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CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
17 September 1998
LOCAL GOVERNMENT: MUNICIPAL STRUCTURES BILL: DISCUSSION
Documents handed out:
Proposed amendments on Municipal Structures Bill [B68 –98]
Constitutional Affairs Typology committee workshop – IFP submission
Opinion of the constitutionality of Municipal Structures Bill
In this meeting, the proposed amendments to the code of conduct of the Municipal Structures Bill were discussed on a clause by clause basis. During this time various concerns were voiced and the department promised to look into these matters. The code was finished during the meeting and it was agreed that any problems would be discussed on Monday, and voting would take place on Tuesday at 9:00.
3. ATTENDANCE AT MEETINGS
It was clarified that ‘in terms of an applicable law’ [3(a)] means that provincial ordinances regulate this matter.
4. SANCTIONS FOR NON-ATTENDANCE OF MEETINGS
Prof. Du Toit (ANC) stated that to remove a councillor without a hearing would be unconstitutional and thus a process needs to be created to deal with non-compliance with the rules. Dr Olver agreed that this ‘discretion’ must be removed. He added that a CEO cannot remove a councillor and thus the default mechanism is the MEC. Mr Watson (NP) suggested that the MEC should rather be brought in later as an appeal mechanism. He further questioned how one would decide when a councillor must be removed and who would have the job of communicating this to the councillor. Dr Olver stated that he agreed with this point.
The Chairperson questioned whether 4(a)(2) was clear enough or whether percentages of meetings missed should be added to this. Prof. Du Toit suggested that it should be interpreted as ‘reasonably remain in attendance’. The Chair agreed with this suggestion and stated that this would not be written in, but should be understood as this.
5. DISCLOSURE OF INTERESTS
Mr Watson questioned why there was no item dealing with ‘misleading and influencing councillors’ and suggested that a clause be inserted between 4 & 5. Dr Olver replied that rather than referring to the old clause 2, this had been incorporated into 5(2), 6, 7 & 11, and that after dealing with these clauses he thought Mr Watson would be satisfied.
Dr Olver questioned whether ‘close family member’ should be deleted. Prof. Du Toit stated that if ‘partner’ was used, then a definition needed to be inserted. For example ‘there must be an intention to permanently live together, in a style similar to marriage’. Dr Olver responded that to remove ‘partner’ would be anti-gay and thus contrary to the constitution. The Chair stated that the intention was not to exclude gays, but rather it was a technical and legalistic problem.
Dr Olver stated that ‘or any close family member of that councillor’ would be deleted, and that ‘partner’ would be defined. Mr Eglin stated that he was happy to delete ‘close family member’ under 5(1)(a), as long as it was not deleted under 5(2). The chair responded that the parameters of 5(2) could be widened.
Prof Du Toit stated that the section did not necessarily cover all instances of direct and indirect interests. The Chair stated that a concrete amendment is necessary. The ANC suggested that an amendment that they had had for 7 could be used in this clause.
Ms Chohan-Khota referred back to 5(1)(a) and stated that ‘close family member’ could not be defined, but it was up to each council to interpret it. It was suggested that an interest need only be disclosed if there was a business relationship between the mother, father & children when applying for tenders.
Prof. Du Toit questioned the difference between disclosure & declaration of interests. Eglin (DP) also questioned whether 5(1)(a) & (b) were both necessary. Dr Olver responded that there were two steps to the process, firstly the act of disclosure and secondly the council decision whether a matter was trivial or not. He added further that he supported the deletion of ‘close family member’. The Chair stated that this had been deleted and subsections (a) and (b) would be kept separated. Furthermore ‘that’ was inserted instead of ‘any matter’.
At this stage a tea break was called.
After the tea break, Chohan-Khota stated that there would be no problem with retaining ‘close family member’ and Mahlangu (ANC) responded that they needed some more time to decide on this issue. The Chair stated that the ANC would have to decide on this matter in their study group and it would be discussed on Monday.
The Chair stated that the same issues would rise here with regards to close family member. Mr Watson questioned what the definition of a partner was. Dr Olver stated that the department would have to discuss this.
6. PERSONAL GAIN
It was agreed that clause 6 was clear, however Mr Mahlangu (ANC) stated that the threshold of 1/5 was too low and suggested that it be increased to 1/3. Dr Olver stated that the problem was that 1/3 would be too high in large municipalities, while it was also necessary to block minority parties from blocking decisions because of political objectives. Thus it was agreed that this would be changed to ¼.
7. DECLARATION OF INTERESTS
Both Mr Eglin (DP) and Mr Watson (NP) questioned the necessity of the code and this clause with Mr Watson adding that people with large financial interests usually not having to declare this anyway as it was all contained in trusts. He warned that councillors were ‘local’ people and that this might deter people from running for positions. The Chair responded that this clause had valuable psychological and practical effects. Another committee member added that local government was vital in the delivery process and in places where councillors had a personal interest at stake, there was often little or no delivery. Thus it was vital to maintain clean government. The Chair said that this area had already been covered, and it was time to move on. He stated that Mr Watson's objection had been noted. He hoped that it would serve as a psychological and moral device especially in future times. He also questioned whether journal writings and being asked to speak was covered under employment, as well as why ‘business associate’ had been excluded under 7(1).
Dr Olver responded that ‘employment & remuneration’ would be included.
With regard to 7(2) Mr Eglin stated that 30 days was unrealistic. ‘Annually’ was thus inserted and ‘close family member’ was deleted.
10. UNAUTHORISED DISCLOSURE OF INFORMATION
Mr Carrim stated that this clause needed to be qualified to prevent councillors from relying on it to keep information from the public. Du Toit asked what the relation between this clause and s36 of the constitution was. Mr Smith questioned what ‘privileged or confidential’ was, as well as why councils were treated differently to parliament. Dr Olver stated that the ‘Open Democracy Bill’ would have to be investigated.
11. INTERVENTION IN ADMISTRATION
The ANC stated that they had no problem with this clause, but wanted to add a further section (e) which would allow a council to interfere in administration in certain circumstances. Dr Olver stated that ‘or in accordance with standing procedures’ should be added to (b). Mr Smith noted that this would require each province to have its own procedures, and Mr Eglin stated that unless this was clear there would be many difficulties. Dr Olver replied that these were valid concerns and the department would look into it.
13. DUTY OF CHIEF OFFICER (CEO)
The Chair highlighted that there had been several concerns that the CEOs could abuse their power. Dr Olver stated that the CEO role was one of secretary to council. He stated that one of the departmental concerns was who would actually dismiss councillors because the courts were so clogged up. Thus it is necessary that where a council fails to act, the MEC be immediately notified so that it can remedy the situation.
Both Mr Eglin and Mr Watson were concerned that CEOs would not to able to fulfil their roles as they were required to report back on their own councils, and thus they needed protection. Watson suggested that 13(4) be added which would protect a CEO from action when he was exercising his duties. Dr Olver stated that he would consider the role of the CEO, and consider replacing it with ‘chair of council. He noted that there were big problems where a CEO was victimised for fulfilling his tasks.
Mr Eglin suggested that there were also problems where that chair was being investigated, and also noted that a Chair might authorise, but would not conduct an investigation. The ANC agreed with this and suggested that perhaps a special committee needed to be created for this role. Mr Smith (IFP) stated that a neutral outsider was necessary, and that perhaps the MEC should conduct the investigations and that a report should be submitted back to the council.
The Chair stated that this was not a practical solution and dismissed it. He noted that the issue of a corrupt Chair was dealt with in 14. He also questioned whether there should be an appeal mechanism to the courts only, or also through other bodies. The ANC stated that a structure from within needed to be created.
The Chair stated that the first level was within the council and whilst councillors could not remove/suspend councillors, they could issue fines & warnings. Secondly, the Council could recommend to the MEC to remove councillors, but this would only be in major breaches.
Dr Olver suggested two amendments, firstly after 14(2) a right to appeal to the MEC with regard to (a, b & c) should be inserted. The second related to the ANC point that a councillor should have an automatic right to make a representation at both council and MEC level.
Clauses 14 and 15 were dealt with clause by clause and no concerns were raised. It was agreed to delete 15(3)(b).
The Chair emphasised that they would vote at 9:00 on Tuesday, and that they would take 15 minutes to go through the amendments.
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