Second Amendment to Constitution; Determination of Delegates Bills: discussion

CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
12 August 1998
SECOND AMENDMENT TO CONSTITUTION; DETERMINATION OF DELEGATES BILLS: DISCUSSION

Documents handed out
Constitution of the Republic of South Africa Amendment Bill [B84-98]
Constitution of RSA Second Amendment Bill [B85-98]
Determination of Delegates (NCOP) Bill [B56-98]

DETAILED MINUTES
Determination of Delegates Bill
The chairperson said that the NCOP had submitted a report stating that the inadequacy of the Determination of Delegates Bill can be solved by amending the constitution itself. The Chairperson ruled that those involved in the NCOP should meet again and sort this matter out and thereafter report to the subcommittee on Monday 17 August.

Constitution of the Republic of South Africa Amendment Bill
Part of the memorandum on the objects of this Bill states:
1.1 In terms of section 159 of the Constitution of the Republic of South Africa. 1996 (Act No.108 of 1996. hereafter "the Constitution"), and with reference to the previous local government elections, the final date for the holding of local government elections differs in respect of different parts of the country. The maximum term of Municipal Councils is one year shorter than those of the national legislature and provincial legislatures. which complicates efforts to synchronise elections within all spheres of government.
1.2 In order to address this problem clause I of the Bill seeks to amend section 159 of the Constitution. so as to determine the term of Municipal Councils to be not more than five years. Clause 1 also proposes to regulate the functioning of an existing Municipal Council until the newly elected Council assumes office.

Most of the political parties did not have any problem with this Amendment except for the IFP and PAC. The PAC was not present to motivate its not favouring the amendment. The rest of the committee is sympathetic to the idea of five years.

Constitution of the Republic of South Africa Amendment Bill
This Bill deals with cross-border municipalities. There was not sufficient time to progress with this Bill.

The Memorandum On The Objects Of The Constitution Of The Republic Of South Africa Second Amendment Bill, 1998 states:
Section 155(5) of the Constitution of the Republic of South Africa, 1996 (Act No.108 of 1996, hereafter "the Constitution"), requires provincial legislation for determining the different types of municipality to be established in a particular province. In the absence of existing provincial legislation determining the different types of municipality to be established in a particular province, provincial Acts will have to be enacted before such a determination can be effected. The amendment of section 155(5) of the Constitution will make it possible for the types of municipality to be determined by a provincial government without having recourse to the enactment of a provincial Act.
Certain communities that exist in adjoining provinces are so closely linked and socially and economically interdependent, that the establishment of a single functional municipality will require the determination of a municipal boundary across the provincial boundary in question. The Bill aims at making it possible for the demarcation authority contemplated in section 155(3)(b) of the Constitution, to be in a position to determine a municipal boundary across a provincial boundary with the concurrence of the provincial governments concerned (so called cross-border municipalities). Although national legislation will set out the manner in which cross-border municipalities are to be established, as well as the institutional arrangements for such municipalities, the proposed amendment to the Constitution is based on the following principles:
(a) The determination of a municipal boundary across a provincial boundary must be with the concurrence of the provincial governments concerned.
(b) The establishment of a cross-border municipality will be dependent on co-operation between the affected provinces.
(c) The co-operation between affected provinces will entail that one province delegates its executive powers to the administering province.
(d) The legislative authority of the affected province may not be compromised. However, the problem of two sets of (conflicting) provincial legislation in the area of the cross-border municipality can he overcome by the legislature of one province-
(i) incorporating by reference all laws of the "administering" province in its part of the municipal area: and
(ii) excluding any future laws it makes from application in that part of the cross-border municipality.
In view of the fact that the Bill provides for a constitutional amendment envisaged in section 74(3)(b) of the Constitution, the State Law Advisers and the Department of Constitutional Development are of the view that the legislative procedure provided for in that section must be followed and that the Bill is to be passed by both the National Assembly and the National Council of Provinces. Since the amendment contained in the Bill will affect all provinces. the provisions of section 74(8) of the Constitution are not applicable.

Implications for provinces
Provinces will be affected by the provisions of the Bill in so far as the determination of a municipal boundary across a provincial boundary will require the co-operation between affected provinces for a cross-border municipality to be established.

Implications for municipalities
Depending on the extent of co-operation between affected provinces, a cross-border municipality may well have to apply two sets of provincial legislation in its area of jurisdiction.