Local Government: Municipal Structures Bill: discussion

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Cooperative Governance and Traditional Affairs

02 September 1998
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Meeting Summary

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Meeting report

CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
3 September 1998
LOCAL GOVERNMENT: MUNICIPAL STRUCTURES BILL [B68-98]: DISCUSSION

SUMMARY:
The first hour of this meeting was spent tying up loose ends in respect of the Constitutional Amendment Bill. The Chair allowed comments to be made from all sides, but repeatedly emphasised the importance of sorting out problems as voting was due to take place on the following Monday. The meeting was delayed during an extended tea break for a closed bilateral meeting to try and clear up some of the contentious issues with regards to the Constitutional Amendment Bill.

Thereafter a discussion of the Municipal Structures Bill continued with a clause by clause explanation of the Bill starting with section 12.

DETAILED MINUTES:
Constitutional Amendment Bill
The Chair, Mr Carrim of the ANC, opened up the meeting by attempting to tie up loose ends in respect of the Constitutional Amendment Bill. The discussion dealt with when voting districts fall within provinces. Mr Carrim stated that problems would have to be sorted out in a closed discussion as voting needed to take place on Monday. The chair attempted to deal with issues of clarity and stated that it would be possible for a Minister to withdraw a Bill. The discussion was then closed and Mr Carrim ended by stating that the Bill would have to be dispensed with or voted on by Monday.

Municipal Structures Bill:
Mr Carrim then proceeded to move onto the Municipal Structures Bill and mentioned that some of the amendments discussed in the public hearings last month had received some support. The discussion then moved slowly through a clause-by-clause explanation of the Bill starting with section 11. Throughout the discussion, Smith (IFP) and Eglin(DP) posed numerous questions of clarity.

Section 12 - Parties
It was clarified that this includes ratepayers. Mr Smith questioned whether 12(c) & (d) were constitutional. An ANC representative also questioned possible inconsistencies and asked how time limitations would affect individuals with regard to proportional representation. The ANC also asked for confirmation that a church could stand. Other
questions of clarity were posed by Smith of the IFP. The ANC emphasised that the intention of the clause was to widen the scope. Mr Carrim acknowledged the value of the questions, but stated that since no compelling explanations had been offered, the issue would have to be dealt with again the following Friday.

Section 13 - Party Lists
The ANC sought clarity with regard to 13(1) & (2). It was also highlighted that s3(2) was inserted to ensure representivity due to the fact that in the past there was a complete lack of effort in attempting to include women in party lists. It was also suggested
that it is an extremely difficult clause to enforce.

Dr Olver referred to s157 of the Constitution and stated that it was up to parties to decide in what order to put their party lists, and to interfere with this would infringe their constitutional rights.

Ms F Chohan-Khota (ANC) stated that she did not believe in the enforceability of s13, and proposed that there are two tests which must be satisfied. Firstly, one must ensure that women are represented and secondly on must ensure that they are evenly
distributed. She emphasised that comparative studies have shown that judicial sanctions are not enforceable and thus a political mechanism was necessary. She concluded by stating that this was a perfect opportunity to entrench constitutional values into a Bill.

In response it was argued that the statute book is not the place to enforce these values and to do so would lead to 'frivolous litigation'. Ms M Verwoerd (ANC) agreed that the principal of including values did not work in practice, but stated that a party should at least show that they were trying to get women onto their lists and stated that the clause did not seem to be unconstitutional.

Ms Chohan-Khota stated that as women are the majority in South Africa efforts must be made to try and include them in politics. This is in accordance with the Constitution and the Gender Commission.

Mr Carrim concluded by stating that even if this clause is not enforceable, the principles of non-sexism are part of the constitutional values and thus the clause must be consistent with the Constitution.

Sections 14 & 15
Section157 of the Constitution was referred to. It was stated that at present South Africa has a parallel system of ward and proportional representation. The formula modifications were discussed and questions of clarity were posed. The application of s15 was also
discussed. Subsections 3-5 relate to ward calculation.

The problem of possible alliances between independent parties and political parties was raised by Mr Smith who expressed his concern for the need of an amendment to prevent people from manipulating the system. The ANC criticised the weakness of this clause. Prof Du Toit (ANC) stated that the quota rests on the interpretation of s157(3), and highlighted the distinction made between independent wards and those wards in parties.
Dr Olver attempted to clear up the confusion and stated that 157(3) was based on 2 clauses. The first part refers to the total number of members elected which refers to both proportional representation and ward councillors, but excludes independents unless they stand as parties. The second part refers to the total proportion of votes recorded. Dr Olver proposed a 2 ballot system, whereby the first would be a political vote and the second an individual vote.

It was suggested that there are 3 solutions to the problem. Firstly one could declare it unlawful and provide penalty provisions. Secondly one could opt for a single ballot system. The third solution as proposed by Mr Eglin would be that when one counted the
political vote, one would count both the vote for the party and for the ward who has a clear standing. Thus if there was an undisclosed alliance the political party would
lose out.

At this stage questions of clarity were sought by the various parties. Mr Carrim decided to close the meeting so that a closed bilateral meeting could be held to tie up the loose ends of the Constitutional amendments. This meeting was closed to the public.

After the tea break, sections 17 to 19 were explained with various issues of clarity being dealt with. Sections 17 & 18 were relatively unproblematic, while some debate surrounded the issue of filling up vacant seats under section 19.

It was asked what would happen if a party disappeared for a while, and it then had to be established at what point it was considered that that party had left for good. Dr Olver admitted that all systems will inevitably result in instances where proportionality does not work.

Section 22 was then discussed and some debate surrounded the issue of
filling vacancies and changing the order on party lists. Mr Smith questioned why lists could only be amended annually and suggested that it would be more practical if this could occur more frequently.

Mr Eglin questioned why it was necessary to maintain lists at a municipal level even after a general election had taken place. The response was that this was for administrative details and thus if a vacancy occurred, it could be filled immediately. Smith also added
that if a party had a long list this would also assist members in identifying where they were on the party list 'pecking order'.

At this stage certain questions of clarity with regards to some of the clauses already discussed were dealt with, but no new issues arose.

The rest of the meeting was not monitored. The meeting was scheduled to go on for another 5 hours with a dinner break being taken during this time.

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