Constitution of the Republic of South Africa Second Amendment : discussion

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Cooperative Governance and Traditional Affairs

27 August 1998
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CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE

CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
28 August 1998
CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA SECOND AMENDMENT [B85-98]: DISCUSSION

The meeting was chaired by Yunus Carrim and there were 9 ANC members present and 4 MPs from other parties. Dr Olver from the Department was present as well as a law advisor, Dr Bruwer.

The meeting discussed the Constitutional amendment contained in B85-98 and the main issue discussed was cross boundary municipalities - ie municipalities that cross a provincial boundary.

Provincial legislatures choose the different types of municipalities that will apply in that province and the MEC then decides on the specific type for each particular municipality ie there is a national menu of types from which the provincial legislature chooses one or more type(s). The MEC then applies that choice to the various municipalities in the province. With cross boundary municipalities you may have a situation where two provinces are involved in one municipality and they have chosen different types of municipalities for their respective provinces. As a way of reaching agreement between provinces can they agree on a different type from the national menu of types for the cross boundary municipality, from that chosen for other municipalities in their respective provinces.

Peter Smith (IFP) motivated that they should be able to choose a new type of municipality as this would facilitate forging an agreement (ie one not already on the national menu).

Dr Olver invited Mr Smith to come forward with new types for discussion which could then be included on the "national menu" of types.

There was some confusion over whether the decision relating to municipal type should be a legislative or an executive decision. In terms of the amendment the executive will determine the different types of municipality to be established in the province. The committee is unhappy with this and it seems will amend the amendment to revert to the constitutional position as it currently stands, namely that provincial legislation must determine the different types (ie keeping it a legislature decision). However when it comes to cross boundary municipalities the amendment appears to give the responsibility of choosing the type of municipality to the executive.

According to Dr Olver there will be public consultation and involvement during the demarcation process and to require legislation to determine the type of municipality that will be established will delay the process by a few months as the capacity of the provincial legislatures is not great. He believes that having consulted with the public on the creation of a cross boundary municipality via the demarcation process, the executive should be empowered to make the final decision on municipality type. Some MPs disagreed saying that this is a special case which means that the legislature should be involved.

Ms M Verwoerd (ANC) argued strongly against treating cross boundary municipalities as "special cases" if this meant developing a special type for them.

The Department will consider the above issues and get back to the committee.

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