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PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
4 September 2007
CROSS BOUNDARY MUNICIPALITIES REPEAL AND RELATED MATTERS AMENDMENT BILL: DISCUSSIONS
Chairperson: Mr S Tsenoli (ANC)
Documents handed out:
Opinion by Chief State Law Advisor on referring Bill to National House of Traditional Leaders
Cross-Boundary Municipalities Laws Repeal And Related Matters Amendment Bill [B 25-2007]
Audio recording of meeting
The Committee had called for public submissions on the Cross Boundary Municipalities Laws Repeal. Members queried the fact that advertisements were placed in national publications and suggested that in future, local press and radio stations would be appropriate. The Department of Provincial and Local Government indicated that it was still busy with a draft report on service delivery, and this would be made available shortly. The Committee would be considering the judgments on the question of public consultation, as expressed in the Matatiele cases the following day. Members raised concerns as to what had happened at the time of the Constitution Twelfth Amendment Bill. The Department noted that it was taking steps to rectify the defects, and wanted to hear the views of the people, although it stressed that the most appropriate response would not necessarily be an alteration of boundaries, but could be institutional improvement of service delivery. The Committee discussed proposals made by the Independent Electoral Commission to try to fast-track setting of addresses throughout South Africa. The Committee took a resolution that, having heard that there was an informal request for fast-tracking the giving of addresses, and being concerned about the effects on service delivery, the Committee urged those departments and delivery agents concerned to fast track the issue.
Advertising for public participation
The Chairperson announced that the Committee had now called for public submissions and the closing date for these was 5 September.
He noted that in view of concerns expressed, the Department of Provincial and Local Government (DPLG) had been asked to come forward and give an update on service delivery, particularly in the areas affected by the most recent Bill.
Mr P Smith (IFP) asked where the advertisement had been placed and when the Committee would be meeting to discuss the submissions.
The Chairperson said that once the submissions had been received, the Committee would be able to set a date. He stated that the advertisement was placed in Mail & Guardian, Business Day, Sunday Times and The Sowetan.
Mr Smith commented that these publications were unlikely to reach people in Matatiele. He asked whether the local newspapers had been used.
The Chairperson said that they had not, and that hindsight was an exact science. Those concerned with the matter had developed sophisticated systems of finding out what was going on, so he did not think that interested people would be excluded.
Mr B Solo (ANC) said that this was certainly a matter that he thought needed further discussion, and perhaps the question of publication should be raised through the Chairperson's office. The people in these communities were very poor. The newspapers mentioned, even if available, would be expensive for them. He stressed that community radios and electronic media stations should be used.
The Chairperson said that these decisions had been taken already; it was a question of effective implementation.
Mr Smith recalled that when dealing with the Municipal Systems Act, the Committee had made it mandatory to publish in local media. The question was whether this Committee was compliant with its own junctures. If not, perhaps it needed to adjust its own timeframes and consider another approach.
Dr Petra Bouwer, Executive Manager, Compliance, Department of Provincial and Local Government (DPLG) said the Municipal Systems Act applied to municipalities and was not applicable in law to this Committee.
The Chairperson pointed out that the decision to use local papers was not always workable. The Committee was here also responding to the requirements of the Constitutional Court, which had set deadlines. He thought that it would be very dangerous to tamper with these deadlines.
Mr S Mshudulu (ANC) noted that whilst the failure to advertise in local papers might be unfortunate, the involvement of both provincial legislatures, and the work they were doing to make people aware, must also be taken into account.
The Chairperson said that the Committee knew that people did have the information and had indicated that they would send through responses.
Briefing by Department of Provincial and Local Government (DPLG)
Dr Petra Bouwer indicted that there had been two firm requests from the Committee; the first requested a report on the status of service delivery in Matatiele, and the second was a request for briefing on all court cases related to the public engagement process.
Insofar as service delivery was concerned, the Department had drawn a draft report, but was awaiting final sign-off once it had managed to get the final figures. It was hoped to finish this by the end of the day, and this would be available at the next day's meeting.
Insofar as the cases were concerned, Johan Labuschagne from the Department of Justice would discuss the two Matatiele cases brought before the Constitutional Court, and also the Doctors for Life matter, which discussed the principles of public engagement. This would be done on the following day.
The Chairperson said that one interpretation was suggesting that these court cases were reflecting a "trend" of the manner in which Parliament was working. The obligations rested on all three spheres of government. He asked what the court cases were actually saying. Further, he would like to know what did Kwazulu Natal (KZN) Provincial Legislature give as their reason for not holding public hearings, and what had the court said about that reason. He noted that the timing of the Health Bills was very closely tied in, and explained to Members that this was the reason why all the cases would be covered together.
Mr Smith said that the Committee was concerned with the legislative side of the process. Many Bills, before being tabled in Parliament, went through an executive process and might be amended already at this process. This appeared not to have happened two years ago. The public consultation seemed only to have started once this matter reached Parliament.
Mr Bouwer replied that it was at the parliamentary level of consultation that the discussions were held. The whole argument on the right to reside in a particular province did not in fact turn on whether there was a right, but on the importance of public engagement in such a process. Paragraphs 79 - 83 of the Matatiele judgment were the introduction to the statements about public engagement, and served merely to illustrate that in matters like this, concerning the place where a person would live, the engagement would have to be at a higher level. He stressed that DPLG was not starting with a new process, but was taking steps to rectify the defect. The legislation had to be processed afresh, but it could well be that the institutionalisation, from 1 March 2006, in terms of the new provincial boundaries would not be set aside. DPLG had already given effect to the Constitution Twelfth Amendment Act as passed. That did not mean that the DPLG was not open to be convinced otherwise. However, it must be remembered that the most suitable response to submissions might be not to redraw the boundaries, but to address specific issues of service delivery.
Dr Bouwer agreed that perhaps there was not good enough communication. In preparing for the Khutsong court case, DPLG had now been at pains to express facts and opinions clearly in the court papers. People tended to confuse local government matters with broader considerations. In aligning provincial boundaries, the DPLG had to look at the integrity of the whole area. There must be a synergy between the Department and the Municipal Demarcation Board (MDB). The Justice Committee had seen the maps that pointed out what would have happened if certain boundaries had been put in certain places, and he would show these also to this Committee.
Mr M Swart (DA) noted that the consultation process was important for the court. He wondered if the issue of the advertisements only in certain newspapers would be enough to constitute a challenge.
Dr Bouwer said that this had been debated. He had said that a simple Bill would not necessarily require public consultation. However, it would be necessary in a matter that clearly affected the lives of many. Clearly this Bill needed a consultative process, but it must be remembered that the Bill was going through an integrated process, also involving the provincial legislatures. He believed it was not necessary to replicate the fullest consultation at every single level. Taking into account that the last process embarked upon by Parliament was not criticised in that court case, and the fact that the same steps were being followed, he would believe that what was being done at national level could be challenged.
The Chairperson said that the advertisements had called for public submissions and that it was expected that the provinces would hold public hearings. He felt that people were definitely informed. At the Committee section level, communication would be targeted appropriately.
The Chairperson noted that there were certain time frames used by the Department. Some submissions had complained about these, but often the nature of complaints indicated that there was under-estimation of time frames during which people could make their submissions. There was of course a dual opportunity and people could comment both when the Bill was first published and when it was being considered by the Committees. The information about the dual opportunity should also be conveyed to the public.
Mr Smith raised the point that one organisation, representing a certain number of members, would not necessarily carry the same weight as a number of individual submissions. The number of representations would not determine their significance or value.
Mr Smith asked, at the time that the Constitution Twelfth Amendment was first being processed, whether there had been due regard given to the inputs made.
Dr Bouwer said that there were consultations at that stage. The Minister, during that period, also personally visited those areas that were affected to engage with the people. The Executive had certainly consulted. .
Mr Smith asked whether it was obvious that those comments had been listened to.
Independent Electoral Commission discussions on addresses
Mr Smith added that the Independent Electoral Commission (IEC) was apparently intending to raise the difficulties around addresses for electoral purposes. There was currently no national address system for South Africa, and this was a long-outstanding problem. The proposal was to place an obligation on municipalities to give an address to everyone resident in that municipality.
Dr Bouwer said that the electoral legislation would fall under the Department of Home Affairs (DHA) so that there was ministerial division of labour. Requiring everyone to have an address would flow from the IEC legislation, not the Municipal Systems Act. This would be a new function given to municipalities if it were to do the work of Home Affairs.
Mr Mshudulu said that he could recall that Stats SA did report on a project regarding addresses and the politics around them. He also noted that the post office would be giving addresses.
The Chairperson said that Stats SA were working with municipalities, but this was not necessarily for electoral purposes. It was more a question of getting access and being able to offer emergency services when needed. It affected a number of municipalities. The combination of increasing migration and urbanisation had created sprawling settlements that were not properly managed, and municipalities were unable to prevent this happening. Pre-1994 the land had been occupied in a fairly organised manner. The idea of a settlement must encompass planning for access points, roads and so forth. The IEC's concerns were legitimate. He was not sure that this should be done by legislation. Perhaps the Cluster would need to communicate what support government could give to ensure implementation.
Mr Mshudulu said that the data on addresses was in itself unreliable. More work must be done in this area.
The Chairperson pointed out that the majority of people did have addresses, even if these were proxy addresses.
Mr G Swathe (DA) noted that there was a particular problem in Limpopo. People did not know whether to use the Eskom numbering, or municipal numbers that were reflected on title deeds.
The Chairperson said that the Demarcation Act was at the heart of this. A key issue was precisely that of service delivery. The services must be able to be identified. The Department should give a progress report on implementation.
Mr Smith said that this item had been on the agenda for years. IEC said that they had concluded the issue, and had concrete proposals to make. He believed that any municipality would have to provide addresses to its residents, and it would not make any difference whether the purpose was for electoral matters or anything else. He thought that perhaps DPLG should be pursuing the matter.
The Chairperson stressed again that the service delivery required an integrated government approach. It may well be happening at municipal level. The Committee could formally adopt a resolution that, having heard that there was an informal request for fast-tracking the giving of addresses, and being concerned about the effects on service delivery, the Committee urged those departments and service delivery points to fast track the issue.
Members adopted the resolution. It was noted that the Members could not specify how this should be done, nor whether it should be included in the Local Government Bill.
Cross Boundary Municipalities Laws Repeal and Related Matters: Consultation with traditional leaders: briefing by State Law Advisors
The Chairperson tabled an opinion which had been received from the Office of the Chief State Law Advisor, addressing the Committee’s question as to why this Bill had not been referred to the National House of Traditional Leaders. The Committee had indicated that it would see no harm in having this done, as long as the time frames allowed; although it was apparently not legally required it would be politically desirable..
Mr Herman Smuts, State Law Advisor, noted that the Cross Boundaries Bill did not pertain to traditional law, as defined. Therefore the Traditional Leadership and Governance Framework Act did not require it to be referred to the National House of Traditional Leaders. He confirmed that it was the opinion of his office that the Department could refer the matter, but there was no legal obligation on it to do so.
Committee business: Oversight in Mbizana
The Committee Secretary noted that seventeen committees were identified to do oversight in Mbizana. This would take place from 10 to 14 September. The Committees would then draw up a report, to be presented at the People’s Assembly from 17 - 19 September. The Committee's proposed visit would depend upon whether the Committee could deal with the Cross Boundary Bill. This was scheduled for debate on 20 September. If the Bill was to be passed on that day, then this Committee must take a resolution on 12 or 13 September. If it was not possible to do this, then this Committee might have to forego this oversight visit.
The Chairperson noted that the Cross Boundary legislation was linked to the Constitution Thirteenth Amendment Bill and the two must be passed together. This must be communicated to all Members so that full justice was done to it. He noted that the Bill was scheduled to be in the National Assembly on 20 September. He wondered if this date had a bearing on what happened in the provincial legislatures.
Dr Bouwer explained that formally the provinces could not move on their processes until this Bill was passed by the NA. The two provinces had already started on an educational programme so that there would be meaningful engagement. The NCOP cycle must also give sufficient time for engagement. Also, from a numbers' point of view, this Bill was linked with the Constitution Thirteenth Amendment Bill, which required a greater majority (being a constitutional matter) to be passed. The two Bills must be heard together.
The Committee Secretary added that this Bill had to reach the NCOP cycle by 19 October. The timing of 20 September would allow for this deadline to be met.
Mr Mshudulu noted that this was a question of logistics. If the visit was held, he thought it would be useful to confirm also with other committees that were dealing with developmental issues such as Integrated Transport Planning, and that joint meetings would assist time planning.
Adoption of Minutes
The Committee tabled and adopted the Minutes of 19 June, 8 August and 21 August, subject to a technical amendment.
The meeting was adjourned.
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