Traditional and Khoi-San Leadership Bill: adoption; Proposed Legislation: COGTA Update

Meeting report

Traditional and Khoi-San Leadership Bill
The Chairperson said all the amendments for the bill had been dealt with and the Committee would review the Committee report on the bill.

Dr Rinaldi Bester, Chief Director: Policy and Legislation, COGTA, said the B23 [A] -2015 version of the bill contained all the amendments to all the clauses that the Committee agreed to. The B23 [B] version was the revised bill.

Mr K Mileham (DA) said he was under the impression that on page 13, line 17 (referring to clause 19) where a paragraph would be omitted and substituted with “disclose to the Premier … in the provincial gazette” there was agreement that the Minister would make the determination, not the Premier, so that there would be a uniform determination.

Dr Bester said his notes indicated that the Premier needed to determine it because the norms and standards differed from province to province.

Mr Mileham said his issue was that norms and standards would be set by the Premier and not the Minister.

Mr A Masondo (ANC) said that it would make it more awkward if it was the Minister who determined norms and standards, so it should be left to the Premier.

Mr Mileham said that the norms would then be set by the Premier if the clause stood as it was. He said the amount should be set by the Minister and published in the government gazette.

Mr Masondo said the gift issues were fairly varied and there should be engagement on the issue.

Mr E Mthethwa (ANC) asked if there should not be one standard at the national level.

Dr Charles Nwaila, Director General, Department of Traditional Affairs, said there should be a standard at the national level

Dr Bester said he would amend “Premier” to read as “Minister” and do all consequential amendments where it talked of “provincial” gazette. In addition, amendments would have to be made to clause 20, paragraph 3, where there was a similar provision. These would then also have to be done on the B version of the bill.

On p32, line 58, (referring to clause 23) there had been a lot of discussion on the use of the words “may” or “must”. The Chairperson said it had been agreed that the first “may” should be omitted and be replaced with “must”.

He said the bill accommodated a lot of issues raised by communities.

Mr Mileham said he did not notice in the bill the discussion on partnerships/ agreements/ contracts that were entered prior to the bill coming into effect and that the Premier would have the power to review it.

Dr Bester said it was on p53 of the B version, on transitional arrangements.

Mr Mileham asked whether, in clause 25 (2)(b)(1) on obtaining concurrence of the Minister, it should not also include obtaining the concurrence of relevant other Ministers?

Dr Bester said the roles were allocated according to laws and these laws would determine whether concurrence was required.

Mr Mileham said he had concerns in clause 59 (1)(b)(1), where provincial legislation may provide a mechanism for traditional leadership disputes, excluding that relating to a King, Queen or Kingship, Queenship. He was fine with that part of the clause, but there had to be a proviso that such provincial legislation not contradict anything in the clause, otherwise it would mean provincial legislation would supersede national legislation.

Dr Bester said it had to be remembered that it was a concurrency and currently some provincial legislation already made provision on how to deal with disputes. Where there was provincial legislation, it could be dealt with through that and through using sub clause 3 which provided for national input. If there was no provincial legislation, then this legislation was used.

Mr Mileham said he did not dispute Dr Bester’s comments, his concern was that clause 59 (1)(b)(1), as it stood, would mean provincial legislation would supersede national legislation. A proviso should be added that no provincial legislation could contradict national legislation.

Dr Nwaila said that currently there were a lot of contradictions, so it would be important to structure the clause as suggested, so that provincial legislation was aligned with national legislation.

Dr Bester said that a provision in the Constitution, section 146(2), said that where national legislation provided for norms and standards or frameworks and where there was a conflict, then the national law prevailed.

The Chairperson said the DG had noted the contradictions in the current provincial legislations and recommended that the proviso be included.

Dr Bester said he would redraft the clause to include the proviso “provided that such legislation may not be inconsistent with this section”.

He said he had redrafted the objects memorandum to reflect all the amendments of the Committee in the B version of the bill.

The Chairperson said there were just two issues that needed correction, the proviso and substituting the “Premier” with “Minister” and consequential amendments related to that.

Mr Masondo said he had received requests for a high-level summary of the bill.

Dr Nwaila said that the objects memorandum was a summary of the bill.

The Chairperson said the bill was a section 76 bill and he moved for adoption of the amendments to the bill and the Committee’s report on the amendment bill. The bill was adopted, and the DA reserved their rights.

Mr Mileham said that the bill had been one of the most productive pieces of legislation and thanked all who had worked on it.

Municipal Demarcation Amendment Bill and the Municipal Structures Amendment Bill

Mr Nwaila said the presentation would cover two pieces of legislation, the Municipal Structures Amendment Bill (MSAB), which was being presented to Cabinet that day and the Municipal Demarcation Amendment Bill (MDAB).

Mr Teboho Motlashuping, Acting DDG: Institutional Development, COGTA) spoke to the MDAB. The amendments were based on proposals submitted to the MDB which were informed by inputs from previous boards, the demarcation process review task team report, litigation, legislative gaps, stakeholder inputs and a local government legislative review workshop amongst others. The large number of proposed amendments would necessitate that the act be repealed entirely and be replaced by a new act. In the proposed amendments the first chapter would cover the Definitions and the interpretation and application of the act. Chapter two would cover the MDB, its establishment, functions and powers, membership, administration, and finances. Chapter three would cover demarcation; its criteria, boundary determination, public participation, ward delimitation, and appeals authority. Chapter four would cover municipal capacity assessments. Chapter five would cover miscellaneous such as regulations, guidelines, offenses, penalties, transitional arrangements and amendment of legislation.

Mr C Matsepe (DA) said he noted that the moving of voting stations was not covered in the presentation.

Mr Masondo said the implications of section 4 on the MDB being able to raise its own funding needed to be clarified and the idea needed to be thought through. He said the language used in section 17 needed improved wording. He said that the problems the legislation was aiming to fix needed to be clear and specific solutions had to be presented. He said section 36 was incomplete and the criteria in section 40 on experience was unclear.

Mr Mileham agreed with Mr Masondo’s comments and said that there was no draft legislation in front of Members, so he suggested that the presentation be regarded as a high-level briefing.

The Chairperson said however that there could be policy or principles Members wanted to bring to the attention of the Department.

Dr Nwaila said the amendments were informed by inputs from the previous MDBs and their experiences in implementation, as well as the litigation it had been involved in, the input of shareholders and gaps in the current act.

Mr Motlashuping said the draft bill would have more details.

On voting stations, he said those were the responsibility of the IEC., not the Minister of Local Government.
On funding, he said there had been problems with funding outside of the fiscus. The MDB said there would be instances when it would require the work done by research institutions to enhance its own work. It should be done within the parameters of the law so that the independence of the MDB could be upheld.

He said a clause was being proposed where, in the absence of the CEO, a board member would act as the CEO. Thus, there needed to be a mechanism in place to separate what the role of that acting CEO would be.

On the criteria for experience, he said there should be regulations stipulating what the criteria should be.

He said the aim of the legislation was to correct the act based on requests made to it and on experience of the MDB.

Mr Mthethwa said that there should not be detailed discussion and that the presentation should be accepted.

The Chairperson said that the presentation of the second piece of legislation should only focus on the objectives of the MSA.

Mr Motlashuping spoke to the objectives of the MSA. Most of the amendments related to proposals received from the IEC based on challenges the IEC had faced during the elections. The Department, SALGA, provinces and some municipalities had also made proposals. There had been public consultation and it was being presented to Cabinet prior to its introduction to Parliament. The proposed amendments were on electoral matters like the allocation of excessive seats, timeframes of party lists and the 14-day period to inform of a vacancy and the definition of “declared elected”. Secondly it covered government matters such as the abolition of plenary type municipalities, the use of geographical size to determine the number of councillors, the function of speakers, the office of the whip, MPACs and quorums and decisions. Thirdly it covered other matters such as the removal of reference to District Management Areas, the migration of section 85(4) and items 2 to 5 of the Structures Act and to migrate schedule1 of the Systems Act to the MSA.

Mr Mthethwa asked if any public consultations had taken place.

Mr Mileham said he had not heard anything about the Intergovernmental Monitoring, Support and Intervention Bill since 2013.

Mr Motlashuping said the bill had been published for comment and had received comment from certain provinces and organisations, but the public participation processes had not been conducted. Once the bill was introduced to Parliament, Parliament would conduct public participation hearings.

Mr Nwaila said the draft of the IG Monitoring and Support and Intervention Bill was ready and the Minister needed to be briefed.

Mr Mileham queried why that information was not also on the legislation time table.

The Chairperson said Parliament needed to review the lengthy and costly public hearings processes which occurred three times, with the Department, when it was at the National Assembly stage and then also at the NCOP stage.

Mr Motlashuping said the Department intended to make amendments to the Municipal Systems Act, but not in the current year as it still needed to consult with provinces and SALGA. It had only started embarking on the process and there was no draft bill yet.

The Chairperson said he hoped the Initiations Bill would not be far off from finalisation, because initiations in Gauteng was becoming uncontrollable,

The meeting was adjourned.