3rd & 4th Amendment to the Constitution & Municipal Structures Bill: discussion

Meeting report

CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
20 October 1998
3RD & 4TH AMENDMENT TO THE CONSTITUTION [B123-98 & B124-98]; MUNICIPAL STRUCTURES BILL [B68-98]: DISCUSSION

Documents handed out:
Municipal Structures Bill as amended by the Portfolio Committee
Constitution of the Republic of South Africa 3rd Amendment Bill [B123-98]
Constitution of the Republic of South Africa 4th Amendment Bill [B124-98]
(access these bills from http://www.polity.org.za/govdocs/bills/1998)
List of Laws not yet assigned to provinces

SUMMARY
The committee deliberated on the Fourth Constitutional Amendment and all parties found the Bill to be acceptable.

The Third Constitutional Amendment Bill was not acceptable to the opposition parties especially Clause 1 where Premier has been replaced by President and Clause 3. There will be an informal subcommittee meeting to try and iron out differences with regard to this Bill before committee voting takes place on these bills on the afternoon of 21 October.

The committee had an exploratory discussion on the possibility of handing over the task of ward delimitation to the Demarcation Board and not the Independent Electoral Commission. This was followed by a discussion on Electoral Systems with reference to Schedule 1 of the Municipal Structures Bill. They then discussed all issues that had been previously flagged from Clauses 57 to 92. Voting on this Bill is planned for the afternoon of 22 October.

DETAILED MINUTES
Fourth Constitutional Amendment Bill
This Bill changes the provision in the Constitution that stated that only when the term of Parliament comes to an end, may the President proclaim an election as this would have given the Independent Electoral Commission only 90 days to prepare for an election. All parties were agreeable to this Bill and only queried when there would be an announcement of the date for the 1999 election. The department was unable to provide an answer.

Third Constitutional Amendment Bill
Clause 3 allows for an extension of two years for the Department to complete its
assignment of provincial competence legislation to the provinces. The Department has found that the original two year period allowed by the Constitution has been inadequate in cases where legislation must be passed by Parliament in order to achieve effective provincialisation of legislation or where national government must first determine essential national standards and/or international standards and obligations before passing on certain legislation to the provinces.

Opposition parties accused the Department of dragging its feet on this issue but the Department assured the committee that it was the heavy legislative programme of the first term of Parliament that had prevented it from meeting the short deadline of two years. The Director General, Mr Z Titus, said that no complaints had been lodged by the provinces about the non-completion of the assignment of legislation. He said that the National Executive was not tampering with the authority of the provinces and no dispute existed on this matter. Dr Bouwer, law advisor for the Department, pointed out that after the deadline of 4 February 1999, neither national nor provincial executives would be able to administer the law if it had not been duly assigned.

The National Party (NP) and the Inkatha Freedom Party (IFP) were opposed to this clause as they could not give a blanket approval for a two year extension. Further they had not seen letters from two government departments motivating their need for extension of the time period. They requested these letters plus a schedule of specific laws that still have to be assigned (this was provided during the course of the meeting). The Democratic Party (DP) reserved its position but indicated that it was disinclined to support the Bill for the same reason.

The chairperson, Mr Y Carrim, stated that the fears of the opposition parties (of a hidden agenda and an intrusion on provincial powers) were not grounded and stated that parties should not politicise this Bill. This Bill was not dealing with legislative powers but with the implementation of the Constitution. The sheer weight of legislation had prevented the Department from completing this task. However he was optimistic that once the parties had been provided with the information they had requested and he had met together with them in an informal subcommittee meeting, that they would pass this clause.

Clause 2 presented no problems but Clause 1 met stiff opposition from the IFP, DP and NP. This clause attempts to avoid the administrative difficulties of having potentially ten staggered elections within 90 days by removing the power of election proclamation from the Premier to the President. It is motivated that by providing for the President to call and set dates for the nine provincial legislatures, as well as the National Assembly, will ensure that said elections will be held on the same date.

The African National Congress argued that the costs of holding separate, staggered elections created a funding problem. The country was not in a position to entertain such an expensive option. This clause was looking at dealing with a logistical problem.

Mr Botha (NP) said that though he agreed about the costs issue, the choosing of the date of an election was an important political consideration. This clause was dealing with political and not purely practical/administrative considerations. He believed that the argument of ten separate elections was spurious as seven provinces were controlled by the governing party which would synchronise their elections.

Mr Smith (IFP) stated that whoever controls elections has a lot of power and felt that this clause deals with a political not a technical issue. He said that he was not swayed by the costs argument.

Prof du Toit (ANC) countered that the window period for calling an election was only 90 days and wondered how one could term that huge political power.

The IFP and NP indicated that they were not prepared to compromise on this part of the amendment to Clause 1 though the amendment in the last three lines
of the clause was acceptable.

Municipal Structures Bill: delimiting wards
The chairperson initiated an exploratory discussion on the possibility of handing over the task of ward delimitation to the Demarcation Board as in other countries (and not the Independent Electoral Commission as originally planned). He said that the ANC has no position on this issue yet.

The Minister, Mr V Moosa, attended this part of the meeting and said that ward councils were now a governance-type structure and the shape of the ward was based on more than just electoral considerations and head counts. The Demarcation Board takes other factors into account when setting boundaries and it would appear that this task was assigned to the wrong independent authority. Officials from the Independent Electoral Commission had informally indicated that they were not at ease about this task and were under duress to do ward delimitation.

On the other hand, the Minister pointed out that the IEC had already incurred costs in setting up infrastructure and facilities in preparation for this task.

Mr Hendrikse (ANC) said that the ward was no longer merely an electoral unit and that the ward council was the entry point for public participation in local government. Therefore it was important that the ward maintain a sense of community or community of interest.

Mr Smith (IFP) said that it was logical not to go the head-counting route. However the IEC needed to make a formal comment as soon as possible. If this was desirable to the IEC, the mechanism of how this would work with regard to resources needed to be looked at.

Mr Selfe (DP) said that the delimiting body must be held to objective criteria in delimiting wards - it was not who did the job but how it was done that was important.

Mr Watson (NP) was concerned that any political gerry-mandering be avoided.

The chairperson agreed that a more formal response was required from the IEC in the next 48 hours as well as more input from the Department.

Municipal Structures Bill: electoral systems
A discussion ensued on the flagged issues of Schedule 1:
- All parties have agreed on the double ballot system.
- 50% ward / 50% proportional representation
Mr Selfe said that this percentage was unacceptable to the DP as they believed in direct accountability between voter and representative. A 50/50 split erred too much on proportional representation and not enough on direct representation.

Mr Smith said that the IFP had no problem with the 50/50 split if Item 13.3 of Schedule 1 (each party must ensure that 50% of the candidates on a party list are women) was dropped to which it was strongly opposed.

Ms Verwoerd (ANC) was vehement in her support for 13.3 and believed that they must stick with some incentive to get women adequately represented in wards.

Mr Smith felt that Item 13.3 was not justiciable (implementable). The Department stated that as this was a statutory requirement, a party list could be set aside or a party had to prove that it had tried to get women on its list.

Mr Watson said that the NP was dead set against quotas of any kind.

The IFP questioned the constitutionality of Item 13.3.
- Formula for allocation of seats in a double ballot system
The committee has to seek a solution to the problem of undisclosed alliances of independent candidates. Further there is the problem of uncontested seats as votes for parties in uncontested wards have a double value.

In trying to solve the problem of undisclosed alliances, minority parties may suffer a disadvantage if they do not field candidates in all wards of a municipality.

Mr Watson believed that one should stay with the double ballot system and deal with the problem via a formula. It was decided that a subcommittee meet before the next day's meeting to sort out this issue.
- What percentage directly elected to the District Council?
The Department is concerned about the constitutionality of the option before them (see Clause 157 (2) (a) of Constitution) as one has to deal with the entire district. It would appear that it is not possible to take an area out and have a ward system there and not in the rest of the district. A parallel system would mean the necessity of a constiutional amendment.

A subcommittee will meet to finalise these issues and the committee will go through it clause-by-clause tomorrow.

Municipal Structures Bill: amendments from Clause 57 to 92
The committee worked through the amendments and flagged those where consensus could not be reached:
Clause 60 (1): drafters to add wording to indicate that a process of public consultation would also be conducted.
Clause 62 (20): "delagation' to be added to the list of definitions
Clause 72: suggestion to drop (a) and insert (c) has been flagged.
Clause 77 & 78: Department to prepare and amendment; flagged.
Clause 79 (1) attendance of traditional leaders at meetings - introduce a quota or system of rotation to avoid a situation where more traditional leaders than councillors are present at a meeting.
Clause 79 (3) drafters to reword so that the council is not paralysed by legal contestation by traditional leaders. The reworded clause will still achieve the same political aim but its legal effect will not be controversial.
Part 7 The title of the Chief municipal officer / manager was flagged
Chapter 5 (Functions and Powers) has been flagged for fine-tuning.