WORKING DOCUMENT: STRUCTURES AMENDMENT BILL

WORKING DOCUMENT: STRUCTURES AMENDMENT BILL

GENERAL EXPLANATORY NOTE:

[ ] Words in bold type in square brackets indicate omissions from existing enactments.

_________ Words underlined with a solid line indicate insertions in existing enactments.

BILL

To amend the Local Government: Municipal Structures Act, 1998, so as to further regulate the contents of notices establishing municipalities; to further regulate transitional measures when existing municipalities are disestablished and new municipalities established; to further regulate the determination of the number of councillors; to redetermine the provisions from which a municipality may be exempted; to determine the date on which the first term of municipalities end; and to further regulate the transitional arrangements; [to provide for a transitional arrangement]; and to provide for matters connected therewith.

BE IT ENACTED by the Parliament of the Republic of South-Africa, as follows:-

CHAPTER 1

AMENDMENT OF ACT 117 OF 1998
Amendment of section 12 of Act 117 of 1998, as amended by section 93 of Act 27 of 2000

1. Section 12 of the Local Government: Municipal Structures Act, 1998 (hereinafter referred to as the principal Act), is hereby amended–

(a) by the substitution in subsection (3) for the words preceding paragraph (a) of the following words:

"The notice establishing the municipality must [specify] set out –"; and

[(b) by the substitution in subsection (3) for paragraph (d) of the following paragraph:

"(d) the name of the municipality or the provisional designation of the municipality;"; and]

[(c)] (b) by the insertion in subsection (3) of the following paragraph after paragraph (d):

"(dA) in the case of a metropolitan or local municipality, the number of wards in the municipality;"; and

(c) by the deletion of paragraph (g) of subsection (3).

Amendment of section 14 of Act 117 of 1998

2. Section 14 of the principal Act is hereby amended–

(a) by the substitution for subsection (1) of the following subsection:

"(1) (a) Any municipality established in terms of section 12 in a particular area, supersede the existing municipality or municipalities to the extent that the existing municipality or municipalities fall within that area.

(b) The superseding municipality becomes the successor in law of the existing municipality subject to paragraph (c).

(c) Where a district municipality, and one or more local municipalities within the area of the district municipality, supersede the existing municipality or municipalities in a particular area, the district and local municipalities in that area become the successors in law of the existing municipality or municipalities depending on the specific assets, liabilities, rights and obligations allocated to the district and local municipalities respectively in terms of the relevant section 12 notice or notices.

(b) by the substitution in subsection (2)-

(i) for the words preceding paragraph (a) of the following words:

"If subsection (1) is applicable, the section 12 notice, or any amendment to the section 12 notice, must-"; and

(ii) for paragraph (b) of the following paragraph:

"(b) regulate the legal, practical and other consequences of the total or partial disestablishment of the existing municipality, including-

(i) the vacation of office by councillors of the existing municipality;

(ii) the transfer of staff from the existing municipality to the superseding municipality, or, if there are more than one superseding municipality, to any of the superseding municipalities,;

(iii) the transfer of assets, liabilities and administrative and other records from the existing municipality to the superseding municipality, or, if there are more than one superseding municipality, to any of the superseding municipalities, taking into account the interests of creditors of the existing municipality; and

(iv) the continued application of any by-laws, regulations and resolutions of the existing municipality to or in that area, and the extent of such application:

Provided that a transfer referred to in subparagraphs (ii) and (iii) is effected in a way that would enable the superseding municipality or municipalities to provide municipal services.";

(c) by the substitution for subsection (3) of the following subsection:

"(3) (a) The transfer of staff in terms of a section 12 notice must [take place] be on conditions of service not less favourable than those under which those staff members served in the existing municipality or municipalities and must be in accordance with the Labour Relations Act, 1995 (Act No. 66 of 1995).

(b) A section 12 notice transferring staff of an existing municipality to a superseding municipality may direct that-

(i) the staff transferred from that existing municipality to the superseding municipality form an administrative unit that functions as such until the superseding municipality has established a staff structure and has appointed staff to positions on that staff structure; and

(ii) such administrative unit functions under the control of the municipal manager or acting municipal manager appointed by the superseding municipality.".

[(a) by the substitution for subsection (5) of the following subsections:

" (5) (a) The MEC for local government in a province, by notice in the Provincial Gazette, may make provision for transitional measures to facilitate the disestablishment of an existing municipality and the establishment of a new municipality.

(b) The measures contemplated in paragraph (a) may include measures –

(i) establishing a committee to advise the MEC on any matter affecting the transition; and

(ii) in relation to the existing municipality, restricting or regulating the–

(aa) alterations to the staff establishment;

(bb) appointment of staff or the filling of vacancies;

(cc) upgrading of posts or promotions;

(dd) increases in salaries or wages;

(ee) disposal or acquisition of assets;

(ff) conclusion of contracts with a duration longer than one year or the renewal of such contracts; or

(gg) use of reserve capital.

(6) The MEC must consult the existing municipality before publishing the notice contemplated in subsection (5).".]

Amendment of section 16 of Act 117 of 1998
3. Section 16 of the principal Act is hereby amended by the deletion of paragraph (e) of subsection (1).

Amendment of section 20 of Act 117 of 1998

[3.] (4.) Section 20 of the principal Act is hereby amended by the substitution in subsection (1) for paragraph (a) of the following paragraph:

"(a) must be determined in accordance with a formula determined by the Minister by notice in the Government Gazette, which formula must be based on the number of voters registered on that municipality’s segment of the national common voters roll on a date determined in the notice;".

Amendment of section 81 of Act 117 of 1998
5. Section 81 of the principal Act is hereby amended by the substitution for the expression "10 per cent", wherever it occurs, of the expression "20 per cent".
Amendment of section 84 of Act 117 of 1998
6. Section 84 of the principal Act is hereby amended-

(a) by the substitution for subsection (1) of the following subsection:

"(1) A district municipality has the following functions and powers:

(a) Integrated development planning for the district municipality as a whole, including a framework for integrated development plans [for the local municipalities within] of all municipalities in the area of the district municipality[, taking into account the integrated development plans of those local municipalities].

(b) [Bulk supply of water that affects a significant proportion of municipalities in the district] Potable water supply systems.

(c) Bulk supply of electricity [that affects a significant proportion of municipalities in the district], which includes for the purposes of such supply, the transmission, distribution and, where applicable, the generation of electricity.

(d) [Bulk sewage purification works and main sewage disposal that affects a significant proportion of municipalities in the district] Domestic waste-water and sewage disposal systems.

(e) Solid waste disposal sites [serving the area of the district municipality as whole], in so far as it relates to-

(i) the determination of a waste disposal strategy;

(ii) the regulation of waste disposal;

(iii) the establishment, operation and control of waste disposal sites, bulk waste transfer facilities and waste disposal facilities for more than one local municipality in the district.

(f) Municipal roads which form an integral part of a road transport system for the area of the district municipality as a whole.

(g) Regulation of passenger transport services.

(h) Municipal airports serving the area of the district municipality as a whole.

(i) Municipal health services [serving the area of the district municipality as a whole].

(j) Fire fighting services serving the area of the district municipality as a whole, including-

(i) planning, co-ordination and regulation of fire services;

(ii) specialised fire fighting services such as mountain, veld and chemical fire services;

(iii) co-ordination of the standardisation of infrastructure, vehicles, equipment and procedures;

(iv) training of fire officers.

(k) The establishment, conduct and control of fresh produce markets and municipal abattoirs serving the area of [the district municipality as a whole] a major proportion of the municipalities in the district.

(l) The establishment, conduct and control of cemeteries and crematoria serving the [district as a whole] area of a major proportion of municipalities in the district.

(m) Promotion of local tourism for the area of the district municipality.

(n) Municipal public works relating to any of the above functions or any other functions assigned to the district municipality.

(o) The receipt, allocation and, if applicable, the distribution of grants made to the district municipality.

The imposition and collection of taxes, levies and duties as related to the above functions or as may be assigned to the district municipality in terms of national legislation."; and

(b) by the deletion of subsection (3).

Substitution of section 85 of Act 117 of 1998

7. The following section is hereby substituted for section 85 of the principal Act:

"Authorisation to perform function or exercise power

85. (1) (a) The Demarcation Board may, on its own initiative, and must, at the request of the MEC for local government in the province, a district municipality, a local municipality, or the Minister recommend whether –

a local municipality should be authorised to perform a function or exercise a power of a district municipality in its area of the nature described in section 84 (1) (excluding a function or power referred to in section 84 (1) (a), (b), (c), (d), (i), (o) or (p));

a district municipality should be authorised to perform a function or exercise a power of a local municipality in the area of the local municipality of a nature described in section 84 (2).

(b) The Demarcation Board’s recommendation must-

be conducive to the fulfilment of the objects of local government provided for in section 152 of the Constitution;

take into account the factors referred to in section 25 of the Demarcation Act; and

take into account the capacity of a district or local municipality to perform the function or exercise the power vested in the municipality in terms of section 84 (1) or (2).

(2) (a) The Demarcation Board must convey its recommendation in writing to the relevant MEC.

If an MEC agrees with the recommendation of the Demarcation Board, he or she must, by notice in the Provincial Gazette, authorise the local or district municipality, as the case may be, to perform a function or exercise a power.

If an MEC does not agree with the recommendation of the Demarcation Board, he or she must furnish reasons, in writing, to the Demarcation Board and the Minister.

The Minister may, by notice in the Government Gazette, and after consulting the MEC for local government and the Demarcation Board, authorise a local or district municipality, as the case may be, to perform a function or exercise a power in accordance with the recommendation of the Demarcation Board.

(3) The Minister may by notice in the Government Gazette, and after consultation with the Cabinet member responsible for the functional area in question, and after consulting the MEC for local government and, if applicable, subject to national legislation, authorise a local municipality in the area of a district municipality to perform a function or exercise a power referred to in subsection (1) (b), (c), (d) or (i)."

Amendment of section 90 of Act 117 of 1998

8. Section 90 of the principal Act is hereby amended by the substitution in the Afrikaans text in subsection (2) for the words "betrokke munisipaliteit" of the words "betrokke provinsies".
Amendment of section 91 of Act 117 of 1998

[4.] 9. Section 91 of the principal Act is hereby amended by the substitution for subsection (1) of the following subsection:

"(1) The MEC for local government in a province, within a policy framework as may be determined by the Minister, and by notice in the Provincial Gazette, may exempt a municipality in the province from [a provision of section] any of the provisions of sections 36 [(2),] (3) or (4), 38, [to 41] 39, 45 to 47, 48(2), (3) [and] or (4), 50 to 53, 58, 65 to 71, 75 and 76.".

Amendment of section 93 of Act 117 of 1998

[5.] 10. Section 93 of the principal Act is hereby amended-

[(a) by the insertion of the following subsection after subsection (1):

"(1A) (a) Sections 12(4) and 16(3) only apply in respect of a municipality after its council has been declared elected as contemplated in item 26(1)(a) of Schedule 6 to the Constitution.

(b) In respect of the first general election of municipal councils after the enactment of this Act, the MEC for local government must, before publishing a notice in terms of section 12 or 16-

(i) consult organised local government in the province; and

(ii) publish particulars of the proposed notice for public comment for at least 14 days.";]

(a) by the substitution for subsection (2) of the following subsection:

"(2) If any conflict relating to the matters dealt with in this Act arises between this Act and the provisions of any other law, except the Constitution and Chapter 2 of the Local Government: Municipal Structures Amendment Act, 2000, the provisions of this Act prevail.";

(b) by the substitution for subsection (3) of the following subsection:

"(3) The first term of all municipal councils after the enactment of this Act expires [not later than 1 November 2000 as determined by the Minister by notice in the Government Gazette] on 31 October 2000."; and

"(4) Despite anything to the contrary in any other law and as from the date on which a municipal council has been declared elected as contemplated in item 26(1)(a) of Schedule 6 to the Constitution-

(a) section 10G of the Local Government Transition Act, 1993 (Act No. 209 of 1993), read with the necessary changes, apply to such a municipality; and

(b) [section 10H of the Local Government Transition Act, 1993, (Act No. 209 of 1993), read with the necessary changes, apply to the employees of such a municipality.] any regulation made under section 12 of the Local Government Transition Act, 1993 (Act No. 209 of 1993), and which relates to section 10G of that Act, read with the necessary changes, apply to such a municipality.

(5) For the purposes of subsection (4)-

(a) any reference in section 10G [or 10H] of the Local Government Transition Act, 1993 (Act No. 209 of 1993), or a regulation referred to in subsection (4)(b), to-

(i) 'chairperson of the council' must be construed as a reference to the speaker of the council;

(ii) 'chief executive officer' must be construed as a reference to the municipal manager appointed in terms of section 82;

(iii) 'local council', 'metropolitan council', 'metropolitan local council' and 'rural council' must be construed as a reference to a municipal council;

(iv) 'MEC' must be construed as a reference to the member of the Executive Council of a province responsible for local government;

(v) 'MEC responsible for [finance] Finance' must be construed as a reference to the member of the Executive Council of a province responsible for finances in the province; and

(vi) 'remaining area' and 'areas of jurisdiction of representative councils' must be construed as a reference to a district management area; and

(b) section 10G of the Local Government Transition Act, 1993 (Act No. 209 of 1993), must be regarded as having been amended by the insertion of the following subsection after subsection (6):

"(6A) (a) Despite anything to the contrary in any other law, a municipality must value property for purposes of imposing rates on property in accordance with generally recognised valuation practices, methods and standards.

(b) For purposes of paragraph (a)-

(i) physical inspection of the property to be valued is optional; and

(ii) in lieu of valuation by a valuer, or in addition thereto, comparative, analytical and other systems or techniques may be used, including-

(aa) aerial photography;

(bb) information technology;

(cc) computer applications and software; and

(dd) computer assisted mass appraisal systems or techniques.

(6) A district municipality or a metropolitan municipality may levy and claim a regional services levy and a regional establishment levy referred to in section 12 (1) (a) of the Regional Services Councils Act, 1985, or section 16 (1) (a) of the KwaZulu and Natal Joint Services Act, 1990.".

Amendment of Table of Contents
11. The Table of Contents of the principal Act is hereby amended by the substitution for the reference to section 85 of the following reference:

"85. [Adjustment of division of functions and powers] Authorisation to perform function or exercise power".

[Transitional arrangement
6. For the first general election of municipal councils after the enactment of this Act, the date referred to in section 20(1)(a) of the principal Act is deemed to be 31 March 2000.]
CHAPTER 2

TRANSITIONAL ARRANGEMENTS IN RESPECT OF NEW LOCAL GOVERNMENT DISPENSATION

Definitions

[10.] 12. (1) In this Chapter a word or expression to which a meaning has been assigned in the Structures Act, has that meaning and, unless the context otherwise indicates –

"existing municipality" means a municipality established in terms of legislation other than the Structures Act before the date of the first elections of municipal councils in terms of that Act;

"new municipality" means a municipality established or to be established in terms of the Structures Act;

"section 12 notice" means a notice envisaged in section 12 (1) of the Structures Act;

"Structures Act" means the Local Government: Municipal Structures Act, 1998 (Act No. 117 of 1998);

"superseding municipality" means a new municipality which wholly or partially supersedes an existing municipality in accordance with section 14 (1) of the Structures Act;

"transition" means the process of putting into operation the new local government dispensation as set out in the Structures Act read with Chapter 7 of the Constitution.

Duration of transition

[11.] 13. (1) The transition ends two years from the date of the first election of municipal councils in terms of the Structures Act, unless the Minister determines a shorter period by notice in the Government Gazette.

(2) This Chapter lapses when the transition ends.

Transitional application of section 12 of Act 117 of 1998

[12.] 14. (1) For purposes of the transition, section 12 of the Structures Act must be regarded as permitting –

(a) a new municipality to be named in the section 12 notice by way of a provisional designation which must consist of or include the number allocated to the area of the municipality when that area was demarcated in terms of the Demarcation Act; and

(b) the establishment of a district municipality, the establishment of local municipalities within the area of the district municipality, and the total or partial disestablishment of existing municipalities within that area, to be effected by way of the same section 12 notice.

(2) Section 12 (4) of the Structures Act does not apply during the transition.

Transitional application of section 14 of Act 117 of 1998

[13.] 15. For purposes of the transition, section 14 (5) of the Structures Act must be regarded to read as follows:

"(5) (a) The MEC for local government in a province, by notice in the Provincial Gazette, may make provision for transitional measures to facilitate the disestablishment of an existing municipality and the establishment of a new municipality.

(b) The measures contemplated in paragraph (a) may include measures-

(i) establishing a committee to advise the MEC on any matter affecting the transition; or

(ii) in relation to the existing municipality, restricting or regulating the-

(aa) alterations to the staff establishment;

(bb) appointment of staff or the filling of vacancies;

(cc) upgrading of posts or promotions;

(dd) increases in salaries or wages;

(ee) disposal or acquisition of assets;

(ff) conclusion of contracts with a duration longer than one year or the renewal of such contracts; or

(gg) use of reserve capital.

Transitional application of section 16 of Act 117 of 1998

[14.] 16. (1) For purposes of the transition, section 16 (2) of the Structures Act, must be regarded to read as follows:

"(2) Any amendment of a section 12 notice must be consistent with the provisions of this Act read with the provisions of Chapter 2 of the Local Government: Municipal Structures Amendment Act, 2000.".

(2) Section 16 (3) of the Structures Act does not apply when a section 12 notice is amended for purposes of the transition.

Transitional arrangement in respect of notice and consultation

[15.] 17. For purposes of the transition, the MEC for local government in a province must, before publishing a notice in terms of section 12 or 16 of the Structures Act-

(a) consult organised local government in the province; and

(b) publish particulars of the proposed notice for public comment for at least 14 days.

Transitional arrangement in respect of section 20 of Act 117 of 1998

[16.] 18. For the first election of municipal councils after the enactment of this Act, the date contemplated in section 20(1)(a) of the Structures Act, as amended by section 2 of this Act, must be regarded as 31 March 2000.

Short title

[17.] 19. This Act is called the Local Government: Municipal Structures Amendment Act, 2000.

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