Constitution 16th Amendment Bill & Cross Boundary Municipalities Laws Repeal Bill (Merafong): response to submissions

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Justice and Correctional Services

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

The joint Committees reconvened to consider the submissions on the Cross Boundary Municipalities Laws Repeal and Related Matters Bill and the Constitution Sixteenth Amendment Bill (16th 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 had incorporated the Merafong City Local Municipality into the then Southern Districts Municipality in the North West Province. However, following years of protests by some of the residents of Khutsong, a decision had been taken to re-determine the boundaries of Merafong so as to re-incorporate it into Gauteng Province. There had been concerns expressed by some residents, South African Local Government Association and National Treasury regarding the transitional arrangements, the financial implications, implementation dates and budgets. It was noted that further deliberations were still required with the Independent Electoral Commission in respect of political representation and the boundaries, and it might be that an accurate determination could only e done for the 2011 Local Government elections.  The South African Local Government Association noted that the financial implications of the proposals were yet to be clarified, as well as the impact on the provinces and municipalities. All relevant departments, and that Association, were cooperating in the process. Members cautioned that it might be necessary to ensure that those making submissions properly represented those whom they purported to represent, as it could be that some people with their own agendas might be trying to influence the issues.

Members discussed what type of responses should be sent by the Committees, and the obligation upon Parliament to consult widely was again highlighted. It was noted that there had been consultations in every ward. A Member suggested that a most appropriate way of solving the problem would be to use socio-economic profiles. The Committees would reconvene on the following day to go through the Bills clause by clause.


Meeting report

The Chairperson reminded the Members that the previous day they had heard submissions, and he requested comment from the legal advisers on those. He also drew attention to submissions from the Laerskool Losberg, Kgajie, a petition from the Democratic Alliance Merafong, the Merafong Construction Forum, and also the Independent Electoral Commission (IEC) and the Demarcation Board. He requested the response from the legal experts on these submissions.

Mr Fanie Louw, Chief Director: Legal Services, Department of Provincial and Local Government, advised that Section 23 of the Demarcation Act required further deliberation with the IEC on the basis of whether the proposals might affect political representation. There were certainly political repercussions insofar as Merofong was concerned, and the municipal and provincial boundaries might require to be re-drawn. The Democratic Alliance’s submission had been the only one that addressed this aspect, and it seemed at this stage that an accurate determination could only be made for the 2011 local Government Elections. It could conceivably be that Merafong could be re demarcated in terms of Section 24 of the 2005 Act. However, without the time to research the position he was not willing to commit himself to such a view. However, he cautioned that this Bill would override the Demarcation Act.

The Chairperson pondered as to whether it was possible for the Demarcation Board to conduct the necessary exercise from the 2008 Local Government Amendment Bill.

Mr Louw said that he thought it superfluous.

The MDB representative said he saw the current Bill as reflecting upon the powers and functions of the Municipalities at District and Local level and he observed that the true situation had been as described in the White Paper. Secondly with regard to Provincial Boundaries he saw the position as requiring reference to the Municipalities and not the Provinces.

The Chairperson said he was aware of the complexities involved and regarded them as a “work in progress.”

Mr Jakkals Mokgatle, Deputy Manager, Department of Provincial and Local Government (DPLG) advised that the viewpoint of the National Treasury should not be discounted and that the initial provisions of the Cross Boundary Municipalities Bill had perhaps overlooked such factors. He advised that the DLPG did co ordinate with SALGA and the National Treasury.

Mr John September, representing the South African Local Government Association, stated that while the protocols were still to be spelt out, he emphasised that Parliament did have the ultimate oversight role. In this regard he submitted that the financial implications of the proposals had to be clarified, as also the impact upon the Provinces and the three municipalities concerned. He cautioned that care had to be taken against setting precedents when moving forward.

Mr Louw pointed out that Clause 5 of the Bill already re emphasised that there was to be oversight of the process by the NCOP

The Chairperson sought confirmation that there was indeed internal communication between all the parties and that especially SALGA and the Departments would be co-operating.

A DPLG representative cautioned that attendance registers should be taken at all the consultation meetings to ascertain that all the petitioners did in fact come from the districts concerned. Also that they were not travelling from meeting to meeting duplicating the submissions without the consensus of the parties and stakeholders they claimed to represent.

The Chairperson asked whether both Mr Nel’s role and the names appearing on the petitions through the DA had been verified and validated.

Ms M Gumede (ANC) cautioned that persons often wrote in to Parliament claiming to represent bodies that would later state that they had no knowledge of the writers. She asked if the letters addressed to the Committees in respect of the demarcations had been validated. She cautioned that if this was not done there would be an endless stream of complaints and finalisation would never be achieved.

The Chairperson reminded the Members that all expressions of opinion were important.

Mr Z Ntuli (ANC) asked what manner of response there had been to the submissions, and suggested that merely acknowledging receipt without engagement on the substance of the petition was inadequate.

The Chairperson advised that acknowledgment, initially, was important, but that a fuller response was required. With regard to the consultation with the persons who had made representations or submissions,  this was the role of the NCOP and he believed that this should be left in their capable hands. He added that there was an obligation to consult, and conceded that it was insufficient or inadequate consultation in the past that had given rise to the current problems.

Mr B Solo (ANC) warned that silence could be interpreted as consent and he wished to know what the letters received were actually saying.

A Member suggested that the NCOP must go and consult fully and effectively.

Mr W Doman (DA) stated that he did not believe that there should be any stifling of views, and that all views and opinions should be sought, so that a decision could be taken for the good of all. He added that he saw this as not taking top-down decisions, but providing good leadership.

In response to a Member’s observation that he did not know the area well, the Chairperson stated that the geographic areas were very important and Members clarified where the areas were.

Ms Gumede said that in view of the discussion regarding geographic areas, she reserved her right to question whether a proper consultation of the people had been undertaken. She stated that people did not go the meetings and then complained that they had not been consulted.

Several Members discussed whether the fact that the stadium had been filled meant that there had been sufficiently widespread consultation, and whether this also implied that there had been concurrence.

Mr September stated that there had been consultations in every ward and that this process would continue.

Mr Solo said that the time for platitudes was over and there must be consultation in the fullest and widest sense of the word.

Ms Gumede cautioned that a proper consultation must be with real people who really represented and spoke for the people. She warned that stakeholders could be activists with their own agendas, and as such they were dangerous to the process. She added that if there was not proper consultation there could well be another uprising.

Mr Doman said that after consultation there would always be some people who were happy with the outcome and some people who were aggrieved by the outcome, but the decision must be taken in accordance with what was good for the majority. This was what his party considered to be democracy.  He added that making the community of Khutsong happy made Fochville unhappy, and although one must expect a few problems he asked whether there was not some way whereby both parties could be satisfied through a compromise.

Mr Solo warned that there had been problems in the past that made him cautious. He wanted to close all the gaps and ensure that the decision taken was the final one and that this matter would be put to rest forever. He suggested that the socio economic profiles would be the most appropriate way of solving the problem, warned that there were no clear and easy answers, and called for realism in addressing the question.

Ms Gumede said that she felt the opinions of the stakeholders were over-valued and that they did not necessarily put forward the feeling of the people on the ground.

Mr Ntuli asked whether the Department had specific ides of what the people wanted. He wanted to know who should be consulted because not everybody attended every meeting, other than the activists who had their own agendas.

The Chairperson said that in the previous day’s presentation the Committee had been informed of consultation with 26 wards, but no details of the depth of consultation had been given. He warned that the Committee must consider all factors and then make a decision.

The meeting was adjourned at this stage so that Members could listen to the President’s address.

Afternoon session:
On resumption of the meeting, the Chairperson remarked that it would be difficult to keep the presence and attention of the Members, as the election date had been announced as 22 April 2009, although it had yet to be officially proclaimed.

Mr Louw added that the proclamation of the date of the election must be done timeously so as to provide the IEC with 60 days for its administrative procedures. That proclamation closed the voters’ rolls.

The Chairperson returned to the agenda and asked whether there were any further submissions, and was assured that there were not.

The Chairperson noted that he had discussed the Bills with the Gauteng MEC, who shared the views of this Committee, and that he would be trying to speak with the NCOP, as the Provinces had a veto in matters affecting the provinces. He suggested that the Committee reconvene on the next day to go through the Bills clause by clause,

Mr Doman asked what would be the position if the majority of the Merafong residents wished to transfer to Gauteng, but the majority of the Municipality wished to remain in North West, and wondered how this would be accommodated without further unrest.

The Chairperson said that broad areas had been raised by the Demarcation Board, and the IEC should clarify more, and then it would be for the Committee to make a decision, having regard to the broader issues. He said Bushbuckridge was a salutary warning, for there always were other issues of a non legal kind, to which Parliament should pay attention, if they could be identified and clarified. Parliament served the people but was limited by the input it received; hence the importance of consultation, and the nature of the consultation.

Mr September noted that the Bill was short, but that it should be read, for its intent, together with the principal Act. He noted that the 2005 Act had needed three months for implementation. In view of the recent announcement of the election date, he wondered whether there would be sufficient time for the implementation of the procedural steps to achieve the intention of the Bill.

The Chairperson then said that he required SALGA and the other stakeholders to unambiguously put forward their wishes and concerns so that the voice of local government could be heard and taken into account.

The meeting was adjourned.


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