Cross-Boundary Municipalities Law Repeal & Related Matters Amendment Bill: adoption

Meeting report

Kgoshi L Mokoena welcomed all present, and expressed the hope that everybody was fit and prepared for the rough and tumble. He had requested the committee secretariat to provide a document setting out the issues, the attempts at facilitating public participation in the legislative process and the issues raised by the provinces, the Committees and the public. His Co-Chairperson had requested that if there were any other issues or questions, these should be raised before noon so they could proceed to the third stage.

He asked Mr Fanie Louw of DPLG what if members or stakeholders of a province affected by the proposed changes emerged with a claim that they had not had their point of view or submissions taken into account and thus wished to object. What effect would this allegation that they had not been properly heard, have on the Bill’s standing.

Mr Fanie Louw, Legal Advisor, DPLG, suggested that such a question did not concern the DPLG’s Cross-Boundary Bill but might more properly be directed to the Department of Justice and Constitutional Development about its Bill.

Mr Johan Labuschagne, Director: Legislation, Department of Justice and Constitutional Affairs, replied that if there had been proper consultation this would have no effect whatsoever. He cited the Merafong case as an appropriate example. With the original boundary change, a negotiating mandate had been given and then a final mandate and between the two mandates further hearings had been heard and so the Constitutional Court had upheld the case. He suggested that each case must be viewed on a case-to-case basis and personally with what had taken place with these Bills, he could foresee no problem.

Mr Sisa Makabeni, State Law Advisor, said that it would require an examination of the extent of the public participation, and the amount of discussion. But no matter what, the legislature had the final duty of legislating as it saw fit. The consultation could not override this fact. The legislature could not make everybody happy and it came down to a question of whether public consultation had taken place or not. That was what the courts looked at.

Mr Mthuthuzelo Vanara, Parliamentary Legal Advisor, said that there could be no specific answer about public participation, or the proper level thereof. He suggested that the Constitutional Court could be sceptical about the amount of public participation but could not prescribe the required level.

Kgoshi Mokoena said that the he found the comments in the media disturbing. For example that very morning, newspapers were querying the release of Schabir Shaik from prison and asking whether there had been “proper” consideration of all factors associated with the case. Personally he felt that the media was closely impinging upon doctor-patient confidentiality. He said that they were proceeding to the second leg of the exercise.

Mr Z Ntuli (ANC KwaZulu Natal) asked whether a definition of public consultation could not be provided for it was confusing the distinction between public participation and public consultation and negotiating. It seemed to him that there was a different interpretation every time and so he asked for a definition of consultation.

Kgoshi Mokoena asked what was understood by ‘consultation’.

The State Law Advisor, Mr Makabeni, responded that in brief ‘consultation’ was making one aware of the issues but that the Constitutional Court was silent on the means of making one aware. He suggested that the empirical approach was a case-by-case appreciation of the requirements. On the matter of public participation, the decision of Parliament was supreme, subject to the Constitution.

Ms Bongiwe Lufundo, State Law Advisor, said that based on judgements by the Constitutional Court, public participation was required but they did not prescribe to Parliament what level of participation or to what extent it was required. This was set out in both the Merafong and Doctors for Life cases. What was required was that the public participation must be adequate. She felt that they were now approaching semantics, for what was required was not consensus but consultation.

Kgoshi Mokoena asked whether consultation of two persons could be public consultation.

Mr Makabeni referred to sections 74(8) and 118 of the Constitution, which read together called for facilitation of public involvement. No one, not even the Constitutional Court, could prescribe to Parliament what public participation or involvement should be but in the present instance he felt that public involvement should be considerable.

Mr Vanara stated that he felt that public involvement entailed an obligation to consult the people. This had been accepted by the Constitutional Court and required the best interests of the people. He suggested that the Constitutional Court had taken this approach in an effort to reduce voter apathy and so there was an obligation on the public representatives to be aware of and seek public opinion. This went further and meant that the public representatives were to make the public aware of the issues, pending legislation as an example, inform the public of ]arliamentary business. The second leg of this question was the degree of public participation required. Solely having public hearings in Cape Town raised the question of affordability of participation. It excluded those who could not meet the costs of travelling to make their representations in Cape Town. Thus the need to move Parliament to the People and the use of the provincial legislatures. He referred to Mr Mzizi’s statement that there had been a lot of people at the meeting in Merafong. He wondered if the Constitutional Court would hold that this had been sufficient public involvement and participation. Some might disagree. However, a legislature could only do so much in taking into account public participation. He could not give guarantees that there had been sufficient public participation.

Mr Ntuli said that as legislators they had to know their obligations.

Mr Vanara said that it was required of Parliament to have public involvement but he could not give a guarantee as to what was sufficient.

Mr N Mack (ANC Western Cape) said the opposition seemed to be using, and increasingly so, the phrase ‘proper consultation’ and ‘proper hearings’ and this opened the door to too many people claiming that they were not consulted.

Kgoshi Mokoena said that the legal gurus had dodged his question and he wanted to know whether ‘public participation’ or ‘public consultation’ was what was required and also where the burden of proof lay.

Mr Mzizi (IFP Gauteng) said that the question of proper consultation would always come up. They had gone to Merafong to consult, not Gauteng, for they felt the most involved persons were in Merafong.

Kgoshi Mokoena asked whether this meant involvement or consultation.

Mr Mzizi said it involved public involvement, for the ordinary persons, not what the elite people interpreted it to be. By elite people, he meant lawyers. He said that he had a mandate to speak and although perhaps it did not accord with his personal opinions, he was obliged to carry out his mandate, without deviation. Likewise he felt that if the body of persons in an area felt one thing, and 1/3 of the people did not, they had to follow the 2/3rds who were in the majority They could not deviate from this.

Mr Louw said that he too had been at the Merafong meeting and that Carltonville was a very small minority of Merafong. He said that thousands had been present requiring televisions in other halls and there had been few objections recorded.

Mr Makabeni said that all that was required of Parliament was to note the opinions expressed and the,n taking the broader picture into account, make a decision of Parliament, which was the legislature, and not subordinate to other bodies or groupings. Parliament was not obliged to go with the majority but to determine the best interests of the country and decide accordingly. As far as the burden of proof, he felt that this lay upon he who made the allegation, to prove his case. Parliament would only be required to rebut an allegation. To do so, would only require pragmatic evidence such as newspaper clippings, reporting on the meetings, attendance registers and similar pragmatic evidence.

Ms Stemela confirmed that in her considered opinion, her colleague had correctly set out the prevailing position. In criminal law he who alleged, was bound to prove his case. It was not for the other party to disprove.

Mr Vanara agreed and asked that the question not be conflated, as all that Parliament was required to do was to facilitate participation.

Voting on the Cross Boundary Bill
Kgoshi Mokoena asked that the Committees concentrate on the Cross Boundary Bill and determine whether it was desirable to pass this Bill.

Mr Mkaliphi confirmed that the Bill had been discussed and that everything was ready and in place, and asked if there was anything further to be added. There being no further questions or comments, he put the motion of desirability for the Cross Boundary Bill

Mr Ntuli proposed the motion and Mr Mack seconded the motion.

The members present accepted it unanimously.

Discussion on Final Mandates meeting
There was general congratulatory talk among the members present and discussion about future proceedings.

Mr Mzizi referred to section 24 of the Electoral Act and asked whether there was any progress with “deeming.”

Kgoshi Mokoena said that he had arranged for copies of the entire Electoral Act, not merely the section referred to, to be printed and submitted to members for perusal by them. He asked whether there were any other issues.

Mr Mack raised the issue of travel allowance which had been exhausted as a result of the extra travelling and attendances necessitated by these two Bills. Mr Mzizi agreed saying that if he did notreceive tickets, he could not attend the final meeting on these Bills.

Kgoshi Mokoena said he had ordered that this aspect be looked at by the relevant authorities in charge of housekeeping and expected that the members would soon be satisfied.

Mr Labuschagne cautioned the members to ensure that their Provincial Legislatures worded their final mandates correctly and acceptably so that there could be no ambiguity about what the mandate might mean when they returned the following week as there was now no time for rectification of these.

Kgoshi Mokoena asked the members to ensure that the correct and proper documentation was received and submitted to their legislatures.

Meeting adjourned until the following week.