Meeting report

 

The Chairperson asked Advocate Zuraya Adhikarie, Parliamentary Legal Advisor, to guide the Committee through the proposed amendments to the Bill, and to indicate which provisions had been supported or rejected.

 

At the outset, Adv Adhikarie identified three issues of concern, which the Department had flagged. The first related to the “exceptional circumstances” clauses, which was considered arbitrary. Secondly, the Department of Provincial and Local Government had campaigned for the alignment between the term of the ward council with that of the municipal council. It was motivated that this would allow for greater certainty and consistency. The third issue pertained to the definition of close family member, which was considered too broad.

 

Clause 1

Adv Adhikarie stated that this clause remained unchanged.

 

Clause 2

Adv Adhikarie highlighted the insertion of a new paragraph, which authorised the MEC, in exceptional cases, to consult with the Minister of Finance regarding the notice period for boundary changes.

 

The Chairperson recalled the Committee’s position on this clause. He commented that there was broad agreement that the MEC should have the central decision-making role because dual authority (with the Minister) would cause uncertainty, in cases of disagreements. In addition, he explained that the term “exceptional circumstances” described situations where “things needed to be done”, but had no financial implications and did not impact on the majority of people.

 

Mr L Mokoena (ANC, Limpopo) commented that he was satisfied with the new clause if it captured all the Committee’s concerns, as outlined by the Chairperson.

 

The Chairperson advised that the Committee should avoid creating unnecessary tension and pressure, particularly in matters that had financial implications. However, he maintained that provinces should be allowed “to move” and not restrict development when the opposite existed.

 

Mr Myron Peter, Chief Director: Institutional and Administrative Systems, DPLG, contended that it was not adequate to leave the term “exceptional circumstances” undefined, as it would lead to arbitrariness. He suggested that this be corrected and that a class of  “exceptional cases be created to guide the decision making process. He advised that section 87 of the Municipal Structures Act (MSA) contained matters that could be classified as “exceptional circumstances”, and that this should be cross-referenced with the clause.

 

Mr M Ncolo, State Law Advisor, Office of the State Law Advisor, indicated that the term was commonly used in legislation, and in most cases it was not defined. Additionally, he remarked that he was “at pains” to link sections 86 and 87 of the MSA with this clause, particularly because the Committee was only talking about finances.

 

The Chairperson confirmed that the Committee was talking about finances. But it also went beyond to look at issues of development and boundaries.

 

Adv Adhikarie explained that the term “exceptional circumstances” was often used in legislation to give the decision maker discretionary powers. She disagreed with the Department that the clause could be cross-referenced with section 87 of the MSA, because the latter was equally arbitrary.

 

The Chairperson reminded Mr Peter that the Committee was being generous in affording the Department another opportunity to comment on the Bill. He stated that if there was not total consensus, there should at least be sufficient consensus.

 

The Committee agreed with Adv Adhikarie’s reading on this matter.

 

Mr Peter raised two additional concerns. Firstly, he proposed that the words “such as” should be replaced with “including”. He motivated that this formulation was more wide-ranging. Secondly, he registered a more fundamental concern, which related to the MEC’s dominating decision making role. He claimed that the construction did not recognise that there was a hierarchy in decision making among officials in the different tiers of government. As a result, relations would be affected if the MEC’s decision superseded that of the Minister in cases of disagreement. Finally, he concluded that provinces acted within bounded limits, and that their powers were not unfettered.

 

The Chairperson rejected the latter concern, and argued that the Constitution did not talk of hierarchy but interdependence. Furthermore, he explained that Chapter Three (of the Constitution) referred to spheres, and not tiers of government. Moreover, he remained unconvinced by the Department’s reasoning to remove the powers conferred on MECs.

 

The Chairperson asked the legal experts whether they accepted the Department’s primary proposal.

 

Both legal experts had no problem with this suggestion.

 

The Chairperson joked that the Department was not hard, and was able to concede.

 

The Committee generally supported the revised clause.

 

Clauses 3 to 5

Adv Adhikarie reported that these clauses remained as they appeared in the Bill.

 

Clause 6

Adv Adhikarie mentioned that this clause had been restructured in a big way to make allowances for the chairperson to be selected out of the members in the ward committee. That change resulted in quite a few consequential amendments in the subsection.

 

Adv Adhikarie noted the other substantial amendment in the clause. This was the insertion of a new paragraph, which directed the MEC to monitor the policy, criteria and calculation of out of pocket expenses of municipalities.

 

Mr Peter raised objections to the second amendment. He asserted that municipalities should not only determine a criteria and policy for out of pocket expenses, they should also be responsible for monitoring it. The amendment assumed that local government did not have monitoring responsibility. He reasoned that if MECs were given responsibility to monitor, then they should be the originator of the policies through a set of guidelines. Furthermore, he expressed uncertainty regarding the type of interventions expected from MECs. Finally, he advanced that municipalities could be compelled to disclose their policy in their annual financial statement, which the provinces could monitor.

 

The Chairperson remarked that the Committee preferred engaging with the executive because officials did not understand the politics and context of the discussions. He argued that self regulation did not work because it was open to abuse and contrary to the principle of separation of powers. Within that context, the Committee insisted that there should be someone, who was not part of the original process that did the monitoring.

 

Mr Peter recommended that the MEC be required to monitor the policies through a set of guidelines outlined in the provincial guidelines. He maintained that there should be a framework of standards; otherwise municipalities would have disparate approaches.

 

Mr Mokoena added that the MECs should also monitor the implementation of the policy.

 

The Chairperson reckoned that the Member raised a valid point. He supported the Department’s position that the MECs should monitor the policies based on a provincial framework. Consequently, he requested Mr Peter to formulate a phrase that captured this intention.

 

Mr Peter was unable to do so and it was decided that the legal experts should work on this.

 

Clause 7

Adv Adhikarie indicated that this clause was fine.

 

Clause 8

Adv Adhikarie mentioned that this clause was amended to align the term of a ward committee with that of a municipal council. It was envisaged that this amendment would ensure greater stability.

 

Adv Adhikarie highlighted the other significant change in the clause, which stipulated that the Minister may by notice in Government Gazette prescribe regulations for the implementation of subsection (1).

 

The Chairperson stated that he was not a federalist, but a realist. He asserted that the issue of ward committees and their elections was a national process and required a national approach. Following that logic, he believed that municipalities could not therefore determine the date of their own election. He also suggested that, in the regulations, there should be mechanisms introduced to remove ward committees, if their communities were unhappy with them.

 

Mr Z Ntuli (ANC, KwaZulu-Natal) sought clarity on whether the Committee wanted the term of the ward committee to correspond with that of the council. Should that be the case, he expressed doubts regarding the practicality of this suggestion because currently the council established the committee.

 

The Chairperson commented that it was not desirable to elect the council and the committee in different terms because this affected the stability of the municipality and its delivery of services. He emphasised that the government at local level must take charge over everything at that level and make their own arrangements.

 

Clause 9

Adv Adhikarie explained that the Committee needed to consider two options for amendments to section 85 of the Structures Act. The first option imposed a moratorium on the delegation of powers and functions between a district and a local municipality. The second option sought to remove the suspension and create an exception clause.

 

Mr Mokoena assumed that the legal experts would have reached an agreement on this matter, instead of presenting the Committee with options. 

 

Adv Adhikarie announced that she was most comfortable with the first option. She explained that she was persuaded by the compelling arguments presented by the Demarcation Board.

 

Mr Peter countered that the construction in favour of suspension was unusual and could be the subject of contestation.

 

The Chairperson preferred the approach where municipalities were empowered and that certain issues which could be handled at that level should be done so.

 

Regarding the notice period for boundary changes, the Chairperson rejected the six-month notice period and said that it should be shortened to four months.

 

The Department relented on this issue.

 

Clause 10

The term “close family member” was redefined because the original definition was too broad. The Committee decided to remove ‘dependant’ and ‘sibling’ from the definition. Also ‘union’ was replaced by ‘marriage’.

 

Clauses 11, 12, 14, 15, 16, 17, 18, 19, 20

Adv Adhikarie remarked that there were no issues in these clauses.

 

Clause 13

Mr Peter explained the Department’s original intention behind this clause. The overarching aim was to align the clause with the Public Service Amendment Act, particularly on the governance issues between staff member and municipality. In light of this, he suggested that the phrase “as regulated by the Minister” be inserted at the end of subsection 1. He justified that this would give the clause more teeth and avoid ambiguity

 

Adv Adhikarie said that there was no other person, besides a Minister that could prescribe limits and conditions.

 

Mr Peter maintained that this should be tightened up because problems could arise during interpretation.

 

Mr Ncolo explained that the current clause complied with normal drafting standards, hence it was not necessary to define prescribe. 

 

The Chairperson supported the Department’s proposal for the insertion of those words.

 

Voting on Bill

The Committee surveyed the Bill clause by clause and stated that they agreed to clauses 1, 3, 4, 5, 7, 10, 11, 12, 14, 15, 16, 18, 19, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 35 and 36.

 

Equally, the Committee agreed to clauses 2, 6, 8, 9, 13, 17, 20 and 21 as amended.

 

Mr J Le Roux (DA, Eastern Cape) commended the officials for doing an excellent job. The Chairperson thanked the technical team for their hard work.

The Committee approved the Bill subject to the amendments made by the legal experts

 

The meeting was adjourned.