COMMENTS ON
THE LOCAL GOVERNMENT LAWS AMENDMENT BILL
1. GENERAL
It is noted
from the memorandum on the objects of the Bill, that the sponsoring department
chose not to consult SALGA during the preparation phase of this Bill. Whilst the Bill has been published for public
comment (the advertisements appeared in the media on the 24th August
2007, calling for comment by the 5th September 2007 and this comment
is in response thereto) The NMBM is of the view that organised local government,
which represents all of the municipalities in the country, should have been
consulted on a Bill of this nature at an earlier stage. This Bill deals with amendments to the
legislation which constitutes the primary regulatory framework for local
government and the amendments by and large address issues which have emerged
for attention as a result of the practical implementation of the
legislation. It is quite likely, if not
probable, that a comprehensive opportunity to consult with SALGA and its
members would have revealed further needs for amendment. Clearly a period of two weeks (the time for
public comment) is insufficient for this purpose.
2. AD SECTION 4 OF THE
BILL (PROPOSED AMENDMENT TO SECTION 34 (4) OF THE ACT)
Section 139 of the
Constitution provides Provincial Executive Councils with the power to intervene
in municipalities and to take the steps set out. MECs for local government are given no
specific powers (although the powers of Executive Councils are often delegated
to them). It is submitted that the
current wording of the proposed amendment is incapable of implementation as an
MEC can take no action in terms of Section 139 of the Constitution; (it is
accordingly not possible for an MEC to dissolve a municipal Council “in
accordance with the provisions of Section 139 of the Constitution”). It is suggested that a modified form of the
current Section 34 (3) (b) be reverted to, by including specific references to
Secion139 (1) (a) and (b) of the Constitution.
(Section 139 (1) (c) of the Constitution will not apply, as an
intervention in terms of that subsection will have already resulted in
dissolution of a Council).
Accordingly, the
following wording is suggested:
“(4) the MEC for local
government in a province may dissolve a municipal Council in a province if an
intervention in terms of Section 139 (1) (a) or (b) of the Constitution has not
resulted in the Council being able to fulfill its obligations in terms of
legislation”.
3. AD SECTION 5 OF THE
BILL (PROPOSED AMENDMENT TO SECTION 35 OF THE STRUCTURES ACT)
It is suggested that
the reference to the administrator should be qualified to state in terms that
the administrator will fulfill the functions of the Council of the municipality
until a new municipal council is elected.
In practice, the question of the powers and functions of the administrator
is often at issue.
4. AD SECTION 6 OF THE
BILL (PROPOSED AMENDMENT TO SECTION 72 OF THE STRUCTURES ACT)
The proposed amendment
has the effect of creating a necessary implication which was not intended. The subsection as amended implies, that if
only metropolitan and local municipalities of the types mentioned in the
subsection must have Ward Committees, the others may if they choose. It is suggested that the following wording be
used:
“(1) Only metropolitan
and local municipalities of the types mentions in the sections … are entitled,
and are also obliged to have Ward Committees.”
5. AD SECTION 12 OF THE
BILL (PROPOSED AMENDMENT TO SECTION 57 OF THE SYSTEMS ACT)
There is a trite
principle in law that legislation may not retrospectively adversely affect
existing rights. It is suggested that in
order to remove all confusion, the amended section should state that it does
not apply to Municipal Managers who at the date of coming into effect of the
Act are employed in terms of a contract for a period exceeding a maximum of
five years.
6. AD SECTION 17 OF THE BILL
(PROPOSED AMENDMENT TO SECTION 102 OF THE SYSTEMS ACT)
It is suggested that
the following words be added to the new subsection:
“….and against payment
of any prescribed fee.”
7. AD SECTION 20 OF THE
BILL (PROPOSED INSERTION OF SECTION 123 A IN THE SYSTEMS ACT
It is respectfully
suggested that the section as drafted is wooly and does not adequately
recognise the Constitutional position of local government. It is accordingly recommended that the
section be amended as follows:
“123 A to facilitate
the review and consequent decision by a municipality on an appropriate
mechanism to provide services where a national policy approach relating to the
need for the institutional restructuring of the provision of a particular
municipal service, its related processes and procedures has been approved by
the Cabinet, the Minister, ….”