ATC210223: Report of the Portfolio Committee on Cooperative Governance and Traditional Affairs on consideration of the National Council of Provinces’ amendments to the Local Government: Municipal Structures Amendment Bill[B19D-2018] (National Assembly – Section 76), dated 23 February 2021

Cooperative Governance and Traditional Affairs

Report of the Portfolio Committee on Cooperative Governance and Traditional Affairs on consideration of the National Council of Provinces’ amendments to the Local Government: Municipal Structures Amendment Bill[B19D-2018] (National Assembly – Section 76), dated 23 February 2021.

 

The Portfolio Committee on Cooperative Governance and Traditional Affairs having considered the amendments of the National Council of Provinces to theLocal Government: Municipal Structures Amendment Bill [B19D-2018],(National Assembly – Sec 76), referred to it on 2 December 2020 (see ATC, 2 December 2020), reports as follows.

 

  1. BACKGROUND

 

  1. The amendments to the Municipal Structures Act mostly emanate from the proposals of the Independent Electoral Commission (IEC) to address the challenges experienced in the administration and management of local government elections.

 

  1. The Department of Cooperative Governance (DCoG), the South African Local Government Association (SALGA), Provincial Governments and some Municipal Councils have also proposed amendments to the Principal Act, with a view to promoting certainty on some matters and strengthening oversight and governance in municipalities.

 

  1. The processing of the Bill in Parliament commenced towards the end of the fifth term of Parliament, where the previous Portfolio Committee received and considered submissions from SALGA, the Municipal Demarcation Board (MDB), the Provincial Governments of KwaZulu-Natal, Western Cape and Northern Cape, the Department of Justice and Constitutional Development (DoJCD), DCoG, as well as Free State and Mpumalanga Provincial COGTAs.  These engagements took place on 13, 14 and 20 November 2018.

 

  1. Following the Committee deliberations of 5and 6 of December 2018, the National Assembly debated the Bill on 13 February 2019, and thereafter referred it to the National Council of Provinces (NCOP) for concurrence in terms of the procedure outlined in Section 76 of the Constitution. Having lapsed with the dissolution of the fifth Parliament in June 2019, the NCOP revived the Bill on 17 October 2019.

 

  1. After conducting its own extensive public participation processes, the NCOP debated the Bill on 02 December 2020 and referred it back to the National Assembly, with amendments, for concurrence. This is a report on the Portfolio Committee’s deliberations on these NCOP amendments.

 

  1. COMMITTEE DELIBERATIONS

 

  1. The Committee sat on 10 February 2021 to consider the NCOP’s amendments to the Local Government: Municipal Structures Amendment Bill [B19D–2018]. The Committee sitting consisted of the following Members: Ms F Muthambi (Chairperson – ANC), Ms P Xaba-Ntshaba (ANC), Ms D Direko (ANC), Ms M Tlou (ANC), Hon GG Mpumza (ANC), Mr C Brink (DA), Mr K Ceza (EFF), Ms H Mkhaliphi, Mr M Mabika (DA), Ms E Spies (DA) and Ms A Buthelezi (IFP), Mr M I Groenewald (FFP)

 

  1. Having been thus constituted, the Committee considered and unanimously agreed to all the NCOP amendments, as follows:

AMENDMENT

COMMITTEE DECISION

Clause 1

  1. On page 2, after line 6, to insert the following paragraphs:‘‘(a)by the insertion before the definition by-election of the following definition: ‘authorised representative’ in relation to a party, means a natural person duly authorised by the party in accordance with its constitution to act on the party’s behalf for purposes of performing the duties contemplated in sections 27(2) and 43(2)(d) and (e); and (b) by the insertion before the definition ‘‘councillor’’ of the following definition: ‘Code of Conduct’ means the Code of Conduct for councillors set out in Schedule 7;’’.

Amendment unanimously agreed to

  1. On page 3, in line 2, to insert the words ‘‘by the Electoral Commission’’ after the word ‘‘election’’.

Amendment unanimously agreed to

  1. On page 3, before line 7, to insert the following paragraph: ‘‘(d) by the insertion after the definition of ‘‘local council’’ of the following definition: ‘Local Government: Municipal Finance Management Act’ means the Local Government: Municipal Finance Management Act, 2003 (Act No. 56 of 2003);’’

Amendment unanimously agreed to

  1. On page 3, in line 8, omit ‘‘Municipal Publics Account Committee’’ and substitute ‘‘municipal public accounts committee’’.

Amendment unanimously agreed to

  1. On page 3, in line 8, omit ‘‘a’’ and substitute ‘‘the’’.

Amendment unanimously agreed to

Clause 7

  1. On page 4, line 7, to omit ‘‘and’’ after the word ‘‘and’’;’’.

Amendment unanimously agreed to

  1. On page 4, after line 7 to insert the following paragraphs: (a) by the substitution in subsection (4) for paragraph (a) of the following paragraph: ‘‘(a) three of the number determined for the municipality in accordance with the subsection (1) (a) formula, if 30 or fewer councillors have been determined for the municipality in terms of the formula, provided that a council of fewer than [seven] 10 may not be decreased; [or]’’; (b) by the substitution in subsection (4) for paragraph (b) of the following paragraphs: (b) 10 per cent of the number determined for the municipality in accordance with the subsection (1) (a) formula, if more than 30 councillors have been determined for the municipality in terms of the formula [.] or;

Amendment unanimously agreed to

  1. On page 4, in line 10, to omit ‘‘size’’ and substitute ‘‘area’’.

Amendment unanimously agreed to

Clause 8

  1. On page 4, in line 20 and 21, omit ‘‘for Councillors contained in Schedule 7,’’

Amendment unanimously agreed to

  1. On page 4, after line 24 to insert a new paragraph: ‘‘Insertion of section 21A in Act 117 of 1998. The following section is hereby inserted in the principal Act, after section 21: ‘‘Code of Conduct for Councillors 21A. The Code of Conduct applies to every member of a municipal council.’’’’

Amendment unanimously agreed to

  1. On page 4, in line 30, to insert the words ‘‘by the Electoral Commission’’ after the word ‘‘election’’.

Amendment unanimously agreed to

Clause 9

  1. On page 4, in line 45, to insert the words ‘‘by the Electoral Commission’’ after the word ‘‘election’’.

Amendment unanimously agreed to

Clause 12

  1. On page 5, after line 33, to insert a new paragraph: ‘‘(a)by the substitution of the words preceding paragraph (a) of the following words: ‘‘(1) A councillor vacates office during a terms of office if that councillor—’’

Amendment unanimously agreed to

  1. On page 5, in lines 35–37, to omit ‘‘for councillors set out in Schedule 7,’’

Amendment unanimously agreed to

  1. On page 5, in line 45 and 46, to omit ‘‘, as defined in the Local Government: Municipal Electoral Act, 2000 (Act No. 27 of 2000),’’ after the word ‘‘representative’’.

Amendment unanimously agreed to

Clause 13

  1. On page 5, in line 54, to omit ‘‘of the municipality or,’’ and substitute ‘‘, or’’.

Amendment unanimously agreed to

  1. On page 5, in line 56, to insert a comma after the word ‘‘province’’.

Amendment unanimously agreed to

  1. On page 5, in lines 56 and 57, to omit ‘‘on good cause shown designate a person to’’.

Amendment unanimously agreed to

Clause 17

  1. On page 6, in line 36–38, to omit ‘‘set out in Schedule 7’’.

Amendment unanimously agreed to

Clause 19

  1. On page 8, in line 9, omit ‘‘elected’’ and substitute ‘‘determined’’.

Amendment unanimously agreed to

  1. On page 8, in line 23, to insert ‘‘, through an authorised representative,’’ after the word ‘‘must’’.

Amendment unanimously agreed to

  1. On page 8, in line 27, to insert ‘‘, through an authorised representative,’’ after the word ‘‘will’’.

Amendment unanimously agreed to

Clause 23

  1. On page 9, in line 9, omit ‘‘Municipal Public Accounts Committee’’ and substitute ‘‘municipal public accounts committee’’.

Amendment unanimously agreed to

  1. On page 9, in line 11, omit ‘‘Municipal Publics Account Committee’’ and substitute ‘‘municipal public accounts committee’’.

Amendment unanimously agreed to

  1. On page 9, in line 15, omit ‘‘Committee’’ and substitute ‘‘municipal public accounts committee’’.

Amendment unanimously agreed to

  1. On page 9, in line 17, to insert ‘‘municipal public accounts’’, before the word ‘‘committee’’.

Amendment unanimously agreed to

  1. On page 9, in line 18, to omit ‘‘Auditor-General’’ and substitute ‘‘Auditor-General’s’’.

Amendment unanimously agreed to

  1. On page 9, in line 22, to omit ‘‘Management’’ and substitute ‘‘management committee’’.

Amendment unanimously agreed to

  1. On page 9, in line 22, to omit ‘‘Audit Committee’’ and substitute ‘‘the audit committee’’.

Amendment unanimously agreed to

  1. On page 9, from line 24, to omit subsection (c) and to substitute: ‘‘(c) initiate and develop the oversight report [contemplated insection 129 of the] on annual [report] reports contemplated [as required] in [terms of] section 129 of the Local Government:Municipal Finance Management Act, 2003 (Act No. 56 of2003);’’

Amendment unanimously agreed to

  1. On page 9, in line 26 and 27, to omit ‘‘, 2003 (Act No. 56 of 2003)’’.

Amendment unanimously agreed to

  1. On page 9, in line 32, to insert a comma after the word ‘‘initiative’’.

Amendment unanimously agreed to

  1. On page 9, in line 32, to omit ‘‘but’’.

Amendment unanimously agreed to

  1. On page 9, in line 35, to omit ‘‘Committee’’ and substitute ‘‘municipal public accounts committee’’.

Amendment unanimously agreed to

  1. On page 9, in line 37, omit ‘‘Audit Committee’’ and substitute ‘‘audit committee’’.

Amendment unanimously agreed to

  1. On page 9, in line 39, omit ‘‘,2003’’

Amendment unanimously agreed to

Clause 27

  1. On page 10, in line 18, to omit, ‘‘seats’’ and to substitute ‘‘votes’’.

Amendment unanimously agreed to

Clause 30

  1. On page 16, in line 17, to omit the comma after the word ‘‘may’’ and insert a comma after the word ‘‘not’’.

Amendment unanimously agreed to

  1. On page 17, in line 10, to omit, ‘‘chairperson’’ and to substitute ‘‘speaker’’.

Amendment unanimously agreed to

  1. On page 17, in line 40, to insert the words ‘‘by the MEC’’ after the word ‘‘council’’.

Amendment unanimously agreed to

  1. On page 18, in line 2, to omit ‘‘(6)’’ and substitute ‘‘(7)’’.

Amendment unanimously agreed to

  1. On page 18 in line 2, to omit ‘‘the rules of natural justice’’ and substitute ‘‘section 3 of the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000)’’.

Amendment unanimously agreed to

Clause 31

  1. On page 18 in line 2, to omit ‘‘the rules of natural justice’’ and substitute ‘‘section 3 of the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000)’’.

Amendment unanimously agreed to

NEW CLAUSES

  1. That the following be new clauses to follow clause 20: ‘‘Amendment of section 45 of Act 117 of 1998 as substitutedby section 1 of Act. No 1 of 2003

 

21. Section 45 of the principal Act is hereby amended: (a) by the substitution for the heading of the following heading: ‘‘[Election] Determination of members of executivecommittees’’(b) by the substitution in section 45 for the words preceding paragraph (a) of the following words: ‘‘A municipal council must [elect] determine the members of its executive committee from among its members at a meeting that must be held—’’’’ ‘‘Amendment of section 46 of Act 117 of 1998 as substitutedby section 1 of Act. No 1 of 2003

 

22. Section 46 of the principal Act is hereby amended by the substitution in section 46 for the words preceding paragraph (a) of the following words: ‘‘The members of an executive committee are [elected] determined for a term ending, subject to section 47, when—’’’’. ‘‘Amendment of section 48 of Act 117 of 1998 as amended byAct. No 1 of 2003

 

23. Section 48 of the principal Act is hereby amended by the substitution for subsection (2) of the following subsection: ‘‘(2) The election of a mayor and deputy mayor takes place when the executive committee is [elected] determined or when it is necessary to fill a vacancy.’’‘‘Amendment of section 53 of Act 117 of 1998

 

24. Section 53 of the principal Act is hereby amended by the substitution for subsection (2) of the following subsection: ‘‘(2) If all the members of an executive committee areremoved, a new [election] determination of members must take place, and a new election of [and] the mayor and, if the municipality has a deputy mayor, the deputy mayor, must be held in terms of sections 45 and 48, respectively.’’.

Amendment unanimously agreed to

NEW CLAUSE

  1. That the following new clause be inserted to follow clause 21: Amendment of section 63 of Act 117 of 1998

25. Section 63 of the principal Act is hereby amended by the substitution for subsection (3) of the following subsection: ‘‘(3) Item 3 of the Code of Conduct [for Councillors set out in Schedule 1 to the Local Government Municipal Systems Act, 2000] does not apply to the speaker, executive mayor, a member of the mayoral committee or a member of the executive committee, as the case may be, in respect of meetings of a metropolitan sub council of which such an office bearer is a member.’’.

Amendment unanimously agreed to

NEW CLAUSE

 

That the following be a new clause to follow clause 31: ‘‘Transitional arrangements

 

32. A municipality with a plenary executive system immediately before the commencement of this Act, will continue to exist as a municipality with a plenary executive system until the date of the first local government election after commencement of this Act.’’

Amendment unanimously agreed to

 

 

CLAUSE 32

  1. On page 18, in line 40, to omit 2018, and to substitute 2020.

Amendment unanimously agreed to

LONG TITLE

  1. On page 2, in the last line of the long title, to insert after ‘‘Councillors;’’ the words ‘‘to provide for transitional arrangements in respect of municipalities with a plenary executive system;’’.

Amendment unanimously agreed to

 

  1. CONSIDERATION OF THE AMENDMENT BILL

The Portfolio Committee on Cooperative Governance and Traditional Affairs having deliberated on and considered the NCOP’s amendments to the Local Government: Municipal Structures Amendment Bill[B19D-2018] (National Assembly – Section 76), reports that it has agreed to the amendments as proposed. Committee members also agreed that the Department of Cooperative Governance should address all other matters of concern via circulars or other appropriate mechanisms.

 

Report to be considered

Documents

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