GENERAL EXPLANATORY NOTE:

GENERAL EXPLANATORY NOTE:

[ ] Words in bold type in square brackets indicate omissions from existing

enactments.

_______ Words underlined with a solid line indicate insertions in existing enactments.

BILL

To amend the Organised Local Government Act, 1997, so as to repeal a transitional arrangement; to amend the Remuneration of Public Office Bearers Act 1998, so as to effect a technical amendment, and to validate the determination and payment of salaries and allowances of members of Municipal Councils in the Provinces of Gauteng and the Western Cape for the 1998/1999 municipal financial year; to amend the Local Government: Municipal Demarcation Act, 1998, so as to effect technical corrections; to reduce the size of the Demarcation Board; to expressly provide for the Minister’s role in the appointment of members of the Demarcation Board; to make express provision for the publication of the Demarcation Board’s decision where an objection was considered; to amend the Local Government: Municipal Structures Act, 1998, so as to amend the Afrikaans text in order to bring it in line with the amendments effected to the English text by the Local Government: Municipal Electoral Act, 2000 and the Local Government: Municipal Structures Amendment Act, 2000; to make provision for an acting mayor and an acting executive mayor where a particular municipality does not have a deputy mayor or a deputy executive mayor, respectively; to provide for the payment of out of pocket expenses to traditional leaders who participate in the proceedings of municipal councils; to authorise the Minister to regulate the consequences of a revocation of an authorisation in terms of section 84(3) of the Local Government: Municipal Structures Act; to provide for uncontested ward elections; to provide for the election of office bearers of a municipality to be determined by lot if two candidates receive the same number of votes; to amend the Local Government: Municipal Systems Act, 2000, so as to provide for a general power to levy and recover fees, charges and tariffs; to further regulate the charging of interest on arrears; to provide for legal representation of employees of a municipality; to further regulate clearance certificates for the transfer of property; to amend the Local Government: Municipal Structures Amendment Act, 2000, in order to re-determine the transition period and to repeal outdated provisions; and to provide for matters connected therewith.

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:-

CHAPTER 1

AMENDMENT OF ORGANISED LOCAL GOVERNMENT ACT, 1997

Amendment of section 1 of Act 52 of 1997

1. Section 1 of the Organised Local Government Act, 1997 (Act No. 52 of 1997), is hereby amended by the deletion of subsection (2).

CHAPTER 2

AMENDMENT OF REMUNERATION OF PUBLIC OFFICE BEARERS ACT, 1998

Amendment of section 7 of Act 20 of 1998, as amended by section 3 of Act 21 of 2000

2. Section 7 of the Remuneration of Public Office Bearers Act, 1998 (Act No. 20 of 1998), is hereby amended-

(a) by the substitution in subsection (2) for the word "Despite" of the words "Subject to"; and

(b) by the addition of the following subsection:

"(6) The salaries and allowances paid to any member of a Municipal Council during the 1998/1999 municipal financial year in accordance with-

Circular 25 of 1998 (as amended by Amendment Slip No. 3 of 1998) issued by the Gauteng Department of Development Planning and Local Government; and

Proclamation (Western Cape) No. 48/1998 of 4 December 1998, read with Circular C18/1998 issued by the Western Cape Department of Governmental Affairs and Housing,

shall be deemed to have been validly determined and paid under this Act.".

CHAPTER 3

AMENDMENT OF LOCAL GOVERNMENT: MUNICIPAL DEMARCATION ACT, 1998

Amendment of section 1 of Act 27 of 1998

3. Section 1 of the Local Government: Municipal Demarcation Act, 1998 (hereinafter referred to as the Demarcation Act), is hereby amended-

(a) by the substitution for the definition of "Department" of the following definition:

"’Department’ means the [Department of Constitutional Development] national department responsible for local government;";

(b) by the substitution for the definition of "determination" of the following definition:

"’determination’ includes any redetermination, and ‘determine’ and ‘redetermine’ [has a] have corresponding [meaning] meanings;";

"’employee’, except in sections 34(1) and 35(1) [and 36], includes a person seconded to the Board;";

(d) by the substitution for the definition of "Minister" of the following definition:

"’Minister’ means the national Minister [for Provincial Affairs and Constitutional Development] responsible for local government;"; and

(e) by the substitution for the definition of "this Act" of the following definition:

"’this Act’ includes the regulations made under section [42] 41.".

Amendment of section 6 of Act 27 of 1998

4. Section 6 of the Demarcation Act is hereby amended by the substitution for subsection (1) of the following subsection:

"(1) The Board consists of no fewer than seven and no more than [15] 10 members appointed by the President in accordance with section 8.".

Amendment of section 8 of Act 27 of 1998

5. Section 8 of the Demarcation Act is hereby amended by the substitution in subsection (5) for the words preceding paragraph (a) of the following words:

"The list must be submitted to the Minister and must consist of –".

Amendment of section 21 of Act 27 of 1998

6. Section 21 of the Demarcation Act is hereby amended by the substitution for subsection (5) of the following subsection:

"(5) The Board must –

(a) consider any objections; [and]

(b) either confirm, vary or withdraw its determination; and

Substitution of section 22 of Act 27 of 1998

7. The following section is hereby substituted for section 22 of the Demarcation Act:

"Work programme

22. (1) The Board performs the function mentioned in section 21(1) –

(a) [(i)] on its own initiative;

[(ii)] (b) on request by the Minister or a MEC for local government; or

[(iii)] (c) on request by a municipality with the concurrence of any other municipality affected by the proposed determination or redetermination [; and

(b) in accordance with priorities and reasonable time-frames for demarcation determined by the Minister in consultation with the MEC’s for local government after the Board has been consulted].

(2) The Minister may, after consultation with the MEC’s for local government and the Board, determine priorities and reasonable time-frames for a determination or redetermination.".

Amendment of section 23 of Act 27 of 1998

8. Section 23 of the Demarcation Act is hereby amended –

(a) by the substitution for subsection (1) of the following subsection:

"(1) [Once the Board has determined a municipal boundary it] After the Board has considered any objections in terms of section 21(5), the Board must without delay send particulars of the determination to the Electoral Commission."; and

(b) by the substitution for subsection (3) of the following subsection:

"(3) (a) The Electoral Commission, within 60 days after having received the particulars referred to in subsection (1), must make known its view as envisaged in subsection (2) by notice in the relevant Provincial Gazette.

(b) An MEC for local government must publish the notice referred to in subsection (2)(b) within three months of the date of the notice published by the Electoral Commission in terms of paragraph (a), and send a copy of the notice to the Board.".

CHAPTER 4

AMENDMENT OF LOCAL GOVERNMENT: MUNICIPAL STRUCTURES ACT, 1998

Amendment of preamble to Act 117 of 1998

9. The Preamble to the Local Government: Municipal Structures Act, 1998 (hereafter referred to as the Structures Act), is hereby amended by the substitution in the fourteenth line of the Afrikaans text for the expression "nedesettings" of the expression "nedersettings".

Amendment of section 1 of Act 117 of 1998, as amended by section 93 of Act 27 of 2000

10. Section 1 of the Structures Act is hereby amended by the substitution in the Afrikaans text for the definition of "party" of the following definition:

"’party’ [met betrekking tot –

(a) ‘n metro- of plaaslike raad, ‘n party bedoel in paragraaf (a) of (b) van item 10 van Bylae 1; of

(b) ‘n distriksraad, a party bedoel in paragraaf (a) of (b) van item 4 van Bylae 2] ‘n party wat ingevolge die Wet op die Verkiesingskommissie, 1996 (Wet No. 51 van 1996), geregistreer is;".

Amendment of section 12 of Act 117 of 1998, as amended by section 93 of Act 27 of 2000 and section 1 of Act 33 of 2000

11. Section 12 of the Structures Act is hereby amended by the insertion in the Afrikaans text after paragraph (e) of subsection (3) of the following paragraph:

"(eA) in die geval van ‘n distriksmunisipaliteit, die getal raadslede wat ingevolge artikel 23 bepaal is om –

(i) partye proporsioneel te verteenwoordig;

(ii) aangestel te word deur elkeen van die plaaslike rade binne die distriksmunisipaliteit om elke plaaslike munisipaliteit direk te verteenwoordig; en

(iii) partye van elke distrik bestuursgebied binne daardie distriksmunisipaliteit proporsioneel te verteenwoordig;".

Amendment of section 21 of Act 117 of 1998

12. Section 21 of the Structures Act is hereby amended by the addition to subsection (2) of the following proviso:

"Provided that if such a person is designated as a full-time councillor in terms section 18(4), such exemption lapses."

Amendment of section 24 of Act 117 of 1998, as amended by section 5 of Act 58 of 1999 and section 93 of Act 27 of 2000

13. Section 24 of the Structures Act is hereby amended –

(a) by the deletion in the Afrikaans text of subsection (1) of the expression "of datums"; and

(b) by the substitution in the Afrikaans text of subsection (2) for the expression "datums" of the expression "’n datum".

Amendment of section 25 of Act 117 of 1998, as amended by section 93 of Act 27 of 2000

14. Section 25 of the Structures Act is hereby amended –

(a) by the substitution in the Afrikaans text of paragraph (a) of subsection (1) for the expression "Kieswet" of the expression "Wet op die Verkiesingskommissie, 1996 (Wet No. 51 van 1996)";

(b) by the deletion in the Afrikaans text of the words preceding paragraph (a) of subsection (3) of the expression "of datums";

(d) by the deletion in the Afrikaans text of subsection (4) of the expression "of datums", wherever it occurs.

Amendment of section 35 of Act 117 of 1998

15. Section 35 of the Structures Act is hereby amended by the substitution for subsection (1) of the following subsection:

"(1) If a municipal council is dissolved in terms of section 34(3)(b) or does not have enough members to form a quorum for a meeting, the MEC for local government in the province must appoint one or more administrators to ensure the continued functioning of the municipality until a new municipal council is elected or until the council has sufficient members for a quorum.".

Amendment of section 37 of Act 117 of 1998

16. Section 37 of the Structures Act is hereby amended –

(a) by the substitution in paragraph (b) for the expression "section 32" of the expression "section 59 of the Local Government: Municipal Systems Act, 2000"; and

(b) by the substitution in paragraph (e) for the expression "Schedule 5" of the expression "Schedule 1 of the Local Government: Municipal Systems Act, 2000".

Amendment of section 49 of Act 117 of 1998

17. Section 49 of the Structures Act is hereby amended by the addition of the following subsection:

"(3) If the mayor is absent or not available and the municipality does not have a deputy mayor, the following person act as mayor:

(a) A member of the executive committee designated in writing by the mayor; or

(b) a councillor elected by the members of the executive committee from amongst themselves if the mayor has not designated a member or if the designated member is absent or not available.".

Amendment of section 56 of Act 117 of 1998

18. Section 56 of the Structures Act is hereby amended –

(a) by the substitution in paragraph (f) of subsection (3) for the expression "section 32" of the expression "section 59 of the Local Government: Municipal Systems Act, 2000"; and

(b) by the addition of the following subsection:

"(7) If a municipality does not have a deputy executive mayor, the council must designate a councillor to exercise the powers and perform the duties of the executive mayor when the executive mayor is absent or not available.".

Amendment of section 64 of Act 117 of 1998

19. Section 64 of the Structures Act is hereby amended by the substitution in the Afrikaans text of subsection (2) for the expression "Metroplitaanse" of the expression "Metropolitaanse".

Amendment of section 81 of Act 117 of 1998, as amended by item 3 of Schedule 3 to Act 32 of 2000 and section 5 of Act 33 of 2000

20. Section 81 of the Structures Act is hereby amended –

(a) by the substitution in the Afrikaans text of subsection (1) for the expression "ge?dentifiseer" of the expression "geïdentifiseer"; and

(b) by the substitution for subsection (5) of the following subsection:

"(5) (a) When participating in the proceedings of a municipal council a traditional leader is subject to the appropriate provisions of the Code of Conduct set out in Schedule 1 of the Local Government: Municipal Systems Act, 2000.

(b) (i) A traditional leader who participates in the proceedings of a municipal council is entitled to the payment of out of pocket expenses in respect of such participation.

(ii) A municipal council must determine the criteria for, and calculation of, the out of pocket expenses referred to in subparagraph (i).

(iii) Out of pocket expenses referred to in subparagraph (i) must be paid from the budget of the municipality concerned.".

Amendment of section 84 of Act 117 of 1998, as amended by section 6 of Act 33 of 2000

21. Section 84 of the Structures Act is hereby amended –

(a) by the substitution in the Afrikaans text of subparagraph (iii) of paragraph (b) of subsection (3) for the expression "verandering" of the expression "verordeninge";

(b) by the substitution in subsection (3) for paragraph (c) of the following paragraph:

"(c) The Minister may –

(i) amend a notice issued in terms of paragraph (a) [to effect technical changes or to regulate the authorisation more effectively]; and

(ii) regulate the legal, practical and other consequences required by such amendment."; and

"(d) Whenever the Minister revokes an authorisation envisaged by paragraph (a), the Minister must in the notice revoking that authorisation regulate the legal, practical and other consequences of the revocation, which may include –

(i) the transfer of staff;

(ii) the transfer of assets, liabilities, rights and obligations, and administrative and other records; and

(iii) the continued application of any by-laws and resolutions in the area of the municipalities concerned and the extent of such application.".

Substitution of section 86 of Act 117 of 1998, as amended by section 8 of Act 33 of 2000

22. The following section is hereby substituted in the Afrikaans text for section 86 of the Structures Act:

"Beslegting van geskille rakende verrigting van funksies of uitoefening van bevoegdhede

86. [Indien ‘n distriks- en plaaslike munisipaliteit ‘n funksie verrig of ‘n bevoegdheid uitoefen op ‘n soortgelyke wyse, en] Indien ‘n geskil ontstaan tussen [hulle] ‘n distriks- en ‘n plaaslike raad rakende die verrigting van [daardie] ‘n funksie of die uitoefening van [daardie] ‘n bevoegdheid, kan die LUR vir plaaslike regering in die provinsie, na oorlegpleging met hulle, by kennisgewing in die Provinsiale Koerant die geskil besleg deur hulle onderskeie rolle in die verrigting van daardie funksie of die uitoefening van daardie bevoegdheid te omskryf.".

Amendment of section 93 of Act 117 of 1998, as amended by section 11 of Act 33 of 2000

23. Section 93 of the Structures Act is hereby amended by the addition of the following subsections:

"(7) Notwithstanding Proclamation No. 148 of 8 December 1993 (Province of the Cape of Good Hope Gazette 4833 of 22 December 1993) and section 38 of the Property Valuation Ordinance, 1993 (Cape), the said Ordinance is deemed to have come into force –

for the purposes of the Constitution of the Republic of South Africa, 1993 (Act No. 200 of 1993), immediately before the commencement of that Constitution; and

for all other purposes, on 1 July 1994.

(8) (a) With effect from 5 December 2000, any reference in a law referred to in item 2 of Schedule 6 to the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), to a municipal council, municipality, local authority or similar designation of a local government structure, must be construed as a reference to a municipal council or a municipality, as the case may be.

(b) Paragraph (a) only applies to a law referred to in item 2 of Schedule 6 to the Constitution of the Republic of South Africa, 1996, in so far as such a law, or a provision of such a law, is still applicable to a municipal council or a municipality, as the case may be, at the time the Local Government Laws Amendment Act, 2002, comes into effect.".

Amendment of item 1 of Schedule 1 to Act 117 of 1998, as amended by section 93 of Act 27 of 2000

24. Item 1 of Schedule 1 to the Structures Act is hereby amended-

(a) by the substitution in the Afrikaans text for the definition of "onafhanklike wyksraadslid" of the following definition:

"’onafhanklike wyksraadslid’ ‘n raadslid wat [op die wykstembrief die onderskeibare merk of simbool gebruik het van ‘n party wat nie ‘n partylys ingevolge item 12 voorgelê het nie] nie deur ‘n party as ‘n kandidaat in ‘n wyksverkiesing genomineer is nie;"; and

(b) by the substitution in the Afrikaans text for the definition of "wykskandidaat wat ‘n party verteenwoordig" of the following definition:

"’wykskandidaat wat ‘n party verteenwoordig’ ‘n wykskandidaat wat [in ‘n verkiesing wat op die deel van die wykstembrief dieselfde onderskeibare merk of simbool gebruik het as ‘n party wat ‘n lys ingevolge item 10 voorgelê het] deur ‘n party as ‘n kandidaat in ‘n wyksverkiesing genomineer is.".

Insertion of new item after item 8 of Schedule 1 to Act 117 of 1998

25. The following item is hereby inserted after item 8 of Schedule 1 to the Structures Act:

"Uncontested ward elections

8A. If only one candidate is duly nominated in a ward, an election is not held in that ward and the uncontested ward candidate is deemed to have been elected –

(a) in the case of an election called in terms of section 24(2), with effect from the date set for the election; or

(b) in the case of a by-election, with effect from the date stated in the time table for the by-election as the final date on which nominations for the by-election can be submitted.".

Amendment of item 13 of Schedule 1 to Act 117 of 1998

26. Item 13 of Schedule 1 to the Structures Act is hereby amended by the substitution for the words "chief electoral officer", wherever they appear, of the words "Electoral Commission".

Substitution of item 15 of Schedule 1 to Act 117 of 1998, as amended by section 93 of Act 27 of 2000

27. The following item is hereby substituted in the Afrikaans text for item 15 of Schedule 1 to the Structures Act:

"Prosedure in geval van geen party aansoeke

15. (1) Indien geen party [om registrasie aansoek doen nie, of elke aansoek verwerp word] ‘n lys voorgelê het nie, moet ‘n tussenverkiesing binne 90 dae vanaf nominasiedag gehou word, en die LUR vir plaaslike regering moet, na oorleg met die Kommissie, die datum vir die verkiesing bepaal.

[(2) Indien geen party om registrasie aansoek doen nie of elke aansoek vir die tussenverkiesing verwerp word –

(a) moet die munisipale bestuurder die hoofverkiesingsbeampte binne 24 uur verwittig;

(b) moet die hoofverkiesingsbeampte binne sewe dae die datum vir ‘n verdere verkiesing wat binne 90 dae gehou moet word, bepaal; en

(c) moet die vakatures vakant bly totdat dit deur ‘n verkiesing gevul word.

(3)] (2) Artikel 25 is van toepassing op ‘n tussenverkiesing in die mate wat daardie artikel toegepas kan word.".

Amendment of item 17 of Schedule 1 to Act 117 of 1998

28. Item 17 of Schedule 1 to the Structures Act is hereby amended by the substitution for the words "chief electoral officer", wherever they appear, of the words "Electoral Commission".

Amendment of item 18 of Schedule 1 to Act 117 of 1998

29. Item 18 of Schedule 1 to the Structures Act is hereby amended by the substitution for subitem (1) of the following subitem:

"(1) (a) If a councillor elected from a party list ceases to hold office, the chief electoral officer must, subject to item 20, declare in writing the person whose name is at the top of the applicable party list to be elected in the vacancy.

(b) Whenever a councillor referred to in paragraph (a) ceases to hold office, the municipal manager concerned must within seven days after the councillor has ceased to hold office, inform the chief electoral officer thereof.".

Amendment of item 20 of Schedule 1 to Act 117 of 1998

30. Item 20 of Schedule 1 to the Structures Act is hereby amended by the substitution for subitem (1) of the following subitem:

"(1) A party may supplement, change or increase its list at any time, provided that if a councillor elected according to a party list, ceases to hold office, the party concerned may supplement, change or increase its list by not later than 21 days after the councillor has ceased to hold office. The vacancy must be filled [within] as soon as the party concerned has supplemented, changed or increased its list, but not later than 14 days after expiry of the 21 days’ period.

Amendment of item 1 of Schedule 2 to Act 117 of 1998

31. Item 1 of Schedule 2 to the Structures Act is hereby amended –

(a) by the substitution in the Afrikaans text of the definition of "verkiesing" for the expression "toespassing" of the expression "toepassing"; and

(b) by the insertion after the definition of "election" of the following definition:

"’independent ward councillor’ means a councillor who was not nominated by a party as a candidate in a ward election;".

Substitution of item 9 of Schedule 2 to Act 117 of 1998, as amended by section 93 of Act 27 of 2000

32. The following item is hereby substituted in the Afrikaans text for item 9 of Schedule 2 to the Structures Act:

"Prosedure in geval van geen party aansoeke

9. (1) Indien geen party [om registrasie aansoek doen nie, of elke aansoek verwerp word] ‘n lys voorgelê het nie, moet ‘n tussenverkiesing binne 90 dae van nominasiedag gehou word, en die LUR vir plaaslike regering moet, na oorleg met die Kommissie, die datum vir die verkiesing bepaal.

[(2) Indien geen party aansoek om registrasie doen nie of elke aansoek vir die tussenverkiesing verwerp word –

(a) moet die munisipale bestuurder die hoofverkiesingsbeampte binne 24 uur in kennis stel;

(b) moet die hoofverkiesingsbeampte binne sewe dae die datum vir ‘n verdere verkiesing bepaal wat binne 90 dae gehou moet word; en

(c) moet die vakatures vakant bly totdat dit deur ‘n verkiesing gevul word.

(3)] (2) Artikel 25 is ingevolge hierdie item van toepassing op ‘n tussenverkiesing, tot die mate wat daardie artikel toegepas kan word.".

Amendment of item 10 of Schedule 2 to Act 117 of 1998

33. Item 10 of Schedule 2 to the Structures Act is hereby amended by the substitution in the Afrikaans text of subitem (7) for the expression "wtter" of the expression "watter".

Amendment of item 11 of Schedule 2 to Act 117 of 1998

34. Item 11 of Schedule 2 to the Structures Act is hereby amended by the substitution for subitem (1) of the following subitem:

"(1) (a) If a councillor elected from a party list ceases to hold office, the chief electoral officer must, subject to item 13, declare in writing the person whose name is at the top of the applicable party list to be elected in the vacancy.

Amendment of item 13 of Schedule 2 to Act 117 of 1998

35. Item 13 of Schedule 2 to the Structures Act is hereby amended by the substitution for subitem (1) of the following subitem:

Amendment of item 17 of Schedule 2 to Act 117 of 1998

36. Item 17 of Schedule 2 to the Structures Act is hereby amended –

(a) by the substitution for subitem (1) of the following subitem:

"(1) Every party or independent ward councillor may submit a candidates’ list containing the names of councillors, accompanied by a written acceptance by each listed candidate.";

(b) by the substitution for subitem (2) of the following subitem:

"(2) A party or independent ward councillor may not submit more than one list."; and

Amendment of item 20 of Schedule 2 to Act 117 of 1998

37. Item 20 of Schedule 2 to the Structures Act is hereby amended by the substitution for subitem (2) of the following subitem:

"(2) (a) If the calculation in subitem (1) gives a surplus, that surplus must compete with other similar surpluses of any other lists, and any seat or seats not allocated under subitem (1) must be awarded in sequence of the highest surplus.

(b) If the surplus for two or more lists is equal the seat or seats must be awarded in sequence of the highest number of votes cast for those lists.".

Amendment of item 23 of Schedule 2 to Act 117 of 1998

38. Item 23 of Schedule 2 to the Structures Act is hereby amended by the substitution in the Afrikaans text –

(a) for the expression "uiteput" of the expression "uitgeput"; and

(b) for the expression "item 18 van Bylae 1" of the expression "item 11".

Amendment of item 8 of Schedule 3 to Act 117 of 1998

39. Item 8 of Schedule 3 to the Structures Act is hereby amended by the addition of the following subitem:

"(3) If at the further meeting held in terms of subitem (1) only two candidates are nominated, or if only two candidates remain after an elimination procedure has been applied, and those two candidates receive the same number of votes, the person presiding at such meeting must determine by lot who of the two candidates would hold the office for which the election has taken place.".

CHAPTER 5

AMENDMENT OF LOCAL GOVERNMENT: MUNICIPAL SYSTEMS ACT, 2000

Amendment of section 1 of Act 32 of 2000

40. Section 1 of the Local Government: Municipal Systems Act, 2000 (hereinafter referred to as the Systems Act), is hereby amended –

(a) by the insertion after the definition of "municipal manager" of the following definition:

"’municipal service’ means a service that is provided, or may be provided, by a municipality to, or for the benefit of the local community, and in respect of which the municipality has executive authority as envisaged by section 156(1) of the Constitution;";

(b) by the insertion after the definition of "prescribe" of the following definition:

"‘property’ means –

(a) immovable property registered in the name of a person, and includes a unit as defined in section 1 of the Sectional Titles Act, 1986 (Act No. 95 of 1986); or

(b) a right registered against immovable property in the name of a person;"; and

"’registrar of deeds’ means a registrar as defined in section 102 of the Deeds Registry Act, 1937 (Act No. 47 of 1937);".

Amendment of section 62 of Act 32 of 2000

41. Section 62 of the Systems Act is hereby amended by the addition of the following subsection:

"(6) The provisions of this section do not detract from any appropriate appeal procedure provided for in any other applicable law.".

Amendment of section 67 of Act 32 of 2000

42. Section 67 of the Systems Act is hereby amended by the substitution in subsection (1) for the words preceding paragraph (a) of the following words:

"A municipality, in accordance with [the Employment Equity Act, 1998] applicable law, and subject to any applicable collective agreement, must develop and adopt appropriate systems and procedures to ensure fair, efficient, effective and transparent personnel administration, including –".

Insertion of new section after section 75 of Act 32 of 2000

43. The following section is hereby inserted after section 75 of the Systems Act:

"General power to levy and recover fees, charges and tariffs

75A. (1) A municipality may –

(a) levy and recover fees, charges or tariffs in respect of any function or service of the municipality; and

(b) recover collection charges and interest on any outstanding amount.

(2) The fees, charges or tariffs referred to in subsection (1) are levied by a municipality by resolution passed by the municipal council with a supporting vote of a majority of its members.

(3) In determining fees, charges or tariffs under subsection (1), a municipality may by resolution amend or withdraw such determination.

(4) After a resolution as contemplated in subsection (2) has been passed, the municipal manager must, without delay-

(a) conspicuously display for a period of at least 30 days a copy of the resolution at the main administrative office of the municipality and at such other places within the municipality to which the public has access and as the municipal manager may determine;

(b) publish in a newspaper of general circulation in the municipality a notice stating –

(i) that a resolution as contemplated in subsection (2) has been passed by the council;

(ii) that a copy of the resolution is available for public inspection during office hours at the main administrative office of the municipality and at the other places specified in the notice;

(iii) the date on which the determination will come into operation; and

(iv) that any person who desires to object to such determination or amendment must do so in writing within 30 days after the date on which the notice is first displayed; and

(c) convey the information referred to in paragraph (b) to the local community by means of radio broadcasts covering the area of the municipality.

(5) Where –

(a) no objection is lodged within the period referred to in subsection (4)(b)(iv), the determination or amendment comes into operation as contemplated in subsection (3);

(b) an objection is lodged within the period referred to in subsection (4)(b)(iv), the municipality must consider every objection and may –

(i) amend or withdraw the determination or amendment; and

(ii) determine a date other than the date contemplated in subsection (3) on which the determination or amendment will come into operation.

(6) The municipal manager must forthwith send a copy of the notice referred to in subsection (4)(b) to the MEC for local government concerned.".

Amendment of section 76 of Act 32 of 2000

44. Section 76 of the Systems Act is hereby amended by the substitution in subparagraph (iii) of paragraph (b) for sub-subparagraph (aa) of the following sub-subparagraph:

"(aa) a water services committee established in terms of the Water Services Act, 1997 (Act No. 108 of 1997);".

Substitution of section 77 of Act 32 of 2000

45. The following section is hereby substituted for section 77 of the Systems Act:

"Occasions when municipalities must review and decide on mechanisms to provide municipal services

77. A municipality must review and decide on the appropriate mechanism to provide a municipal service in the municipality or a part of the municipality –

(a) where the municipal service is provided through an internal mechanism when –

(i) an existing municipal service is to be significantly upgraded, extended or improved;

(ii) a performance evaluation in terms of Chapter 6 requires a review of the mechanism;

(iii) the municipality is restructured or reorganised in terms of the Municipal Structures Act; or

(iv) instructed to do so by the provincial executive acting in terms of section 139(1)(a) of the Constitution;

(b) where the municipal service is provided through an external mechanism when –

(i) the service delivery agreement is anticipated to expire or be terminated within the next 12 months;

(ii) an existing municipal service or part of that municipal service is to be significantly upgraded, extended or improved and such upgrade, extension or improvement is not addressed in the service delivery agreement; or

(iii) instructed to do so by the provincial executive acting in terms of section 139(1)(a) of the Constitution;

(d) when requested by the local community through mechanisms, processes and procedures established in terms of Chapter 4; or

(e) when a review of its integrated development plan requires a review of the delivery mechanism.".

Amendment of section 94 of Act 32 of 2000

46. Section 94 of the Systems Act is hereby amended by the substitution for subsection (2) of the following subsection:

"(2) The Minister may make regulations and issue guidelines contemplated in paragraphs (a), (b), (c), (d) and (e) of subsection (1) only after consultation with the Minister of Finance and any other Cabinet member whose portfolio is affected by the regulations and guidelines.".

Insertion of new section after section 109 of Act 32 of 2000

47. The following section is hereby inserted after section 109 of the Systems Act:

"Legal representation of employees of municipality

109A. A municipality may, subject to such terms and conditions as it may determine, provide an employee of the municipality with legal representation where –

(a) legal proceedings have been instituted against the employee as a result of any act or omission by the employee in the exercise of his or her powers or the performance of his or her duties; or

(b) the employee has been summoned to attend any inquest or inquiry arising from the exercise of his or her powers or the performance of his or her duties.".

Substitution of section 117 of Act 32 of 2000

48. The following section is hereby substituted for section 117 of the Systems Act:

"Custody of documents

117. Except where otherwise provided, all records and documents of a municipality are in the custody of the municipal manager, or an official designated by the municipal manager.".

Substitution of section 118 of Act 32 of 2000

49. The following section is hereby substituted for section 118 of the Systems Act:

"Restraint on transfer of property

118. (1) A registrar of deeds [or other registration officer of immovable property] may not register the transfer of property except on production to that [registration officer] registrar of deeds of a prescribed certificate—

(a) issued by the municipality or municipalities in which that property is situated; and

(b) which certifies that all amounts that became due in connection with that property for municipal service fees, surcharges on fees, property rates and other municipal taxes, levies and duties during the two years preceding the date of application for the certificate have been fully paid.

(1A) A prescribed certificate issued by a municipality in terms of subsection (1) is valid for a period of 120 days from the date it has been issued.

(2) In the case of the transfer of [immovable] property by a trustee of an insolvent estate, the provisions of this section are subject to section 89 of the Insolvency Act, 1936 (Act No. 24 of 1936).

(3) An amount due for municipal service fees, surcharges on fees, property rates and other municipal taxes, levies and duties is a charge upon the property in connection with which the amount is owing and enjoys preference over any mortgage bond registered against the property.

(4) Subsection (1) does not apply to –

(a) a transfer from the national government, a provincial government or municipality to a transferee of a residential property which was financed with funds or loans made available by the national government, a provincial government or municipality; and

(b) the vesting of ownership as a result of a conversion of land tenure rights into ownership in terms of Chapter 1 of the Upgrading of Land Tenure Rights Act, 1991 (Act No. 112 of 1991):

Provided that the person who becomes the owner of the property as a result of such transfer or conversion is liable for the municipal service fees and surcharges on fees that became due in connection with that property during the two years preceding the date of such transfer or conversion, and nothing precludes the subsequent collection by a municipality of any such fees or surcharges on fees.

(5) Subsection (3) does not apply to any amount referred to in that subsection that became due before a transfer of a residential property or a conversion of land tenure rights into ownership contemplated in subsection (4) took place.".

Insertion of new item after item 12 of Schedule 1 to Act 32 of 2000

50. The following item is hereby inserted after item 12 of Schedule 1 to the Systems Act:

"Councillor in arrears

12A. A councillor may not be in arrears to the municipality for rates and service charges for a period longer than 3 months.".

Amendment of item 14 of Schedule 1 to Act 32 of 2000

51. Item 14 of Schedule 1 to the Systems Act is hereby amended by the substitution for subitem (5) of the following subitem:

"(5) The Commissions Act, 1947 (Act 8 of 1947), or where appropriate applicable provincial legislation, may be applied to an investigation in terms of subitem [(3)] (4).

CHAPTER 6

AMENDMENT OF LOCAL GOVERNMENT: MUNICIPAL STRUCTURES AMENDMENT ACT, 2000

Amendment of section 13 of Act 33 of 2000

52. Section 13 of the Local Government: Municipal Structures Amendment Act, 2000 is hereby amended by the substitution for subsection (1) of the following subsection:

"(1) The transition ends [two years from the date of the first election of municipal councils in terms of the Structures Act, unless the Minister determines a shorter period by notice in the Government Gazette] on 30 June 2003.".

Amendment of section 15 of Act 33 of 2000

53. Section 15 of the Local Government: Municipal Structures Amendment Act, 2000, is hereby amended by the deletion of paragraph (a).

CHAPTER 7

MISCELLANEOUS MATTERS

Repeal of legislation

54. The legislation specified in the first column of the Schedule is hereby repealed to the extent indicated in the second column of the Schedule.

Short title

55. This Act is called the Local Government Laws Amendment Act, 2002.

SCHEDULE

Title, No. and year of law	Extent of repeal
Local Government Ordinance, 1939 (Ordinance No. 17 of 1939)(Former Transvaal)	Section 50
Local Government Ordinance, 1962 (Ordinance No. 8 of 1962)(Former Orange Free State)	Section 119
Regulations for the Administration and Control of Townships in Black Areas, 1962 (Proclamation No. R. 293 of 16 November 1962)	Regulation 11 of Chapter 9
Municipal Ordinance, 1974 (Ordinance No. 20 of 1974)(Former Cape of Good Hope)	Section 96
Local Authorities Ordinance, 1974 (Ordinance No. 25 of 1974)(Former Natal)	Section 175
Municipalities Act, 1979 (Act No. 25 of 1979)(Former Transkei)	Section 94
Black Communities Development Act, 1984 (Act No. 4 of 1984)	Section 54(2)(a)
Municipal Act, 1987 (Act No. 17 of 1987)(Former Ciskei)	Section 91
Proclamation No. R. 30 of 9 March 1988	Regulation 17
Regulations Regarding Local Councils, 1988 (Government Notice No. R. 2517 of 9 December 1988)	Regulation 43(5)

MEMORANDUM ON THE OBJECTS OF THE LOCAL GOVERNMENT LAWS AMENDMENT BILL, 2002

1.1 Prior to the coming into operation of the Remuneration of Public Office Bearers Act, 1998 ("the Act"), the authority to determine councillor allowances vested in the respective MEC’s responsible for local government. During the 1998/1999 municipal financial year unauthorised payments in respect of the allowances of municipal councillors arose from the determinations made in this regard by the Gauteng Provincial Government and the Western Cape Provincial Government, respectively.

These payments occurred as a result of circulars issued by the respective MEC’s in contravention of the Act. These circulars were bona fide errors on the part of the provincial governments concerned. The Bill proposes an amendment to the Act so as to validate the circulars and consequently all payments made in terms thereof.

1.2 Arguments have been raised that the introductory words of section 7(2) of the Act (viz. "Despite the provisions of subsection (1) …"), were intended to oust the power of the Minister to determine the upper limits of allowances of appointed councillors. This was never the intention, and an amendment is proposed to clarify the position.

2. The Municipal Demarcation Board has requested various amendments to the Local Government: Municipal Demarcation Act, 1998 (Act No. 27 of 1998). Most of the amendments proposed are of a technical nature so as to either correct outdated references, or to clarify matters of process or interpretation. The proposed amendments that introduce new principles into the Demarcation Act can be summarised as follows:

(a) An amendment to section 6 is proposed that would reduce the number of members of the Demarcation Board. Whilst the Demarcation Board would continue to exist, it is expected that it would only need a limited number of members to perform its functions. A Board consisting of minimum 7 and maximum 10 members is being proposed.

(b) An amendment to section 23 is proposed to correct the process following the determination of a boundary. The present wording of section 23(1) does not allow for objections to demarcations to be finalised before the Electoral Commission is informed of the determination of a boundary.

3.1 The amendments effected to the Local Government: Municipal Structures Act, 1998 (Act No. 117 of 1998), by the Local Government: Municipal Electoral Act, 2000 (Act No. 27 of 2000), only amended the English text of the Structures Act. In like manner, section 8 of the Local Government: Municipal Structures Amendment Act, 2000 (Act No. 33 of 2000), only amended the English text of section 86 of the Structures Act. In order to preserve the integrity of the two texts of the Structures Act, it is proposed that the relevant Afrikaans provisions be amended.

3.2 In terms of sections 48(1) and 55(1) of the Structures Act, the MEC for local government in a particular province must approve the election of a deputy mayor and a deputy executive mayor, respectively. In at least one province, the MEC for local government has not approved the election of deputy mayors or deputy executive mayors. This has the effect that no provision is made for acting mayors and acting executive mayors when the mayor or executive mayor is absent or not available. Amendments to sections 49 and 56, respectively, are proposed to provide for acting mayors and acting executive mayors.

3.3 In order to create an enabling environment for traditional leaders to participate in the proceedings of a municipal council as envisaged in section 81 of the Structures Act, a policy decision was taken to provide for the payment of out of pocket expenses in respect of such participation. An amendment to the said section 81 is proposed that would make provision for the payment of such expenses.

3.4 An amendment to section 84(3) is proposed enabling the Minister to regulate the legal, practical and other consequences when a notice authorising a local municipality to perform certain functions or exercise certain powers of district municipalities is revoked. Currently no provision pertaining to such regulation of consequences exist. An amendment to the Minister’s power to amend such a notice is also proposed.

3.5 The validity of the Cape Valuation Ordinance is presently being challenged, and a resolution has been adopted by Parliament that legislative measures would be adopted to create certainty in this regard. Consequently, amendments to section 93 of the Structures Act are being proposed that will create certainty regarding the Cape Valuation Ordinance.

3.6 The Structures Act does not make provision for uncontested ward elections. An amendment to Schedule 1 is proposed that would dispense with the holding of an election where only one candidate has been nominated.

3.7 During the last local government elections, certain municipalities deadlocked on the election of certain office bearers. In order to avoid the recurrence of this situation, an amendment to item 8 of Schedule 3 to the Structures Act is proposed that would allow the result to be determined by lot.

4.1 A number of amendments to the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000) are proposed. Several amendments of a technical nature are being proposed, such as amendments to section 62 (appeals) and section 67 (human resource development).

4.2 A new section is proposed to regulate the process for determining the fees, charges and tariffs to be levied by a municipality.

4.3 The need has been identified to make provision for a municipality to provide legal representation for employees where an employee is faced with legal proceedings that arose from the employee’s scope of work. An appropriate amendment is proposed that would enable municipalities to provide legal representation to its employees.

4.4 Numerous practical problems are being experienced in respect of the clearance certificates required by section 118 of the Systems Act. After extensive consultations with various stakeholders, an amendment to section 118 is now proposed that attempts to address the interpretation and practical problems being experienced. It is intended to also issue regulations that would require a district municipality to inform the registrar of deeds of property in respect of which monies are due to the district municipality in order for the registrar of deeds to determine when two certificates are required. Other laws that require clearance certificates are expressly repealed in order to create certainty. Provision is also made for so-called "first time home owners" who acquire property with government assistance to be exempted from having to obtain a clearance certificate. A similar provision is proposed for the purposes of the transfer of property as a result of the upgrading of land tenure rights.

4.5 It is proposed that Schedule 1 to the Systems Act (Code of Conduct for Councillors) be amended by inserting a provision to the effect that a councillor may not be in arrears to the municipality for rates and service charges for a period longer than three months.

Chapter 1 of the Bill contains the proposed amendments to the Organised Local Government Act, 1997.

Chapter 2 of the Bill contains the proposed amendments to the Remuneration of Public Office Bearers Act, 1998.

Chapter 3 of the Bill contains the proposed amendments to the Local Government: Municipal Demarcation Act, 1998.

Chapter 4 of the Bill contains the proposed amendments to the Local Government: Municipal Structures Act, 1998.

Chapter 5 of the Bill contains the proposed amendments to the Local Government: Municipal Systems Act, 2000.

Chapter 6 of the Bill contains the proposed amendments to the Local Government: Municipal Structures Amendment Act, 2000.

Chapter 7 of the Bill addresses miscellaneous matters.

Bodies/Organisations consulted

The Gauteng Department of Development Planning and Local Government

The Western Cape Department of Planning, Local Government and Housing

Municipal Demarcation Board

The Chief Registrar of Deeds

The City of Cape Town

The Department of Housing

Financial implications

If the Bill is not passed the payments made in terms of the circulars issued in the provinces of Gauteng and the Western Cape will have to be recovered. The exact amounts involved are not known to the Department.

Implications for Provinces

None

Implications for Municipalities

If the Bill is passed, the salaries and allowances paid in accordance with the relevant circulars to councillors in the Provinces of Gauteng and the Western Cape would not be regarded as unauthorised expenditure.

The recent valuations of property in the Western Cape would be validated if the Bill is passed.

Relevant municipalities would have to make provision in their budgets for the payment of out of pocket expenses to traditional leaders who participate in the proceedings of their councils.

Parliamentary procedure

The Department of Provincial and Local Government is of the opinion that the Bill must be dealt with in accordance with the procedure prescribed by section 75 of the Constitution. The Bill does not fall within a functional area listed in Schedule 4 to the Constitution, nor does it provide for legislation envisaged in the sections referred to in section 76(3) of the Constitution. Although the Bill provides for legislation envisaged in Chapter 13 of the Constitution, the Bill does not affect the financial interests of the provincial sphere of government.