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CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
20 August 1998
LOCAL GOVERNMENT: MUNICIPAL STRUCTURES BILL [B68-98]: DISCUSSION
Document handed out
Report on President's reservations regarding constitutionality of Remuneration of Public Office Bearers Bill [B16F-98] (see Appendix)
The purpose of this meeting was to complete the briefing of the committee on the Local Government: Municipal Structures Bill [B68-98] by Dr Olver, Assistant Director-General of the Department of Provincial Affairs and Constitutional Development. The briefing started with section 26 of the Bill. The committee chair asked committee members to confine their questions to matters of clarification and to save debates on policy for a later date. The minutes below cover discussion of sections 26 through 79.
The chair, Mr Y Carrim of the ANC, stated that the committee would meet as late into the night as necessary to complete discussion of the Local Government: Municipal Structures Bill. He requested committee members to limit their questions to requests for clarification. He noted that matters of policy related to the Bill would be discussed in party caucuses, bilateral discussions between parties, and subsequent committee meetings. He stated that he would allow some discussion of conceptual issues in this meeting if this would facilitate agreement among parties which would expedite completion of the Bill.
Dr Olver resumed his clause-by-clause explanation of the Bill at section 26. The minutes that follow do not report Dr Olver’ explanation of each clause. Rather, they cover the questions asked by committee members in relation to each section and the responses offered by Dr Olver and the other representatives of the Department.
Mr Peter Smith of the Inkatha Freedom Party asked if this section was necessary, stating that it seemed excessively prescriptive. Dr Olver replied that the section is important because meetings are the "guts of democracy." Dr Olver stated that most councils would need a broad framework for procedures. Provincial local government MECs can exempt advanced councils from many requirements of this procedural framework if they are functioning effectively.
Dr Olver also stated that this Bill will override other bills when legislation conflicts; Section 88(2) authorizes this overriding.
Dr Olver stated that this is an important section. Mr Smith of the IFP stated that the section was rather prescriptive and asked if it covered the delegation of responsibility to persons and organizations outside the councils. Dr Olver replied that the relationship to which Mr Smith is referring is a service authority - service provider relationship rather than a delegation of powers issue. This type of relationship will be covered by the Municipal Systems Bill, which is still being developed.
Ms Verwoerd of the ANC asked why the Development Facilitation Act (DFA) is not mentioned in the Bill. Dr Olver responded that recognition is growing that the DFA needs to be repealed. The DFA was not mentioned in the Bill because it would likely be replaced by legislation with a different name
A lawyer working for the Department noted that the Constitution only prohibits delegation in four instances. He stated that the Department has included a fifth: compilation of the Integrated Development Plan (IDP). The lawyer expressed the opinion that this additional prohibition was constitutional according to section 44 of the Constitution, which allows Parliament to pass legislation.
Professor Dirk du Toit of the ANC noted that 29(1) needed to be reworded to clarify that a two-thirds vote of all councillors - not just of councillors present at the meeting - is necessary to dissolve the council.
Mr Smith of the IFP suggested that 29(2), which prohibits dissolution of a council less than two years after it is elected, is unnecessary and could be subverted by a council which simply refuses to meet or act. Dr Olver acknowledged that this was correct.
Mr Smith of the DP stated that requiring the use of the term ‘speaker’ for the chairs of all councils in the country seemed both too prescriptive and too grandiose. Mr Colin Eglin of the Democratic Party also expressed objection to the term, suggesting that the title ‘chairperson’ be used instead. Ms Verwoerd of the ANC asked if a speaker was necessary in small municipalities, particularly those with a mayor.
Dr Olver stated that the Department suggested using the term ‘speaker’ to emphasize the difference of the new system of local government from previous systems
Mr Smith of the IFP asked what "substantial" proportionality entailed. Dr Olver responded that the constitutional section requiring proportionality, 160(8), was subject to differing interpretations; this matter would therefore likely end up in the courts.
Mr Smith of the IFP asked if this section infringes on the constitutional responsibilities of the council. Dr Olver responded that Advocate Trengrove had recently issued an opinion stating the Constitution does not prohibit the national legislature from regulating local government. Rather, subsection 146(3) of the Constitution allows for an override of local councils by provincial and national legislation. Dr Olver emphasized, however, that section 39 does not strip local councils of their power. Instead, it guides the relationship that is to be maintained between the council’s executive committee and the full council.
An ANC MP stated that the time within which a council is required to elect an executive committee(14 days, according to section 40) is too short, noting that another piece of legislation requires that the council meets within 14 days after the council’s election.
Mr Smith of the IFP asked if this section applied to independents. Dr Olver replied that the Department had not considered independents in drafting this section and would have to reconsider.
Mr Smith of the IFP asked why this section stipulates that only executive committee members are eligible to be elected mayor, noting that this is unconstitutional because all persons have a right to stand for office. Dr Olver noted that this was intended to prevent the emergence of mayors-for-life, but acknowledged that this may be flawed. Mr Eglin suggested removing the term "consecutive" in order to accomplish this end, noting that otherwise a mayor could serve unlimited nonconsecutive terms
Ms Verwoerd of the ANC asked if the mayor, who will be busy with many administrative tasks, should be assigned prime responsibility for ceremonial duties as well.
Mr Eglin of the DP stated that the establishment of mayoral committees may contravene the Constitution.
Mr Smith of the IFP asked if the Constitution requires that every committee be proportionally representative of the parties elected.
Mr Smith and Ms Verwoerd asked if non-councillors could be included as mayoral committee members. The chair replied that this was a matter of policy for the committee to consider.
Mr Smith suggested using the term "metropolitan local committee" rather than the term "metropolitan local council."
Mr Smith asked if metropolitan local councils/committees needed to be proportionally representative. Dr Olver replied that the Department did not believe that proportionally representation was necessary at this level, but that the courts may need to settle this question.
Ms Verwoerd of the ANC asked why ward committees are optional rather than obligatory. Dr Olver replied that ward committees are currently seen as experimental. If they prove effective, then an amendment to this legislation could be passed later to require establishment of ward councils.
Mr Smith of the IFP suggested that the process of selecting ward committees be specified in the legislation. Dr Olver noted that the original draft of the Bill had specified that the ward committee be chosen in a public meeting. However, requests received from several areas to remove the specification had resulted in revision of the draft.
Mr Eglin of the DP expressed his reservations about attempting to codify all forms of public participation. He believed that the effort to channel all participation through formal structures could discourage informal participation through civil society organizations and other approaches.
Professor du Toit of the ANC expressed concern about the wording of 77(1), but Ms Chohan-Khota of the ANC expressed strong approval.
Mr Eglin of the DP asked what type of area the term ‘area’ in 77(3) refers to. Dr Olver replied that it is intended to refer to a geographic area rather than a functional or other type of area and should therefore be clarified.
An IFP member asked what will happen if the leader of a traditional authority who is invited to address the council in terms of 77(3) refuses to attend. Dr Olver replied that the council would continue with its business and make what decisions were necessary. He also noted that the council would need to establish relationships with whatever entity communities in the council’s area decided to establish to represent themselves and their interests and to hold their land, e.g. section 21 companies, communal property associations, etc.
Mr Smith asked for an explanation of the relationship between the CEO and the executive mayor. Dr Olver replied that the CEO is accountable to the council, but also to executive structures created by the council. The CEO would thus be subject to the authority of the executive mayor if the council chooses to delegate some supervision authority to the executive mayor.
This concluded discussion of chapter 4 of the Bill. At 18h30, the monitor left the committee room. The committee planned to complete discussion of the remainder of the Bill - chapter 5 and schedules 1 to 6 - by 20h00.
Appendix: Report on President's reservations regarding constitutionality of Remuneration of Public Office Bearers Bill
To: Dr F N Ginwala MP
Speaker of the National Assembly
Dear Madame Speaker
REMUNERATION OF PUBLIC OFFICE-BEARERS BILL, 1998
I have received and considered the Remuneration of Public Office Bearers Bill, 1998, (hereafter referred to as "the BiIl") which, in terms of section 79(1) of the Constitution of the Republic of South Africa, 1996 (Act No 108 of 1996) (hereafter referred to as "the Constitution"), I have a duty to assent to and sign or, if I have reservations about its constitutionality, to refer it back to the National Assembly for reconsideration.
I would inform you that I have been advised by the Chief State Law Adviser that there may be grounds for some concern about the Bill's constitutionality or at least aspects of the contents thereof.
The Chief State Law Adviser has expressed the opinion that in terms of section 219(1) of the Constitution "a single Act of Parliament must establish the framework in respect of the remuneration which has to be paid to persons holding public office. The Remuneration of Public Office Bearers Bill, 1998, is designed to give effect to the provisions of this section. However, section 219(1) is peremptory." Therefore, according to the advice I have received, Parliament cannot exclude any of the specified categories of persons holding public office, in this case traditional leaders, from the schema established by the Bill to determine what, if any, allowances and benefits should apply to any category. Nor can provision for this be made in a separate statute as is envisaged in the Bill.
The Chief State Law Adviser further states that 'This position is different, though, from section 219(5) which reads: "National legislation must establish frameworks (our emphasis) for determining the salaries, allowances and benefits of judges, the Public Protector, the Auditor-General, and members of any commission provided for in the Constitution, including the broadcasting authority referred to in section 192." Section 219(5) not only provides for different frameworks, but also permits Parliament to pass more than one Act of Parliament to establish the frameworks. We wish to point out that the distinguishing feature of clause 219(5) is the use of the words "national legislation".'
As a result of the above advice, I would inform you that I now have reservations about the constitutionality of the Bill.
In accordance with section 79(1) of the Constitution, I would accordingly refer back the Bill to the National Assembly for reconsideration by it in accordance with the procedures established by it in terms of section 79(2) of the Constitution.
N R MANDELA
Announcements, Tablings & Committee Reports: Thursday, 4/6/98
On 4 June 1998 the Speaker received a letter from the President of the Republic informing her that he had reservations about the constitutionality of the Remuneration of Public Office Bearers Bill [B 16F-98] (National Assembly-sec 76(1)), and that, in terms of section 79(1) of the Constitution, he was referring the Bill back to the National Assembly for reconsideration.
The Speaker has consequently referred the Bill and the President's reservations in terms of Joint Rule 150(1) to the Portfolio Committee on Constitutional Affairs.
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