RE: LOCAL GOVERNMENT LAWS AMENDMENT BILL, 2002

15 October 2002

Portfolio Committee on Provincial and Local Government

National Parliament

Herewith the submission of the Local Government Project at the Community Law Centre, UWC on the Local Government Laws Amendment Bill, 2002. In view of the technical nature and scope of the Bill, it was decided to only focus on the proposed amendments that may cause serious difficulties.

I. Amendment of Remuneration of Public Office Bearers Act, 1998 (Act 20 of 1998)

  1. The ratio behind the proposed amendment in clause 2(b) is noted, but it can be argued that this is not the most appropriate legislative manner in which to address the problem. It is proposed that the ratification of the unauthorised payments should rather be done in a Government Notice issued in terms of Act 20 of 1998. It is normal legislative practice to address such a matter within a Government Notice. The proposed amendment in clause 2(b) pollutes the scope of section 7 of Act 20 of 1998.
  2. Furthermore, please note that referral to the "Western Cape Department of Government Affairs and Housing" is incorrect and should read the ‘Western Cape Department of Local Government’.

II. Amendment of Local Government: Municipal Structures Act, 1998 (Act 117 of 1998)

1. The wording used in the in clause 17 (dealing with the proposed amendment to section 49 of the Municipal Structures Act) is problematic in the sense that the phrase "…does not have a deputy mayor" does not reflect the ratio behind the proposed amendment correctly. It is suggested that a different wording be used namely, "…and the municipal council did not elect a deputy mayor". A Municipality may not have a deputy mayor for another reason than the fact that the MEC for local government has not approved the election of such office bearer and therefore the municipal council could not have elected such a person.

2. The same wording is used in clause 18(b) with regard to the deputy executive mayor, and the suggestion in paragraph 1 above applies.

III. Amendment of the Local Government: Municipal Systems Act, 2000 (Act 32 of 2000)

1. The following comments needs to be made regarding the proposed definition of "municipal service" in clause 40(a). The reason for the insertion of this definition is not given in the Explanatory Memorandum and cannot be supported at this stage for the following reasons. In the South African Municipal Workers Union v City of Cape Town (case no. 7262/2001) the Cape High Court ruled that "municipal police services are not municipal services", but did not rule on a definition of municipal services because of the consequences thereof for the implementation of chapter 8 of the Municipal Systems Act. Furthermore, the applicant was granted the right to appeal in this matter and the appeal has not been heard. In deciding the matter the Court indicated that a municipal service is one for which fees are levied in accordance with a tariff policy. This means that only services funded through property rates are subjected to the provisions in chapter 8 of the Municipal Systems Act. This judgment (subject to appeal) has very serious consequences for service delivery within the local government sphere and the Court’s argument in this matter is problematic (see in this regard LGL Bulletin 2002(4) 9-10).

The proposed definition in clause 40(a) is in itself not only ambiguous, but does not even reflect the Court’s ruling in the SAMWU matter mentioned above. It is recommended that at this stage there is no need for the insertion of such a definition and that the proposed definition will compromise the implementation of chapter 8 of the Municipal Systems Act. Drafting provisions based on bad case law will only result in bad legislation.

2. The content for the proposed amendment in clause 43 is noted, but the practical considerations regarding the obligation on municipal managers to communicate the information to the local community via radio broadcasts is questionable. It is therefore suggested that a proviso be included in the text at section 75A(c) reading: "(c) where possible and practical, convey the information referred to in paragraph (b) to the local community by means of radio broadcasts covering the area of the municipality."

3. The following two considerations regarding the substituted text in clause 45 warrant some mentioning. A proviso needs to be considered with regard to occasions when municipalities must review and decided on internal mechanisms to provided municipal services. It would result in practical and financial difficulties if a municipality needs to follow the chapter 8 processes annually with regard to internal mechanisms. This could also result in unnecessary halts in service delivery to the community. Thus, consideration should be given to the fact that the review on appropriate internal mechanisms should not happen more frequent than bi-annually.

It should furthermore be considered to combine the proposed provisions of section 77(d) and (e). The majority of the municipalities adopted a public participation process (adhering to chapter 4 of the Municipal Systems Act) during their integrated development process and it is common cause that the mechanisms, process and procedures to be followed by the local community in dealing with a chapter 8 matter will be the same as that being part of the IDP process (including the review phase thereof).

4. With reference to clause 49 of the Bill, the following comment. The proviso proposed in the amended section 118(4) of the Municipal Systems Act merely shifts the responsibility to pay services charges to first time homeowners. It is therefore suggested that the said section should be amended by the deletion of the proviso to the new subsection (4).

5. The reason for the proposed amendment in clause 53 is not given in the Explanatory Memorandum and the ratio for the deletion of section 15(a) of the Local Government: Municipal Structures Amendment Act, 2000 is not understood. Especially seeing the fact that the transition period is prolonged to 30 June 2002.

6. Lastly, it needs to be indicated that the Schedule on repealed legislation is legally incorrect in so far as it refers to the repeal of section 96 of the Municipal Ordinance No. 20 of 1974. In terms of Proclamation No. 115 of 17 June 1994, the administration of the Ordinance has been assigned to the Western Cape Province as a whole. Since the commencement of the Constitution in February 1997, the assigned Ordinance became a provincial act in terms of legal construction. Thus, only the Western Cape Provincial Legislator has got the competence to amend or repeal the said Ordinance. The Constitutional Court ruled on this legal principle in Western Cape Provincial Government and others: In re DVB Behuising (PTY) Ltd v North West Provincial Government and another 2001 1 SA 500 (CC). This argument will also apply to the proposed repeal of section 175 of the Local Authorities Ordinance No. 25 of 1974, section 50 of the Local Government Ordinance No. 17 of 1939 and section 119 of the Local Government Ordinance No. 8 of 1962.

© Adv. Charmaine Maré 14 October 2002 [email protected]

Ms. Geraldine Smith [email protected]

Prof. Nico Steytler [email protected]