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CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
25 August 1998
LOCAL GOVERNMENT: MUNICIPAL STRUCTURES BILL [B68-98]: DISCUSSION
The purpose of this meeting was to receive opinions from two advocates on the constitutionality of several aspects of the Local Government: Municipal Structures Bill. Opinions were presented by advocates W. Trengove and D. Unterhalter. The opinions differed over several matters, including the extent of exclusive powers granted to local government by the Constitution.
The chairperson, Mr. Y. Cassim of the ANC, opened the meeting with an apology for the power outage in the chamber. He explained that the purpose of the day’s meeting was to receive opinions from advocates W. Trengove and D. Unterhalter on the constitutionality of key provisions of the Local Government: Municipal Structures Bill. Advocate Trengove prepared his opinion at the request of the Department of Provincial Affairs and Constitutional Development. Advocate Unterhalter prepared his opinion at the request of the provincial government in KwaZulu-Natal.
Advocate Trengove presented the committee with a written assessment of a set of objections raised to the constitutionality of the Municipal Structures Bill. The objections contended that the Municipal Structures Bill gives too much power and authority to the national and provincial governments, infringing on constitutionally-guaranteed rights of the local government. Advocate Trengove’s assessment asserted that each of the objections was incorrect. He argued that the Constitution assigns most power to national and provincial government, and that the Constitution grants little exclusive power or autonomy to local government. He stated that local government has no legislative exclusivity; any by-law drafted by local government can be overridden by provincial or national legislation
Advocate Trengove referred to a number of clauses in the Constitution to support his argument. He said that the clauses which provide a measure of autonomy for local government include sections 155(3)(c), 155(2), and 160(5). He stated that the following clauses show that local government’s power is not exclusive: sections 44, 104(1)(b), 164, and 156(3). He stated that two clauses discuss the power of national and provincial government over local government: sections 154(1) and 155(9).
Advocate Unterhalter argued that the Constitution provides for limited autonomy of local government. Specifically, local governments are granted the power to establish their own internal procedures. Among the choices which Advocate Unterhalter asserted were the responsibility of local government according to the Constitution was the decision of whether to have an executive committee. Advocate Unterhalter argued that the Municipal Structures Bill infringes on rights guaranteed to local government by the Constitution to choose their type of governance because the Bill imposes a set of criteria rather than offering guidelines. He suggested a substantial restructuring of the Bill is necessary if the committee wishes to avoid a challenge to the Bill in the constitutional court.
When Advocate Unterhalter completed his presentation, the chair opened discussion by noting that many of the drafters of the local government provisions of the Constitution were members of the committee and should be consulted with questions about the purpose and intent of particular provisions.
Mr. Eglin of the Democratic Party stated that in his recollection as a participant in the drafting of the Constitution, the document did provide some specific powers to local government. He said that section 164 was not intended to be an overriding provision granting ultimate power in all matters to the national and provincial governments.
Mr. Watson of the National Party expressed agreement with Mr. Eglin’s recollection of the intent of the Constitution’s drafters. He expressed concern that Advocate Trengove’s opinion has reduced local government to a line function of national government.
Mr. Bhabha of the ANC remarked that the first draft of the Constitution did not include section 160, which specifies some of the functions of local government. It was only included in subsequent drafts because the court that reviewed the first draft demanded more detail. He stated that the word ‘may’ had been used in most provisions of section 160 rather than the word ‘must’ in order to allow scope for the White Paper on Local Government to define roles and responsibilities of local, provincial, and national government more fully.
Mr. Smith of the Inkatha Freedom Party stated that a host of Constitutional provisions function at provincial level to protect the power and authority of provincial governments. He expressed the belief that the Constitution similarly protects the autonomy of local government on some matters.
The chair noted that various parties’ explanations of the origins and intent of various provisions of the Constitution are shaped by the parties’ present priorities and agendas.
Mr. Watson of the NP expressed concern about the Constitutionality of the executive mayor option for local government, noting that the option was not provided for in the Constitution. He stated also that the Bill violates the principle of proportional representation established in the Constitution because it does not require the committees which the mayor is empowered to appoint to be proportionally representative.
Advocate Trengove acknowledged that the executive mayor position is not discussed in the Constitution, but expressed the opinion that nothing in the Constitution precludes the establishment of this position. He noted that he had not considered the issue of the Bill’s failure to require mayoral committees to be proportionally representative, stating that this may indeed be unconstitutional.
The meeting was adjourned at approximately 11h30 by acting chair Professor D. du Toit of the ANC.
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