Cross Boundaries Municipalities Laws Repeal & Related Matters Amendment Bill: briefing

LOCAL GOVERNMENT AND ADMINISTRATION SELECT COMMITTEE
10 October 2007
CROSS BOUNDARIES MUNICIPALITIES LAWS REPEAL & RELATED MATTERS AMENDMENT BILL: BRIEFING

Acting Chairperson: Kgoshi L Mokoena (ANC)

Documents handed out:
Cross-Boundary Municipalities Laws Repeal And Related Matters Amendment Bill [B25-2007]

Audio recording of meeting

SUMMARY
The Department of Provincial and Local Government briefed the Committee on the background and reasons for the Cross Boundaries Municipalities Laws Repeal and Related Matters Bill. The provisions of the Bill were explained, clause by clause, and it was stressed that this Bill sought to reintroduce all provisions of the original Cross Boundaries Municipalities Laws Repeal Act, as they applied not only to Matatiele (which had formed the subject of the Constitutional Court judgment) but to the other affected areas of Umzimvubu, Umzimkulu, Alfred Nzo, Maluti and Sisonke. It was noted that the Bill had been published for public comment, and that the public comments had been presented to the Portfolio Committee. Questions by Members addressed the notification of the Bill to provinces, the reason why Matatiele was treated as if it had been a cross-border municipality, clarity on the tables set out under clauses 2 and 3 of the Bill, the impact of the Constitutional Court decisions, and the situation if the Bills were not acceded to.

MINUTES
Cross Boundaries Municipalities Laws Repeal and Related Matters Amendment Bill (the Bill): briefing by Department of Provincial and Local Government (DPLG)
Dr Petra Bouwer, Executive Manager: Compliance, DPLG, summarised that the Constitutional Court had found portions of the Constitution Twelfth Amendment Act (CTAA), dealing with Matatiele, to be invalid because the Kwazulu Natal legislature had not held any public engagement on the issue. However the Court indicated that the invalidity extended to the provisions of the Cross Boundary Act that had dealt with Matatiele. This Act had contained all the consequential operations, including the institutional arrangements to prepare for the local government elections on 1 March 2006. The Court therefore deemed the proposed Section 12 notices, the demarcations, and the MECs for local government and the IEC to be valid, to prepare for elections on 1 March 2006. Secondly, all permits, licences and so forth issued in one province would be honoured in the receiving province. Provincial functions and powers were to be dealt with. This Bill therefore sought to reintroduce those provisions as they applied to Matatiele. For technical reasons, the order of invalidity related only to Matatiele, although it did in fact apply to Matatiele, Umzimvubu, Umzimkulu, the districts of Alfred Nzo and Sisonke This was being done in this new Bill, which would become a separate Act. The State Law Advisors had suggested that a footnote be introduced in the new Bill to alert members to the fact that those provisions had been introduced, and this was contained in Clause 1. The Constitution Thirteenth Amendment Bill was merely replacing all the references to the areas mentioned in the Act, as had been indicated the previous day on the maps tabled. A comparison with the original Act would show the same wording, except for paragraphs (c), (d) and (e) on page 6, which had updated certain references to Eastern Cape notices.

In respect of Clause 4, Dr Bouwer noted that this contained deeming provisions in respect of municipalities. It was thought best to use wording that referred to section 2(4) of the original Act, but which also specified that the operational provisions applied afresh to the municipalities listed in this Bill. This was further explained by the footnote.

The Bill had been published for public comment. The public submissions were targeted mainly at the Constitution Thirteenth Amendment Bill, but all comments were combined and presented to the portfolio committees on Justice and Local Government. The comments were more in the nature of a call for Matatiele to be retained or moved back, but contained no particular substance. The Bill was a section 75 Bill, meaning that Members would vote in their individual capacity in the NCOP.

Discussion
Mr A Worth (Mpumulanga, DA) noted that there would be public hearings on the Constitution Thirteenth Amendment Bill, and asked whether this Bill would also need to be referred to the provinces, and would go through once the Constitution Thirteenth Amendment Bill had been passed.

Dr Bouwer confirmed that this Bill was wholly dependent upon the Constitution Thirteenth Amendment Bill, which would need to be debated first and concluded, before this could be dealt with. The consultation process on this Bill would involve simply notifying the provinces of what was contained in the Bill.

Mr Z Ntuli (KZN, ANC) asked Dr Bouwer to summarise what was the problem that had arisen in the past.

Dr Bouwer responded that there were three main challenges. Practically speaking, the municipalities had had to operate across provincial boundaries - Matatiele had a small "island" in Kwazulu Natal (KZN) and Alfred Nzo had areas spread widely. Wards were determined according to the number of voters and councillors, and if there were not sufficient numbers, the ward would have to link up across provincial territory. The whole Maluti area, which had been economically linked for a long time, needed to be integrated properly, to correct the situation which had arisen even in the interim constitution. When the decision was taken by the Presidential Coordinating Committee to do away with true cross-boundary municipalities, Government saw the opportunity to deal also with this conundrum, and thus had included Matatiele and the other areas in the Cross Boundary Municipalities Act.

However, the provisions in regard to Matatiele were found to be invalid because of the procedural defect, and the Constitutional Court ruled should be corrected by processing legislation afresh. The Court suspended the order of invalidity, and gave government eighteen months to sort out the situation. It was notable that at the time of the judgment, the newly configured structures had already been running for six months, and so the suspension of the order allowed government to continue to operate with the realigned boundary. The matter was further complicated because the whole provincial government was the subject of a White Paper process, and the Department could not anticipate the outcome of that process. That was why the government was complying with the mandate to rectify the defect.

The Acting Chairperson commented that on the previous day comments had been raised that Matatiele was never a true cross-boundary municipality, that the provincial boundaries should not be changed, and that interesting comments would come out of the public hearings.

Dr Bouwer confirmed that the affected areas were not technically cross-boundary municipalities, nor listed in the original cross-boundary legislation, because there was no provincial boundary running through them. However, it was necessary to cross another provincial territory since some of the municipality's "pockets" were situated in Eastern Cape, and others in KZN.

The Acting Chairperson referred to the tables under Clauses 2 and 3, and asked for clarity.

Dr Bouwer explained that Schedule 4 of the original Cross Boundary Act took a proposed demarcation (the first column under Clause 2) and elevated that to a proper description. It then said that in that area there would be a municipality. (The name and designation was in the second column of Clause 2). Then it said that the municipality would fall in a particular province (as seen in Column 3 of Clause 2). It was technically not possible for the MEC in Eastern Cape to issue a Section 12 notice to establish Matatiele, because it did not form part of the Eastern Cape province at that stage. Therefore, the MEC was asked to publish a proposed notice, to say that if the Thirteenth Constitution Amendment Bill was passed, the proposed municipalities would be designated in a certain way. Therefore clauses (c), (d) and (e) listed on page 4 related to these areas. Schedule 5 of the original Cross Boundary Act dealt with slightly different matters. The municipalities listed were stated as being successors in title to a former municipality that existed in that area. Therefore the newly designated municipality, with its new name, in the proper provinces, were included, with the old province listed and the old designation of that municipality for cross referencing purposes (as shown in the fourth column under Clause 3).

The Acting Chairperson noted that this matter must be dealt with during this term, and would be prioritised.

A Member of another Committee (Eastern Cape) agreed that technically these were not cross-boundary areas, and asked how the Court's decision impacted.

Dr Bouwer said that the Bill confirmed the suspension order of the Constitutional Court. If the two new Bills were defeated, the situation would have to revert to the pre-March 2006 configuration, and the Constitutional Court had made it clear that in this event Parliament must come back to the Constitutional Court for guidance on how to deal with the matter. It would affect the reconfiguration, the elections, the new municipalities and so forth.

Mr A Manyosi (Eastern Cape, ANC) asked for details of the Committee's attendance at the briefing sessions.

The Acting Chairperson noted that the office of Chairperson of the House would deal with this.

Ms F Nyanda (Mpumulanga, ANC) noted that the flight details were discussed earlier before the meeting.

The meeting was adjourned.