Independent Municipal Demarcation Authority Bill: Department response to Negotiating Mandates

Meeting report

Chairperson's connectivity issue
Ms S Shaikh (ANC, Limpopo) indicated that the Chairperson was having difficulty connecting to the virtual platform and stated that an acting Chairperson should be elected until he could join the meeting.
Mr Moses Manele, Committee Secretary, said that as the Chairperson was unable to join the meeting and in accordance with the rules of the National Council of Provinces (NCOP), Committee Members were allowed to elect an acting Chairperson for the purpose of the meeting.
Mr R Badenhorst (DA, Western Cape) asked if the rules stated that the acting Chairperson should be a Member of Parliament.
Mr Manele confirmed that the acting Chairperson should be a Member serving as a permanent delegate in the Committee.
Mr Badenhorst was nominated for the position of acting Chairperson.
Ms Shaikh was also nominated for the position.
Mr Manele interrupted to state that the Chairperson had joined the meeting, and electing an acting Chairperson was no longer necessary.
The Chairperson apologised for the connectivity issues, and said that if he lost connection, an acting Chairperson should take over.
The Chairperson welcomed Committee members, officials from the Department of Cooperative Governance and Traditional Affairs (COGTA) and other attendees to the meeting.

Procedural matters

The purpose of the meeting was for the Committee to consider COGTA’s response to the negotiating mandates of the provinces. It had been limited in securing the mandates from the Limpopo and Eastern Cape legislatures. It had received Limpopo’s negotiating mandate the previous week, and the Eastern Cape’s the previous day. All nine provinces had submitted their negotiating mandates. The Committee had requested that COGTA develop a response to the Negotiating Mandates, which would be presented by the Department.

Mr C Smit (DA, Limpopo) referred to the agenda and observed that the Department would present its response to the negotiating mandates, and thereafter, the draft C-list would be tabled. At what point in the meeting would the Committee vote on each of the proposed amended clauses? The Committee was meant to decide whether to accept or reject a specific amendment to a clause based on the negotiating mandates received from the provinces. The Committee could not ask the Department which clauses would be included – the decision was up to the Committee.
The Chairperson responded that the Department would not decide on the Committee’s behalf. The Committee and the Department had received the negotiating mandates. The Department was responsible for responding to the mandates, which encapsulated what the provinces thought of the Bill and the proposals and amendments they suggested. After the Department presented its response, the Committee deliberated and decided on what amendments would be included based on the Department's response. The draft C-List would be presented based on the response and the deliberations. Following the Department’s response, each province would have the opportunity to raise any concerns or issues. The term was coming to an end soon.
Mr Smit noted this clarification. The C-List was a product of the decision made.
The Chairperson interrupted Mr Smit and requested that the meeting proceed with the next agenda item.
Mr Smit asked to be allowed to finish his question and indicated that it was his right as a member of the Committee.
The Chairperson confirmed that Mr Smit had this right. He felt that Mr Smit was wasting time a month before the election, and this would not be allowed.
Mr Smit said that he was here to work. He asked if the Chairperson was refusing to let him proceed with his question.
The Chairperson said he was not refusing Mr Smit’s right to speak. He had the right as the Chairperson to direct the meeting. Mr Smit should address the issues before the Committee, not bring up irrelevant matters. He requested that Mr Smit stick to the agenda.
Mr Smit asked if he could finish his question.
The Chairperson agreed.
Mr Smit said that the C-List had already been presented before the Committee had a discussion and decided on the matter. Nowhere in the agenda did it say that the Committee would make a decision on the C-List. The C-List would be sent to the provinces,
The Chairperson confirmed this.
Ms Shaikh said that the committee had engaged on the issues throughout the process of dealing with the Bill. Provincial inputs on the Bill through their negotiating mandates were presented to the Committee. This process culminated in the C-List. The C-List was not cast in stone—it was for discussion. She suggested that the meeting proceed.
The Chairperson said that the meeting would proceed with the agenda. The Department would present its response to the negotiating mandates, and then the Committee would engage with the draft C-List.
Municipal Demarcation Authority Bill: COGTA responses to negotiating mandates
 
Dr Kevin Naidoo, Deputy Director-General (DDG): Policy, Governance and Administration, COGTA, presented the Department’s responses to the negotiating mandates on the Municipal Demarcation Authority Bill.

The bill was referred to the National Council of Provinces (NCOP) in November 2023, and in February 2024, the NCOP referred the bill to the provincial legislatures. The provincial legislatures had conducted public hearings and submitted negotiating mandates.

Northern Cape
The Northern Cape’s mandate highlighted that, in general, its communities, particularly those in the Namaqua region, were excluded from the bill. The region was also not recognised in Chapter 12 of the Constitution.

In response, the Department indicated that public participation had been enhanced in the Bill.

North West
North West’s negotiating mandate had highlighted Clause 26. The legislature felt that the Clause was silent regarding the criteria used for determining and redetermining a municipal boundary.

The legislature’s proposal was not supported by the Department, which was of the view that the Bill encompassed a comprehensive list of factors to be considered when determining and redetermining municipal boundaries, as provided in Section 24.

KwaZulu-Natal
KwaZulu-Natal’s mandate highlighted Clause 10 (7) and suggested that the qualifications of the Board and committee members should be published alongside their names for transparency.

The Department supported this amendment.

Regarding Clause 10(8), the legislature suggested that the manner of filling vacancies on the Board must be reviewed.

The Department did not support this suggestion.

Regarding Clause 38, it was suggested that a more comprehensive process for appointing the Demarcation Appeals Authority (DAA) was required.

The Department did not support this suggestion.

Gauteng
Gauteng’s negotiating mandate had suggested an addition in Clause 8(2).

This suggestion was not supported by the Department.

Under Clause 16(3), it was suggested that co-opted members fulfil the requirements in Section 9(1): Qualification of Board members. The Department supported this suggestion.

The suggestions regarding Clauses 16(4), 40, and 26 were not supported, and the suggestions regarding Clauses 26, 41, and 47 were noted.

Mpumalanga
Mpumalanga’s mandate suggested Clauses 5, 7, 26 and 27.

The Department responded that the suggestions had been catered for in Clause 27 of the Bill.

The Department noted the legislature’s suggestion on Clauses 38 and 10.

Free State
The Free State’s negotiating mandate made suggestions on Clause 10, which the Department noted and supported.

The Department did not support the suggestions on Clauses 33 and 35.

Western Cape
The Western Cape’s negotiating mandate (slides 30-38) suggested changing the definition of ‘President’ in Clause 1. The department supported this.

The suggestions regarding Clauses 8, 9(2)(e), 10(8)(a), 16(2)(a), 16(4), 24, 32(4)(c), and 36(1) were not supported by the Department.

The suggestions on Clauses 16(3)(c), and 29(8) were supported by the Department.

Limpopo
Limpopo’s mandate made suggestions regarding Clauses 7 and 10.

The Department did not support these.

The Department supported the suggestion regarding Clause 43(1).

Department's recommendation
The Department recommended that the Committee note the contents of the presentations and the responses to the submitted negotiating mandates. It stated that the Bill had been translated into two official languages, isiZulu and isiNdebele, and an Afrikaans version was awaited.

Discussion

Concerns arising from Eastern Cape's non-submission

The Chairperson thanked the Department for its responses to the negotiating mandates and indicated that the normal procedure would be for the Committee to engage in the presentation. However, he had previously made a mistake, as the Eastern Cape had not submitted its negotiating mandate, so not all of the provinces had submitted their mandates. If the matter was not handled properly, it could result in trouble for the Committee and e NCOP.

The eight-week cycle for the Bill had finished in March, and the Committee had been in a predicament because two provinces – the Eastern Cape and Limpopo – had not submitted their negotiating mandates. Following this, he engaged with Mr Amos Masondo, Chairperson of the NCOP, to request an extension in terms of Rule 219(3). The extension had been granted, meaning the process extended beyond the eight-week minimum. Legal advice was needed on what the Committee had to do moving forward. It was important to get legal and political guidance on the issue so that the Committee was not open to litigation or created any unnecessary problems and to ensure that the process followed was meaningful in terms of participation.

In the letter sent to the Eastern Cape and Limpopo legislatures by the Chairperson of the NCOP, it was indicated that the extension would be granted. The letter did not specify what would happen if the provinces did not submit their negotiating mandates.

The Committee had two options of how to proceed. The first option was for the Committee to proceed with the meeting and engage with the provinces' submissions and the Department's responses, with a view to developing the C-List. The difficulty with this option was that if the Eastern Cape’s negotiating mandate was not received, that process could be deemed illegal and open to contestation in court. Alternatively, the Committee could wait until it obtained a legal opinion on what should be done before proceeding with deliberations and developing the C-List. Once this was resolved, the Committee could proceed. The Eastern Cape would have to be given time to submit its negotiating mandate, and the Department would need time to submit its response. Following this, the Committee could deliberate on the negotiating mandates of all the provinces. If the Committee deliberated without receiving the Eastern Cape’s submission, it could result in a situation where its mandate changed whatever had been discussed and decided on. Public participation had to be meaningful throughout this process and in relation to case law. Parliament had an obligation to consider what the public and provinces had submitted.

The Chairperson requested that the Committee respond on whether to proceed with the agenda, or whether it would await further legal advice before proceeding.

Ms Shaikh agreed with the Chairperson’s proposal. Since the beginning of the process, when the Committee was presented with the legislation, the importance and urgency of the Bill had been emphasised, especially as the end of the 6^th Parliament was imminent, and the legislation should be in place before the local government elections. Many of the provinces had tried their best to make their submissions due to the importance of the Bill. She agreed that it was important to get further legal advice, but suggested that the Committee proceed with discussions based on the presentation that had been made. The Committee could engage with the presentation, while further advice was sought. She suggested that the Committee proceed with deliberations on the submissions made while waiting for legal and political feedback.

Mr Badenhorst was happy to engage on the presentation that had been delivered. He was concerned about the legality of the process if the Committee proceeded while waiting for the Eastern Cape’s negotiating mandate. Could the deliberations and discussions not be nullified if the process was later deemed illegal? There were procedural issues, and the Eastern Cape situation showed this. He indicated that the Western Cape had also experienced procedural issues.

The Chairperson was concerned that such an important piece of legislation was being delayed by one province.

Ms M Bartlett (ANC, Northern Cape) said that one province could not delay the process.

Ms Shaikh said that the Committee was not yet concluding on the matter -- it was processing the legislation. She suggested that while further advice was being sought, the Committee consider the negotiating mandates and responses that had been presented. This would allow the Committee to consider the responses to the eight provinces that had submitted negotiating mandates.

Mr Smit was concerned about the Committee continuing without the negotiating mandate from the Eastern Cape and the province, and then submitting it later. This would give the Eastern Cape legislature the power to negotiate. If the Committee proceeded to engage with the presentation, it would likely be only clarity-seeking questions. He was happy to engage on this matter if it was decided to proceed, but there would be an issue if any decisions were made on amendments to clauses. If the Eastern Cape were excluded from this process and brought in at the end, they would be excluded from negotiating with other provinces on aspects of the Bill. He agreed that the Committee resume deliberations after it had received adequate legal advice and clarification.

Parliamentary Legal Advisor's advice

Mr Andile Tetyana, Senior Parliamentary Legal Advisor, said South Africa was a constitutional democracy. Public participation and involvement in democratic processes were primarily intended to influence decision-making processes. Public participation was premised on the view that those affected by a decision had the right to be involved in the decision-making process. Central to this was the acknowledgement that institutions with decision-making powers had to involve those affected by their decisions.

On 9 February, the Eastern Cape had written a letter to the Chairperson of the NCOP which indicated that the legislature was occupied with other pieces of legislation, and it would not be in the position to submit the negotiating mandate by 31 March, and had applied for an extension. On 26 March, the Chairperson had approved this request in terms of Rule 219(3). He read the rule for clarity. He was unsure of what authority the Committee would be proceeding with by not including the Eastern Cape’s mandate in the process. This legislation dealt with strategic issues of national importance.

Mr Tetyana said the courts were clear on what should be done. He highlighted the example of "Doctors For Life," where the Constitutional Court had set out the factors to be considered when determining if the public participation process was reasonable. This included the nature and importance of the legislation and the intensity of its impact on the public. Reasonableness also requires that appropriate account be paid to practicalities such as time and expense, which are related to the efficiency of the legislative process. The Constitutional Court had said that if the NCOP was to rely on provincial legislatures to facilitate public involvement, it must satisfy itself that the legislatures held public hearings that met the Constitution's standard. This required the NCOP to be aware of the respective provincial legislatures' steps to facilitate public involvement. The provincial hearings were part of the NCOP process, and any shortcomings would be attributed to the NCOP.

He said that one of the issues in the Mogale case faced by Parliament was that there was no evidence of any pressure on Parliament to process the Bill within a specific time. The courts could ask Parliament why there was a rush to complete the process, resulting in sub-standard public participation, and why a province was locked out of the process. The Eastern Cape had been granted an extension. Ultimately, the decision on whether to proceed was up to the Committee, but the legal advisors were unhappy that the Eastern Cape was being locked out of the process.

Discussion

The Chairperson said that the Eastern Cape was not being "locked out," but rather that the province was locking itself out of the process. All the provinces had been given an opportunity to make submissions, and the Eastern Cape legislature had not complied with the stipulated deadline. Limpopo and the Eastern Cape were given an extension, and Limpopo has since submitted its mandate. The Committee had received mandates from eight of the nine provinces, and the responses from the Department on them. The issue was whether to proceed at this point or at a later stage. The Committee did not intend to lock the Eastern Cape out of the process -- the province had locked itself out.

Ms Shaikh said the legal advisor had provided additional clarity regarding the Eastern Cape situation. She agreed with the Chairperson’s comment that the Committee was not locking the province out. The Committee took public participation very seriously. She proposed that the Chairperson get the necessary procedural advice on the matter. She did not see any harm in continuing to engage with the presentation but thought getting more clarity on the matter would be best before further engagement.

Mr Badenhorst said that the case law – the "Doctors For Life" case – was very clear in saying that the principal legislation could be declared invalid if there was a lack of public participation in the law-making process. The legal advisor had summarised the NCOP’s rules in the previous legal opinion to the Committee. He read Rule 219(3) for clarity – that in the event that the substance of the Bill required more time than the eight-week period (minimum), the Chairperson of the Council may, at the request of the Chairperson of the relevant committee or the Speaker of the provincial legislature, extend that period.

Mr Badenhorst said that the Speaker of the Western Cape legislature had written a letter to the Chairperson of the NCOP on 15 February requesting an extension, and had laid out the timeline for the process, with emphasis on the stringent timeline provided for the submission of the negotiating and final mandate. The legislature had explained that the Committee had indicated that legislatures should use social media to solicit public comments on the Bill. However, it had to be advertised for at least two to three weeks before public hearings to ensure proper public participation. As the Bill had a direct impact on municipalities, and given the nature, scope and possible impact of the Bill, the Western Cape legislature had said that it would most likely have to extend public hearings to at least eight municipal districts of the Western Cape. Once the public hearings had taken place, sufficient time was needed to collate all the submissions received, and the current timelines designated by the committee were deemed too short for the legislature to facilitate adequate public involvement and consultation. Due to prior parliamentary commitments and the fact that the briefing of the Committee took place only on 7 February, the provincial committee had been briefed only on 12 February. The letter had been written and sent on 15 February.

The Chairperson asked why Mr Badenhorst was speaking about the Western Cape.

Mr Badenhorst said the letter sent from the Eastern Cape had been mentioned, but the Western Cape’s letter had not. He wanted it on record that the Western Cape had also requested an extension, but it was unclear whether a response or extension had been granted.

The Chairperson said the Committee was discussing the Eastern Cape, not any other province. The Western Cape had submitted its concerns about the process. Subsequent to this, the Western Cape had submitted its negotiating mandate, which had been more comprehensive than any other province. The current predicament had nothing to do with the Western Cape. The letter granting an extension from the Chairperson of the NCOP had been addressed to both the Eastern Cape and Limpopo provincial legislatures. He was concerned that Mr Badenhorst was taking the Committee backwards in the process. The Committee was now concerned with the issue of the Eastern Cape. He noted the importance of meaningful public participation. The Bill was important, and would significantly affect local government elections.

The Chairperson said that Members largely agreed that the Committee should wait for further legal and political advice before proceeding with deliberations and discussions on the negotiating mandates.

Mr Badenhorst asked for the opportunity to respond to the Chairperson’s statements.

The Chairperson said that Mr Badenhorst’s statements around the Western Cape were irrelevant to the current issue. He felt that Mr Badenhorst was out of order, as the Western Cape was not an issue because they had submitted their negotiating mandate. The issues raised in the Western Cape legislature’s letter to the Chairperson of the NCOP had been brought to the attention of the Committee, and it had noted these issues. He would not allow Mr Badenhorst to raise these issues again. The current issue was how to proceed on the Eastern Cape’s non-submission of its negotiating mandate.

Mr Badenhorst said he had been using the Western Cape as an example.

The Chairperson said that Mr Badenhorst was not making an example—he had been reading the Western Cape’s letter to the Chairperson of the NCOP. Mr Badenhorst had shared the concerns of the Western Cape legislature and highlighted the Western Cape’s strategies for public participation.

Mr Badenhorst said the Committee was heading down the same route as the Mogale judgment. He tried to use the Western Cape and Eastern Cape as examples to emphasise that there was insufficient time for meaningful public participation. He felt that the Western Cape had submitted under duress. Submitting something for the sake of getting it done on time did not mean that the participation was meaningful.

The Chairperson said that no legislature had been forced to submit under duress – this was unlawful and unacceptable. This challenge was not a new one. Provinces had previously highlighted their concerns over public participation but did their best to make their submissions on time. If there were any further problems regarding public participation, the Committee would deal with them. He indicated that the North West would have also liked more time to engage in public participation due to the importance and impact of the Bill. The Bill had consequences for local government elections. If it was the case that the Committee could not proceed without receiving the Eastern Cape’s negotiating mandate, then it would not proceed.

The Chairperson reiterated that the Committee should not deliberate on the negotiating mandates and responses now but wait for further legal and political opinion and guidance on the issue.

Mr Smit was happy that the Chairperson had also indicated that his province had noted that there had been little time for proper, meaningful public participation due to the rush to get the Bill processed before the end of the term. The Committee was responsible for ensuring that proper public participation took place and that the provinces had enough time to engage in meaningful public participation. The importance of the Bill added further pressure on the Committee to ensure that there was meaningful participation and indicated the potential of extending the period for submission. A few provinces had indicated that the time period had been too short and that their legislatures were dealing with a number of bills and could not engage in meaningful public participation. Despite this, they had done their best to make the necessary submissions. However, this did not mean the submissions were a product of proper public participation. This undermined the validity of the process and could be challenged in court. This was the key issue. He said the process was flawed, as the Eastern Cape, Limpopo, and Western Cape had requested an extension. When the extension was granted, it was requested that the Chairperson engage with the Western Cape, which the Chairperson had committed to, but this did not happen.

The Chairperson said he had been generous enough to allow Mr Smit to deliberate on the entire process.

Mr Smit responded that he had the right and responsibility to do that.

The Chairperson said Mr Smit would have other opportunities to deliberate on the process. This was not the time for that yet. Some rules had to be followed.

He said the Committee would not proceed with deliberations and discussions on the negotiating mandates and responses that had been submitted. It would request legal and political advice and guidance on the process going forward and how to proceed with the Eastern Cape’s non-submission.

The meeting was adjourned.