3rd, 4th, and 5th Amendment Bills and Review of Municipal Infrastructure Programmes: discussion

CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
23 February 1999
3RD, 4TH, AND 5TH AMENDMENT BILLS; REVIEW OF MUNICIPAL INFRASTRUCTURE PROGRAMMES: DISCUSSION

Documents handed out:
3rd, 4th, and 5th Constitutional Amendment Bills (http://www.polity.org.za/govdocs/bills/1999)
Review of the South African Government’s Grant-Funded Municipal Infrastructure Programmes

SUMMARY
The 3rd and 4th Amendment Bills were withdrawn from consideration. The Minister for Provincial Affairs and Constitutional Development explained the reasoning for withdrawing the Bills. The Fifth Amendment Bill was discussed briefly and referred to further subcommittee discussions. A professor from Harvard University presented a description and assessment of the Municipal Infrastructure Programmes.

MINUTES
3rd and 4th Amendment Bills
The Chair, Mr Carrim (ANC), opened the meeting and announced that the Third and Fourth Amendment Bills had been withdrawn. He asked for brief comments from MPs, and said that Mr Moosa, the Minister for Provincial Affairs and Constitutional Development, would explain why he was withdrawing the Bills.

Mr Zulu (IFP) said that the Third Amendment Bill was an infringement on Provincial authority, and that he was not prepared to compromise on that issue.

Professor Du Toit (ANC) said that the real issue is not Provincial authority, but rather the efficiency and cost-savings to be realised by guaranteeing all elections are held on the same day. The opposition needs to see this beyond the context of party political squabbles, and in the perspective of national interest.

The Chair asked that MPs only comment if they had new points to raise, and not to rehash all the arguments put forward in previous discussions.

Ms Seaton (IFP) said that the ANC is being narrow-minded in trying to restrict the broad-minded power that the Constitution deliberately gives to the Provinces, in providing for the Provinces to call election dates. And speaking of party politics, no opposition had any problem with the Fourth Amendment Bill, which could have been passed last year if not for the ANC’s insistence that the Third and Fourth Amendment Bills only be considered in tandem. In linking the two Bills, the ANC was displaying the worst kind of party political manoeuvring.

Mr Eglin (DP) said that the Constitution already requires the President and Provinces to co-operate and work together in good faith, so theoretically there is no reason to amend the Constitution.

The Chair said that he felt the contentiousness of the debate on these Amendments had a lot to do with the nearness of elections. He also feels that both sides are choosing to see insidious motives where none exist. He feels confident that in a different political climate they would be able to reach consensus on these issues. The Chair then asked the Minister for Provincial Affairs and Constitutional Development, Mr Moosa, to address the Committee.

Mr Moosa said that he wanted to address the Committee specifically because the decision not to pursue the Bills any further might give the impression that there now exists a constitutional crisis in terms of calling elections. The Department originally proposed the Third and Fourth Amendments because the IEC had told them the Constitution was not totally clear on a few election issues, and they wanted to set them straight. When the Department looked at the precise wording of the Constitution, they thought it was a good idea to expand Presidential powers to include calling and co-ordinating all elections. And they never had in mind the issue of curtailing Provincial powers to dissolve and call new elections, as are allowed under certain circumstances and provided for elsewhere in the Constitution. For the coming election Mr Moosa said he did not think any dissent would exist between the national and provincial governments, and he was confident that all elections will be held on the same day. And while it seemed that the President could not make an official proclamation on the election date until 5 May, nothing prevented him from announcing the date in a manner that is more than just informal, such as through an announcement to a specially convened Parliamentary sitting.

The Chair thanked Mr Moosa for his input.

5th Constitutional Amendment Bill
The Chair asked Mr Eglin for a progress report of the subcommittee that had been convened. Mr Eglin (DP) said the subcommittee had not reached a uniform consensus, but he had several points to make.

His first point was that an Amendment to the Constitution should never curtail the powers of the NCOP on provincial issues, and that this Amendment might do that. Also, any Bill that falls into Section 76 should be considered as dealing with the Provinces; any Bill that does not fall into Section 76 does not deal with the Provinces. In this sense there really is no such thing as a mixed Bill – it either concerns the Provinces in some way or it does not. Mr Eglin further added that there is a way to avoid having to split a Bill; he suggested that a Bill with national and Provincial implications be dealt with by the NCOP, and when they reach a part of the Bill that does not concern the Provinces, those sections are simply excised and reintroduced as a new Bill. Perhaps there is some way to create a short-cut in the process so that excised portions can be reintroduced immediately as new Bills for consideration.

Mr Bhabha (ANC, NCOP Mpumalanga) said that the ANC has a different opinion. While he thinks many Bills can be identified as either primarily national or primarily Provincial, he does think there exists such a thing as mixed or hybrid Bills.

Professor DuToit (ANC) said he had a problem with Mr Eglin’s reasoning, because in a certain sense, all legislation affects the Provinces. Anything that affects people, or resources, or the national government at all also affects the Provinces, because they are part of the country.

The Chair asked, given that reasoning, how Professor DuToit would distinguish between Section 75 and Section 76 legislation.

Professor DuToit replied that the Constitution is very clear in Section 76-3, where it says that a Bill must fall entirely or substantially within the functional area of the Provinces. Professor DuToit added that there was no way Mr Eglin would convince him that if a single section of a Bill relates to functional areas of the Provinces that it is then a Section 76 Bill. That is not the purpose of Section 76-3.

Ms Seaton (IFP) said she believes the Committee has reached an impasse on this issue. The opposition parties will not accept that any Bill touching on Provincial matters be dealt with anywhere but in the NCOP. The ANC is alone on this issue.

The Chair disagreed, and said he thought the Committee had made progress in their discussions on the Fifth Amendment. He asked Mr Meyer, parliamentary law advisor, of the South African Law Commission to answer several questions: did he feel there was such a thing as a mixed Bill? Further, did he envision the legislative "short-cut" that Mr Eglin described as being a workable option? And did the Constitution require that any Bill addressing Provincial matters, no matter how minimally, be introduced in the NCOP?

Mr Meyer responded that there is such a thing as a mixed Bill, and this recognition is borne out in the joint rules. Joint rules for dealing with mixed Bills would not exist if there were no such thing as a mixed Bill. As far as the legislative "short-cut" Mr Eglin described, he fails to see how that could be implemented. Cutting parts out of a Bill that deal with Section 75 would be the same as splitting the Bill, with all the procedural and bureaucratic problems that causes; and in any case you could not simply cut-and-paste these sections, as they would not stand on their own out of context. A new Bill would need to be drafted, and that Bill would have to travel the entire legislative process. Finally, it was not the case that a Bill with a small element affecting the Provinces must be a Section 76 Bill, and in fact many Bills like that have in the past been introduced through the National Assembly.

Professor DuToit (ANC) added that splitting sections out of a Bill leads to huge interpretational problems, because it changes the entire sense of the Bill.

The Chair ended the discussion on the Fifth Amendment Bill, and said that given the volume of work to be completed next week it would be a busy week for the various subcommittees.

Municipal Infrastructure Programme
The Chair welcomed Dr Mona Serageldin from Harvard University, who would present to the Committee a review of the Municipal Infrastructure Programme (MIP). She is a city and urban planner, as well as an architect and engineer.

Dr Serageldin presented the results of a study conducted jointly by the Harvard University Graduate School of Design and the Palmer Development Group (South Africa). The mandate of MIP is to improve the quality of life in the poorest areas of South Africa by ensuring access to a basic and minimum level of services. Her team visited 45 MIP project sites, 5 in each province, that included roads, sanitation, water, drainage, solid waste management, community centres, and health clinics. After summarising a sample of the projects that were visited, and the key components of each, she presented the team’s five main recommendations. They are:
1. Balancing programme activities to promote local development and community empowerment.
2. Including expected impact as a criteria in prioritising activities.
3. Reformulating the linkages to housing and other social programmes.
4. Restructuring institutional capacity-building, in order to ensure sustainability.
5. Recognising and disseminating Best Practices in infrastructure management and development.

The Chair thanked Dr Serageldin and her team for their work and their willingness to present to the committee. He regretted that they did not have more time to deal with the implications of her recommendations.