Constitution 16th Amendment Bill; Cross-Boundary Municipalities Law Repeal Bill: briefing

NCOP Security and Justice

18 February 2009
Chairperson: Mr Kgoshi L M Mokoena (ANC) (Limpopo) & Mr B Mkaliphi (ANC) (Mpumalanga)
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Meeting Summary

After a briefing on each of the Bills from the Department responsible for each. The Legal Advisors commented on the public participation process and in view of the forthcoming elections, noted that time was of the essence as the enactment of these Bills had to correlate with the provisions of the Electoral Act.


Meeting report

DPLG briefing on Cross-Boundary Municipalities Bill
Mr Myron Peter, Chief Director: Institutional and Administrative Systems, DPLG, presented:

Slide 2 The purpose of the Bill was to amend the Cross-Boundary Municipalities Laws Repeal and Related Act, 2005 (Act No 23 of 2005) to provide for the consequences of the re-determination of the geographical areas of North West and Gauteng provinces.
Slide 3 The Bill should be read in conjunction with the Constitution 16th Amendment Bill, 2009. The Constitution 12th Amendment Act, 2005 and the Cross Boundary Municipalities Laws Repeal Act. 2005 had been enacted in 2005 and re-determined geographical areas of provinces and transitional arrangements in terms of the Cross Boundaries Municipalities Repeal Act. The consequence thereof was that the Merafong City Local Municipality was taken from the Gauteng province and incorporated into the Southern District Municipality in the North West Province.
Slide 4 The consequence was that the inhabitants of Khutsong within the Merafong City Local Municipality expressed their opposition to their incorporation into the North West Province and requested that they be re-incorporated into Gauteng Province, sometimes violently. Government had now decided to accede to the requests by the inhabitants of Khutsong. This process entailed the re-determination of the geographical areas of the affected areas and district municipalities.
Slide 5 The re-determination of the geographical areas of provinces could only be effected through a constitutional amendment. The re-determination of the boundaries of the affected district municipalities and the consequences of such determination required amendment to the Cross Boundary Municipalities Laws Repeal and Related Matters Act 2005 and that therefore the two Bills had to be read together.
Slide 6 The Objects of the Bill which were that the Cross-Boundary Municipalities Laws Repeal and Related Matters Bill Amendment Act 2009 seek to amend the Cross Boundary Municipalities Laws and Related Matters Amendment Act 2005 so as to provide for the re-demarcation of the Dr Kenneth Kuanda and West Rand District Municipalities and to provide for the consequences of such re-demarcation, a reversion of the process which existed in 2005.
Slide 7 Cabinet approval was obtained 3 December 2008 and Cabinet also approved the Bill for comment and introduction to Parliament. The Bill was published for public comment on 12 December 2008 and the closing date for comment was 11 January 2009. The key stakeholders were SALGA, the two provinces; National Treasury; Municipal Demarcation Board; the Department of Justice and Constitutional Development and the Independent Electoral Commission (IEC)
Slide 8 The South African Local Government Association (SALGA) the provincial governments of North West and Gauteng Provinces; the National Treasury (NT); the Municipal Demarcation Board (MDB) the Department of Justice and Constitutional Development (DoJ) and the Independent Electoral Commission (IEC) were consulted or made submissions. The financial implications of the Bill were that the provincial boundary changes would impact upon Provincial Equitable Share Allocations, conditional grants, provincial own revenue [bases] and expenditure baselines of all departmental votes. Adjustments would be required to the Local Government Equitable Share Allocations and the Division of Revenue Bill for 2009 would ensure that [interim] spending was continued by both provinces.
Slide 9 The financial implications of the provincial boundary changes would impact upon Provincial Equitable Share allocations, conditional grants, provincial own revenues and expenditure baselines, in short the financial concerns of the municipalities and provinces and would affect the formulae used. The Division of Revenue Bill 2009 would effect the spending by (both) provinces which would in the interim continue spending.
Slide 10 The [financial] implications performed in the affected municipalities either by provincial governments or on an agency basis by the affected municipalities would need to be addressed and this might also require adjustments to provincial budgets in order to address the shift in functions performed by one province to the other. It required an adjustment of the Provincial Budget.
Slide 11 The implications for the municipalities: the Merafong City Local Municipality would be re-located to the Gauteng province and the boundary of the Dr Kenneth Kuanda and West Rand District Municipalities would be re-determined.
Slide 12 The Department received a total of 4 public submissions: two were from individuals in MCLM and two from organizations being NT and SALGA. There have also been Portfolio Committee hearings.
Slide 13 A summary of submissions: Mr Moalusi objected to the Bill, citing insufficient consultation; Mr Nel was critical of the process followed when the Bill was developed also citing insufficient consultation; e SALGA consulted with the affected municipalities and indicated that the Bill was supported fully by the two municipalities but that SALGA had reservations about the implementation date, the transitional arrangements and the financial implications of the Bill; the NT did not object to the Bill
Slide 14 onwards The clauses of the Bill were:
- Clause 1 Amendment of section 1 of Act 23 of 2005 [definition of section 17 notice, Structures Act]
- Clause 2 Substitution of section 1 A of Act 23 of 2005; as inserted by section 1 of Act 24 of 2007 {links this Bill to 16th Amendment of the Constitution Bill 2009}
- Clause 3 Amendment of Section 2 of Act 23 of 2005 {deal with the consequences regarding number of councillors for districts including repeal of Section 12 notice, structures act which establishes MCL in North West Province}
- Clause 4 Amendment of Section 4 of Act 23 of 2005 (provides for consequences of amendment to section 12 notice)
- Clause 5 Amendment of schedule 4 to Act 23 of 2005, as amended by section 2 of Act 24 of 2007 (substitutions of expressions in rows relating to NW405, DC40, DC 48)
- Clause 7 Insertion of Schedule 6 into Act 6 of 1923 of 2005 (deemed disestablished municipalities )
- Clause 8 Application of Constitution Twelfth Amendment Act. 2005 provisions to this Bill)
- Clause 9 Provides for voting districts of Merafong CLM were deemed to be part of the GT Provincial Segment of the voters roll
- Clause 10 Short Title and commencement date.
The Co-Chairperson, Mr B Mkaliphi (ANC, Mpumalanga), then summarized the situation by stating that what at first sight had appeared to be a short (uncomplicated) Bill was in fact neither short nor uncomplicated and he requested comment and/or questions.

Mr Z Ntuli (ANC, KZN) asked whether the provinces unaffected by this Bill but facing similar problems, and here he cited Matatiele as an example, would receive the same or different treatment and what was he to inform his constituents. He also wanted to know why there was comment from Treasury. Further, he wished to know how Merafong’s desire to be re incorporated in Gauteng province was the concern of the other provinces. He wondered what the Bill was really saying and asked whether the members could be afforded maps to illustrate the geographical areas.

Mr Mzizi said he sought clarity a) whether the opinion of SALGA was contained in the summary of the comments b) about the date of implementation c) and, the election date having been proclaimed, did this mean that the voters in Merafong had to reregister as voters in Gauteng of North West province. He noted that Treasury had no objections but Merafong had complained about a lack of service delivery and now the budget for the NW province was to be reduced. Hence he asked about the cost implications of the matter and finally he asked what it meant by ‘deeming’ the Merafong district to be part of Gauteng.

Mr N Mack (ANC, Western Cape) thanked the department for the clarity of the presentation and added that he had come early and had had the benefit of a private briefing at 08hr00. He added that the Western Cape did not seem to him to be affected by the provisions of the Bill and so he questioned the necessity of public participation by the Western Cape populace, but he asked what would be acceptable. He said that it seemed to him to be a straight reversal of the previous arrangements but he wondered whether the people of Fochville, who had never had anything to do with Gauteng, would be happy to be relocated to or incorporated in Gauteng province and suspected that this might throw up new challenges. Finally, he asked why this Bill was only concerned with Merafong and did not include the other troublesome areas such as Matatiele and Moutse.

Dr F Van Heerden (Freedom Plus) referring to Slide 14 asked whether the consent by the NT to the status quo only covered the financial area or other aspects.

The Co-Chairperson then ruled that he was going to allow the Department of Justice to make its presentation before calling for replies.

Department of Justice briefing on Constitution 16th Amendment Bill
Mr Johan Labuschagne (Senior State Legal Advisor, Justice and Constitutional Development) said that the background and motivation of the Constitution 16th Amendment Bill was, from the stance of the Department of Justice exactly the same as with the Cross Boundary Bill. This Bill sought to excise Merafong from NW Province and add it to Gauteng Province and that certain maps, which had been provided, previously delineated the situation clearly and reflected the proposed movement of Merafong and the West Rand Local Municipality into Gauteng. There was precedent for this and the consent of the affected provinces was required which effectively gave such provinces a veto right. Section 108 of the Constitution required that any change also required public participation, and so there could be joint hearings by the affected provinces. However, what was of importance was the nature of such participation, which was not defined, but depended upon the nature and importance of the proposed changes. This bill contains only two clauses and as such was short and sweet.

The Chairperson said that he would like opinion from the legal advisors.

Mr Mthuthuzelo Vanara, Parliamentary Legal Advisor, stated that in terms of Section 72(1)(a) of the Constitution, the NCOP had obligations to hold, or encourage, public participation but in terms of judgements by the Constitutional Court, the nature of such public participation could be determined by Parliament itself but the provincial legislatures were independent of the NCOP.

Mr Mack asked what were the implications for the unaffected provinces and could the nature thereof mean that this proceeded to the Constitutional Court.

Mr Mzizi asked whether in terms of the Constitution, both provinces had veto powers and added that he needed assistance for he wondered whether hearings at Khutsong would be sufficient.

The Co-Chairperson, Mr Mkaliphi, summarised the concerns as being what were the viewpoints of the provinces to be affected by the Bills and what were the opinions of the municipalities which would gain and lose the Dr Kenneth Kuanda and West Rand District Local Municipality.

Mr Mkaliphi explained that the issues arose from Local Government and concerned slides 9,10.11 and 12. He wondered whether the institutions that had been consulted had gone into the financial implications thoroughly and why the independent body, the Fiscal and Financial Commission (FFC), had not also been consulted.

Mr A Manyosi (ANC, Eastern Cape) pointed out that the NW Province had lost 1.5 million inhabitants who had internally migrated to Gauteng. Merafong now included Fochville, which he viewed as potentially troublesome, and that now Khutsong was incorporated. He urged caution on all concerned, especially as the NW was very rural unlike other provinces.

Mr Kgoshi Mokoena asked whether in trying to pass these two Bills there was not a danger of being in conflict of the Electoral Act.

Dr van Heerden asked what impact these two bills might have on the elections and vice versa.

These questions were answered from various sources:
Mr Peters noted that all that was required was public participation but the nature thereof was not defined.

Mr Fanie Louw, DPLG Legal Services, said that with voter registration there were implications for the national and provincial legislatures and Clause 9 and Clause 2 were to be read together and in terms thereof the votes of the affected area of Merafong were deemed to be incorporated in the Gauteng voters roll.

Ms Bongiwe Lufondo, State Law Adviser, stated that the idea was that the voters roll for Merafong would be excised and dropped into the voters roll of Gauteng. She pointed out that there was still engagement of the parties and stakeholders on a daily basis plus an analysis of the submissions. Unlike Merafong there had been no violence in Matatiele and the history of the areas was being taken into account and also their interests.

With regard to the Transition Committee there was a list and work upon this was going ahead systematically and carefully, even although it was a mammoth list but that the nature of the exercise required a degree of flexibility.

Mr Peters conceded that the provincial seats were affected more than the national vote but added that the IEC did not foresee any problems.

The Co-Chairperson, Mr Mokoena, asked how the provinces were to be affected and whether briefing was continuing and cautioned that the process had to halt somewhere as it could not go on forever. He added that the provinces required clear guidelines for action of the acceptable sort.

Mr Peters said that he expected an opinion from the IEC before close of business that day. He added that population shifts were very difficult to foresee but he expected the NW Province numbers to decline. The NT would be asked for compensation which NT could only effect in the budgets for 2010/11 and in the interim, special provisions would apply.

Ms Lufondo stated that the question of public participation was an ongoing one.

In answer to Mr Ntuli (ANC), she said that six of the nine provinces had to approve the legislation and the two affected provinces had to be numbered in the six provinces, for this Bill to be legislated.

Mr Vanara said it was clear that the two affected provinces had to vote in favour of the measure, failing which they had exercised their veto right and clearly the Western Cape was not affected by the Bill.

There was discussion about the date for the implementation of these two Bills as Acts and it was pointed out that the Cross Boundary Bill’s date of implementation depended upon the implementation of the 16th Amendment of the Constitution and the intention was for such to be simultaneous.

The Co-Chairperson said that South Africa was a unitary state and although some were in favour of a minimalist approach, it really seemed that “I am my brother’s keeper” prevailed.

Mr Labuschagne explained that the two Bills were specially designed to go hand in hand hence the somewhat strange wording of the dates of implementation. With regard to public participation the Constitutional Court Judgements in Doctors for Life and the Matatiele cases state that what was required was public participation but the Court did not have the powers / right to prescribe to Parliament what amounted to public participation and so there was no precedent for this. Section 118 of the Constitution merely required advertisements calling for submissions or comment.

Mr Peters explained that the FCC had only been consulted upon the effect of boundary changes and not the financial implications in terms of the Division of Revenue Act.

Mr Vanara pointed out the requirement and obligation in terms of Section 72(1) and that these lay upon the NCOP.

Dr van Heerden said that Section 10, the commencement date, was of importance and asked why it had now come to the fore just before an election. Further, SALGA had commented on the financial implications but not the political implications, and this concerned him.

Mr Mzizi wondered why there was reference in Clause 9 to Merafong and no other place. Also he asked about the closing of the voters roll in the Northwest.

Mr Louw explained that once the election date was proclaimed, the voters roll closed. The intention was that the roll for Merafong, being closed, would simply be transferred as is to Gauteng and incorporated therein.

Mr Peters explained that the role of SALGA was to help defuse a hotspot and all the other problem areas, and that the publication of the 2001 census had exacerbated the problems.

Dr van Heerden felt that there was a focus or concentration on constitutional amendments.

Ms B Lufondo State Law Adviser, explained that there was an alignment with section 24 of the Electoral Act, if, and once, this Bill became law.

Mr Mokoena, the Co-Chairperson, stated that Clause 9 underlined what the Committee was attempting to do, even although it might be alleged that what was being done was recognising something which had been done through the backdoor.

Mr Labuschagne said that the Bill had to be approved so that the voters’ rolls in NW and Gauteng Provinces could be aligned.

The Co-Chairperson, Mr Mkaliphi, said that to him silence signified consent and that no one was speaking against or objecting to the Bills in their present form.

Mr Moseki (ANC) North West expressed the opinion that a thorough briefing was still required.

The Co Chairperson, Mr Mokoena, stated that negotiating mandates were set down for 3 March and final mandates on 10 March and asked for the assistance of all members in meeting these requirements. He then declared the meeting adjourned.


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