Municipal Structures Bill: discussion

Meeting report

CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
22 October 1998
MUNICIPAL STRUCTURES BILL [B68-98]: DISCUSSION

Documents handed out:
Letter from the IEC to the Minister of Constitutional Development, 20 October 1998 (attached to the end of the minutes)
Letter from the Department of Constitutional Development to the IEC, 21 October 1998 (attached to the end of the minutes)
Letter from the IEC to the Department of Constitutional Development, 22 October 1998 (attached to the end of the minutes)
Amendments to the Municipal Structures Bill: 22/10/98
Constitutional Third Amendment Bill [B123-98]

SUMMARY
The Committee discussed the Constitutional Third Amendment Bill and the Municipal Structures Bill. The Committee’s discussion of the Third Amendment Bill was brief. It centered around the government’s extension of power to legislation already assigned to the provinces. Thereafter, the Committee discussed the Municipal Structures Bill. The Committee agreed that the preamble and clauses 12, 21(1), 79(3) ,92, 51 would not be votable until the 23^rd of October.

DETAILED MINUTES
The opposition raised their concerns about the roles of the IEC and the Demarcation Board with regard to ward delimitation. Professor Du Toit made it clear that the IEC will make a decision and then consult the Demarcation Board.

Mr P Smith (IFP) disagreed with the provision in the Constitutional Third Amendment Bill that extends a national executive’s authority to administer legisation not assigned to a provincial authority. The provision extends the national executive’s power for an additional two years.

The Committee decided to remove clause 6(a)(3) of the amendments (dated 21/10/98):
"The Demarcation Board may only make a recommendation regarding the declaration of an area as a district management area after it has exhausted all alternatives for the inclusion of the area concerned in another local municipality".
Chairperson Hendrickse felt that the inclusion of this clause complicated the ANC’s relationship with the IFP.

The Committee removed "instructions" from the title of clause 31.

The Committee remove "of the" from clause 32A(b)(iii) of the amendments and "to support" was added in its place.

The Committee reviewed clauses 71, 72, 79(2)(c), and 79(3) without any amendments.

The Committee amended Schedule 1 which deals with the delimitation of wards. The Committee ended the clause after "section 23(2)." It now reads, "The Demarcation Board after consultation with the Electoral Commission, for purposes of a municipal election, must delimit all metropolitan, and local municipalites, that must have wards, into wards for an election referred to in section 23(2).

The Committtee agreed that votes in uncontested wards (clause 11A) be counted twice because of the expected low voter turnout. Mr Smith did not understand why votes could still not be counted once.

The Committee also reviewed the Code of Conduct outlined in the Bill. Mr Matosa (ANC) chaired this portion of the meeting. Specifically the Committee focused on clause 5 which deals with disclosure of interests by municipal councillors. According to clause 5 (1)(b)(2), a councillor who, or whose spouse or close family member stands to gain a direct benefit from a contract concluded with the municipality must disclose full details of that benefit at the first meeting of the council. The key to this provision is that the councillor must be aware of the benefit. Mr Smith wanted to use the phrase "reasonably aware" in the clause. He was worried about a councillor claiming ignorance in a case of impropriety. Professor Du Toit responded by saying that reasonable awareness was too elusive. Professor Du Toit added that the councillor could not simply claim ignorance in a case of impropriety if the circumstances of the incident showed otherwise. The clause remained unchanged.

Appendix 1
INDEPENDENT ELECTORAL COMMISSION

MINISTER M V MOOSA (MP)
20 October 1998

COMMENTS ON THE MUNICIPAL STRUCTURES BILL, 1998

1. Our telephone discussion on 20 October 1998, refers.

2. You have requested us to submit our views on tile following three questions to you-
· What type of ballot system should be used for municipal elections, i.e. a one or two ballot system;
· What our views are regarding the Constitution of the Republic of South Africa Fourth Amendment Bill, 1998 [B124-98];
· What our views are if section 5 (1)(m) of the Electoral Commission Act, 1996 (Act No.51 of 1996) is to be repealed by the Municipal Structures Bill and if the function to demarcate ward boundaries in the local sphere of government is to become the function of the Municipal Demarcation Board?

3. Although I did not have the opportunity to discuss the matter in question with the members of the Electoral Commission, it will be appreciated if you could consider this as our preliminary views. We would have preferred to make a presentation to the Portfolio Committee on Constitutional Affairs prior to the adoption of the Bill.

4. I will now deal with the three questions in seriatim:

4.1 Ballot system
Section 157 of the Constitution did not come into operation, as the provisions of the Local Government Transition Act, 1993 (Act No. 209 of 1993), remains in force until 30 April 1999. However, the Constitution of the Republic of South Africa Amendment Act, 1998 (Act No.65 of 1998) which was recently passed by Parliament, further extends the lifespan of the provisions of the Local Government Transition Act, 1993 "until a municipal council replacing that council has been declared elected as a result of the first general election of municipal councils after the commencement of the new Constitution". The provisions of section 157(2) of the Constitution, which requires a system of proportional representation or proportional and ward representation, are therefore suspended and do not come into operation . However, Clauses 22 and 23 of The Municipal Structures Bill, 1998, provides that metropolitan councils and local councils will consist of members elected on a system of proportional and ward representation, and district councils will be elected on a system of proportional representation as well as members appointed to that councils. As a result of the fact that the provisions of section 157 of the Constitution has further been suspended, the type of representation to be used in the next local government election is being determined exclusively in the Municipal Structures Bill. If the said clauses of the Municipal Structures Bill are passed in its present form, it is inevitable That a two ballot system will have to be used.

4.2 Constitution of The Republic of South Africa Fourth Amendment Bill, 1998
We are in support of the amendment of section 49(2) of the Constitution as the proposed amendment makes it clear that the President may; at any time before the expiry of the term of office of The National Assembly, call and set dates for an election by proclamation in the Government Gazette. Prior to the amendment certain legal opinions were expressed in terms of which the President could only call and set dates for the next elections after 30 April 1999. We are happy that legal certainty will be achieved by the passing of the Constitution of the Republic of South Africa Fourth Amendment Bill, 1998. We also support The Constitution of the Republic of South Africa Third Amendment Bill, 1998 [B123-98] which proposes a similar amendment to section 108 of the Constitution. We also support the amendment in so far as the President will call and set dates for elections of provincial legislatures. This will prevent provincial elections to be staggered and to be held on a piece-meal basis.

4.3 Determination of ward boundaries
We have confirmed that it is your intention to repeal the provisions of section 5(1)(m) of the Electoral Commission Act, 1996 (Act No.51 of 1996) in terms of which the Electoral Commission is responsible for the demarcation of ward boundaries in the local sphere of government. We believe it is your intention that the function to determine ward boundaries should also vest in the Municipal Demarcation Board. Section 157(4) of the Constitution provides that if an electoral system includes ward representation, the delimitation of wards must be done by an independent authority appointed in terms of, and operating according to, procedures and criteria prescribed by national legislation. As pointed out in paragraph 3.1 above, the provisions of section 157 will no longer come into operation after 30 April 1999, but have been further suspended in terms of the Constitution of the Republic of South Africa Amendment Act, 1998 (Act No. 65 of 1993).

The Electoral Commission has already spent a large amount of money to put the CIS system in place at our offices. The Information Technology contracts already entered into amount to millions of rands. The system also enables the Electoral Commission to divide the country into wall-to-wall voting districts. Once the delimitation process is finalised within the next three weeks, the voting districts will serve as the building blocks for the determination of ward boundaries for the local sphere of government. The Electoral Commission will therefore be able, with the information technology at our disposal, to delimit wards within a very short period of time and at an affordable rate. Although the Municipal Demarcation Act, 1998 (Act No.27 of 1998) provides for criteria for the determination of the outer-boundaries of municipal councils by the Municipal Demarcation Board, the Electoral Commission is not opposed to take the same criteria into account when demarcating ward boundaries for municipal councils. We can therefore not support the proposed amendment.

5. The Electoral Commission will meet on 21 October 1998, and I would like to discuss the matter with the Commission so as to provide you with a finally approved view on these matters. I trust that it will still contribute to the Portfolio Committee's discussions and deliberations if you could be informed of the Commission's decision in this regard after the meeting on 21 October 1998.

MANDLA MCHUNA
CHIEF ELECTORAL OFFICER

Appendix 2
DEPARTMENT OF CONSTITUTIONAL DEVELOPMENT

The Chief Electoral Officer
Independent Electoral Commission

MUNICIPAL STRUCTRES BILL, 1998

As you are no doubt aware the Portfolio Committee is presently considering the Municipal Structures Bill, 1998, and it is envisaged that this process will be finalised by Friday, 23 October 1998. During deliberations on this Bill the following questions arose and we have been requested to put them questions to you:

· Will voter registration precede ward delimitation?
· Will the voters roll be re-opened in respect of each municipal election and by-election?
· How long before the date of a general election for all municipalities will the voters roll be closed?
· By how much can this period be shortened by having ward delimitations based on population size and not on the number of registered voters?
· Will it be possible to sub-divide the 1999 National Voters Roll into municipal segments to be sublimented with additions and deletions for the next municipal elections?

It would be appreciated if you could reply to this questions by mid-morning of 22 October 1998, the Portfolio Committee intends voting on this Bill by not later than 23rd October 1998.

Thank you for your co-operation.

DIRECTOR-GENERAL
DATE: 21 October 1998

Appendix 3
INDEPENDENT ELECTORAL COMMISSION

The Director-General
Department of Constitutional Development

MUNICIPAL STRUCTURES BILL, 1998

1. Your letter dated 21 October 1993, in terms of which you requested us to supply you with certain information regarding the contents of the Municipal Structures Bill, 1998, refers.

2. I will now deal with the questions as listed in your letter:

Ad question 1
Yes, voter registration will precede ward delimitation.

Ad question 2
The registration process will commence on 27 November 1998 whereafter it will be an ongoing process in terms of which an eligible voter may apply to be registered as a voter, have registration details such as a change of name or the ordinary place of residence recorded on the voters' roll, or deregister as a voter. Before each election, the election timetable will prescribe the cut-off date for publication of the certified voters' roll or the segments of the voters' roll to be used in a particular election.

Ad question 3
We envisage a period of approximately 6 to 3 weeks, because we must allow for time during which objections may be lodged against the provisionally compiled voters' roll. However, the exact period will be prescribed in the election timetable.

Ad question 4
Ward delimitations will be based on the number of voters at any given point in time.

Ad question 5
Yes, sections 105(1)(b) and 157(2)(a) of the Constitution of the Republic of South Africa, 2996 (Act No.108 of 1996), requires that the national common voters' roll must be divided into provincial segments and municipal segments. The national voters' roll will be divided into segments which will reflect the different voting districts as well as the provincial and municipal segments thereof.

3. I trust that the above-mentioned information will be of assistance to you.

CHIEF ELECTORAL OFFICER
(Prof. Mandla Mchunu)