BRIEFING AND DELIBERATION ON B 56-98, B 84-98, B85-98, B16-98

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Cooperative Governance and Traditional Affairs

20 August 1998
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Meeting report

CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
21 August 1998
BRIEFING AND DELIBERATION ON B 56-98, B 84-98, B85-98, B16-98

Documents handed out:
Index: Possible Cross Boundary Municipalities (Appendix 1)
Letter from Chief State Law Adviser of 20/8/98 (Appendix 2)
Council Of Traditional Leaders Amendment Bill: Memorandum On The Proposed Change Of Name (Appendix 3)
Report emanating from this meeting (Appendix 4)

DETAILED MINUTES
1. Determination of Delegates (NCOP) Bill [B56-98] accepted as a whole and it will go before the house on Wednesday, 26 August 1998.
2. Remuneration of Office Bearers Bill [B16-98] - the Chief State Law Advisor is in total agreement with the amendments and the Bill as a whole. The IFP abstained from voting on this bill. There was acceptance by other political parties. It will go before house on Wednesday.

3. Constitution of the Republic of South Africa Second Amendment Bill [B85-98]
Dr Olver and his colleagues from the department utilised several case studies to make points regarding CBMs (Cross Boundary Municipalities).
The report shows that some single urban entities do exist that straddle provincial boundaries that cannot be separated into different municipal boundaries.

Debate ensued amongst committee members as to whether these issues of incorrectly drawn districts should be addressed on an ad hoc basis rather than by changing the Constitution. The National Party was against the blanket changes to the Constitution. The African National Congress believed that other parties were delaying the process and taking the issue in circles. They added that if parties had other options then they should lay them on the table for discussion. Prof. du Toit stated that consensus was needed from both the local people in the area and others such as those with business interests in the same region. If the Constitution was changed, would this force boundaries on the areas?

Mr A Watson (NP) stated that there would be individual problematic cases but they should be dealt with on an ad hoc basis by the Demarcation Board and respective communities rather than changing the Constitution simply because problems might arise. Parliament could not allow the Constitution to be amended for gerrymandering. He wondered if the ANC would change the Constitution every time a problem arose?

Prof. du Toit (ANC) stated that if the Constitution did not allow for these towns to become/remain as one then a political injustice was being allowed to occur. These divisions were apartheid divisions and it seemed that people were pushing to keep old borders for selfish tax reasons thus one needed to change the Constitution.

Mr A Watson strongly denied that this was the reasoning behind the objections of the National Party.

Mr Carrim, the chairperson, stated that what was most needed was consensus between the parties. He believed that this issue could be discussed constructively and resolved in bilateral sessions and only then would a plenary session be useful. At present he felt the debate was too hypothetical.

Dr Olver said that the solution was for the committee to focus on the amendments to the Constitution. So far the contents of the amendments had not been presented as issues for discussion which should be done in this session. It might help to avoid the question of whether the Constitution needed changing. It was not the responsibility of the department to provide many options; rather they had focused on the agency option as the best alternative (section 10.A option). The argument at a theoretical level was useless; rather the focus should be on rectifying the unhappy past and integrating communities. After looking into three options they had singled out that option as the best. The ad hoc basis alternative could be done but it should be borne in mind that the amendments were not saying that there would be CBMs. Rather the issue was about enablement. It was not correct to send out signals to the population that Parliament was prescribing to a Demarcation Board that had not been established yet. This amendment was about creating options. Since the elections were so soon and constitutional amendments took so long, was it not better to focus on the enablement of the Demarcation Board to use this option.

The Demarcation Board must first look at the criteria involved and then ascertain whether it is a Cross Boundary Border. The voice of the people and provinces must also be taken into account. Once provinces agreed to it then national legislation could provide and allow for this relationship.

Dr Olver stated that there were three options for the way that municipalities could govern:
1. govern concurrently
2. one authority or the other takes it on
3. legislatures agree to take on one or the other's body of law - application of the legislation of another province.

The Inkatha Freedom Party stated that there would need to be a provision to de-establish where necessary CBMs if areas agree that they were to be changed in future i.e. change in electoral outcome.

The National Party asked that as the proposed amendment envisaged a situation of independent municipalities, would the changes be irreversible?

Dr Olver said that national legislation would be brought about by an amendment to the Municipal Structures Bill. Also in relation to the ‘C’; when ‘B’ extends across boundaries so will ‘C’ extend across the boundaries.

4. Constitution of the Republic of South Africa First Amendment Bill [B84-98]
Clause 1 amends s.159 of the Constitution:
Notice calling an election can be issued before or after the dissolution of council.
The Inkatha Freedom Party expressed unhappiness at this stage. Discussion was not taken any further.

Clause 2 amends s. 178 of the Constitution. Committee members were at ease with these changes.

Clause 3 amends s. 196. The IFP had problems with this.

Clause 4 amends s. 108 and there was agreement.

Clause 5:
Department will look at the wording.

Appendix 1:
INDEX: POSSIBLE CROSS BOUNDARY MUNICIPALITIES
A. KwaZulu/Natal - Eastern Cape
(i) Matatiele and Maluti
(ii) Kokstad and Umzimkulu

Cf. Trengove Commission of Enquiries. Attached find extractions from the report [Ed. note: appendices not included]

B. Gauteng - Mpumalanga
(i) Benoni and Etwatwa

Cf. enclosed report from Benoni Municipality. [Ed. note: appendices not included]

C. Mpumalanga and Northern Province
(i) Grobblersdal and Tafelkop; Motetema
(ii) Marble Hall and Elandskraal; Leeufontein

Cf. extracts from draft report by the Demarcation Board of the Northern Province. [Ed. note: appendices not included]

D. North West Province and Northern Cape Province
(i) Jan Kempdorp

Cf. Maps Jan Kempdorp Act and other documents [Ed. note: appendices not included]

(ii) Mothibistat and Kuruman
(iii) Pampierstat and Hartswater

Cf. (ii) and (iii) were the subjects of the Shubane Commission Enquiry. (Cf. Extracts from report) [Ed. note: appendices not included]

Appendix 2:
From: CHIEF STATE LAW ADVISER: ENVER DANIELS

To: Mr Eshaam Palmer
Parliamentary Law Adviser
Parliament
Cape Town
8001

20 August 1998

Dear Mr Palmer

REMUNERATION OF PUBLIC OFFICE BEARERS BILL [B16F-98]

I refer to the telephonic conversation which I had with you yesterday and confirm having received from you a copy of the proposed amendment sent to Mr Anton Meyer by the Department of Constitutional Development.

We have considered the matter and wish to advise that we are of the view that the proposed amendment provides a framework for determining the benefits of traditional leaders as defined in section 5(4) The amendment, if approved, will, in our view, result in the Remuneration of Office Bearers Bill meeting the requirements of Section 219(1) (a).

The final draft of the amendment must be sent to us for certification.

Please note that we are available to meet with the Portfolio Committee to discuss the matter, if required.

Appendix 3:
COUNCIL OF TRADITIONAL LEADERS AMENDMENT BILL
MEMORANDUM ON THE PROPOSED CHANGE OF NAME

Inkosi M W Hlengwa MP, 17 September [sic]1998

1. The Bill is a private members' Bill. It is being proposed by Inkosi Hlengwa, a member of the KwaZulu-Natal House of Traditional Leaders and Member of Parliament, and not by a political party. The Bill has no party political significance.
2. The Council of Traditional Leaders supports the proposal that the Council of Traditional Leaders should be re-named the National House of Traditional Leaders. Supporting documentation is attached.
3. More specifically, there are a number of practical considerations motivating the proposal:
a) In the context of a Traditional Authority, the term "councillor" has a particular significance. That an inkosi serving on the Council of Traditional Leaders is also known as a councillor is considered inappropriate:
I. In a traditional context, a tribal authority comprises an inkosi, indunas and councillors. There are three distinct terms for three distinct roles. and it is confusing to mix them.
II. In a traditional context, a councillor represents the interests of the subjects of an inkosi, while an induna represents the authority of the inkosi. In the context of the Council however, an inkosi serving on the Council represents a different constituency, namely, a provincial 'louse of Traditional Leaders.
b) The term "councillor" is also associated with a political representative of local government.
I. Amakhosi serving on in ex officio capacity in municipal councils &e not popularly known as councillors, notwithstanding their being members of a council.
II. In the context of a close functional link between traditional authorities and local government, it is desirable to minimise confusion.
c) Existing nomenclature is confusing even outside of a traditional context - it is thus considered desirable that it be standardised.
I. Notwithstanding the single Council bearing a different name to the six Houses commensurate with their different status, in reality there is much confusion between the two, and people often use the two terms as synonyms. This is so even with politicians who should know better, and is widespread among the general public who do not recognise the difference or the import of the difference in the names.
II. Thus although the provincial institution is known as a House, in reality, it is often called a "provincial house" to distinguish it from the national body. That is, the word "Council" on its own fills to create an association 'with the national body, and people refer to a "provincial House" to juxtapose it against the national body precisely because the term "Council" inadequately signifies the national institution.
III. The institution in a province is known as a House. Therefore, the most appropriate manner of recognising the difference between the provincial and national institutions is to rename the latter - the National House of Traditional Leaders achieves this.
IV. The change would facilitate appropriate usage in that any reference to "a House" or "Houses" would automatically be associated with the provincial bodies, while the term ''National House" could not be confused 'with
anything but the single national body. Far from generating fresh confusion, this would serve to remove confusion.
d) There is no assumption in the proposed renaming of an altered status or altered powers and functions of the Council.
I. It would not be correct to suggest that the term ''National House" in the place of "Council" denotes or implies in any way that the institution is being accorded a status different to that it currently enjoys. The status, powers and functions are derived by way of the Constitution and national legislation, and a mere name change designed to eliminate confusion does not alter this.
II. It would not be correct to suggest that the proposal is politically motivated with the intention of connoting a hierarchical relationship which does not exist at present. Though it may well be the case that the proposal does perhaps connote a hierarchical relationship, this is true to an extent in any case, simply by virtue of the Council being a national institution. A national mandate of traditional leaders would automatically be derived from the Council, just as a national local government mandate is obtained from SALGA rather than provincial organisations of local government. There is no political significance in this however, for it is precisely for this reason that each interest is represented by a national body.
III. It would not be correct to state that the Constitution intended to link the terms Council" and "House" to their methods of election, respectively indirect and direct, and that the proposed renaming conflicts with this. The term "council", particularly as used in s219, makes it quite clear that ''council" and "house" are synonyms, and it is national legislation rather than the Constitution which provides that the Council be indirectly elected.
IV. Indeed, were the same logic to be followed, SALGA would constitute an inappropriate name, for it too, is indirectly elected, representing provincial associations in precisely the same manner as the Council does with respect to the Houses.
4. It is being proposed by government that the Human Rights Commission be renamed the South African Human Rights Commission for purely practical considerations. This too, comprises the only motivation behind the Private Member's Bill, whose acceptance, unlike the former case, does not require a constitutional amendment.

Annexure: Memo from: National Council of Traditional Leaders

To:
DEPARTMENT OF CONSTITUTIONAL DEVELOPMENT
THE CHAIRPERSON
PORTFOLIO COMMITTEE
CONSTITUTIONAL AFFAIRS

MEMORUNDUM ON THE PROPOSED CHANGE OF NAME: COUNCIL OF TRADITIONAL LEADERS

The Management Committee of the Council of Traditional Leaders, in its meeting held on the 19 August 1998 resolved to support and second the proposal by Inkosi M.W. Hlengwa that the name of the National Council of Traditional Leaders be changed to the National House of Traditional Leaders.

The Management Committee of the Council is constituted by members from respective Houses of Traditional Leaders and the resolution is therefore representative of the viewpoints of both the National Council of Traditional Leaders and Provincial Houses of Traditional Leaders.

Due to the fact that the National Council of Traditional Leaders is instituted by members nominated and designated in terms of section 4 (1) of the Council of Traditional Leaders Act (Act 10 of 1997), the Management Committee felt that the renaming will be maintaining continuity as contained in the mentioned act. It also felt that the renaming of the Council to be the National House will also be doing away with the operational confusion and the related ambiguity whenever the two names are mentioned.

Appendix 4: Committee Report

The President referred the Bill back to the National Assembly in terms of section 79 of the Constitution of the Republic of South Africa. 1996 (Act No.108 of 1996), owing to reservations about the Bill's constitutionality. The President's note to the Speaker or the National Assembly reads as follows:

4 June 1998

Dr F N Ginwala MP

Speaker of the National Assembly

Dear Madame Speaker

URGENT

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 Bill") 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

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.

Yours sincerely

N R MANDELA

Part 7 of Chapter 3 of the Joint Rules of Parliament governs the procedures to be followed in respect of the processing and further consideration of Bills that have been referred back by the President in terms of section 79 of the Constitution. On 4 June 1998, the Speaker of the National Assembly referred the President's reservations and the Bill to the Committee for consideration.

Rule 150(2(d) of the Joint Rules provides that the Committee must report to the National Assembly on the President's reservations. Rule 150(3)(b) of the Joint Rules provides that the Committee must present with its report an amended Bill, correcting any constitutional defect in the substance of the Bill, if the President's reservations relate to the substance of the Bill.

The Committee consulted the Parliamentary Law Adviser in terms of Joint Rule 150(2)(b). He presented the Committee with a memorandum. in which he proposed, inter alia, that clauses of the Bill could be amended to make provision for the President to determine benefits for traditional leaders.

The Committee therefore recommends that the Bill be amended to ensure its constitutionality. It further recommends that the Parliamentary Law Adviser's proposal, as embodied in the amendments to the Bill. be accepted.

Report to be considered.

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