1, Item 2).

(x) Proposes that the Independent Electoral Commission must determine the number of wards in areas under traditional authorities in consultation with such authorities (Schedule 1, Item 3).

(y) Proposes that another criteria should be expressly provided i.e. that the Independent Electoral Commission should not cut across any boundaries of traditional authority in demarcating wards for local government purposes (Schedule 1, Item 4).

(z) Proposes that the electoral system for traditional authorities should not differ from the electoral system for other Local Government structures. People may elect 60% of councillors and people may elect 40% from party list. Traditional leaders should be members of the traditional authority in addition to the elected councillors. However, it should be provided that the majority of such authorities should be elected councillors.

(aa) Alleges that areas of jurisdiction of district councils should not cut across traditional boundaries of kingdom or traditional authorities.

(bb) Proposes that the heads of traditional authorities must be members of district councils which have jurisdiction in the area, but in respect of areas within the jurisdiction of the King a special role of the King must be provided for and mere ceremonial role cannot be supported. (The King must have similar powers like the President in respect of National Parliament).

(cc) Alleges that the provisions of schedule 3 are not relevant for traditional authorities in that the chairperson of these authorities are traditional leaders.

Suggest that a specific provision in this regard should be made to avoid any misunderstanding.

(dd) Proposes that the provisions of schedule 5 must also be applicable to traditional leaders who are members of traditional authorities and district councils.

(ee) Alleges that the provisions of schedule 5 are not necessary and must be deleted.

20. SACOB

(a) Section 8, 9 and 10. Sacob support the argument for having substructures of the MLC type believing that they should be better able to administer and take decisions that are of immediate concern to ratepayers in the specific area of their jurisdiction. Problem with delegated powers.

(b) Section 12(3)(g) refers to the exemption powers to be exercised by the MEC. The exercise of such powers by the MEC could virtually negate the democratic operations of a municipal council. This section should be revisited.

(c) Consultation should also take place with communities, including bodies. Not only municipalities and organised local government.

(d) Sacob believes that it is incorrect to give powers to structures such as ward committees under section 28(1)(a). The concern of business relates to the need for a rational level of uniformity and consistency in the assigning of powers to differing levels of authority which, unless controlled, could lead to conflict on issues sraddling more than one area controlled by such authorities.

(e) Supports the concept of speaker.

(f) Sacob has serious reservations over the appointment of an executive mayor believing that it would allow for an over concentration of power in a single individual and would be inimical to the democratic process.

(g) In regard to section 77 clarity is required as to whether the participation of traditional leaders includes voting powers, membership of committees, election to mayoral office or as speakers. Furthermore it needs to be spelt out whether traditional leaders are to be reimbursed over and above the stipend they receive in respect of their position as traditional leaders. Sacob would argue that like their councillor counterparts they should also be required to subscribe to the Code of Conduct.

21. SALGA

(a) Legislation should protect and advance local government as a sphere, the developmental role, co-operative governance and viability and sustainability.

Bill should be less prescriptive and restrictive.

Should set goals to achieve and measures if not achieved.

Mechanism for delegation to officials.

Tighten criteria for "developing" municipalities.

Oblige National and Provincial spheres to assist developmenting municipalities to develop.

Open opportunities for "offshore funding".

(b) Bill does not recognize SALGA sufficiently.

More consultation with organised local government required.

(c) Size of municipalities.

Metro – ceiling 270

Above 60 for local and district. Formula needed.

(d) Dissolution by MEC.

Link to 139 and provide clear criteria and separate legislation.

(e) Metro local councils is misleading and misnomer. Category A allows only one council in area.

Reinstate "area committee".

(f) Executive Mayor - not in American sense.

(g) Establishment of Municipalities.

Individual municipalities to have a say in type.

Provincial organised local government must also play a role.

(h) Term of Office of council structures and mayor.

All, including Mayors, to serve for elected period.

(i) Executive Committees.

Simple majoritarian system preferred.

(j) Excemptions of certain provisions (Sec 86.). Too prescriptive on internal procedures. Use Sec 160 of Constitution.

Acknowledge municipalities legislative competence.

Allow municipalities to make by-laws and provinces to approve.

(k) Traditional Leaders –

Participation to be within regulated parameters.

Should have no voting powers.

(l) Clause 4(2) – not clear for what purpose the Minister must consult.

Minister must consult the MEC, organised local government and the Demarcation Board for the purposes of applying the criteria in subsection 1.

(m) Clause 5(1)

Delete "single".

(n) Clause 5(2) – core city not defined.

Delete "core city"

Use original proposal.

(o) Clauses 7, 8, 9 and 10.

Bring terminology in line with comments on clause 57.

(p) Clause 11 – function of provincial government subject to constitutional amendments. Organised local government may wish a range of types.

Reword: "Provincial government in consultation with the relevant organised local government body must determine for each" …..

(q) Clause 12

Allow consultation with established municipality.

(r) Clause 12(3)(f) – Other legislation already provides that municipality may determine payment irrespective of full time/part time.

Personal circumstances of elected offices bearer will determine availability. Part of internal arrangements.

Delete.

(s) Clause 13(1) – Municipality is successor in all respects not only of ownership of immovable property.

Replace "in title" with "in law".

(t) Clause 13(2)(b)(iii) – Necessity for this cannot arise.

Labour Relations Act already in place.

Duty is on employer not the legislator.

Delete.

(u) Clause 13(2)(b)(iv)

Insert "movable" before "assets".

Add (vi) the vesting of immovable property from the existing municipality to the superceding municipality.

(Also amend 13(4)(a) substitute "transferred to" with "vested in".

(v) Clause 15(1)

Add "either on request of the municipality concerned or on his own volition with the concurrence of the municipality concerned" after "in province".

(w) Clause 15(1)(b)

To be made subclause of 15(1)(a) (Same procedures should apply).

(x) Clause 17(3)

Add in beginning "Subject to provisions of section 18".

(y) Clause 17(4)

Delete (see clause 12).

(z) Clause 18(1)(b) and (c)

Insert a formula to increase the number of councillors.

(aa) Clause 19(2) – Constitutionally awarded to National Legislation cannot be delegated. Does not support any exceptions from Sec 158(1) of Constitution.

Delete.

(bb) Clause 22(1)( c): Contradicts 22(3)( c) May transcend a financial year-end. Dissolved council will approve budget which will bind new council.

Delete.

(cc) Clause 24(d) – unconstitutional

Delete.

(dd) Clause 25 – falls within legislative competence of a municipality.

See proposals on 86.

(ee) Clause 27(4) and (5).

See 86.

(ff) Clause 28 to be consistent with 28(1)(a).

Replace "assignment" with "delegation".

(gg) Clause 28(1)(a)(iv) Non-elected members are not accountable and cannot take decision on behalf of council.

Delete.

(hh) Clause 28(1)(a)(vi)

Replace "CEO" with "officials".

(ii) Clause 28(2)(b) – many delegations are verbally effected and need to be recorded.

Replace "effected" with "recorded".

Also see comments on 86.

(jj) Clause 29(1) – contravenes two-third majority in 160(3)( c) and 160(3)(b) of Constitution.

Amend Constitution.

(kk) Clause 29(3)(b) and (4) - See 139 of Constitution is in place and does not allow dissolution of duly elected council.

Delete.

(ll) Clause 30(1) – interventions should be in accordance with 139

Delete.

(mm) Clause 30(2) – Section 139(1)(a) and (b) of Constitution already prescribes powers of provinces.

Delete.

(nn) Clause 31(1). The institution of mayor in well accepted

Add: "provided that in the case of a municipal council which does not have an executive committee or an executive mayor, the chairperson of the council will be referred to as the mayor of the council who will have the same powers and functions as a speaker referred to in this part."

(oo) Clauses 31(3) and (4), 32(b), 33, 34, 35 and 36

A council may wish to approve more restrictive measures.

See 86.

(pp) Clause 37 – Section 160(5) of Constitution requires national legislation to provide objective criteria for election of committees.

IN first line insert after "municipality" "which have 10 or more members in the council".

(qq) Clause 38(1)

Delete last sentence if proposal on 37 is accepted.

(rr) Clause 38(2) – Inconsistentent with 160(8)(a) and (b) of Constitution which requires fair representation.

Replace with "an Executive Committee must be composed in such a manner that allows parties and interests reflected within the council to be fairly represented and is consistent with democracy".

(ss) Clause 38(3)

Delete if previous proposal is accepted.

(tt) Clause 39

See clause 86

Insert a clause to ensure that committees are structures

In accordance with its service delivery needs

In such a manner as to promote informed and speedy decisions being taken by members

In such a manner as to provide checks and balances when appropriate

Which will prescribe a clear line of command

Which will prevent an overlapping of functional responsibilities.

(uu) Clause 39(1)(a)

Reword: "the committee of council which will receive reports from councils other committees and which will forward these reports together with its own recommendations to council where a matter cannot be disposed of in terms of delegated authority".

(vv) Clause 39(1)(b) – Committees to send report to Exco not to obscure reporting lines.

Delete.

(ww) Clause 39(2) and (3)

See 86.

(xx) Clause 39(4)

See 86 and amend to "an executive committee must report regularly to the members of the municipal council on all decisions taken by the committee".

(yy) Clause 40.

See 86.

(zz) Clause 41

Amend to "The term of the executive committee is as decided by council".

(aaa) Clause 42

See 86.

(bbb) Clause 43(1), (2), (3), (4), (5)

Clause 44, 45, 46, 47, 48 and 49

See 86

(ccc) Clause 49

If committees are same as committees in clause 76 then they are in conflict, -49 allows Exco to appoint its sub-committees while 76 requires council to do so.

(ddd) Clause 69(1) to re-establish a ward committee in an area where such a committee is not viable is against principle of good governance.

Insert "subject to the provisions of section 74".

(fff) Clause 70( c)

Decision making powers should not be delegated to non-elected representatives.

Delete.

(ggg) Clause 77

Make provision for traditional leaders on non voting basis.

(hhh) Clause 81(3)

Substitute: "performing functions ….(1) in its area" with "entering into an agreement with the district municipality in whose area it falls to perform any of the functions and exercise powers allocated to that district municipality provided that in the re-allocation of powers and duties,. practicability, technological advisability and economical and financial efficiency must be taken into consideration".

(iii) Clause 82 – may cause duplication of functions.

Replace with Sec 10c(8) read with Schedule 8 of LGTA.

(jjj) Clause 83(3) to be consistent with 83(1) and (2)

Insert at end "or to support a local municipality to provide support services to a district municipality".

(kkk) Clause 84 – National Legislation and not MEC should be used - see Constitution 155(3)( c)

Add definition of a local municipality of developing type.

Provide criteria when such a municipality ceases to be a developing type.

(lll) Clause 84(1)

Sec 79(2) should read 81(2).

(mmm) Clause 86

Replace with: "The provisions of sections 26, 27(4) and (5), 28, 31(1) to (4), 32(b), 33,to 36, 39 to 42, 43(3) and (5), 44 to 49, 51(3), 53 and 54, 56, 59, 61, 64 to 67, 75 and 76, 79, Schedule 3 shall apply to every municipality unless amended by that municipality by way of a by-law, provided that such by-law will not inhibit the principle of good governance".

(nnn) Clause 88 does not repeal legislation

Heading to be "Transitional Arrangements".

(ooo) Schedule 1

Part 2 Item 9(1) and 11(1) contradicting

Amend 9(1) to "Each voter has one vote only in respect of election of a councillor of a ward, and a voter may vote for one candidate only".

(ppp) Part 4 Item 22(2)

Parties should be allowed to amend their lists at any stage.

(qqq) Schedule 3

See 86

(rrr) Schedule 5

See amended Code of Conduct attached.

SCHEDULE 5

Code of conduct for councillors

Attendance at meetings

1. [(1) A councillor must attend each meeting of the council, except when leave of absence is necessary or has been granted in terms of an applicable law or the rules and orders of the council.]

 

 

(2) [A councillor who is absent from three or more successive meetings of the council

without leave of absence, may be removed from office as a member of the council by resolution of a majority of the council.

(3) A councillor must perform the functions of office in an orderly manner.]

Unless leave of absence had been granted to him or her, a councillor must attend each meeting of the council of which he or she is a member and of any committee of such council to which he or she had been elected or appointed, provided that absence from a meeting to prevent the commissioning of an offence under this Schedule, shall be deemed to be absence with leave.

[Misleading or improper influence

2. A councillor may not directly or indirectly –

mislead the council in any matter before it;

influence or attempt to influence the council so as to gain any direct or indirect personal benefit, or for a relation or business associate;

participate in the taking of any decision by the council which –

(i) is unlawful,

(ii) abrogates any right of the council, or breaches or neglects any obligation by the council, to the extent that it suffers loss or is otherwise prejudiced; or

(d) discredit or undermine the municipality, its council, its committees or any of its office-bearers.]

A municipality shall determine a system for deducting from the allowances of a member of the council money as a sanction for the unauthorised non-attendance or the failure to remain in the attendance at meetings of councils or its committees.

[Pressure on employees prohibited

3. A councillor may not directly or indirectly –

put pressure on any employee of the council -

(i) to insert or omit any information in any council document; or

(ii) to frame a proposal or recommendation in any council document in a particular manner; or

(b) ask any employee of the council –

(i) not to implement any decision of the council; or

(ii) to implement any decision contrary to this intent or purpose.]

3(1) No councillor shall –

(a) mislead or attempt to mislead the council of which he or she is a member or any committee or employee of such council in its or her or his consideration of any decision regarding any matter serving before it or her or him;

(b) influence or attempt to influence the council of which he or she is a member or any committee or employee of such council in its or his or her consideration of and decision regarding any matter before it or him or her;

so as to gain some direct or indirect benefit, whether pecuniary or otherwise, for himself or herself or any other person to whom he or she is related or any other person to whom he or she is related or any other person or body with whom he or she is associated.

(2) No councillor shall directly or through the agency of another person, encourage, advocate, incite or participate in the taking of any unlawful decision by the council of which he or she is a member or a committee or employee of such council.

(3) (a) Whenever an unlawful decision was taken by a council or a committee thereof, any expenditure incurred as a result of such decision shall be disallowed and shll not form a charge against the fund or account concerned and such expenditure shall be divided amongst and recovered from the councillors who participated in taking such decision.

(b) For the purpose of sub-paragraph (i) a councillor shall be deemed to have participated in taking a decision, unless it is recorded in the minutes of such meeting that he or she was absent from the meeting at which such decision was taken or that he or she voted against such decision.

(4) Whenever an employee is of the opinion that a councillor has encouraged, incited or advocated that he or she takes an unlawful decision, he or she shall forthwith in writing disclose the circumstances of the matter to the chief executive officer.

(5) No councillor shall directly or through the agency of another person, encourage, excite, advocate or participate in any debate, consultation, meeting or decision by the council of which he or she is a member or of a committee of such council or any other body or person, including an employee of such council, the aim or effect of which would be –

(a) the abrogation by such council of any agreement, or

(b) the breach by such council of any agreement, or

(c) the breach by any other person or body of any agreement with such council; or

(d) any other breach or loss of any right or neglect of any obligation

to the extent that such council suffers loss or damage or is in any way prejudiceed or improperly or unlawfully burdened by any obligation.

(6) (a) No councillor shall coerce or put any pressure on any employee of the council of which he or she is a member to insert in or to omit from any document prepared or commented on by such employee any fact, view or information or to frame a recommendation or finding in any such document in a particular manner.

(b) Any employee who believes that he or she had been coerced or pressurised by a councillor to insert in or omit from any document prepared or commented on by him or her any fact, view or information or to frame a recommendation or finding in any such document in a particular way, shall forthwith in writing report the matter to the Chief Executive Officer.

(7) No councillor may ask an employee of the council:

(a) not to implement any decision of the council; or

(b) to implement any decision contrary to its intent or purpose.

Unauthorized disclosure of information

4. (1) A councillor may not directly or indirectly disclose any privileged or confidential information to any unauthorised person or body.

4 (2) For the purpose of this term "privileged or confidential information" includes any information –

(a) determined by the council to be privileged or confidential;

(b) the discussion and debate during a meeting of the council of which he or she is a member or any committee thereof held in committee, unless the council or committee concerned decides that such discussion or any part thereof is not privileged or confidential;

(c) regarding the protection of the right to privacy of any person; and

(d) declared to be privileged, confidential or secret in terms of any law.

Reward, gifts and favours

5. A councillor may not directly or indirectly request, solicit or accept any reward, gift or favour for –

voting or not voting in a particular manner on any matter before the council, or

persuading the council in regard to the exercise of any power, function or duty; or

the disclosure of privileged or confidential information.

Intervention in administration

6. A councillor may not directly or indirectly –

interfere in the management or administration of any department of the council;

give or purport to give any instruction to any employee of the council;

obstruct or attempt to obstruct the implementation of any decision of the council by an employee of the council; or

encourage or participate in any conduct which would cause or contribute to mal-administration in the council.

Council property

7. [A councillor may not directly or indirectly use, take, acquire or benefit from any property or asset owned, controlled or managed by the council, except as a right held in common with other citizens of the municipality.]

A councillor may not directly or indirectly or in an improper or unlawful manner use, take, acquire or benefit from any property or asset owned, controlled or managed by the council.

Duties of councillor

If a councillor becomes aware of a contravention of this Schedule that councillor must inform

the chief executive officer in writing of that contravention.

Non payment of debts

A councillor may not be in arrears on any municipal debt for a period of more than three months.

10 (1) "Except with the prior consent of the council of which he or she is a member or contrary to the conditions, if any, of such consent a councillor shall not –

enter into any transaction with such council in a capacity other than that as a member of that council, unless such transaction is connected with the provision to him or her of accommodation within the municipality of such council or the rendering of a service to him or her as a resident within such municipality;

perform work for or on behalf of such council in a capacity other than that of a member of that council; or

appear on behalf of any other person or body before such council or any committee thereof in a capacity other than that of a councillor;

Provided that the fact that a council may grant consent to any of its members for any purpose referred to in sub-item (2)(b), shall not empower a council to retain any of its councillors on a regular basis in any capacity.

No councillor shall, directly or indirectly –

(a) become involved in any contract with the council of which he or she is a member; or

(b) share the profits or losses of any contract with such council; or

(c) in any manner obtain a financial interest in any business of such council.

Without the prior approval of the council having been obtained, and in the event of more than one fifth of the councillors objecting to the granting of such approval, the approval of the MEC.

Whenever –

(a) the spouse of a councillor; or

(b) a partner of a councillor; or

(c) a partner of a councillor’s spouse; or

(d) the employer of a councillor; or

(e) the employer of a councillor’s spouse

becomes directly or indirectly involved in any contract with the council of which such councillor is a member or directly or indirectly shares in the profits or losses of any contract with such council or in any other manner obtains a direct or indirect financial interest in the business of the council, such councillor must disclose to the council the nature and extent of such interest.

4 (a) A councillor who has, acquires or stand to acquire, directly or indirectly, any material interest (whether pecuniary or otherwise) in any contract which is to be entered into by the council of which he or she is a member or any other matter before such council or a committee thereof, shall declare his or her interest and full particulars thereof at the first meeting of the council or committee concerned at which it is possible for him or her to do so.

 

 

(b) A councillor who has made a declaration in terms of subregulation (a) must –

(i) immediately after making such a declaration recuse himself or herself from such meeting;

(ii) not participate in any voting in connection therewith; and

(iii) shall not be allowed to address such council or any committee thereof in conenction with such contract or matter.

(c) A declaration in terms of sub-regulation (b) shall be recorded in the minutes of the meeting at which the declaration is made.

(d) The provisions of this item shall not apply in respect of –

(a) any matter in respect of which the councillor has an interest in common with others as a resident of the municipality; and

(b) any matter which relates to the payment in general to councillors of any remuneration and allowances.

No councillor being an advocate or an attorney, may act as such, either directly or through the agency of another person, in legal proceedings against the council of which he or she is a member: Provided that he or she may so act in a criminal case with the prior approval of the council having been obtained.

(6) (a) No councillor may use information gained in his or her capacity as a councillor and which is not available to the public generally, for his or her direct or indirect personal advantage or the direct or indirect advantage of any person to whom he or she is related or any person or body with whom he or she is associated.

(b) No councillor may use his or her position as a councillor or an office bearer of a council to directly or indirectly gain or acquire any personal advantage or for the direct or indirect advantage of any person to whom he or she is related or any person or body with whom he or she is associated.

(7) (a) No councillor may by himself or herself or through the agency of another person request, solicit, demand or accept any payment in respect or his or her attendance of any meeting, whether in his or her capacity as councillor or otherwise, from any person or body if he or she had or will receive payment in respect of such meeting from the council of which he or she is a member.

(b) (i) A councillor who, having made a presentation at a meeting, whether in his or her capacity as a councillor or otherwise, is presented with any payment, shall at the first meeting of the council of which he or she is a member at which it is possible for him or her to do so, delcare such payment.

(ii) They council shall thereupon consider the declaration and may –

(aa) allow the councillor concerned to keep such payment; or

(bb) declare such payment forfeited to the council.

(iii) Whenever a council declares a payment forfeited, the councillor concerned must forthwith hand over such payment to the chief executive officer who must deal therewith as the council may determine.

(c) (i) A councillor who is a member of any body established by or under a law, or of an organisation representing municipalities in the national or the provincial sphere of government and in respect of which he or she receives payment from such body, whether or not he or she represents the council of which he or she is a member or has been designated, appointed, elected or delegated by such council as a member of such body, must disclose any such payment received by or due to him or her in writing to the chief executive officer.

(ii) The chief executive officer must submit full particulars of any disclosure in terms of paragraph (i) in respect of every councillor, at least twice during a financial year to the council.

(d) For the purpose of this item –

(i) "payment" means any remuneration, allowance, gift, fee, advantage or reward (whether pecuniary or otherwise); and

(ii) "meeting" includes any congress, conference, summit, work session, workshop, seminar, hearing or similar gathering of two or more people where discussions and debate takes place, whether or not decisions are taken.

8 (a) Every councillor must within –

(i) three months after the date of commencement of this code; or

(ii) 30 days of his or her election as a councillor

in writing declare to the chief executive officer, in respect of herself or himself and his or her spouse, child and parent or guardian, the ownership, performance, receipt or holding of

(aa) any share in a company;

(bb) membership of any closed corporation;

(cc) trusteeship of any trust;

(dd) any financial interest in any organisation, body or business;

(ee) any directorship;

(ff) any partnership;

(gg) any consulting services;

(hh) employment;

(ii) property;

(jj) pension; and

(kk) subsidies or grants by any organisation, whether public or private.

(b) Every councillor must, as soon as any detail regarding any matter in sub-regulation (a) changes, in writing inform the chief executive officer thereof.

(c) The chief executive officer must at least annually, in writing, request every councillor to confirm or amend any information provided in terms of sub-item (a) or amended in terms of sub-item (b).

(d) The chief executive officer must establish and maintain in respect of all members of a council, a register containing the information set out in sub-item (a), which register must be open, during office hours, for public inspection : Provided that the value of any shares, membership, trusteeship, partnership, directorship, employment, property, pension, subsidy or grant, must be kept in a separate part of such register and may not be disclosed.

Duty of chief executive officer

[10.] 11 (1) If the chief executive officer becomes aware of any contravention of this Schedule, or if any person in writing alleges that this Schedule has been contravened, the chief executive officer must –

investigate the facts and circumstances;

request written comments within seven days from the councillor involved; and

report the matter to the next meeting of the council.

[(2) The chief executive officer must ensure that each councillor when taking office is

given a copy of this Schedule and that a copy is available in every room or place where the Council meets.]

Contraventions

[11.] 12 (1) A municipal council [may] must establish a special committee –

to investigate and make a finding on any alleged contravention of this Code; and

to make appropriate recommendations to the council.

(2) If a special committee or a committee appointed by the MEC acting in terms of the provisions of sub-section 4 finds that a councillor has contravened a provision of

this Code, the council may –

issue a formal warning to the councillor;

repremand the councillor;

[(c) request the MEC to suspend the councillor for a period; or

(d) request the MEC to remove the councillor from office.]

impose any other sanction which may legally be imposed.

(3) The MEC may establish a committee to investigate a contravention of the code of conduct, and an recommendation of the committee, may suspend a councillor for a period, or remove the councillor from office.

Application

[12.] 13 In this Schedule "council" means –

the municipal council;

any committee of the council.

14. (1) A contravention of the provisions of paragraphs 2, 3, 4, 5, 6 and 7 will constitute a criminal offence.

Any person convicted of a contravention of paragraph 1 above, may be liable for a fine or imprisonment for a period not exceeding 12 months.

21. DURBAN METROPOLITAN COUNCIL (S6)

(a) It is recommended that the definition of "Minister" should clearly indicate that it is the national Minister responsible for local government. In view of the fact that the concept of a core city is not defined, a potential problem may arise in respect of the Metropolitan Area of Durban where the old city of Durban is now two cities. Alternative wording is proposed.

(b) The Metro recommends that the legislative framework should be extended to allow a municipality to determine the type of municipality for its municipal area. If this is not acceptable clause 12(4) should be amended to provide that the concurrence of affected municipalities must be obtained.

(c) Provision must be made for existing regulations and by-laws etc. to remain in place until reviewed in terms of clause 14 which will render clause 13(2)(b)(v) superfluous. For consistency the reference to "full time members" (clause 17(4) ) should be "full time councillors".

(d) Ad clause 26: The Bill must be amended to allow the Council, and not the Speaker to determine where and when regular meetings of the Council must be held. The constitutionality of this clause is questioned.

(e) Ad clause 28: Delegation to employees should not be restricted to the CEO and an alternative wording is suggested for clause 28(1)(vi).

(f) Ad clause 29(1): The constitutionality of the two-thirds majority requirement is questioned.

(g) Ad clauses 31 and 44: The proposed functions of the Mayor and the Speaker should be given further consideration from a practical point of view.

(h) Ad clause 36: Two views are held. The first is of the opinion that provision must be made for a deputy speaker, and the second supports the clause.

(i) Ad clause 38: The constitutionality of the clause is questioned, and it is the view of the Metro that only criteria may be set and that the maximum number of members of committees may not be specified.

(j) Ad clauses 39 and 40: The constitutionality of these clauses is questioned with reference to section 160(6) of the Constitution. It is maintained that the matters in question relate to internal arrangements. The practicality of submitting monthly reports is questioned, and it is recommended that the minutes of the Executive Committee should rather be submitted.

(k) Terms of office (clauses 41, 53 and 62): It is proposed that the terms of office of the Executive Committee, Executive Mayor and the Council end on the day before elections and that the Chief Executive Officer be responsible in the interim for operational matters within the policy framework and resolutions of the previous Council. These clauses also appears to be in conflict with clause 23 read with clauses 34,42, 55 and 63 in so far as a person is disqualified from holding a certain office if that person ceases to be a councillor.

(l) Ad clause 45: It is proposed that the Bill be amended to allow the Executive Committee to set the date of Exco meetings. With reference to section 160(6) of the Constitution the constitutionality of this clause is questioned.

(m) Ad clause 56: Provision should also be made for the delegation of powers and functions to officials of the Council.

(n) Metropolitan Local Councils (clause 58): A strong argument is advanced for the term "metropolitan local councils" to be replaced with "area committees". It is recommended that the clustering of wards should be left in the entire discretion of the Council, without the Demarcation Board having to be consulted. The functions of metropolitan councils require clarification. The constitutionality of the prescribed composition of metropolitan local councils is questioned with reference to section 160(5) of the Constitution. With reference to clause 62 (and presumably also clause 59(1)(b) ), the view is expressed that Metropolitan Councils should be able to change the PR component of metropolitan local councils where the functioning of the local councils has become a problem. The members of the metropolitan local council, and not the chairperson, must determine when meetings should be held (clause 64).

(o) Ad clause 70: The deletion of clause 70(b) is proposed because the Metropolitan Council should determine the reporting lines as implied by section 160(6)(c) of the Constitution.

(p) Ad clause 79: The Chief Executive officer must be specifically empowered to engage appropriate staff and an amendment to clause 79(2) is proposed.

(q) Ad clause 80: This clause is regarded as restrictive and that a Council should have at least the functions and powers assigned to it by the Constitution.

(r) Ad Schedule 1: The Metro is of the opinion that the number of people and not the number of registered voters (item 4) should determine the size of a ward. A counter view supports the present provision in this regard.

(s) Certain general remarks regarding matters such as the use of the terms "assigned" and "delegated" where it is inappropriate, and the transitional arrangements when a new municipality is established are made.

22. NORTH CENTRAL AND SOUTH CENTRAL LOCAL COUNCILS OF THE DURBAN METRO

(a) The Executive Mayor type of municipality is not favoured and all provisions in this regard should fall away. The term "metropolitan local council", and the provisions related to the term of office of these councils are supported. Apart from these comments the submission by the Durban Metro is supported.

23. LANGA SUBMISSION

(a) The term "sparsely populated area" should be defined in such a manner that will allow for future development. Provision should be made in clause 77 for the education of traditional leaders in the area of democratic governance and their role and functions in local governance.

(b) Provisions stipulating employment conditions for the Chief Executive Officer must be included in clause 78/79. The view is expressed that the MEC is given unaccountable power to decide when a municipality must be a developing type, and it is proposed that a local municipality should also be involved in the decision (clause 84).

(c) Various comments are made in respect of the Code of Conduct. Of importance is the absence of provisions relating to the interaction between a councillor and his or her constituency.

24. DEPARTMENT OF HEALTH

(a) Certain further definitions such as for "conurbation, prescribed and plenary" are requested. Certain improvements of a technical nature are proposed in respect of Chapter 1. It would appear that the Department of Health has commented on a previous draft of the Bill since most of the comments relate to errors that have been corrected in the (last) published version of the Bill.

25. LEGAL OPINIONS OF THE CAPE METRO AND THE DEPARTMENT

(a) The legal opinion emanating from Advs. Gauntlett and Breitenbach question the constitutionality of the executive structures of a municipality being used as the basis for the typology. Concomitant to this, is their view that the Bill encroaches on the constitutional power of municipalities to determine their own internal arrangements.

(b) The opinion obtained by the Department from Advs. Trengrove and Spitz expresses an opposite view by relying on the provisions of sections 160(1) and 164 of the Constitution.

26. PORT ELIZABETH MUNICIPALITY

Certain Category B municipalities such as Port Elizabeth, East London and Pietermaritzburg, do not share any municipal executive and legislative powers with the District Councils (Category C municipalities). In addition these municipalities exercise a number of functions set out in clause 81 e.g. 81(1)(b), (c), (d) and (i). Proposes that clause 82 be amended by renumbering present subclause (2) to (3) to insert a new subclause (2) which reads as follows.

 

"(2) If on the date that this Act takes effect, a local municipality is performing a function or exercising a power referred to in section 81, such local municipality will, subject to subsection (1) continue to do so".

WECLOGO

Proposes that clause 4 be amended to provide that the Demarcation Board must apply the criteria for deciding when an area should be a metropolitan area and that clause 5 be deleted.

Proposes that clause 12(3)(b) and (d) be deleted and replaced with a provision along the following lines-

"After the first meeting of a council of a municipality established in terms of section 12, the MEC for local government, by notice in the Provincial Gazette must in consultation with that municipality specify the type of municipality so established, whereafter that municipality may, subject to this Act, decide on its committee system.

Delete clause 12(3)(f) as separate legislation regualtes the remuneration of councillors.

Clause 13(1) the words "in title" must be replaced by "in law".

Clause 13(2)(b)(ii) should be deleted as the LRA regulates the retrenchment of staff.

Clause 15(1)(a) should be amended by inserting the words "either on request of the municipality concerned or on his or her own volition, with the concurrence of the municipality concerned after the words "in a province".

As far as clause 22(2) is concerned, attention is drawn to the fact that a municipal council cannot be constituted before all the proportional and ward votes have been counted.

All the other comments of WECLOGO are the same as those of SALGA.

CAPE METROPOLITAN COUNCIL

See comments under WECLOGO.

DEVELOPMENT AND PUBLIC FINANCE FORUM

Clause 12(4) should be amended to oblige the MEC to also consult "major creditors of existing municipalities affected by the notice’.

Clause 13 should be amended by the addition of the following new subclause (4):

"(4) The transfer of assets and liabilities in terms of a section 12 notice must take place without undue prejudice to the creditors of existing municipalities".

Clause 35 should be amended by the addition of the following subsection (5):

"(5) Members of the executive committee are accountable collectively and individually to the council for the performance of their functions".

The following amendment proposed to the Code of Conduct.

Members of the executive council may not-

act in any manner that is inconsistent with their office, or expose themselves to any situation involving risk of conflict between their official responsibilities and private interests; or

use their position or information entrusted to them to enrich themselves or improperly benefit any other person.

act in an manner that may compromise the credibility and integrity of the council.

Objects to councilors being given a period of three months within which to honour their debts.

ASSOCIATION OF LIBERAL DEMOCRATIC COUNCILLORS

The allocation of he function to apply the criteria in clause 4 to the Minister is questioned with reference to section 155(6) of the Constitution.

Alleges that clause 5 trespasses on the independence of the Demarcation Board. The lack of a definition of "core city" makes the interpretation of this clause problematic. A number of arguments are raised against a single tier system of metropolitan government, such as: That it will be undemocratic in certain circumstances; It will result in vast metropolitan areas; As metropolitan government has only recently been restructured, the requirement for further restructuring will result in restructuring fatigue; The creation of mega-cities will not contribute to the financial viability or cost saving for the municipality; Smaller municipalities will enhance accountability and the efficiency of service delivery.

Alleges that Chapter 1 Part 2 (types of municipalities) is inconsistent with section 160(1)(c), (5)(b) and (c), and (6)(c) of the Constitution. The executive mayor type of municipality is questioned.

Clause 12 should be amended to provide that the establishment of a municipality must be consistent with the Constitution. Clause 12(3)(b) is redundant, as provincial legislation must determine the different types of municipalities that must be established.

Clause 13(2)(b)(ii) and (iii) is regarded as being redundant in view of the fact that the provisions of the Labour Relations Act, 1995 will apply in so far as the transfer and retrenchment of staff is concerned. The constitutionality of these provisions is also questioned with reference to section 160(1)(d) of the Constitution.

The constitutionality of clause 14 is questioned as being without constitutional sanction.

The constitutionality of various clauses (such as 15(1)(a)(iv) 17(4), 26 and 27) is questioned on the basis that section 160 of the Constitution allows municipalities to determine their own internal arrangements.

The maximum number of councillors in clause 18 (180 councillors) is regarded as too unwieldy. The criteria listed are regarded as vague and impossible to quantify.

The period during which the MEC may decide to hold over elections is unacceptably long and a period of not more than three months is suggested (clause 22(1)(c) )

The constitutionality of the mandatory nature of clause 25 is questioned.

Notwithstanding the Constitutional Court’s decision of 29.5.1998, further consideration of increased majorities in some instances is requested (clause 27).

Various arguments regarding the constitutionality of clause 28 dealing with delegations are raised, and it is suggested that this clause should be deleted in its entirety.

The constitutionality of the two-thirds majority requirement in clause 29 is questioned. The constitutionality of the power of the MEC to dissolve a Council is also questioned.

Clause 30 is regarded as redundant in view of the provisions of section 139 of the Constitution.

Clauses 31-36 are regarded as unconstitutional in view of the fact that municipal councils may determine their own internal arrangements. The same arguments are raised in respect of Chapter 4 Part 1.

The provisions of clause 48 are unacceptable in that it will allow outspoken members of minority parties to be punished.

Various aspects of the executive mayor types are questioned, such as: There are no checks and balances on the powers of executive mayors; An executive mayor may undermine the unifying force that a ceremonial mayor usually has.

The term "metropolitan local councils" should again be replaced by the term "area committees".

Various aspects of ward committees are questioned, such as the fact that election at public meetings is an open invitation to intimidation and majoritarianism. Ward committees will require substantial financial support to operate effectively and clause 73 is regarded as an obstacle to the effectiveness of ward committees.

Clause 78 is regarded as unconstitutional on the basis that municipalities can not be obliged to appoint specific employees.

The norm of 10% in item 4(a) of Schedule 1 is preferred.

MUNICIPALITIES OF CENTURION AND PRETORIA

The comments of these municipalities are generally the same as the comments of SALGA.

MEC FOR LOCAL GOVERNMENT KWAZULU/NATAL

Questions the criteria for the determination of a sparsely populated area in clause 6(2). Requests that the restriction regarding the non existence of a traditional authority in a sparsely populated area be deleted.

The criteria for the determination of a metropolitan area are vague.

Requests that category A municipalities outside metropolitan areas should be permitted.

The expression "after consultation" in clause 4(2) should be amended to "in consultation".

Enquires whether metropolitan councils can elect not to establish executive committees or elect executive mayors- see in this regard clauses 11, 37(2) and 50(2).

Suggest that clause 12(2)(b) be amended to also include a reference to the election of representatives for sparsely populated areas.

Suggests that clause 15(1)(a)(ii) which deals with the alteration of the name of a municipality should refer to the Place Name Commission.

Alleges that clause 17(2) is too vague and suggests that the clause be amended to specifically state how many times a council should meet annually.

The powers granted to the Minister in clause 17(3) and (4) are limited and should therefore not be allocated to a political office bearer (see also clauses 22(3) and 82(1).

Alleges that the fact that clause 18(1)(a) determines that the size of the council is dependant on a prescribed formula is in contravention of section 160(5)(a) of the Constitution which requires national legislation to regulate this matter.

Enquires what would happen if a local council does not appoint its representatives to the district council within the two week period required by clause 21(3).

Suggest that clause 25 should be couched in discretionary terms so as to comply with section 161 of the Constitution.

Requests that clause 29 be amended so as to enable the MEC to appoint a commission of enquiry.

Alleges that the manner that clause 38(2) has been worded does not provide for interests reflected within a council, and furthermore that the word "party" as defined, does not embrace representatives on a district council that have been nominated by local councils.

Enquires whether, having regard to clauses 49 and 76, it is the intention to have two types of subcommittees to assist an executive committee.

Alleges that clauses 75 and 76 do not provide for the determination of the term of office of committees.

Enquires what the expression "vested rights" in clause 76(3)(d) means.

Enquires what the expression "regulate the participation" in clause 77(4)(a) means, having regard to the content of clause 77(1) and (3).

As far as clause 81 is concerned, the following problems are pointed out:

81(1)(a) clashes with the DFA and the Provincial Planning and Development Act.

81(1)(b) and (d) clashes with the Water Act.

81(1)(f) clashes with provincial roads;

81(1)(g) clashes with the Provincial Taxi Bill;

81(1)(k) will result in PMB loosing its fresh produce market and Cato Ridge its abbatoir;

81(1)(m) clashes with the Provincial Tourism Bill

These comments must be read with clause 88(2).

As clause 81(2) is presently worded it will not prevent a local municipality from municipality from forming functions and excerising powers described in clause 81(1)

Clause 83 should be amended to allow a local municipality or a district municipality act as an agent for one another. Alleges that the requirement that the MEC must "assist a district municipality" as contained in clause 83(3) is impossible to implement.

Enquires how an MEC is expected to regularly review the capacity and tax base of a local municipality as required by clause 84(3)

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