Constitution Thirteenth Amendment Bill & Cross Boundary Municipalities Laws Repeal Amendment Bill: Department briefing

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE; SECURITY & CONSTITUTIONAL AFFAIRS SELECT COMMITTEE: JOINT MEETING
21 August 2007
CONSTITUTION THIRTEENTH AMENDMENT BILL & CROSS BOUNDARY MUNICIPALITIES LAWS REPEAL AMENDMENT BILL: DEPARTMENT BRIEFING

Co-Chairpersons: Kgoshi L Mokoena (ANC), Ms F Chohan (ANC) 

Documents handed out:
Department of Provincial & Local Government (DPLG) presentation on public submissions
Summary of public submissions to Department of Justice
Matatiele Municipality v President of the RSA: judgment dated 27/02/06
Matatiele Municipality v President of the RSA: judgment dated 18/08/06
Doctors for Life v Speaker of the National Assembly and others
Submission by Eastern Cape Legislature
Submission by Marda Horn
Submission by M Longdon-Thurgood
Submission by M Gcabo
Submission by SA Council of Churches
Submission from Matatiele / Maluti Mass Action Committee
 
Audio recording of meeting

Relevant documents:
Cross-Boundary Municipalities Laws Repeal And Related Matters Amendment Bill [B 25-2007]
Cross Boundary Municipalities Laws Repeal and Related Matters Act 23 of 2005:
Constitution Thirteenth Amendment Bill [B24-2007]
Constitution Twelfth Amendment Act, 2005

SUMMARY
The Committees were jointly briefed by the Departments of Justice and Constitutional Development and Provincial and Local Government on the reasons for the Constitution Thirteenth Amendment Bill, which was linked in turn to the Cross Boundary Municipalities Law Repeal Amendment Bill. The Constitution Twelfth Amendment Act had abolished certain cross boundary municipalities and amended provincial boundaries. Matatiele and certain other areas on the borders of Kwazulu Natal and Eastern Cape had been affected. After that Act was passed the constitutionality of the Act in relation to Matatiele was challenged, on the basis that, firstly, the functions of the Municipal Demarcation Board had been usurped by Parliament, and secondly, that there were procedural irregularities as there had not been consultation by the provincial legislatures.

The Constitutional Court rejected the functions argument. It ordered that the local government elections scheduled for March 2006 should proceed, but that further argument be heard before it handed down a decision in August 2006 that indeed the parts of the Act relating to Matatiele were invalid because of procedural irregularities. However, this order of invalidity was suspended so that the new municipalities and functions continued to operate, but Parliament was given until February 2008 to correct the position. The Constitution Thirteenth Amendment Bill and the Cross Boundary Municipalities Laws Repeal and Related Matters Amendment Bill sought to re-enact the exact same provisions as the original Acts, and would only be passed after a full consultation process by both Eastern Cape and Kwazulu Natal legislatures. Although only Matatiele had been commented upon by the Court, it was felt prudent to re-enact all provisions dealing with other affected areas between those two provinces.

The Department tabled maps showing the affected areas, as well as a summary of public submissions received by the Department on the Cross Boundary Bill, which showed that six commentators were broadly in favour of a move to Eastern Cape and three opposed to it. Service delivery and consultation issues were raised in the submissions. The Department felt that service delivery concerns would correctly be addressed by institutional rather than political changes.

Members asked questions on what was regarded as proper public participation, discussed the different approaches that could be used, and clarified whether any of the provinces that were not affected had the right of veto. The Department clarified what steps it had already taken. The point was made that public participation must be seen as a real opportunity to advance and argue points of view. The possibility of a referendum was raised. In respect of the submissions on the Bill, Members discussed the weight to be given to submissions from bodies and individuals, and made the point that the legislatures would have to hold consultation before indicating their final views.

Constitution Thirteenth Amendment Bill [B24-2007]: briefing by Justice Department (DOJ)
Kgoshi L Mokoena (ANC) chaired the first session of the meeting.

Mr Johan Labuschagne, Director: DOJ, noted that the Bill had been distributed already. The memorandum on the objects of the Bill was quite comprehensive. He noted that in December 2005 the Constitution Twelfth Amendment Bill and the Cross Boundary Municipalities Bill were passed, and came into effect in 1 March 2006. The Constitution Twelfth Amendment Act (CTAA) had amended the Constitution to re-determine the geographical areas and to abolish cross boundary municipalities and to amend the provincial boundaries as set out in the Constitution. The Cross Boundary Municipalities Bill effected consequential amendments that resulted from the Constitution Twelfth Amendment Act. Under that Act, Matatiele and certain other areas were to be transferred to the Eastern Cape and new municipalities were created. Before these two acts came into effect, there was then a challenge to the constitutionality, in the case of Matatiele & Others v President of the Republic of South Africa & others, arguing that the change of the boundaries was procedurally incorrect, and that Parliament had taken upon itself the functions of the Municipal Demarcation Board (MDB) that were reserved to the Board.

On 27 February 2006 the Constitutional Court rejected the argument in relation to the reserved functions. It ruled that the local government elections scheduled for 1 March 2006 should proceed. It reserved judgment on the constitutionality aspect, and requested to hear further argument whether the part of the CTAA that transferred Matatiele to the Eastern Cape was passed in accordance with the procedural provisions of the Constitution. On 18 August 2006 the Constitutional Court declared that part of the CTAA that transferred Matatiele to the Eastern Cape to be inconsistent with the constitution and therefore invalid. Because of the inter-relationship with the Cross Boundary Municipalities Laws Repeal Act, the relevant portions of that Act were also declared invalid. This decision was based on procedural defects, since it found that the provincial legislature of KwaZulu Natal (KZN) had failed to hold public hearings or invite public involvement or comments on the transfer. However, the order of invalidity was suspended by the Court for a period of 18 months (until 18 February 2008) to allow Parliament to rectify the matter.

Mr Labuschagne stated that the Constitutional Court's order was formulated with reference to Matatiele only, since the application had been brought only for Matatiele. However, it could be argued that the procedural failure of the KZN legislature could also affect the other changes to its boundaries that had been made under the CTAA, and there could be a knock-on effect. Therefore it was felt that any legislative amendment that sought to address the procedural defect for Matatiele, should also contain references to the other municipalities transferred at the same time to the Eastern Cape.

The effect of the suspension of the Order was to give Parliament time to remedy the Constitutional defect and adopt a new amendment. The results of the elections would stand, and the new municipalities that had already been created would likewise continue in existence.

Parliament now was being asked to adopt the Constitution Thirteenth Amendment Bill (the Bill), which sought to address the defects. Only those provisions of the CTAA that referred directly to KZN and Eastern Cape transfers needed to be substituted and re-enacted, and exactly the same wording was being used. Therefore the Bill was in essence reaffirming all that the CTAA had contained.

From a procedural point of view the Bill needed to be approved by the NA and the National Council of Provinces, once the Bill had also been approved by both Eastern Cape and KZN legislatures. The Bill as approved by Cabinet had been published and comments were sought from the provincial legislatures. The provincial legislatures would have to hold public hearings and approve the terms of the Bill. There was some urgency, and the Bill would have to be passed by the end of the year, otherwise the areas would automatically revert to KZN.

Discussion
The Chairperson thought there was a difference between public involvement and public participation.

Mr D Worth (Free State, DA) noted that there were nine provinces and all had voting rights. He asked what would happen if one or two provinces objected, and if

Mr Labuschagne said the Constitution provided that if a Bill to be adopted by the NCOP concerned one or more provinces, the NCOP could not adopt it unless the Bill had been approved by the affected legislatures. Therefore Eastern Cape or KZN could decide not to pass the Bill, but the other provinces that were not directly affected would not have veto rights.

Ms N Mahlawe (ANC) asked for clarity on public participation.

Mr Labuschagne said that the Constitutional Court did not give clear guidelines on what "public participation would entail. However, it referred to previous cases and noted that there must be reasonable public involvement. The obligation could be fulfilled in different ways and was open to interpretation by provincial legislatures. The public should be provided with a meaningful opportunity for public participation in the lawmaking process, and measures should ensure that they could take advantage of this opportunity to participate. Possible examples cited by the Court included the holding of public hearings, providing transport to them, or a call for public comments. The Court did not give a specific ruling and said that what was reasonable would vary from case to case.
 
Mr S Swart (ADCP) asked how the level of public participation would be evaluated by the NA, and what information would be put at Members' disposal. He would not like there to be another Constitutional Court challenge. He asked if there was anything in writing to clarify what had been done to satisfy public participation

Dr Petra Bouwer, Executive Manager: Compliance, Department of Provincial and Local Government (DPLG), said that the Court had emphasised the issue that in dealing with public involvement, each of the provincial legislatures was autonomous, and could therefore decide what reasonable methods to use. The particular legislative body's function in the process must be looked at to determine the level of public engagement that would be required. Some legislation would not involve the provinces directly, and thus the level of engagement there would be very different to the situation where it did directly involve the provinces. The level of public engagement in the National Assembly was likely to be lesser than required at NCOP level, otherwise there would be a duplication of processes and a waste of money. He believed that if the NA Portfolio Committees engaged with comments received, this would probably be sufficient public engagement.

A team of officials from DPLG had visited the two legislatures to engage with them on what was required. The two legislatures would have to have extensive public involvement. It was not sufficient to consult only in the areas to be released. As a result of the suspension, Umzimkulu was no longer part of the Eastern Cape, and so DPLG had suggested that the two provinces have joint engagement in the affected areas. It had been suggested, although not directly said in the judgment, that provinces losing and acquiring land should consult.

Dr T Delport (DA) said that public participation must be seen as a real opportunity to advance and argue points of view and to persuade the powers one way or the other. It would be meaningless if the views were merely allowed, and then ignored. He asked if Government had ever considered a referendum, as that would no doubt give a clear indication of the views of the majority.

Mr S Shiceka (Gauteng, ANC) noted that there was no prescription that a referendum be used, and this had not been done in the past. He wondered if there was a danger of a challenge to the proposed legislation.

Dr Bouwer noted that Government was facing a challenge. The decision to move the boundaries had been taken and the process put in place under the Constitution Twelfth Amendment Act. He was not sure that a referendum on the process would be appropriate. The consultation process would be honest, and DPLG needed to know the views of the people. However, having said that, it should not be expected that there would be changes to satisfy purely emotional reasons. There must be good reasons advanced in support of requests. If the reasons put forward in support of change pertained to institutional challenges, such as service delivery, the appropriate response to the comments would be based on an institutional plan, rather than a legislative change. The two legislatures now understood this and were better equipped to engage meaningfully with the people on the ground.

Dr Bouwer added that the CTAA came into effect on 1 March 2006, so Government had then started to give effect to the cross boundary amendment. The judgment that found the relevant portions invalid was given in August 2006. A whole range of institutional changes had already taken place, such as realignment of budgets and fronts. The challenge was to manage the process while addressing the defect.

The Chairperson pointed out that the Constitution referred to public "involvement" not "participation".

Dr Delport added that it did not really matter what word was used; the principle was that the public involvement must include a real opportunity to sway the views.

Ms F Chohan (ANC) said that there was a general issue around public participation. The judgments almost seemed to suggest that the Courts would assess after the event whether a  legislature had conducted a reasonable public involvement process. There was no certainty up front as to what would be regarded as reasonable. Dr Delport had made a good point that "meaningful" engagement should allow opportunity to persuade. The question was whether engagement would be regarded as reasonable if views were rejected. Members of legislatures had to assess what would be in the best interests of the country as a whole. She cited the example of the public hearings around same-sex marriages, which seemed to suggest that the majority of the public was opposed to such marriages, yet the final decision of Parliament was that constitutional and societal interests outweighed individual objections. This did not necessarily mean that the public participation process was not meaningful. Rational, meaningful and purposeful consideration of all written submissions before deciding whether they should be accepted was important. Legislatures were being forced to define as policy what would be considered reasonable. Ms Chohan also drew attention to the minority judgment in this case, which said that public participation was not an essential element of the law making process. In so far as the query around the referendum was concerned, she urged caution, in view of past history. The holding of referendums might become more relevant when there was no longer a disparate society. The determination of provincial boundaries did not solely depend on where people wanted to be, but would also depend on other issues.

Ms Chohan noted that the judgment had stated that the NA process had been found in this case to be appropriate, and the same procedure was now being followed for the Constitution Thirteenth Amendment Bill. In the Kwazulu Natal (KZN) legislature it was not necessary for the Court to rule on the quality of the participatory process, as there had simply not been one. There would now be public participation in KZN. She agreed that the advice to the legislatures to have joint hearings was the most prudent way to proceed.

Public submissions received by Department of Justice (DOJ)
Mr Labuschagne noted that the Bill had been published in the Government Gazette. Five submissions were received and submitted to the Speaker of the NA and the Chairperson of the NCOP. Members had been circulated with copies of the submissions, and with a further document summarising ten submissions on the Cross Boundary Municipalities Law Repeal Amendment Bill. Some of those submissions also addressed the Constitution Thirteenth Amendment Bill, and he would deal with those submissions in this presentation.

The Matatiele / Maluti Mass Action Committee had indicated that it opposed the removal of Matatiele to the Eastern Cape, and demanded the right to public involvement in terms of Section 118(1)(a) and had even called to appear in the legislature of KZN. The community claimed it had been given no good reasons for removal to the Eastern Cape. It further complained that there was not an accountable, open and transparent process when the CTAA was passed.  It requested that both bills be withdrawn from Parliament.

Mr M Gcabo had indicated that he opposed the moving of Matatiele to Eastern Cape, based on section 24 and 25 of the Local Government Municipal Demarcation Act, which had listed Matatiele as part of KZN.

The SA Council of Churches noted that the amendment Bills were dealing with the technicalities of redrawing of municipal boundaries. Socio-economic costs were a major factor, and it was unknown how the people in those areas would be economically affected. The moving of the capital centre to Bisho would result in residents having to travel seven hours, as opposed to two hours to reach Pietermaritzburg. It called for a proper public participatory process.

The Eastern Cape Provincial Legislature had indicated that it supported the adoption of the Bill, but had not indicated that it supported the Bill.

The KZN Provincial Legislature indicated that it noted the Bill, and said that it was not in a position to hold public hearings at this stage. However, once the Bill entered the NCOP cycle, the Committee of that legislature would hold public hearings.

Mr Labuschagne said that the Department had received two more submissions on that morning, which it had not had a chance to consider in depth or summarise. It would do so and would distribute a further summary to Members.

Mr Labuschagne summarised that of the ten submissions, six supported the move of Matatiele to Eastern Cape. Three were against it, and one was neutral. Seven of the submissions did not relate specifically to the Constitution Thirteenth Amendment Bill but dealt rather with the principles.

Discussion
Mr L Landers (ANC) referred to the submission from the Eastern Cape Legislature, and noted that the Constitutional Court had ruled that there must be public participation or involvement. He was seriously concerned that this legislature indicated its support for the Bill despite the fact that there had as yet not been such consultation.

Mr Shiceka said that the legislature should be advised that they must wait for the process, and agreed that they had jumped the gun in expressing a view. 

Mr Labuschagne stated that there were two steps in the process. Once the Bill had been approved by Cabinet, it was published in the Government Gazette for the views of the provincial legislatures. The Eastern Cape Legislature had indicated that it supported "the adoption of the Bill" but had not actually commented on the Bill's terms.

Dr Bouwer reiterated that although the judgment related to Matatiele only, the defect in fact applied not only to that area. Therefore it was necessary to take into account the other areas, although they had not raised a challenge. The NA and NCOP had in fact voted in favour of the changes that were effected under the CTAA. In the Interim Constitution this had been a "contested" area and allowance was made for a referendum as to whether there should be creation of a tenth province. That referendum never materialised, which was the reason for the problem of the cross-boundary areas. If one was still to talk about the possibility of a referendum, then this was raising the whole constitutional issues again. It would be dealt with in a White Paper setting out policy.

Dr Delport said that the submissions could not simply be compared as for or against the move to the Eastern Cape. The view of the Local Council should surely hold greater weight than that of one individual. This was not the same as a referendum, where the number of votes would be counted. The Department could not assume that the majority were in favour of the transfer to the Eastern Cape.

Dr Delport said that his earlier point about the referendum was aimed at the difficulties of trying to assess the majority view. He agreed that the Constitutional Court had allowed some latitude as to how to consult.

Ms Chohan did not disagree with Dr Delport's point about the weight of submissions, but had not thought that the Department was simply assessing the number of submissions in favour and those against. The perception of a groundswell of public opinion against the transfer to Eastern Cape was perhaps not true. The NA could not pass or refuse the legislation, or amend its provisions, because of the process whereby the legislation must be put to affected legislatures, and they would take the ultimate decision whether this Bill, in its current form, would be passed. The Eastern Cape had merely given an indication of their view that it was desirable to have a Bill.
 
Imam G Solomons (ANC) had understood that the "meaningful participation" comments were directed at the provinces. Since they had not yet consulted, it was premature to consider what they said.
 
Background Information on Reasons for Constitution Thirteenth Amendment Bill: Briefing by Department of Provincial and Local Government (DPLG)
Ms F Chohan took over as Chairperson of the Committee

Dr Petra Bouwer indicated that he wanted to summarise again the background to the provincial boundary matters, to put the Bills into context.

Dr Bouwer stated that if one were to adopt a very technical approach, the areas affected by this Bill could not accurately be described as "cross-boundary areas" because they were not run through directly by a provincial boundary. However, there was a problem with them in that parts of the District Municipality of Alfred Nzo sat in Eastern Cape and parts in KZN. He tabled a map showing the Alfred Nzo District Municipality. Matatiele had an "island" falling within Eastern Cape. Both municipalities had to cross provincial boundaries to attend to parts of their own areas. The challenges posed by this included the problems of linkage of wards and consultation with constituents. The Maluti area technically formed an integral part of the old Matatiele configuration. In order to create cohesion, the DPLG would normally have had to go through the process of disestablishing a boundary, and then re-establishing it. However, the DPLG had the opportunity, while dealing with cross boundaries elsewhere, to short-circuit the procedure in these areas now being discussed.

Dr Bouwer indicated that if the DPLG had to reverse the process, there would be some difficulty in what exactly it was reversing. If it were to revert to the pre-March 2006 position then this would not include the Maluti area. The judgment did not only affect the small Matatiele area but also the Sizonke municipality and other areas that he indicated on the map. He tabled a comparison of the original and reconfigured Matatiele. The new Alfred Nzo District now consisted of Umzimvubu and Matatiele. He stressed that the changes had been aimed at establishing an integrated cohesive municipality to deliver services to all inhabitants, and not only to those in the urbanised portion of the area. It was noted that all comments received had been from those residing in the urbanised areas.

Dr Bouwer added that since 1 March new budgets had been agreed, there had been transfer of assets and functions through protocol arrangements and service level agreements had been entered into. The provincial functions and budgets had been realigned. He said again that the Department was seeking the concerns of the people, but if these concerns were about service delivery or other institutional issues, then it would be more appropriate to address them by an institutional rather than a political response.

The Chairperson indicated that she hoped that the Committee could deliberate further on the matter by the following Tuesday.

The meeting was adjourned.