Constitution Sixteenth Amendment Bill & Cross Boundary Municipalities Laws Repeal & Related Matters Amendment Bill (Merafong matters): Departmental briefings

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Justice and Correctional Services

03 February 2009
Chairperson: Mr Y Carrim (ANC), Mr B Mkhaliphi (ANC,Mpumalanga) & Mr L Tsenoli (ANC)
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Meeting Summary

The Department of Provincial and Local Government briefed the Committee on the purpose of the Cross Boundary Municipalities Laws Repeal and Related Matters Bill and the Department of Justice gave a short briefing on the Constitution Sixteenth Amendment Bill. These two bills were to provide for matters arising from the demarcation of provincial boundaries of North West and Gauteng. In 2005, the Constitution Twelfth Amendment Bill incorporated the Merafong City Local Municipality into the then Southern Districts Municipality in the North West Province. However, following years of protests by the residents of Khutsong, the decision had later been taken to re-determine the boundaries of Merafong to re-incorporate it back into Gauteng Province. There had been concerns expressed by residents, South African Local Government Association and National Treasury on the transitional arrangements, the financial implications, implementation dates and the inability to adjust the 2009/10 budget of Gauteng to accommodate Merafong. Members of the Democratic Alliance and the African Christian Democratic Party indicated that their parties had voted against the original changed boundaries in 2005 as they foresaw problems with the legislation. Other Members noted that there would be valuable lessons learnt from this process, that could also be applied to the situations in Matatiele and Moutse, and that Parliament should interrogate the regulations determined by Ministers when it enacted Laws. It was noted that there were certain areas in the Merafong City Local Municipality that traditionally belonged in the North West Province, who did not want to be reincorporated into Merafong. Members also discussed the possibility that the Bill might not be passed before the 2009 general elections. The Departments of Justice and Provincial and Local Government indicated that it was intended to pass the Bill before the general elections, but that it was still necessary to consult with the Independent Electoral Commission.

Meeting report

Cross-Boundary Municipalities Laws Repeal and Related Matters Amendment Bill (the CB Bill): Department of Provincial and Local Government (DPLG) Briefing
Mr Elroy Africa, Deputy Director General, Department of Provincial and Local Government and other delegates from that Department briefed the Committees, sitting jointly, on the Cross-Boundary Municipalities Laws Repeal and Related Matters Amendment Bill (the CB Bill). He noted that the purpose of this Bill was to provide for consequential matters arising from the re-determination of the geographical areas of the North West Province and Gauteng Province. In 2005, the Constitution Twelfth Amendment Bill had incorporated the Merafong City Local Municipality (MCLM) into the then-Southern Districts Municipality in the North West Province. However, the residents of Khutsong had vehemently opposed this move and had embarked on years of protest, including massive anti-government protests. Eventually Government decided to re-determine the boundaries of Merafong to re-incorporate it back into Gauteng Province.

Mr Louis Nel, a resident of the Merafong Local Municipality, the South African Local Government Association (SALGA) and National Treasury (NT) expressed their concerns with the re-demarcation process. Mr Nel noted that there had been insufficient consultation between Government and the residents of MCLM on the legislation. SALGA indicated that it had reservations about the financial implications, the transitional arrangements and the implementation date. National Treasury proposed further amendments to the legislation in respect of designating a body with an oversight function in monitoring management of the transition. It also indicated that there would be implications on the fiscal framework of the affected provinces and that the 2005 provincial boundary changes were still being felt by provinces and municipalities. The NT also indicated that the 2009 Gauteng Budget could not provide any funds to MCLM and suggested that the status quo should remain until the 2010/2011 financial year.

Constitutional Sixteenth Amendment Bill: Department of Justice (DoJ) Briefing
Mr Fanie Louw, Legal Advisor,
DPLG, said that the previous DPLG presentation had already covered the scope of the new legislation. He said that the current maps would be substituted with new references to the Merafong City Municipality that would now be incorporated into Gauteng. He noted that a notice had been published in the Government Gazette as well as provincial Gazettes. He said that Mpumalanga supported the Bills, but stressed that Government still had to deal with the residents of the communities in Moutse and Matatiele who had also called for a redemarcation.  He said that the Bills had to be approved by the National Council of Provinces (NCOP) as they dealt mainly with issues concerning provinces and local government.

Discussion
Kgoshi L Mokoena (ANC, Limpopo) thanked the ‘People’s Cabinet’ who, after serious consideration, took the decision to listen to the disgruntled people of Merafong and grant their request to be reincorporated back into the Gauteng Province.  He expressed his pride that the ANC Government had taken this decision and said that the residents of Merafong felt the same way.

Mr Y Carrim (ANC) said that lessons should be drawn from the whole process, and that these would be vital once the adjudication on the Moutse and Matatiele claims began in earnest. He said that he agreed that the views of the public were important, but that they could not be the sole criteria to make a decision like this. Other criteria must include municipal boundaries and other opinion. He said that cross-border municipalities were very problematic as the Demarcation Board could make decisions, which had to be approved by the Minister. He said that Members had to shoulder part of the blame for the practical challenges that the legislation had created.

Mr N Nkontwane, Special Advisor to the Minister of Provincial and Local Government, replied that the DPLG would make an assessment of the lessons learnt and this would assist in adjudicating the Moutse and Matatiele cases. He noted that these two cases were contentious as there had been incidences of extreme violence, and community leaders acting as agitators. He noted that these community leaders were more worried about building their public image than the actual issues.
 
Kgoshi Mokoena asked why the National Treasury had proposed that the status quo should remain until 2010/2011, and why there had been claims that not every one was consulted before the process took shape.

Mr Z Ntuli (ANC, Kwazulu Natal) noted that the DPLG presentation mentioned that SALGA had expressed its concern over the transitional and implementation arrangements of the Bill. He asked whether SALGA still had these reservations.

Mr A Moseki (ANC, North West) said it was necessary for the Government to listen to the people of Merafong as the situation had reached boiling point. He said that as a public representative from North West he would be failing in his duties if he did not articulate his views. He stated that the equitable share of the North West would be negatively affected by the reincorporation of Merafong into Gauteng.  He also said that there had been many residents of Merafong who did not protest, nor had they ever been part of the Gauteng province before Merafong was incorporated into the North West. He asked for clarity on how this situation would be addressed.

Mr J Jeffery (ANC and Parliamentary Counsellor to the Office of the Presidency) asked what the situation in Merafong had been before the original transfer. He also asked where the residents of Merafong would vote, pending the finalisation of the legislation. He added that the Minister of Local Government and Administration had indicated that there was no consensus on whether Matatiele and Moutse would be assisted and that the DPLG had to attend to this matter.

Mr Louw replied that the intention had always been to finalise the relevant legislative processes before the 2009 general elections and that the Independent Electoral Commission (IEC) would be have to be consulted if the process was not concluded before the general elections.

Mr Carrim asked whether it would be possible for the Bill to be passed before the general elections, within the ambit of the House Rules. He asked what would happen during the elections and whether Marofeng residents would vote in Gauteng.

Mr Jeffery noted that it was a very serious concern as provincial legislatures would have to be adjusted in both provinces relative to their population.

Mr Louw noted that the voters’ roll closed on the day that the general election date was announced and if the process was finalised before the general elections, then Marefong residents would vote in Gauteng. He said that was important to get the opinion of the IEC in this regard.

Mr Nkontwane added that the DPLG had held a meeting with the IEC where a broad assessment had been done of the legislation. He said that the intention was to have the Marefong voters’ roll incorporated into the Gauteng voters roll, but if this would not be an option whilst the legislation was still outstanding.

Mr Carrim said that it was very important for all Government departments to consider the practical challenges of legislation. He said there was an urgent need to pass the legislation so that the affected provincial governments could communicate this to their citizens.

Mr D Worth (DA, Free State) asked how much the entire demarcation process would cost the South African taxpayers. He said that the ANC should have listened to the DA when the ANC Government first decided to incorporate Merafong into the North West.

Adv S Holomisa (ANC) asked whether the North West Government was happy with the decision taken by the Cabinet.

Ms M Gumede (ANC) said that it was unfair to say that only a certain group of people protested against the Government. She noted that many people who had claimed that they were not part of the protestors, indeed did take part in the protests against the Government.

Mr Myron Peter, Executive Manager, DPLG, replied that the DPLG had consulted with National Treasury and that the latter had clarified its position on the matter. The NT indicated that it would not be possible for it to adjust the 2009/2010 budget to accommodate the financial ramifications of the re-demarcation of Merafong. NT promised, however, that it would collect the necessary data during 2009 to compile a status report on Merafong.

He added that the Division of Revenue Bill 2009 would indicate that Gauteng and North West would continue their spending as usual, regardless of the status of the cross-border municipalities, through a joint agreement between the two Premiers.

He stated that when the DPLG approached the North West and Gauteng provincial governments, they had responded positively to the decision by the Cabinet and had published various notices. He said that the Transitional Committee was busy with discussions on how much the whole process would cost.

Mr Nkontwane added, in respect of Moutse and Matatiele, that he had consulted with the various rival stakeholders in Moutse who had varied viewpoints. He said there were a group that was in favour of the incorporation of Matatiele into Kwazulu Natal and another supporting the incorporation into Eastern Cape, which made for an extremely difficult process. He stated that a new Board was elected that would look at the Moutse and Matatiele disputes. He noted that a Transitional Committee had been established that would address the financial impact of the process. He said that the assessment would also include issues such as nation building, reconstruction of vandalised clinics, schools and other government buildings.

Dr Hillary Monare, Chief Executive Officer, Municipal Demarcation Board said that the role of the Municipal Demarcation Board (MDB) was to determine and redetermine municipal boundaries. He noted that Marefong was on the western side of the cross-border boundary and that all due processes had been followed. He noted that he always believed that Marefong should have remained in Gauteng.

Mr Joel Lance, Chief Operations Officer, South African Local Government Association (SALGA), said that SALGA supported the Bill, but had raised three concerns. He said that SALGA expressed concerns at the implementation process, the financial consequences and the transitional arrangements. He noted that SALGA’s concerns were confirmed by the explanation of the NT. He said that SALGA wanted to prevent health and other social services from being affected by the process.

Mr S Swart (ACDP) said that his party had voted against the incorporation of Marefong into Gauteng as it foresaw problems. He said that the DPLG had seemingly forgotten the Doctors for Life and Matatiele Constitutional Court rulings as there were a substantial number of people who wanted to stay in the North West. He added that many traditional North West towns, including Fochville, who represented 40% of the Marefong City Municipality, had not been consulted during the consultation period.

Mr M Mzizi (IFP, Gauteng) said that the Khutsong mandate explicitly stated that the residents wanted to be incorporated into Gauteng.

Mr S Tsenoli (ANC) said that the DPLG presentation made reference to communities and civil society input during the consultation process. He said that the DPLG should remedy this weakness. He stated that the two Constitutional Court judgments should not be read selectively as all legislation must be mindful of the broader implications.

Mr Carrim added that South Africa was not a federal state and that this influenced unequal development as some provinces were richer then others. He stated that issues such as ethnic identities also played a huge role in why people identified with a certain province.

Mr Carrim noted that Parliament should assert itself against the Executive and guard against Parliament being used as a rubber-stamp. He noted that the Dr Frene Ginwala, the former Speaker of Parliament, had said that Ministers should consult Parliament on the regulations that emanated from legislation. He said that he agreed, as Parliament had to scrutinise regulations before these could be implemented.

Mr Africa said that the Constitutional Court ‘determined’ where provincial boundaries would fall, whereas the MDB dealt with municipal boundaries. He stressed that provincial boundaries thus had nothing to do with municipal boundaries.

The meeting was adjourned.

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