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

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Cooperative Governance and Traditional Affairs

20 October 1998
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Meeting report

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

Documents handed out:
Amendments for consideration (Municipal Structures Bill): 21 October 1998
Amendment of Clause 26
Amendment of Clause 32A

SUMMARY
In this meeting the Committee discussed the Local Municipal Structures Bill, and electoral systems. In these minutes, only the issues that caused debate, and/or generated valuable questions, recommendations and solutions are reported.

DETAILED MINUTES
In the definition section of the Local Municipal Structures Bill, the Committee discussed the use of the words ‘must’, ‘may’, and ‘should’. It was questioned whether the use of the word ‘must’ was constitutional, and the IFP also pointed out that the word ‘should’ would have no meaning to the Constitution. The solution that was accepted, was to settle for ‘may’ and ‘must’.

Clauses 19 and 21 were flagged.

It was argued by Ms M Verwoerd (ANC) that the details of clause 22 were necessary to keep in the Bill as it enabled people to follow the Bill without having to read it together with the Constitution. It was agreed to keep the clause as it stands.

In clause 31.1 (b) the debate related to how much power should be delegated from metro councils to ward councils. The IFP and the NP argued for more delegation of power to the ward councils whereas the ANC, in particular Prof du Toit, argued against that position. He argued for instructing the ward councils on issues, rather than delegating power to them to deal with these issues themselves. This clause was also flagged.

Clause 51 caused debate concerning the removal of councilors from councils. Dr Olver from the Department stated that the council should have the authority to remove councilors, and not a political party because the councilors are accountable to the council and not to the parties.

The issue also related to proportionality of the council. If a councilor is removed or ‘crosses the floor’, then Dr Olver argued that the proportional representation of the council be the same.
There might need to be a new by-election if a council changes. If a councilor crosses the floor, then that person might need to go back to the ward to see if the citizens still have trust in that person, or if they want somebody new from that same party (to replace the councilor who crossed the floor). Dr Olver argued that if a councilor leaves the council or crosses the floor, the council should be allowed to choose from which party the new councilor should come.

The ANC stated that if a councilor does not cooperate, then that would be reason for removing that councilor from the council. The opposition argued that a breach of the Code of Conduct should be the reason for removing a councilor. Mr. Smith (IFP) questioned the legality of what the ANC was arguing: that a party can remove a member of another party from the council if that member does not cooperate.

The whole issue of clause 51 was flagged to be discussed further and finalised at a study group meeting.

The Committee then moved over to look at two proposed amendments to Clauses and 32.
Clause 26, particularly sub-section (f), deals with a suggestion from the Department that will have the effect of making ‘crossing the floor’ as difficult as possible. The Department stated that it is necessary to keep the three government spheres as equal as possible, and to avoid the difficulties ‘crossing the floor’ brings. Dr Olver stated that there is a high frequency of ‘crossings’ taking place, and the Department saw the value of avoiding this from taking place.

In response the NP stated that the clause was against freedom of speech, and did not go well together with democracy. The IFP stated that this was a political issue, and not a technical issue as the Department was saying.

Dr Olver raised the issue of party versus person. In a ward election, the person is elected on behalf of a party and not as an individual. The IFP stated that they were against crossing the floor where that councilor gets to keep his/her position in the council. They also stated that the proportionality must not change if a councilor leaves or is removed.

Dr Olver stated that there was a problem if there should be a by-election in that ward (after a councilor had crossed the floor or was removed from the council) as it would mean that this ward would then have newly elected representatives, whereas the other councilors in the council would have been elected in an election that was not so recent. He then questioned the way the council would reflect the citizens properly.

Clause 32 dealt with the size of executive councils (see proposed amendment at end of minutes). The Chairperson stated that this was an issue that was being tabled but not formally discussed in this meeting.

Finally the department briefed the Committee on the delimitation criteria of wards. The Committee started to discuss electoral systems, but it was decided to continue the debate after lunch.
The afternoon session was not monitored.

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