Municipal Structures Bill: discussion

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Cooperative Governance and Traditional Affairs

14 September 1998
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Meeting report

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

Document handed out:
Proposed amendments on Local Government: Municipal Structures Bill
(the document provided is not that of 15 September but 16 September and contains the amendments agreed to in this meeting) [see Appendix]

SUMMARY
The committee discussed clauses 19 - 30 of the Bill, looking at the proposed amendments and making further amendments to the Bill.

DETAILED MINUTES
The chairperson, Mr. Carrim, stated that the purpose of this meeting was to go through the clauses one by one, but not to encourage any lengthy debate on any of them due to the time pressure on the Committee. Many of the clauses discussed related to more technical issues, and will not be gone into depth here.

Clause 19 was flagged, and is to be discussed at a later stage.

Clause 20 was approved.

Clause 21 caused quite a debate surrounding the issue of how many years there should be between elections in municipalities. Peter Smith (IFP) questioned why the local sphere should have the same rules for election as the two other spheres. He argued that if the Minister can set a date for elections at the local level, this takes away some of the power given to the local sphere when it was actually determined that there are to be three equal spheres of government in South Africa. Smith argued that the local councils should have the authority to call elections at any time. If the sitting council does not feel it can sit any more because the council has no authority any more, the council should be allowed to call for new elections.

The Democratic Party argued that there is a need for synchronisation between the spheres of government, and there is also a need for some certainty that local councils can not be dissolved at any time. The DP argues that having 5 years between elections implies a security.

Prof Du Toit (ANC) argued that elections at a local level is a national level, and that a fixed period of 5 years is fine for local elections.

Clause 22 deals with by-elections, and the issue that caused debate was the period in which citizens were not represented, thus the period between the time a council is dissolved and the new election. It was agreed upon by all the MPs that 9 months was too long a period. The parties agreed that 3 - 6 months was more appropriate.

Clause 23 had amendments of a technical nature.

Clause 24 related to a Code of Conduct for Councillors. It was argued by the department that this Bill should not deal with the specific details of the a code of conduct, but that there should be developed one code of conduct that should deal with all the rules for conduct. The National Party suggested that a more detailed code of conduct be worked into this Bill.

In sub-clause 24. E, Mr Smith suggested that when a councillor for some reason has to leave the Council, the Council needs to go back to its original list in order to replace that councillor. If this is not done, the Council could reflect a different composition than what they had previously.

Clause 25 and Clause 26 had amendments of a technical nature.

In Clause 27, sub-clause 4 has been reinserted. The clause was entirely approved of by the committee.

Clause 28 is there to ensure that a Council can have the authority to revoke a decision delegated to a sub-committee, because the committee may not always act in agreement with the Council itself. The Chairperson appointed Prof du Toit to work with the department in wording this clause.

Clause 29. 2 was changed from two to three years. The ANC stated that this whole clause could be unconstitutional. It causes problems because the Constitution states that there should be 5 years between elections. The sub-clause presently states that the Council must sit for three years at least before it can be dissolved. An ANC MP stated that the council should sit for 5 years for, if councils were allowed to dissolve, this could cause chaos.

Clause 30 had an amendment of a technical nature. The word "may" was replaced with the word "must".

Appendix: Proposed amendments on Local Government: Municipal Structures Bill

16 September 1998

LOCAL GOVERNMENT: MUNICIPAL STRUCTURES BILL [B68-98]

PROPOSED AMENDMENTS

TABLE OF CONTENTS

1. [Chapter 3, Part 2]. On page 4, in line 18, to omit "Speakers" and to substitute "Chairpersons".

2. [Chapter 4, Par 7]. On page 6, in line 24, to omit "executive".

CLAUSE 1

[Definition of IDP]. On page 12, in line 4, after "area" to insert:

"drawn up after consulting the community and community organisations and which takes into account any applicable national and provincial development plans"

[Definition of MEC]. On page 12, in line 10, to delete "Council".

3. [Definition of Minister]. On page 12, in line 19, after "the" to insert "national".

4. [New definition]. On page 12, after line 31, to insert the following definition:

"’SALGA’ means the national organisation recognised in terms of section 2(1)(a) of the Organised Local Government Act, 1997 (Act No. 52 of 1997)".

5. [Definition of Speaker]. On page 12, in line 35, to omit "Speaker" and to substitute "chairperson of council."

CLAUSE 2

[Paragraph (a)(i)]. On page 12, in line 50, to insert after "conurbation"

featuring at least –

(aa) A high population density;

(bb) an intense movement of people, goods and services;

(cc) extensive development; and

(dd) multiple business districts and industrial areas";

[Paragraph (a)(ii)]. On page 12, in line 51, to delete subparagraph (ii).

[Paragraph (a)(iii)]. On page 12, in line 53, to delete "and".

[Paragraph (b)]. On page 12, from line 56, to omit paragraph (b) and to substitute:

(v) having strong social and economic linkages between its constituent units.

CLAUSE 4

[Subclause (1)]. On page 14, in line 6, to omit "decide" and to substitute "determine".

[Subclause (2)]. On page 14, in line 9, to omit "decide" and to substitute "determine".

[Subclause (2)]. On page 14, in line 10, to delete "and".

[Subclause (2)]. On page 14, in line 11, after "Board", to insert "SALGA and organised local government".

CLAUSE 5

[Subclause (1)]. On page 14, in line 13, to omit "decides" and to substitute "determines".

[Subclause (2)]. On page 14, in line 16, to omit "identifies" and to substitute "designates".

[Subclause (2)]. On page 14, in line 17, to omit "designating" and to substitute "identifying".

[Subclause (2)]. On page 14, in line 17, to omit "core city" and to substitute "the nodal points of the area for which boundaries must be determined by the Demarcation Board".

CLAUSE 9

[Paragraph (c)]. On page 16, from line 15, to delete "has wards and".

2. [Paragraph (d)]. On page 16, in line 18, to delete "has wards and".

CLAUSE 12

[Subclause (3)(f)]. On page 18, from line 11, to delete paragraph (f) and to substitute:

whether the municipality has the power in terms of section 17(6) to designate any of its councillors as full-time;

[Subclause (4)]. On page 18, from line 16, to omit subsection (4) and to substitute:

Before establishing a municipality in terms of this section, the MEC for local government must –

publish particulars of the proposed notice for public comment; and

consult –

organised local government; and

the existing municipalities that will be affected.

CLAUSE 13

[Subclause (1)]. On page 18, in line 23, to omit "title" and to substitute "law".

2. [Subclause (2)(a)]. On page 18, in line 27, to delete "and"

3. [Subclause (2)(b)(iii)]. On page 18, in line 33, to omit subparagraph (iii)

4. [Subclause (2)(b)(v)]. On page 18, in line 38, after "application" to insert "and"

5. [New parragraph (c) to Subclause (2)]. On page 18, after line 38, to insert the following new paragraph after paragraph (b):

"(c) take into account the interest of creditors of existing municipalities".

6. [Subclause (3)]. On page 18, in line 39, to omit "or retrenchment".

7. [Subclause (5)]. On page 18, in line 49, after "municipality" to insert:

"The MEC must consult the existing municipality before publishing the notice".

CLAUSE 15

[Subclause (1)]. On page 20, from line 4, to omit subclause (1) and to substitute:

The MEC for local government in a province, by notice in the Provincial Gazette, may amend a section 12 notice –

After consultation with the municipality concerned, to change the municipality from its existing type to another type;

to alter the name of the municipality;

to alter the number of councillors, but only with effect from the next election of the municipal council or, if it is a district municipality, with effect from the date of the next appointment of councillors;

to specify whether a municipality has the power in terms of section 17(6) to designate any of its councillors as full-time;

to specify any provisions of this Act from which the municipality has been exempted in terms of section 86; or

to further regulate the matters mentioned in section 13 after consulting all affected municipalities.

[New Subclause (3)]. On page 20, from line 21, to insert the following new subclause to follow subclause (2):

Before amending a section 12 notice in terms of this section the MEC for local government must publish particulars of the proposed amendment for public comment.

CLAUSE 17

[Subclause (2)]. On page 20, in line 41, to omit "regularly" and to substitute "at least quarterly".

[Subclause (3)]. On page 20, in line 42, to omit "an appropriate" and to substitute "a".

[New Subclause (4)]. On page 20, from line 45, to omit subclause (4) and to substitute:

"(4) A municipality has the power to designate any of its councillors as full-time if the MEC for local government so determines. An MEC’s determination must be in accordance with a policy framework as may be determined by the Minister after consulting the MECs for local government.

NEW CLAUSE 18

1. [New clause (18]. On page 20, from line 48, to insert the following new clause:

Municipal objectives

18. (1) A municipal council must strive within its financial and administrative capacity to achieve the objectives set out in section 152 of the Constitution.

(2) A municipal council must regularly review –

(a) the needs of the community;

(b) its priorities to meet those needs;

(c) its processes for involving the community;

(d) its organisational and delivery mechanisms for meeting the needs of the community; and

(e) its overall performance in achieving the objectives referred to in subsection (1).

CLAUSE 18

[Subclause (1)(b)]. On page 22, in line 3, to omit "60" and to substitute "90".

[Subclause (1)(c)]. On page 22, in line 5, to omit "60" and to substitute "90".

[Subclause (1)(c)]. On page 22, in line 5, to omit "180" and to substitute "270".

[Subclause (2)(b)(iii)]. On page 22, in line 16, to delete subparagraph (iii).

[New Subclause (3)]. On page 22, from line 22, to insert the following subclause to follow subclause (2):

(3) Subject to subsection (1) a deviation in terms of subsection (2) may be no more than –

(a) three, if 30 or less councillors have been determined for the municipality in terms of subsection (1)(a) provided that a council of less than seven may not be decreased; or

(b) 10 per cent (fractions to be disregarded), if more than 30 councillors have been determined for the municipality in terms of subsection (1)(a).

CLAUSE 19

[Subclause (1)(b)]. On page 22, from line 28, to omit "while the disqualification prevails".

2. [Subclause (3)]. On page 22, in line 33, after "governance" to insert "but only if there is no substantive conflict of interest".

CLAUSE 21

That the Clause be rejected.

NEW CLAUSE

1. [New Subclause 21]. That the following new clause be inserted to follow Clause 20:

Term of municipal councils

21 (1) The term of municipal councils is five years calculated from the day following the date or dates set for the previous election of all metro and local councils in terms of sub-section (2).

(2) Whenever necessary, the Minister, after consulting the Electoral Commission, must, by notice in the Government Gazette, call and set a date or dates for an election of all metro and local councils. The notice may be published either before or after the term of municipal councils expires in terms of sub-section (1).

(3) The election of councillors representing sparsely populated areas in district councils must be held on the same date or dates set in terms of sub-section (2) for metro and local councils.

(4) A local council must appoint its representatives to the district council within two weeks after the result of the election of the local council has been declared.

CLAUSE 22

1. [Subclause (1)(b)]. On page 24, from line 17, to omit paragraph (c) and to substitute:

(c) that council is dissolved;

2. [Subclause (3)]. On page 24, from line 25, to omit the words preceding paragraph (a) and to substitute:

(3) The chief officer of the municipality concerned after consulting the Electoral Commission, must by notice in a local newspaper call and set a date or dates for the by-election, which must be held within 90 day of the date-

3. [New Subclause (4), (5) and (6)]. On page 24, after line 32, to insert the following subclauses:

(4) If the chief officer of the municipality concerned does not call and set a date or dates for a by-election within 14 days of the dates referred to in paragraphs (a), (b) of (c) of subsection (3), the MEC for local government in the province must call and set such date or dates in accordance with subsection (3).

(5) The term of a municipal council is not interrupted by a by-election .

(6) The chief officer of a municipality may not call an election in terms of subsection (3) if-

(a) the next election of all metro and local councils must be held within nine calendar months of the applicable date mentioned in paragraph (a), (b) or (c) of sub-section (3); and

(b) the MEC for local government in the province decides that the by-election must stand over until the next election of all metro and local councils.

CLAUSE 23

[Subclause (1)(b)]. On page 24, from line 39, to omit "or that sparsely populated area".

[Subclause (1)(b)]. On page 24, in line 40, to delete "or elected".

CLAUSE 24

[Paragraph (c)]. On page 24, in line 47, after "Schedule 1" to insert "or was elected for a wards and used on the part of the ballot paper for wards the same distinguishing mark or symbol as a party".

CLAUSE 25

[Clause 25]. On page 26, in line 2, to omit "Provincial legislation must provide –" and to substitute:

"(1) Provincial legislation in terms of section 161 of the Constitution must provide at least –"

2. [New Subclause (2)]. On page 26, after line 10, to insert the following new subclause to follow subclause (1);

"(2) Until provincial legislation contemplated in subsection (1) has been enacted the provisions of paragraph (a) of subsection (1) will apply to all municipal councils in the province concerned.

CLAUSE 26

On page 26, in line 12, after "26" to insert "(a)", and to omit "speaker" and to substitute "chairperson of council".

2. On page 26, in line 14, to delete "and place".

3. [New paragraph (b)]. On page 26, after line 14, to insert:

(b) The first meeting of a municipal council must be called by the chief executive officer of the municipality or, in the absence of a chief executive officer, the MEC for local government in the province within 14 days of that council having been declared elected.

CLAUSE 28

1. [Subclause (1)(a)(vi)]. On page 26, in line 45, to omit subparagraph (vi) and to substitute:

(vi) chief officer of the municipality or any of its other officials;

2. [Subclause (2)(b)]. On page 26, in line 51, to omit "effected".

3. [Subclause (2)(d)]. On page 28, in line 3, to omit "and".

4. [Subclause (2)(e)]. On page 28, in line 5, after "duty" to insert "and".

5. [New paragraph (f) to subclause (2)]. On page 28, after line 5, to insert the following paragraph:

(f) must be reviewed when a new council is elected or appointed.

CLAUSE 29

1. [Subclause (1)]. On page 28, from line 15, to omit subclause (1) and to substitute:

A municipal council may dissolve itself at a meeting called specifically for this purpose, by adopting a resolution dissolving the council with a supporting vote of at least two thirds of the councillors.

2. [Subclause (4)(b)]. On page 28, in line 32, after "Council" to insert "of Provinces".

CLAUSE 30

1. [Subclause (1)]. On page 28, in line 34, to omit "for a quorum" and to substitute "to form a quorum for a meeting".

2. [Subclause (1)]. On page 34, in line 35, to omit "may" and to substitute "must".

CLAUSE 38

1. [Subclause (2)]. On page 30, in line 43, after "parties" to insert "and interests".

CLAUSE 39

[Subclause (1)(b)]. On page 32, from line 5, to omit subparagraph (b) and to substitute:

(b) is the committee of a municipal council which receives reports from the other committees of the council and which must forward these reports together with its recommendations to the council when it cannot dispose of the matter in terms of its delegated powers.

2. [Subclause (2)(c)]. On page 32, in line 12, after "expenditure" to insert "after the community and community organisations have been consulted."

CLAUSE 43

[Subclause (1)]. On page 34, from line 6, after "mayor", to insert:

"and, if the MEC for local government in the province so approves, another member of the executive committee as the deputy mayor"

[Subclause (2)]. On page 34, in line 7, after "mayor", to insert "and deputy mayor".

[Subclause (3). On page 34, in line 9, after "mayor", to insert "or deputy mayor".

[Subclause (4)(a)]. On page 34, in line 12, after "mayor", to insert "or deputy mayor".

[Subclause (5)]. On page 34, in line 16, to omit subclause (5) and to substitute:

(5) No person may hold office as mayor or deputy mayor for more than two consecutive terms. When a person is elected to fill a vacancy in the office of mayor or deputy mayor, the period between that election and the next election of a mayor or deputy mayor is regarded as a term in relation to both the preceding and the following term.

CLAUSE 44

1. [New Subclause (2)]. On page 34, after line 22, to insert the following new subclause:

The deputy mayor of a municipality exercises the powers and performs the duties of a mayor if the mayor is absent or noJt available or if the office of the mayor is vacant.

CLAUSE 45

1. [Subclause (2)]. On page 34, in line 27, to omit "mayor is" and to substitute "mayor and deputy mayor are".

CLAUSE 48

1. [Subclause (2)]. On page 34, in line 45, after "mayor", to insert "and deputy mayor".

CLAUSE 49

That the clause be rejected.

CLAUSE 51

1. [Subclause (1)]. On page 46, from line 14, to omit the words in subclause (1) preceding paragraph (a) and to substitute:

If a municipal council chooses to have an executive mayor it must elect an executive mayor and, if the MEC for local government in the province so approves, also an executive deputy mayor, from among its members at a meeting must be held –

[Subclause (2)]. On page 36, in line 19, after "mayor", to insert "or executive mayor".

[Subclause (3)]. On page 36, in line 20, after "mayor", to insert "or executive mayor".

CLAUSE 52

[Subclause (1)]. On page 36, from line 22, to delete subclauses (1) and to substitute:

The executive mayor is entitled to receive reports from committees of the municipal council and to forward these reports together with a recommendation to the council when the matter cannot be disposed of by the executive mayor in terms of the executive mayor’s delegated powers.

2 [New Subclause (6)]. On page 38, after line 10, to insert the following new subclause:

(6) The deputy executive mayor of a municipality exercises the powers and performs the duties of the executive mayor if the executive mayor is absent or not available or if the office of the executive mayor is vacant.

CLAUSE 53

1. [Heading to clause 53]. On page 38, in line 11, after "mayors" to insert and "deputy executive mayors".

2. [Clause 53]. On page 38, in line 12, after "mayor", to insert "or deputy executive mayor".

3 [Clause 53(b)]. On page 38, in line 15, to omit paragraph (b) and to substitute:

may not serve as executive mayor or deputy mayor for more than two consecutive terms. When a person is elected to fill a vacancy in the office of the executive mayor or deputy executive mayor, the period between that election and the next election of an executive mayor or deputy executive mayor is regarded as a term in relation to both preceding and following term.

CLAUSE 54

1. On page 38, in line 18, after "mayor" to insert "or deputy executive mayor".

CLAUSE 55

1. [Subclause (1)]. On page 38, in line 20, after "mayor" to insert "or deputy executive mayor".

2. [Subclause (1)(a)]. On page 38, in line 21, after "mayor" to insert "or deputy executive mayor".

3. [Subclause (1)(b)]. On page 38, in line 22, after "mayor" to insert "or deputy executive mayor".

4. [Subclause (2)]. On page 38, in line 24, after "mayor" to insert "or deputy executive mayor".

5. [Subclause (2)]. On page 38, in line 25, after "mayor" to insert "or deputy executive mayor".

CLAUSE 56

1. [Subclause (1)]. On page 38, in line 27, to omit "may".

2. [Subclause (1)(a)]. On page 39, in line 28, after "(a)" to insert "must".

3. [Subclause (1)(b)]. On page 39, in line 29, after "(b)" to insert "may".

4. [Subclause (1)(c)]. On page 39, in line 30, after "(c)" to insert "may".

5. [Subclause (1)(d)]. On page 39, in line 31, after "(d)" to insert "may".

6. [New Subclause (2) and (3)]. On page 39, after line 31, to insert the following new subclauses:

The executive must appoint a number of councillors to the mayoral committee as may be necessary for effective and efficient government, provided that no more than 20 per cent of the councillors or 10 councillors, whichever is the least, are appointed.

The executive mayor must exercise and perform those of the executive mayor’s powers and functions designated by the municipal council, together with the other members of the mayoral committee.

CLAUSE 69

1. [Subclause (3)(a)]. On page 42, in line 37, after "committee" to insert, "taking into account the need for women to be fairly represented in a ward committee".

CLAUSE 76

[Subclause (1)]. On page 44, from line 34, to omit subclause (1) and to substitute:

If a municipal council has an executive committee or executive mayor, it may appoint in terms of section 75, committees of councillors to assist the executive committee or executive mayor.

[Subclause (2)]. On page 44, in line 38, after "committee" to insert "or the mayoral committee".

[Subclause (3)]. On page 44, in line 39, after "committee" to insert "or executive mayor".

[Subclause (3)(b)]. On page 44, in line 41, to omit paragraph (b) and to substitute:

(b) may assign any powers and duties of the executive committee or executive mayor to the committee;

[Subclause (4)]. On page 44, in line 46, after "executive committee" to insert "or executive mayor".

[Subclause (4)]. On page 44, in line 47, after committee, to insert "Or executive mayor".

CLAUSE 77

[Subclause (1)]. On page 46, in line 4, to omit "district or local".

2. [Subclause (1)]. On page 46, in line 5, to omit "district or local council" and to substitute:

"council of that municipality"

3. [Subclause (2)(a)]. On page 46, in line 10, to omit "local or district" and to substitute "municipal".

4. [Subclause (2)(b)]. On page 46, in line 12, to omit "local or district" and to substitute "municipal".

5. [Subclause (3)]. On page 46, from line 15, to omit subclause (3) and to substitute:

(3) A municipal council may not take a decision on a matter directly affecting the area of jurisdiction of a traditional authority unless the council has given the leader of that authority the opportunity to address the council on that matter and has taken the views of that leader into account.

[Subclause (4)(a)]. On page 46, from line 20, to omit "district or local" and to substitute "municipal".

[Subclause (4)(b)]. On page 46, in line 22, to omit "district or local".

[New Subclause (5)]. On page 46, after line 23, to insert the following new subclause:

(5) When participating in the proceedings of a municipal council a traditional leader is subject to the Code of Conduct set out in Schedule 5.

CLAUSE 78

[New Subclause 78]. On page 46, from line 24 to omit clause 78 and to substitute:

Part 7 : Chief officer

Appointment

A municipal council must appoint –

a chief officer of the municipality, who is the head of administration and also the accounting officer for the municipality; and

when necessary, an acting chief officer.

CLAUSE 79

1. [Clause deleted as responsibilities of chief officers will be dealt with in the Systems Bill]. That the clause be rejected.

CLAUSE 81

(New Subclause (4)]. On page 48, after line 44, to insert the following subclause:

(4) A municipality which superseded a municipality that existed when this Act took effect has all the functions and powers of the previous municipality subject to section 82.

CLAUSE 82

1. [Subclause (1)]. On page 48, in line 48, after "may" to insert "despite section 81".

NEW CLAUSE

[New clause 86]. On page 50, after line 39, to insert the following new clause:

Cross-boundary municipalities

86. (1) If the Demarcation Board demarcates a municipal area across a provincial boundary with the concurrence of the legislatures of the provinces involved, the MECs for local government in those provinces must –

establish in that area, in accordance with section 12, a municipality of a type agreed to between them; and

with regard to that municipality, exercise their executive authority in terms of this Act and any other legislation jointly except when the provincial governments concerned have entered into an agreement which provides for an alternative arrangement envisaged in subsection (2).

(2) The governments of the provinces concerned may enter into an agreement providing for an arrangement which may include –

the exercise of their executive authority with regard to that municipality or in that municipal area by functionaries of one of those provincial governments on a delegation or agency basis;

the provision of financial and other assistance to the municipality; and

the suspension of all or any legislation of the one province and the application of all or any of the other province’s legislation in that municipal area.

(3) An agreement in terms of subsection (2)(b) that provides for the application of one province’s legislation in that part of the municipal area that falls in another province, is enforceable only if the provincial legislature of that other province passes legislation providing for such application.

(4) If a provincial legislature no longer supports the continuation of a cross-boundary municipality and passes a resolution calling for the termination of that municipality, the Demarcation Board must redetermine the boundaries of the municipal area in such a way that no boundary extends across a provincial boundary.

NEW CLAUSE

1. That the following be a new clause to follow clause 88:

Transitional arrangements

89. (1) The provisions of this Act will only apply in respect of a municipality from the date contemplated in section 12, but this does not preclude thje Minister, the MEC for local government, the Demarcation Board or the Electoral Commission from applying any provision of this Act for a purpose related to the demarcation of a municipal boundary, the establishment of a municipality or an election of a council.

(2) If any conflict relating to the matters dealt with in this Act arises between this Act and the provisions of any other law, except the Constitution, the provisions of this Act prevail.

(3) The first term of municipal councils after the enactment of this Act expires on 1 November 2000.

SCHEDULE 1

ITEM 2

On page 54, in the third line of item 2, to omit "may have" and to substitute "has".

ITEM 9

1. On page 56, in the second line of item 2(2), after "ward" to insert "In the event of two or more candidates receiving an equal number of votes, the result will be determined by lot".

ITEM 10

1. On page 56, in the first line of item 10, to omit "special" and to insert "by -".

ITEM 12

1. That the item be rejected.

ITEM 14

On page 58, from the fourth line of item 14 to omit the formula and to substitute:

A

+ 1

B – C

2. On page 58,from the seventh line of item 14, to omit "A represents the total number of valid votes cast for all parties on the party vote" and to substitute "A represents the total number of valid votes cast for all parties, consisting of those cast for all parties as well as those cast for ward candidates who used, on the part of the ballot paper for wards, the same distinguishing mark or symbol as a party, or who were affiliated to a party".

ITEM 15

On page 58, in the first line of item 15(1), to omit "on the party vote" and to substitute "contemplated in item 14".

2. On page 58, from the first line of item 15(2)(b), to omit paragraph (b) and to substitute:

"(b) If the surplus for two or more parties is equal, the seat must be awarded to the party that obtained the highest number of valid votes".

3. On page 58, from the firth line of item 15(3)(a), after "party" to insert "or who were affiliated to that party".

On page 58, after the firth line item 15(5), to insert the following subitems:

"(6)(a) A party must disclose an affiliation with a ward candidate, and a ward candidate must disclose an affiliation with a party.

The disclosure must be made in writing to the municipal electoral officer on the day after nomination day and before the start of counting.

The municipal electoral officer must announce every affiliation at the start of counting.

An affiliation is any agreement or arrangement to supply or receive assistance or support.

The Electoral Commission may at any time declare that a party or a ward candidate has an affiliation that has not been disclosed.

A party or a ward candidate that does not disclose an affiliation is guilty of a contravention of the …………"

ITEM 16

1. On page 60, from the tenth line of item 16, to delete sub item (4).

ITEM 19

On page 60, from the third line of item 19(1), to delete "within 14 days of the date of receipt of the notice".

On page 60, from the second line of item 19(3)(a) to omit subitems (i) and (ii) and to substitute:

"(i) if the party concerned has ceased to exist, the seat or seats must remain unfilled;

if the party concerned does not deliver a supplemented list, the seat or seats remain unfilled until it delivers a list; or

if the party concerned delivers a supplemented list containing less names than the number of seats to be filled from that list, the seat or seats remain unfilled to the extent of the shortfall until it delivers a further list."

3. On page 60, from the third line of item 19(3)(b) to omit "(4), (5) and (6) and to substitute "(4) to (9)".

4. On page 60, from the first line of item 19(4), to omit subitems (4), (5) and (6) and to substitute:

"(4) If a party forfeits seats, a new quota of votes for a seat must be determined in accordance with the following formula (fractions to be disregarded):

A - B

+ 1

C – (D + E)

Where –

A represented to total number of valid votes cast for all parties, consisting of those cast on the party vote, and those cast for ward candidates who used on the part of the ballot paper for wards the same distinguishing mark or symbol as a party or who were affiliated to a party;

B represents the total number of valid votes cast for the party that has forfeited seats;

C represents the number seats in the council;

D represents the number of seats awarded to the forfeiting party; and

E represents the number of independent ward councillors elected in the election or nil, if the council has no wards or if it is an election in a sparsely populated area."

(5)(a) The total number of valid votes cast for each party, excluding the party that has forfeited seats, must be divided by the quota of votes for a seat and the result is the total number of seats to which each party is entitled.

If the calculation in (a) yields a surplus not absorbed by the seats awarded to a party, that surplus must compete with similar surpluses accruing to any other party or parties, and any undistributed seat or seats must be awarded to the party or parties concerned in sequence of highest surplus.

If the surplus for two or more parties is equal, the seat must be awarded to the party that received the highest number of valid votes.

In an election for a council that has wards, the presiding officer must deduct from the total number of seats to which each party is entitled in terms of subitem (5), the number of ward candidates who were declared elected and who used on the part of the ballot paper for wards, the same distinguishing mark or symbol as that party, or who were affiliated to that party.

If no party is awarded a seat in terms of subitem (5)(a) the votes for each party must be treated in accordance with subitem (5)(b) as if they are surpluses.

The municipal electoral officer must determine which party candidates are elected in the manner provided in item 15(5).

If a party is entitled to an additional number of seats in terms of subitem (5) and its list of candidates does not contain a sufficient number of candidates, the party concerned forfeits the unfilled seats and the process provided in subitem (4) and (5) must be repeated until all seats have been filled or until all listed candidates have been allocated to a vacant seat."

ITEM 22

1. On page 62, from the first line of item 22(2), to omit subitems (2) and (3) and to substitute:

"(2) On one occasion during each year ending 31 December and, not later than 21 days after a councillor elected according to a party’s list ceases to hold office, that party may change the order of its list.

(3) To supplement its list or increase its list a party must deliver an application to the chief electoral officer. The application must set out the existing contents of the list and then set out the desired contents of its list with the full names, address and identify number of each candidate on the list.

SCHEDULE 2

ITEM 2

1. On page 64, from the first line of item 2(1), to omit sub item (1) and to substitute:

"(1) The quota of registered voters that a local council or a sparsely populated area must have in order to be entitled to a seat on a district council must be determined in accordance with the following formula (fractions to be disregarded) -

A

+ 1

B

Where –

A represents the total number of voters registered on the district council’s segment of the national common voters roll; and

B represents the number of seats on the district council."

ITEM 4

1. On page 64, to omit item 4 and to substitute:

"Candidates lists"

4.(1) Every party or councillor may submit a candidates’ list containing the names of councillors, accompanied by a written acceptance by each listed candidate.

A party or councillor may not submit more than one list.

The candidates’ names must appear on the list in order of preference, starting with the first in order of preference and ending with the last.

The name of a councillor may appear on one list only.

Every party must seek to ensure that fifty percent of the candidates on the candidates list are women and that women and men candidates are evenly distributes through the list."

ITEM 5

1. On page 64, to omit item 5 and to substitute:

"Number of votes

5. Each councillor cast one vote for one list only."

ITEM 6

On page66, to omit item 6 and to substitute:

"Determining the quota

6. In a local council, the quota of votes for a seat to the district council must be determined in accordance with the following formula (fraction to be disregarded) -

A

+ 1

B

Where –

A represents the number of members of the council; and

B represents the number of seats that the council has been awarded on the district council in accordance with item 2""

NEW ITEM

1. On page 66, to insert the following new item to follow item 9:

"Filling of vacancies

10. If a councillor elected from a candidates’ list ceases to hold office or the list has become exhausted, the corresponding provisions of item 20 of Schedule 1 must be applied."

SCHEDULE 5

1. That from page 74 from line 1, Schedule 5 be omitted and substituted:

SCHEDULE 5

CODE OF CONDUCT

Preamble

Councillors are elected to represent local communities on municipal councils, and to ensure that municipalities meet the priority needs of communities by providing services equitably, effectively and sustainably within the means of the municipality. In fulfilling this role councillors need to ensure that they establish structured mechanisms of accountability to local communities and report back at least quarterly to constituencies on council matters, including performance of the municipality in terms of established indicators. In order to ensure that councillors retain the respect of their communities, and support the achievement by the municipality of its objectives set out in section 18 of the Act, the following Code of Conduct is established.

Definitions

1. In this Schedule

"committee" means a committee or subcommittee of a municipal council;

"close family member" means a child, parent, brother or sister of a councillor or of a spouse or partner of a councillor.

General conduct of councillors

2. A councillor must

(a) perform the functions of office in good faith, honestly and in an open and orderly manner; and

(b) at all times act in the best interest of the municipality and in such a way that the credibility and integrity of the municipality is not compromised.

Attendance at meetings

3. A councillor must attend each meeting of the municipal council and of a committee of which that councillor is a member, except when-

(a) leave of absence has been granted in terms of an applicable law or the rules and order of the council; or

(b) that councillor is required in terms of this Code to withdraw from the meeting.

Sanctions for non-attendance of meetings

4. (1) A municipal council may-

(a) impose a fine on a councillor for:

(i) not attending a meeting which that councillor is required to attend in terms of item 3; or

(ii) failing to remain in attendance at such a meeting; and

(b) deduct the amount of that fine from any allowances payable to that councillor.

(2) A councillor who is absent from three or more consecutive meetings of a municipal council or from three or more consecutive meetings of a committee, which that councillor is required to attend in terms of item 3, may be removed from office as a councillor by resolution of the council.

(3) Proceedings for the imposition of a fine or the removal of a councillor must be conducted in accordance with a uniform standing procedure which each municipal council must adopt for the purposes of this item. The uniform standing procedure must comply with the rules of natural justice.

Disclosure of interests

5. (1) A councillor must-

(a) disclose to the municipal council, or to any committee of which that councillor is a member, any personal or private business interest that that councillor, or any spouse, partner or business associate, or any close family member of that councillor may have in any matter before the council or the committee; and

(b) withdraw from the proceedings of the council or committee when that matter is considered by the council or committee, unless the council or committee decides that the councillor’s direct or indirect interest in the matter is trivial or irrelevant.

(2) A councillor who, or whose spouse, partner, business associate or close family member, acquired or stands to acquire any benefit from a contract concluded with the municipality, must disclose full particulars of that benefit at the first meeting of the municipal council at which it is possible for the councillor to make the disclosure.

(3) This section does not apply to an interest or benefit which a councillor, or a spouse, partner, business associate or close family member, has or acquires in common with other residents of the municipality.

Personal gain

6. (1) A councillor may not use the position or privileges of a councillor, or confidential information obtained as a councillor, for private gain or to improperly benefit another person.

(2) Except with the prior consent of the municipal council, a councillor may not-

(a) be a party to or beneficiary under a contract for-

(i) the provision of goods or services to the municipality; or

(ii) the performance of any work otherwise than as a councillor for the municipality;

(b) obtain a financial interest in any business of the municipality; or

(c) for a fee or other consideration appear on behalf of any other person before the council or a committee.

(3) If more than one fifth of the councillors object to consent being given to a councillor in terms of subitem (2), such consent may only be given to the councillor with the approval of the MEC for local government in the province.

Declaration of interests

7. (1) When elected or appointed a councillor must within 30 days declare in writing to the chief officer of the municipality the following financial interest held by that councillor or any spouse, partner or close family member of that councillor:

(a) shares and stock in any company;

(b) membership of any close corporation;

(c) interest in any trust;

(d) directorships;

(e) partnerships;

(f) other financial interests in any business undertaking;

(g) employment;

(h) interest in property;

(i) pension; and

(j) subsidies, grants and sponsorships by any organisation.

(2) any change in the nature or detail o f the financial interests of a councillor or of a spouse, partner or close family member, must be declared in writing to the chief officer of the municipality within 30 days of the change.

Full-time councillors

8. A councillor who is a full-time councillor may not undertake any other paid work, except with the consent of a municipal council.

Reward, gifts and favours

9. A councillor may not request, solicit or accept any reward, gift or favour for-

(a) voting or not voting in a particular manner on any matter before the municipal council or before a committee of which that councillor is a member;

(b) persuading the council or any committee in regard to the exercise of any power, function or duty;

(c) making a representation to the council or any committee of the council; or

(d) disclosing privileged or confidential information.

Unauthorised disclosure of information

10. (1) A councillor may not without the permission of the municipal council or a committee disclose any privileged or confidential information of the council or committee to any unauthorised person.

(2) For the purpose of this item "privileged or confidential information"

includes any information –

determined by the municipal council or committee to be privileged or confidential;

discussed in closed session by the council or committee;

disclosure of which would violate a person’s right to privacy

declared to be privileged, confidential or secret in terms of law.

Intervention in administration

A councillor may not -

interfere in the management or administration of any department of the municipal council unless mandated by council;

give or purport to give any instruction to any employee of the council except when authorised to do so;

obstruct or attempt to obstruct the implementation of any decision of the council or a committee by an employee of the council; or

encourage or participate in any conduct which would cause or contribute to mal-administration in the council.

Council property

A councillor may not use, take, acquire or benefit from any property or asset owned, controlled or managed by the municipality to which would that councillor has no right.

Duty of chief officer

13. (1) If the chief officer a municipality on reasonable suspicion is of the opinion that a provision of this Code has been breached, or if any person in writing alleges to the chief officer that a provision of this Code has been breached, the chief officer must-

investigate the facts and circumstances of the alleged breach;

request written comments within seven days from the councillor involved, and

report the matter to the next meeting of the municipal council.

(2) The chief officer must report any alleged breach of this Code to the MEC for local government in the province concerned.

(3) the chief officer must ensure that each councillor when taking office is given a copy of this Code and that a copy of the Code is available in every room or place where the council meets.

Breaches of Code

14. (1) A municipal council may -

investigate and make a finding on any alleged breach of a provision of this Code; or

establish a special committees –

to investigate and make a finding on any alleged breach of this Code; and

to make appropriate recommendations to the council.

If the council or a special committee finds that a councillor has breached a provision of this Code, the council may –

issue a formal warning to the councillor;

reprimand the councillor;

request the MEC for local government in the province to suspend the councillor for a period;

find the councillor; and

request the MEC to remove the councillor from office.

The MEC for local government may appoint a committee to investigate any alleged breach of a provision of this Code and make a recommendation on whether the councillor should be suspended or removed from office.

the Commissions Act, 1974 (Act No.8 of 1974), may be applied to an investigation in terms of subitem (3).

(5) If the MEC is of the opinion that the councillor has breached a provision of this Code, and that such contravention warrants a suspension or removal from office, the MEC may -

(a) suspend the councillor for a period and on conditions determined by the MEC; or

(b) remove the councillor from office.

(6) Any investigation in terms of this item must be in accordance with the rules of natural justice.

Application of Code to traditional leaders

15. (1) Items 1, 2, 5, 6, 9 (b) to (d), 10, 11, 12, 13 and 14 (1) apply to a traditional leader who participates or has participated in the proceedings of a municipal council in terms of section 77.

(2) These items must be applied to the traditional leader as if the traditional leader is a councillor.

(3) If a municipal council or a special committee in terms of item 14 (1) finds that a traditional leader has breached a provision of this Code, the council may -

(a) issue a formal warning to the traditional leader;

(b) reprimand the traditional leader;

(c) request the MEC for local government in the province to suspend or cancel the traditional leader’s right to participate in the proceedings of the council.

(4) The MEC for local government may appoint a committee to investigate any alleged breach of a provision of this Code and to make a recommendation on whether the right of the traditional leader to participate in the proceedings of the municipal council should be suspended or cancelled.

(5) The Commissions Act, 1947, may be applied to an investigation in terms of subitem (4).

(6) If the MEC is of the opinion that the traditional leader has breached a provision of this Code, and that such breach warrants a suspension or cancellation of the traditional leader’s right to participate in the council’s proceedings, the MEC may

(a) suspend that right for a period and on conditions determined by the MEC; or

(b) cancel that right.

(7) Any investigation in terms of this item must be in accordance with the rules of natural justice.

MEMORANDUM ON THE OBJECTS OF THE LOCAL GOVERNMENT: MUNICIPAL STRUCTURES BILL 1998-09-02

On page 82, after paragraph 1, to insert the following new paragraph:

2. The Bill forms part of a package of legislation aimed at the transformation of local government into a more citizen friendly, accountable, developmental, financially sustainable and performance orientated sphere of government. The Bill will be followed by the Municipal Systems Bill which provides for public participation in the affairs of local government, and greater accountability to citizens for municipal performance through planning, budgeting and reporting practices.

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