Constitution 16th Amendment Bill; Cross-Boundary Municipalities Law Repeal Bill [B3-2009]: Negotiating Mandates; Provincial consolidation: discussion

Meeting report

The Co-Chairperson, Kgoshi Mokoena, stated that mandates had been received from all the provinces, except one, which was expected to provide its mandate during the course of the day. He added that he felt it important to place on record that whereas all the provinces, save the two affected by the Bills, could take whatever stance they liked, they had done what was expected of them. He reminded the Members that the Bills were intertwined and not severable. He also thanked the Department for having assisted with briefing certain provinces about the impact of the Bill. He noted that one province was proposing further amendments. 

Referring to certain media statements that the Bills had been passed by “Parliament” he pointed out that the National Council of Provinces was a co-equal if not senior Chamber of Parliament and that if the National Council of Provinces (NCOP) did not pass a Bill, it would not proceed to become law until it had been approved by the NCOP. He emphasised that the NCOP had not completed the parliamentary process. The approval of the NCOP was not to be taken as a matter of course. The NCOP did not serve as a rubber stamp. He added that he felt that the media was doing a disservice to its consumers by not making this clear to all concerned.

The Co-Chairperson, Mr B Mkaliphi (ANC), noted that the Cross Boundary Bill was a Section 75 Bill.

In response to an invitation to address the Committee on any additional matters, Mr Johan Labuschagne, Director: Legislation, Department of Justice and Constitutional Affairs, said, amid much laughter, that he chose to exercise his constitutional right to silence.

Constitution 16^th Amendment Bill: Negotiating Mandates
Eastern Cape mandate
In the absence of Mr le Roux (DA) and Mr A Manyosi (ANC) of the Eastern Cape, Mr A Moseki (ANC, North West) read the mandate from the Eastern Cape, emphasising that the Eastern Cape supported the purpose of the Bill.

KwaZulu Natal mandate
Mr Z Ntuli (ANC, KwaZulu Natal) read the mandate which was in favour of the Bill.

Gauteng Mandate
Mr M Mzizi (IFP, Gauteng) read the mandate stating that Gauteng had reservations about perceived shortcomings in the Bill but that it supported the Bill in full. However, the Bill required adjustments to the provincial budgets of the provinces concerned in order to address the shifting functions performed from one province to the other. They noted the national Department of Provincial and Local Government’s intention to establish a Transitional Committee whose main purpose would be to discuss and inform the community about the process of transferring Merafong City Local Municipality to the Gauteng province and to address the transitional arrangements and the financial implications. They concluded that Gauteng supported the Bill as a section 74 Bill.

Kgoshi Mokoena in thanking Mr Mzizi remarked that the reservations expressed by Gauteng would be debated in due course.

Limpopo mandate
Mr M Thetjeng (ANC, Limpopo) addressed himself to Paragraph 3 of the Limpopo mandate especially Para 3.1 where it was submitted that public participation in government decision-making processes should be intensified. Para 3.2 noted that Moutse in Limpopo and Matatiele in KZN were currently demanding similar attention as that received by Merafong, using violence and damage to property and that there was concern about this. Para 3.3 stated that there must be public education to teach people that South Africa was a unitary state and that moving from one province to another did not make any difference. It continued that the process of re-configuration of the State should be fast tracked to avoid similar situations elsewhere in the future. In conclusion, Limpopo conferred a mandate in favour of the Bill.

Mpumalanga Mandate
Mr B Mkaliphi (ANC, Mpumalanga) confirmed the first page of the mandate, adding that the other pages were background information.

Northern Cape Mandate
Mr N Mack (ANC, W Cape) read the mandate on behalf of the Northern Cape. The mandate noted and emphasised that there was a similar situation brewing in the town of Jan Kempdorp, which required attention. The mandate, with the reservation about Jan Kempdorp, supported the Bill.

North West Mandate
Mr A Moseki (ANC, North West) stated that public participation had been by way of a meeting on 25^th February for which he had no written minutes but he could confirm that it had happened and that accordingly North West Province supported the amendment.

Western Cape Mandate - missing
Kgoshi Mokoena then addressed himself to Mr Mack whose province was the one from which no written mandate had been received. Mr Mack replied that the printing schedules of certain newspapers had required that the required public meeting could only take place on 2 March 2009 and that thus he did not have a written mandate but that he could assure Members that the Western Cape supported the proposed Constitutional Amendment. He further wished to place on record the Western Cape’s appreciation to Mr Labuschagne and others for having briefed the Provincial Legislature on the Bill and that he would submit the written mandate as soon as it was received by him.

Kgoshi Mokoena stated that as there was no written mandate from the Western Cape in time for the negotiating mandate meeting, he hoped that when it eventually appeared it would not contain any new proposals, or qualifications, or issues for it was a question of: “do we entertain the Bill, or not?” He did not want any loopholes and certainly no mess up with constitutional requirements.

Mr Ntuli suggested that if there were such, they be noted for future consideration.

Kgoshi Mokoena wished to know how this would affect the national and provincial elections.

Mr Mzizi said that the golden rule was “no mandate, no speculate,” and that Western Cape must toe the line.

Kgoshi Mokoena noted that he had been promised the Western Cape mandate before the end of business that day.

Discussion
Kgoshi Mokoena said that the Eastern Cape had nothing fussy in its mandate, the Free State had nothing to talk about but Gauteng had reservations on page 4 line 6.2.

Mr Mzizi said there were concerns about the financial implications and the concerns about Fochville, Kokosi and Green Park, which had never previously been part of Gauteng but were now, along with greater Merafong transferred into Gauteng without consultation other than the public meeting on 25 February 2009. However, we had no idea of the depth of that meeting and he did not think that this could be unpacked.

Kgoshi Mokoena thanked Mr Mzizi, adding that he was not conversant with the geography of the area and asked where such places had been prior to 2005.

Mr Mzizi said that he was not certain but felt that Fochville, Kokosi and Green Park had been part of Carltonville previously.

Mr Moseki than pointed out that North West province had the same situation where three towns which had previously always been North West towns were now to be part of Merafong and thus go to Gauteng. This had been discussed at Cabinet level where the feeling had been that the whole area, not part or bits and bobs should either remain or be transferred. He emphasized that from the Cabinet downwards there was the emphasis that South Africa was a unitary state and that there should not be a fundamental problem.

Mr Ntuli replied that Mr Mzizi’s concerns would be addressed in the nitty gritty by the Transitional Committee to be established in due course.

Kgoshi Mokoena remarked that Mr Mkaliphi would handle Bullet 1 of page 2 of the Mpumalanga mandate.

Mr Mkaliphi said that he was also requesting clarity, and certainty, from the two delegates of the affected province that they would be holding public hearings.

Mr Moseki said that the North West would not.

Mr Mzizi said that he had been part of the public hearings at which there had been a degree of tension until it had been explained that this was a section 74 Bill and that they had no right to oppose whereafter the people had co-operated and there was no further resentment, even although the DA raised concerns. Local Government supported the Amending bill and the people said that they wanted Gauteng, bottom line.

Mr Ntuli said the DA was no longer supporting the proposed Bills and were reserving their rights to oppose them. However, they were in the minority and were the only party not supporting the proposed amendment.

Kgoshi Mokoena pointed out that it was the right of the DA not to support a proposal. He added that concerns about the budget implications had been raised. He wondered if the NCOP passed the Bill but yet there was a three-year delay for the municipality to be included in the budget of their new province. He wondered how they would be affected financially and by non-delivery of services. Such a question had been raised in the National Assembly but not in the NCOP. Would people be prepared to be the “step child” for three years? He asked Mr Myron Peters for an explanation.

Mr Myron Peter, Executive Manager, DPLG, explained that should part of a province be moved to another province, the Department and the National Treasury would have to have a lead time in establishing the budgets for the new sections in the forthcoming years. At the moment such budgets would begin to be operative only from 2011, being a three-year time lag. For example, with regard to Merafong, North West would continue to receive the budget allocation while Merafong would be in Gauteng. In terms of the Division of Revenue Act (DORA) and its schedules, there could not be changes at this late stage for the budgets must provide for spending in areas for which they receive allocations. The Transitional Committee would manage the financial matters between the two affected provinces through protocols and that the Political Adviser to the Minister had suggested engaging National Treasury regarding the allocations and budgets but that there was to be no deviation from DORA.

Kgoshi Mokoena said that he was seeking assurance that the quality of service delivery would remain the same or improve during this time period.

Mr Fanie Louw, Legal Advisor, DPLG, suggested that he refer to the 2005 protocols for provincial changes in which the NCOP was afforded an oversight role.

Mr Moseki pointed out that the North West had a long history of experience with such protocols, which had ensured a smooth transition and it should be remembered that South Africa was a unitary state. This he advanced was a fundamental principle but Merafong could be setting a precedent

Kgoshi Mokoena added that the North West Province had a lot of experience.

Mr Mzizi stated that this matter could not be left in isolation. While the North West and Gauteng provinces might have agreed to unite together on this matter until 2011, if the people on the ground think, or believe, that they have been treated shabbily, then this would be different. He queried whether there would be enough tits to bite. He emphasized that the administrative process must be equitable and fair, otherwise this would come back to bite again.

Kgoshi Mokoena expressed the opinion that this matter concerned only Gauteng.

Mr Mkaliphi said that the sentiments expressed and concerns raised had been noted and he expressed the opinion that it was incumbent upon the NCOP to insist that the protocols were streamlined and for it to perform its oversight function. They had learned from previous provincial changes that good intentions were not always carried out. He urged that the NCOP was not to be a stopgap but must truly exercise its oversight function and if necessary the bureaucracy must be supported but it must also be made to feel the oversight function by the NCOP. The Museveni experiences were well documented, hence the call for strictest protocols and the situation required oversight by the NCOP.

Kgoshi Mokoena expressed the opinion that the NCOP was only called in as a fire extinguisher, and said that the NCOP should be taken seriously. He requested the membership of the Transitional Committee before it was announced in the press.

Mr N Nkontwane, Special Advisor to the Minister of Provincial and Local Government, stated that the Minister was still considering the final announcements and that there should be no pre-emption.

Kgoshi Mokoena firmly advised Mr Nkontwane that he was addressing Parliament and that there were no embargoes and he asked why there was such secrecy. He reiterated that he wanted to know who was going to assist in this process and asked that the names be revealed. He added that that he had recently served on the parliamentary committee dealing with the abolition of the Scorpions as an independent unit to be incorporated in the SAPS. At all times the names and membership of the equivalent of the transitional committee had been known to the parliamentary committee, plus from an early stage it had been providing opinion papers and other assistance to the members of the parliamentary committee. He added that his committee wanted to know the names of the members of the Transitional Committee and if there were no names, there was no comment.

He continued that there were issues raised by Limpopo and this was not an Intelligence matter (deserving of secrecy), for we were one country, a unitary state, and provincialism was a concern. He wondered whether this was creating a concern. Was this process not creating precedents so that it seemed that referenda were the only way to go to establish the will of the people? Those were the sentiments of Limpopo.

Mr Mzizi interposed that that was the fundamental question - exposed by the people of Khutsong as being nothing. Moutse was striking and there was an attempt to appease. This was a precedent and now Matatiele was also starting. The Minister was hinting that a referendum might be necessary.

Mr B Mkaliphi said this had highlighted the matter against the background of Mpumalanga and he asked why the problems were addressed piecemeal.

Kgoshi Mokoena then addressed this question to the department.

In reply, Mr Peters explained that the department was carrying the cross. The matter had not been decided by the Executive, as yet. There was ongoing discussion and the Minister was consulting. While the Minister and the Municipalities were compliant this was a complicated matter and serious consultation was taking place.

Kgoshi Mokoena said that in Matatiele there were allegations of unity save for a few dissidents. He wanted to know whether the Department was working towards referenda.

Mr Peters replied that the question of referenda was being contemplated but not considered, as yet, as all other options were being explored.

Mr Moseki said that there were other areas in North West Province, which was very difficult, which need to be re considered, but that income was income. He conceded that there might be a need for newer and consolidated provinces. He added that the current boundaries had been badly drawn, thereby creating problems.
  
Mr Ntuli said that he supported Mr Moseki and remarked that the IFP and DA had supported referenda in 2005 but he questioned whether the small parties would survive the consequences if such became the practice.

Kgoshi Mokoena remarked that if this was applied to land reform “Yussus!” especially in Mpumalanga.

Mr Mkaliphi suggested that reference be had to the Limpopo mandate, especially Paragraph 3.4, and asked whether it could be linked to Moutse in a barrel of provisions.

Kgoshi Mokoena referred to Mr Moseki’s suggestion of what could work better in the country, possibly a re-configuration into four provinces. The question was how far could we go?

Mr Myron Peters said that the matter had been raised last year in a White Paper process [Policy process on the system of Provincial & Local Government] but to the best of his knowledge the compilation of the White paper was still incomplete and thereafter it would have to be published and considered. There was no hard and fast standpoint or opinion taken, as yet, certainly not in an election year. He suggested that everyone would have to wait for the White Paper.

Kgoshi Mokoena thanked him for his contribution and stated that while this might come in at any time, Mpumalanga’s concern was Moutse where although there was peace and quiet it had been incorporated against the will of people.

Mr Mkaliphi said that basically it remained to get a report from Mpumalanga in order to highlight the actual situation on the ground. The principle that people must be heard must not be carried out too far. A limit must be established to bring about consensus.

Mr Peters explained that the approach resulted from piecemeal approaches and referrals. The conditions were not exactly the same in Merafong and Moutse and Matatiele. Further, the Minister wished to consider all the facts and representations and explore all options - so that he could apply his mind.

Kgoshi Mokoena said that the Minister must come back with specific suggestions.

Mr Peters said that mandates were being sought from all possible stakeholders; including the Executive route and that there were frequently one to one meetings.

Kgoshi Mokoena reminded all that this was Parliament and that there was the doctrine of the separation of powers. The Executive must not, or be allowed to, over ride Parliament. This morning Jan Kempdorp was provided by the Northern Cape Province as another illustration of an unhappy community. He cautioned that he wanted an answer from the department that day for this [country] was not another Zimbabwe.

Mr Peters explained that that approach of referenda was valid but that there were a number of other issues as well and the Department needed a unified approach, consistency, for there was no desire to have a string of constitutional amendments.

As a result of a further question from the Co-Chairperson, Mr Peters replied that there were political considerations and processes to be considered and that such needed time to establish every element.

Mr Mzizi stated that he did not want to put the Department on the spot but he asked if there were not specific plans for the situation on the ground. South Africa was a unified country but this was the 16^th Amendment of the Constitution and he asked what plans there might be.

Mr Ntuli said that he felt that the specific problem about boundaries had not been answered and he asked how these constitutional changes would affect political representation of the provinces.

Kgoshi Mokoena said that that had not been asked and was the cherry on the top.

In response Mr Louw replied that he would be looking at the Electoral Act ramifications.

Mr Ntuli said that that was not what he had asked. He wanted to know how the changes in the provinces would affect political representation of the provinces in the National Assembly

Mr Louw answered that provincial representation was decided by the IEC in terms of the voters roll.

Kgoshi Mokoena asked whether they could have an indication that day for everyone was affected by that. What would be the new numbers in the provinces?

Mr Peters said that an approach would be made to the IEC for an indication on how the seats in the provinces would change.

Kgoshi Mokoena said that they had done everything in their mandate.

Mr Mthuthuzelo Vanara, Parliamentary Law Advisor, replied that it must be in terms of the parliamentary procedures, the Constitution and the Electoral law and no attention had been devoted to this and that it was a mission impossible to accommodate North West.

Ms Bongiwe Lufundo, State Law Advisor, State Law Advisor, said that nothing could be done at that stage and it needed to be followed up.

Mr Louw stated that he had had a telephonic discussion with the IEC and it seemed that the situation would be as follows:

Eastern Cape         26           a loss of 1 Parliamentary seat
Free State              17
Gauteng                 47
KZN                         39           a gain of 2 Parliamentary seats
Limpopo                19
Mpumalanga         15
Northern Cape       5           
North West           14           a loss of 3 Parliamentary seats
Western cape       23           a gain of 3 parliamentary seats.

Kgoshi Mokoena, said that 3 seats seemed to approximate 2 million voters and he wondered whether a reversion to four provinces was not the answer.

Mr Ntuli questioned the figures first provided and was proved correct, as set out above.

Kgoshi Mokoena noted that the Western Cape had now produced its mandate. He called upon Mr Mack to read the document from the Western Cape legislature.

Western Cape mandate
Mr Mack confirmed his verbally expressed opinion of earlier in the meeting, expressing his thanks to the legal advisors who had briefed the Western Cape legislature.

Cross Boundary Bill
Mr Mkaliphi stated that as a Section 75 Bill, there was not a necessity for the provinces to express opinions on it. Kgoshi Mokoena added that a Section 76 Bill affected the provinces but a Section 75 Bill had national competence only.

Mr Louw explained that the Memorandum of Objects at the back of the Bill stated:
7. PARLIAMENTARY PROCEDURE
7.1 The State Law Advisers and the Department of Provincial and Local Government are of the opinion that the Bill must be dealt with in accordance with the procedure prescribed by section 75 of the Constitution. The Bill does not fall within the functional areas listed in Schedule 4 of the Constitution, nor does it provide for legislation envisaged in the sections referred to in section 76(3) of the Constitution.
It was tagged a section 75 Bill by the Joint Tagging Mechanism.

With reference to Clause 10, Kgoshi Mokoena said the Bill was not supposed to amend the Electoral Act, particularly section 24. He proceeded to read the clauses of the Bill, advising that a motion of desirability was required.

There were no problems with Clause 1, Clause 2 (sub-clause 1(a) had been discussed fully), Clause 3, Clause 4, Clause 5, Clause 6, Clause 7, Clause 8 and Clause 9 (of particular importance and relevance to Gauteng and North West province). Discussion ensured on Clause 10.

Clause 10 Short title and commencement
10. (1) This Act is called the Cross-boundary Municipalities Laws Repeal and Related Matters Amendment Act, 2009, and takes effect on the same date as the commencement of the Constitution Sixteenth Amendment Act of 2009.
(2) Section 9 is deemed to have come into operation on the day that the 2009 election was proclaimed in terms of sections 17 and 18 of the Electoral Act, 1998 (Act No. 73 of 1998).

On the National Assembly amendment to Clause 10(2), Mr Louw explained the situation. On proclamation of the date for the elections, the voters roll was then closed in terms of Section 24 of the Electoral Act. According to Clause 10(2), the voters roll for Merafong was deemed to be included in the voters roll of Gauteng.

Mr Labuschagne said he fully agreed with Mr Louw explanation but could not explain the details and thought the Parliamentary Legal Advisor could give an explanation. He noted that if this Committee approved the Bill with any changes, the National Assembly would need to be recalled.

Clarity was sought on the commencement process in Clause 10(1).

Mr Louw stated that this Bill was designed to be read, and implemented with the Cross Boundary Bill, which was why it was phrased as it was. Although not common it was a stratagem used when two or more Bills were required to be enacted as a parcel.

Mr Labuschagne replied that this was not the usual way of drafting but, it having been used on other occasions, was not unusual either and was a chosen method for co-ordinating purposes.

Mr Vanara said that if the intention was that the 16^th Constitution Amendment and the Cross Boundary Bills were a package, then this was the course to be followed.

Kgoshi Mokoena said that he disapproved of this rarity. He noted that all that remained was for a motion of desirability on this Bill to be passed.

Mr Mkalipi expressed satisfaction at the explanation.

Mr Moseki expressed reluctance and asked for further thinking on the Bill.

Mr Mzizi said that a lot of thought need to be given to the matters and asked that the Committee return the following next day so that after thought, there would be certainty about the Bill.

The meeting then adjourned to the next day.