1st & 2nd Constitutional Amendment Bills & Council Of Traditional Leaders Amendment Bill: discussion

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Cooperative Governance and Traditional Affairs

08 September 1998
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Meeting Summary

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Meeting report

CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE

CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE

9 September 1998

1ST & 2ND CONSTITUTIONAL AMENDMENT BILLS [B84-98 & B85-98]; COUNCIL OF TRADITIONAL LEADERS AMENDMENT BILL [B54-98]: DISCUSSION

Documents handed out:

Proposed amendments: B84-98
Proposed amendments: B85-98
Proposed amendments: B54-98

SUMMARY

The committee voted on the amendments to two Bills namely: Constitution of the Republic of south Africa Amendment Bill 84 of 1998 and on the Constitution of the Republic of South Africa Second Amendment Bill 85 of 1998. They voted on the Proposed Amendment to the Council of Traditional Leaders Amendment Bill 54 of 1998. In addition there was a discussion on typology with regard to the Municipal Structures Bill.

DETAILED MINUTES

The chairperson of the Constitutional Affairs Committee suggested that the Independent Electoral Commission on the issue of Cross boundaries presumably with regard to elections and the procedure that could be followed.

Derek of the ANC noted that the boundaries will cause geographical problems even with regards to cross municipality.

Dr Olver stated that any community can walk over municipal boundaries. The chairperson's response thereto was that this was a legitimate concern raised by the National Party. Furthermore that the amendments in the Municipal Structures Bill with regard to point raised will be pursued at a later stage and there was no need to discuss the matter any further.

The chairperson then advised the committee to vote on the first Constitution of the Republic of South Africa Amendment Bill 84 and that legislation was desirable to amend the constitution. They had to vote on clauses one, two, three and five.

Furthermore voted on the Constitution of the Republic of South Africa Second Amendment Bill 85 of 1998 which was approved by all political parties i.e. all members of the committee.

The chair added that it was in the national interest that local government elections be postponed because of the allocation by the Demarcation Act. The ANC was still keen on hearing from the opposition parties on the Municipal Structures Bill (MSB). The reason is that the Bill will change local government structures and systems to a large extent for many years to come.

In order to debate and vote on certain matters regarding MSB a two thirds majority of the committee will be required. The committee must however ensure that they meet the deadline by the end of September.

Mr Watson of the National Party stated that it would be in the interests of the constituencies, namely the local communities who are the electorate, to discuss the Bill jointly.

Peter Smith from the IFP opined that bilateral talks assisted in reaching a decision related to the amendments made to the Constitution. He congratulated the chairperson for such laudable work with the committee and that local government goals which are common to all have opened room for greater scope.

Mr Eglin from DP said that even though he was not involved in the bilateral talks he had side negotiations with IFP and the "New" National Party, their goals were not to be obstructive to the process referred to above. He warned that ANC must take heed and improve the Bill by also so doing taking people's needs to account. The reason for this inter alia is that political parties will have mandates which will differ and this will need to accommodated.

The Chairperson stated that ANC felt that the negotiations had improved in order to complete the process.

DISCUSSION ON COUNCIL OF TRADITIONAL LEADERS AMENDMENT BILL The chair noted that Dr Bauer had to bring proposals on Council of Traditional Leaders Amendment Bill.

Mr Smith of IFP acknowledged that as a committee member they were satisfied with the amendments to the aforementioned Bill.

The chairperson said that Smith's statement be noted or move a motion of desirable Constitutional Amendments to the Bills.

MUNICIPAL STRUCTURES BILL The chairperson reminded the committee that the previous day, the committee would discuss the issue on the typology viz.: area; power and functions; committee system and electoral systems.

The question asked was how valid is to have type of categories?

The point of departure was that there must be a particular relationship between a category and a type which is a priori.

Bauer stated that the constitution describes typology. For instance Category A is a problematic area because it presents a two tier approach. He then mentioned that he contacted the Cape Metropolitan and it is willing to present their views on this issue.

The chair accepted this proposal and agreed that it must be invited and that a specific time and date should be set for the presentation.

Smith of IF averred that this was not an issue of constitutionality as the problem lies in the fact that they are looking for alternatives.

Iglen of DP questioned the number of metropolitan areas there are. He continued to say that there needs to be a joint exploration together with the department on solving issues of categories and types. His reasons were that it is not good for parties to come with separate proposals but that there must be a joint proposal that they all agree to. Moreover types do not refer to executive or committee because the function of local government is not that of the legislature.

The chair's response was that if nonetheless parties had already drawn up documents if should be circulated to other members of the committee.

Derek Du Toit of the ANC raised a point that section 155 (2) in the Constitution which refers to the definition of types and categories refers to differentiated structure that former structures of local government. This defeats the opposition party's understanding of types as it is a superficial understanding of the section with which they are concerned. He confirmed that the ANC shall arrive on Monday with their proposals on this issue.

Dr Olver of the department discussed the meaning of types by providing the 6 basic elements and elaborating on each point:

1. Council (number of councillors) Required massive variation. There could be twenty types under a council type. This would be untidy and power from the province would be taken away and would not fit into the typology.

2. Electoral system Common one (not left to provincial plenary type but be linked with Proportional Representation {PR} system ). For instance a small council of less than 9 people where PR system would still be used - the point being that you can vary numbers as it depends on the size of the council but maintain a standard system

3. Powers and function There is a wide variation in the function. Representative Councils like water affairs committee for example. There can be variations for municipal and those developed by Minister of Executive Council - this is a policy issue.

4. Two Processes of decision Discretion of province without possible reference to the criteria of type by department. The Constitution deals with boundaries in light of section 155 (1) (b) - this must be highly regulated.

What would types that are area based entail? An amalgamated urban and rural such as Western Cape. Effectively leave Demarcation Board to draw lines between provinces and these will decide whether they are rural or urban or both. The argument is that the Board would not have much to do then.

If there is a discretion is left to the provinces in this regard what the urban areas constitute it would lead to chaos. Thus South Africa needs independent body that oversee the jurisdiction objectively. For example if a province does not like a type the executive must not decide on any changes but the independent body must reshuffle boundaries . This is to show that it is undesirable to link types with areas. Olver was responding to the general proposition by DP and IFP that areas must determine the types.

5. System of delegation with executive Refers to the individual mayor type executive and the executive committee system in which metropolitan areas would contribute to the decentralisation of power.

6. Committee system council The point was made that numbers 5 and 6 are institutions that are variable structures.

Mr Watson of NP In order to qualify the proposition that types must be area based he gave Gauteng as an example: It is a combined area, therefore disagreed that it would not be a workable system.

Smith of IFP stated that the explanation provided by Dr Olver influenced by the white paper and that it was the first time they received this information. Furthermore he opined that the constitutional delegation and committee is problematic process of establishing councils and demarcation and allocation of various areas and so on will be expensive. Thus if it is an area base neat on quasi terms as it might minimise costs. concluded that whatever model is adopted it must be fixed after the boundaries are made by the Demarcation Board at its discretion will determine the areas.

Mr Hendricks of ANC reminded the chair as a matter of emergency the adoption of the amendments as voted upon.

The chair accepted and said that in the opinion of the Constitutional Affairs Committee we accept the amendments regarding the Bill so as to change the name of Traditional Leaders to National House of Traditional Leaders.

The chair congratulated Mr Hlengwa of the IFP who was working on the issue related to traditional leaders.

Milanie Verwoed reverted to issue about area determining a type and asked what discretion was then left to the MEC where the types would be determined by area. How does an MEC make a significant contribution to this process? Nationally type of province is determined and demarcation of boundaries by MEC. The question begs is how specific is its role in other words does it determine amalgamation or rural or urban?

This is not a process of section 156. The Board leads to have less discretion or more depending on role of the legislature.

In understanding the area proposition she illustrated that it would be problematic in the following way:

MEC would have a double choice: firstly choose national legislation of Province (menu of types), secondly this is where she does not understand how it is going to be workable: example is there are 6 to 8 area based types so MEC decides - the question by virtue of demarcation is the second choice not taken away? It is not clear how the process deals with this!

The chair was adjourning the meeting since the time was over schedule of 11 am. He mentioned that there will be a smaller committee to discuss the content of the process at a later stage. Perhaps the chairperson, Melanie, Smith and Watson might meet later in the day approximately between 3 and 3:30 p.m.

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