1.2 Both Bills were published for public comment on 13 July 2001 in accordance with section 74(5) (a) of the Constitution.

1.3 The Provincial Government of Gauteng submitted comments as contained in the annexure "A" to Department for Justice and Constitutional Development.

In the Republic, government is constituted as national, provincial and local sphere of government, which are distinctive, interdependent and interrelated. This is a provision of section 40 of the Constitution. Section 41(1) (g) provides that all the spheres of government and all the organs of the state within each sphere must exercise their powers and perform their functions in a manner that does not encroach on the geographical, functional or institutional integrity of government in another sphere.

On the basis of the principle of co-operative government intergovernmental relations as envisaged in section 41 of the Constitution the three spheres government are distinctive but they have a duty to co-operate in mutual trust and good faith with one another and to have respect for another's institutional integrity. Section 151(4) of the Constitution specifically directs the national and provincial Government to guard against compromising or impeding the ability of a municipality to exercise its powers or perform its functions.

An intervention in the affairs of the local government must first and foremost not flout the principle of co-operative government. The guiding principle must always be the well being of the citizen of the municipality.

The Interim Constitution No 200 of 1993 contains principle which are the basis of the current Constitution of the RepubIic of South Africa Act 108 Of 1996. Therefore any amendments to the current Constitution must still comply with Constitutional Principles as contained in schedule 4 of the Interim Constitution No 200 of 1993. The separation of power that is the executive and the legislative authority is one of the main principles in the said Interim Constitution Principles.

3. AMENDMENTS ON LOCAL GOVERNMENT

The proposed amendment to section 155 of the Constitution makes provision for a temporary arrangement where a municipal council is unable to exercise its executive and legislative authority due to any reason. The proposal made is that National Legislation may provide for the exercise of the executive and legislative authority on behalf of a municipal council so as to temporarily restore governance in the municipality until the municipal council is able to exercise its functions.

In terms of the proposed amendment to section 100, the national executive is given the power of intervention not only when a province does not fulfill its obligations but also when a municipality does not fulfil an obligation in terms of legislation or the Constitution. In the case of a municipality, the national executive may intervene when a municipality cannot or does not fulfil any obligation in terms of legislation or the Constitution.

In the case of the province, the national executive may only intervene when the province fails to fulfil an executive Obligation in terms of legislation or the Constitution. The legislative Obligations of the province are specifically excluded, as the national executive cannot pass provincial laws by way of an intervention.

The proposed amendment to section 139 (1) provides that when a municipality cannot or does not fulfil an obligation in terms of legislation or the Constitution the relevant provincial executive may intervene by taking any appropriate steps to ensure fulfillment of that obligation,

3.1. EXECUTIVE AND LEGISLATIVE INTERVENTION

The proposed amendment of sections 100, 155 and 139 mean that the national and the provincial executive will have concurrent power to intervene when a municipality does not fulfil any obligation (executive and legislative) in terms of legislation or the Constitution.

The assumption of the legislative Powers of a municipality by national and provincial executive is not supported.

3.1.1 LEGISLATIVE AUTHORITY

The legislative authority of legislatures (National Assembly, Provincial Legislatures or Municipal Council) derives from the electorate. The current structure of the Constitution reinforces this principle. The constitutional principles outlined in schedule 4 of the interim Constitution guided the structure of our Constitution. Principle 6 states "there shall be a separation of powers between the Legislature, Executive and Judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness". In accordance with this principle legislative authority is vested in Parliament in terms of section 43, in Provincial Legislatures in terms of section 104 and Municipalities in terms of section 155. The assumption of legislative authority by the Executive is surely inconsistent with the Constitutional principle annunciated above.

It may be argued that the assumption of legislative authority is by an executive other than that of a municipality, consequently there is no violation of the principle. However, the legislative authority of a municipal council is derived from an electorate different from either the National or Provincial legislatures. The constitutional approach where a municipal council fails to fulfill its obligations through the exercise of its legislative powers is to dissolve the council and hold by-elections. This is consistent with the current structure of the Constitution, the Constitutional principles and is the approach taken with section 34 (3) (b) of the Municipal Structures Act No 117 of 1998 which makes provision for the dissolution of a municipal council.

The current structure of the Constitution confines interventions by the national and provincial executive to matters, which concerns the exercise of executive authority only. The current amendment of section 100 maintains that principle in relation to National Government and Provincial Government. The assumption of legislative authority of municipalities would thus be an inconsistent application of the Constitutional principles in relation to the three spheres of government. The intervention of either national or provincial executive in the municipal affairs must therefore be with regard to the failure of the municipality to fulfill its executive authority and not its legislative authority.

The proposed amendment to section 100, which excludes the intervention of the national executive with regard to the legislative obligations of the province, is an indication of fact that such intervention is not correct. Therefore the same approach must also be followed with regard to the national executive intervention to legislative obligations of municipality.

The principle that National Government is able to intervene in municipal affairs is supported on the basis of consistent application of the Constitutional principles. The manner in which National Government will be empowered to intervene in municipal affairs is cause for concern.

The principle of co-operative government is currently served by defining a specific role for National Government in relation to provincial affairs and Provincial Government in relation to municipal affairs. If the affected spheres do not perform their executive functions the current structure of the Constitution ensures co-operation between National and Provincial Government in relation to a Provincial Government intervention into municipal affairs. If a Provincial government did not fulfil its executive obligation to assist or intervene, where necessary, if a municipal government fails to fulfils its executive obligations, the National Government may direct the Provincial Government to do so in terms of Section 100.

The amendment of Sections 100 and 139 creates a competitive environment for interventions into municipal affairs because there is no reference to Provincial Government when National government intervenes in municipal affairs and vice versa. The principle contained in Section 156 (4) of the Constitution that a sphere of government with a smaller sphere of influence is most appropriate to administer that matter if it is able to do so effectively. In other words, a municipality deals with local matters; a province deals with provincial matters and the National Government with all matters. In practice this is the experience of Provinces and municipalities in relation to other spheres addressing matters within their sphere of influence. Municipalities complain that National and Provincial Government often try to resolve matters with only a partial view of the problem that exists locally and after their attempted resolution, much of the problem remains unresolved. Provinces have similar complaints.

Consequently the important consideration of the co-ordination of intervention into municipal affairs (between National and Provincial Government) will best be served by the application of the following approach, namely that:

(1) the Provincial Government be given first opportunity to intervene when a municipality fails to fulfil its obligation in terms of legislation or the Constitution,

(2) the National Government should intervene if Provincial Government fails to intervene when a municipality does not fulfil its executive obligation or at the request of Provincial Government, and

(3) that the National Government's intervention must take place after consultation with the Provincial Government.

This approach will promote good governance within the principle of co-operative government.

The reduction in the membership of the Financial and Fiscal Commission is supported. However, the President should appoint members from a pool of persons nominated by each provincial executive as opposed to the President appointing after consulting Premiers.

The view contained in the Memorandum on the Objects of the Constitution Amendment Bill that the Bill must be dealt with according to Section 74(3)(a) of the Constitution is not supported. The proposed amendments specifically relate to matters that affect the National Council of Provinces. The local sphere government is represented through organised local government in the National Council of Provinces. It may not have a vote but it certainly has a voice to influence a vote in relation to local government matters. In this regard the clause 9 and 10 Bill affect the local government thus impacts on the National Council of Provinces.

Clause 9 of the Bill amends Section 155 by adding a clause providing for National legislation for the exercise of executive and legislative authority on behalf of the municipal council which is currently an exclusive function of Provincial Government. Consequently, it follows that this section deals with a provincial matter.

Except for the above-mentioned sections the Province supports the other proposed amendments to the Constitution.

1. On the whole the province supports the various constitutional amendments that are proposed in the bilI. We however have concerns about the issues that appear below.

2. The proposed amendments empower National Government not only to assume executive powers of municipal government but also extend to the assumption of legislative power. Our first concern in this regard is that the legislative power of municipalities derives from the electorate and therefore such power cannot be replaced by statute. We believe that this is inconsistent with constitutionaI principles. In this respect we also note that the drafters of the amendment exclude inroads into provincial legislative power from the ambit of the amendment. We believe that the constitutional approach where a council fails to exercise its legislative powers is to dissolve the council and hold election.

3. Our second concern relates to the manner in which National Government may intervene in municipal affairs. We believe that the important consideration of co-ordination between National and Provincial Government will best be served by the application of a two stage test. In other words Provincial Government should have the opportunity to intervene in municipal affairs before National Government does so. National Government should only be able to intervene if Provincial Government fails to do so or requests that National Government does so. Such an approach will promote good governance.

Amendment of Section

4 We support the reduction in the membership of the Financial and Fiscal Commission. We propose however that the President should appoint members from a pool of persons nominated by each provincial executive as opposed to the President appointing after consulting Premier.

Parliamentary Procedure

5 We do not agree with the opinion that the Bill must be dealt with according to Section 74(3)(a) of the Constitution. The proposed amendments specifically relate to matters that affect the National Council of Provinces. In this regard the second amendment bill gives the National Council of Provinces a role by empowering it to request the National Executive to stop the intervention. (see section 4(2)(b)}. Similarly section 4(2)(c} impacts on the National Council of Provinces in that the Council is now given discretion to review the intervention.

6 As far as provinces are concerned, the proposed amendments clearly impact on their role in relation to local government as well as to representation in the Financial and Fiscal Commission.

We congratulate you on your endeavours to keep the constitution relevant and alive.

We look forward to your positive consideration of the above concerns.

Yours faithfully

MBHAZIMA SHILOWA

PREMIER: GAUTENG PROVINCE

DATE: