Date: 15/11/2005
Source: Department of Justice and Constitutional Development
Title: de Lange: Second Reading of Constitution Twelfth Amendment Bill, NA
Address by Advocate Johnny De Lange, MP, Deputy Minister for Justice and Constitutional Development on the Second Reading: Constitution Twelfth Amendment Bill B 33b—2005, in the National Assembly
Madam Speaker
Honourable Ministers and Members
Comrades and Friends
Ladies and Gentlemen
On 27 April 1994, in terms of the Constitution of the Republic of South Africa, of 1993 (the Interim Constitution of 1993), the Republic of South Africa became a democratic, constitutional, sovereign State, established on the basis of the three distinct, but interrelated spheres of government, namely the national, provincial and local spheres of government.
The provincial sphere of government was established as the present nine provinces of the Republic, out of the areas of the former Republic of South Africa, and the Bantustans of Transkei, Bophuthatswana, Venda and Ciskei and the areas of the six self-governing territories. The geographical area comprising each of the nine provinces is defined in Schedule one of the Interim Constitution. The areas of the respective provinces were and still are defined by reference to specific magisterial districts created in terms of the Magistrates’ Courts Act of 1944.
The above described dispensation for the provincial sphere of government was continued under the Constitution of the Republic of South Africa, 1996, (the Constitution of 1996) which provides that "the boundaries of the provinces are those that existed when the Constitution took effect." In other words, as defined under the Interim Constitution, with the magisterial districts acting as building blocks of each province.
On the other hand, section 151(1) of the Constitution provides that the building blocks of our local sphere of government consist of municipalities, which must be established for the whole of the territory of the Republic, and which differ significantly from magisterial districts.
Furthermore, in 1998, the Constitution was amended by the insertion of section 155(6A) that regulates the establishment of the so-called "cross-boundary municipalities." Section 155(6A) provides, inter alia, that if the criteria for the determination of municipal boundaries cannot be fulfilled without a municipal boundary extending across a provincial boundary, that municipal boundary may, subject to certain requirements, be determined across the provincial boundary. Madam Speaker, Sixteen cross-boundary municipalities, for example, Ekurhuleni, Tshwane, Bushbuckridge and Kgalagadi, were established in terms of the relevant statutory provisions, affecting five provinces in the Republic, namely Gauteng, Limpopo, Mpumalanga, Northern Cape and North West. Consequently, provincial boundaries are still to this day determined by reference to the boundaries of magisterial districts, rather than by reference to municipal boundaries. These two concepts are totally different in many respects. Magisterial districts are defined areas in which courts exercise jurisdiction, whereas municipal boundaries are the geographical areas, designated by the Municipal Demarcation Board, within which a democratically elected legislative and executive authority exercise the powers granted to such municipality in the Constitution and subsequent laws.
This state of affairs has not only resulted in some legal and practical difficulties, particularly in respect of service delivery, but also, in the cross-boundary municipal dispensation.
The Department of Provincial and Local Government (DPLG) has done a profile of municipal performance and it was found that cross-boundary municipalities are among those municipalities whose performance is sub-optimal. There are many reasons for this sub-optimal performance. But, the main reason is due to the fact that the various provinces often have different legislation for similar functions applicable to such a cross-border municipality. When the laws of more than one province need to be administered in a cross-boundary municipality, this not only leads to confusion, but it is also a costly exercise.
It is difficult at any given time to say who has got ultimate responsibility over such municipalities. Therefore, sometime neither province takes responsibility, and they do not budget accordingly. Some of the other challenges that are being experienced include, inter alia, in the area of:
* Health - different legislation and funding from two provinces;
* Housing - subsidisation of such projects negatively impact on delivery of housing;
* Traffic - a cross-boundary municipality must administer laws of two provinces, resulting in confusion for road users; and
* Ambulance services - in one part of the cross-boundary municipality the service may be rendered by the district municipality, and in the other part by the local municipality.
The experience of the last six years has shown that cross-boundary municipalities present legal, financial and administrative challenges that make it difficult for government to provide services to communities in an equitable and sustainable manner.
Consequently, on 1 November 2002, the Presidential Co-ordinating Council resolved amongst others, that:
* The notion of cross-boundary municipalities be abolished; and
* Provincial boundaries be reviewed so that no municipality straddles two or more provincial boundaries.
The decision of the Presidential Co-ordinating Council (PCC) was influenced by the above reality and the challenges experienced in the joint administration by provinces of the cross-boundary municipalities. The objective is therefore to obtain legal, financial, administrative and functional certainty to enhance service delivery by providing that all municipalities fall within a specific province.
On 19 August 2005 and 31 October 2005 the Municipal Demarcation Board published maps in the Government Gazette reflecting proposals for boundary changes received from the Minister for Provincial and Local Government. I will not go into the detail of those proposals, as the Minister of Provincial and Local Government is better placed to do so, except to say that the proposed boundaries are meant to assist the State to provide services to communities in an equitable and sustainable manner. It is also meant to promote social and economic development at regional and local level, and to enable integrated and effective local government.
In order to give effect to the resolution of the PCC, the Constitutional Amendment before the House seeks to re-determine the geographical areas of the provinces to avoid municipal boundaries stretching over provincial boundaries. In addition, the Cross-boundary Municipalities Laws Repeal Bill, 2005, which is presently before Parliament, seeks to repeal all laws providing for cross-boundary municipalities and to deal with certain consequential implications in respect of municipal boundaries.
Madam Speaker
Let me now turn to discuss each provision of this Constitutional Amendment Bill.
Clause 1 seeks to amend section 103 of the Constitution to:
* firstly, list the respective provinces in alphabetical order;
* secondly, to provide that the geographical areas of the respective provinces comprise the sum of the indicated geographical areas
reflected in the various maps referred to in the Notice listed in the proposed new Schedule 1A; and
* thirdly, to provide that whenever the geographical area of a province is re-determined by an amendment to the Constitution, an ordinary Act of Parliament may provide for transitional measures to regulate the legal, practical and any other consequences of the re-determination. Such transitional measures will be provided for in the Cross-boundary Municipalities Laws Repeal Bill, 2005, presently before Parliament and will regulate matters such as the transfer of provincial functions, assets, rights, obligations, duties or liabilities from province to another.
Clauses 2 and 3 of the Bill seek to repeal sections 155(6A) and 157(4) (b) of the Constitution that deal with cross-boundary municipalities, removing the principle of cross-boundary municipalities from the Constitution.
Clause 4 of the Bill seeks to insert a new Schedule 1A in the Constitution that defines the areas of the provinces with reference to the geographical areas that are reflected in municipal demarcation maps that are contained in official notices published by the Municipal Demarcation Board. It needs to be pointed out that by using municipal demarcation maps, the greatest common denominator of geographical areas is used, namely six metropolitan municipalities and 46 district municipalities. These structures represent wall to wall municipalities, whilst local municipal areas do not cover the whole of the territory of the Republic.
Although there are no cross-boundary municipalities on the provincial boundary between the Eastern Cape and KwaZulu-Natal, a decision was taken to resolve the challenges relating to that boundary in a manner that would avoid going through a process of first establishing cross-boundary municipalities. Those challenges are being addressed in the Cross-boundary Municipalities Laws Repeal Bill, 2005, through proposed demarcations of municipalities. In so far as those proposed demarcations impact on district municipalities, such proposals are reflected in the proposed new Schedule 1A to be inserted in the Constitution.
It is very important that a vital distinction needs to be emphasised and understood by this House. Although the maps being used are based on municipal boundaries, the Constitutional Amendment passed today does not entrench the boundaries of such municipalities. The boundaries of municipalities must still be demarcated in terms of section 155(3) of the Constitution by an independent authority, that is, the Municipal Demarcation Board. We are merely using the sum total of these maps in Schedule 1A to denote the collective area which will comprise a province. In other words, these maps are used to define the outer boundary of each province and not to define the boundaries of the six metropolitan and 46 district municipalities which they reflect. Or stated differently, the outer boundaries of these municipal demarcation maps which form the boundary of the province are indeed also the boundary of the province.
This model seems to me not to be satisfactory. However, that is what we have inherited from the past and we continue with the same model in this Constitutional Amendment. The building blocks of our provinces, including the provincial boundaries, in the Interim Constitution and the Constitution are magisterial districts. The alternative we have progressed to now is to use the municipal boundaries as defined by the Municipal Demarcation Board. However, this means that each time a magisterial district was amended in the past or a municipal boundary is amended in the future, we must amend the Constitution. That seems to be absurd. Is it not time that we actually obtain the expertise of someone to actually technically define exactly what each provincial boundary is? For example, the boundary at Limpopo Province of the Limpopo River in the North, the Kruger National Park in the East, the border with Botswana in the West, and so on.
I would propose that the viability of this proposal of defining the specific provincial boundaries in the Constitution be examined and implemented if found acceptable. It just makes sense. To use municipal boundaries, the smallest governmental unit, which are the most likely to be changed for a variety of reasons, or even worse, magisterial districts, as the building blocks of your provinces, including provincial boundaries, means you will have to amend the Constitution regularly and unnecessarily. It leads to absurdities. If the Municipal Demarcation Board changes a municipal boundary in the middle of the province, which does not affect the provincial boundary, you still need to amend the Constitution, so that the particular provincial building block is reflected correctly in the Constitution. The time has arrived, in my view, to change this model. But, that is for another occasion.
In conclusion, this Constitutional Amendment removes the principle of Cross-Boundary Municipalities from the Constitution and merely defines the geographical area, including by implication, the provincial boundary, of each province in the new Schedule 1A of the Constitution; whereas it is in the Cross-Boundary Municipalities Laws Repeal Bill, which is presently being processed with this Constitutional Amendment, where the exact new municipal boundaries under review and as defined by the Municipal Demarcation Board, will be legislated into law.
Madam Speaker,
Although their job is only half done, I would like to thank the Chairpersons and members of the Portfolio Committees on Justice and Constitutional Development, sitting with the Portfolio Committee on Provincial and Local Government and the Select Committees on Security and Constitutional Affairs and on Local Government and Administration, for the time and effort that they have put into finalising this rather technical, but sensitive, Constitutional Amendment within the short time-frame given to them. We now await their finalisation in the next week or two of the Cross-Boundary Municipalities Laws Repeal Bill. Upon its passing the legislative framework will be in place for the next local government elections to take place, by no later than 6 March 2006.
I commend the passing of this Constitutional Amendment to the House.
I thank you.
Issued by: Department of Justice and Constitutional Development
15 November 2005
Source: Department of Justice and Constitutional Development
Title: de Lange: Second Reading of Constitution Twelfth Amendment Bill, NA
Address by Advocate Johnny De Lange, MP, Deputy Minister for Justice and Constitutional Development on the Second Reading: Constitution Twelfth Amendment Bill B 33b—2005, in the National Assembly
Madam Speaker
Honourable Ministers and Members
Comrades and Friends
Ladies and Gentlemen
On 27 April 1994, in terms of the Constitution of the Republic of South Africa, of 1993 (the Interim Constitution of 1993), the Republic of South Africa became a democratic, constitutional, sovereign State, established on the basis of the three distinct, but interrelated spheres of government, namely the national, provincial and local spheres of government.
The provincial sphere of government was established as the present nine provinces of the Republic, out of the areas of the former Republic of South Africa, and the Bantustans of Transkei, Bophuthatswana, Venda and Ciskei and the areas of the six self-governing territories. The geographical area comprising each of the nine provinces is defined in Schedule one of the Interim Constitution. The areas of the respective provinces were and still are defined by reference to specific magisterial districts created in terms of the Magistrates’ Courts Act of 1944.
The above described dispensation for the provincial sphere of government was continued under the Constitution of the Republic of South Africa, 1996, (the Constitution of 1996) which provides that "the boundaries of the provinces are those that existed when the Constitution took effect." In other words, as defined under the Interim Constitution, with the magisterial districts acting as building blocks of each province.
On the other hand, section 151(1) of the Constitution provides that the building blocks of our local sphere of government consist of municipalities, which must be established for the whole of the territory of the Republic, and which differ significantly from magisterial districts.
Furthermore, in 1998, the Constitution was amended by the insertion of section 155(6A) that regulates the establishment of the so-called "cross-boundary municipalities." Section 155(6A) provides, inter alia, that if the criteria for the determination of municipal boundaries cannot be fulfilled without a municipal boundary extending across a provincial boundary, that municipal boundary may, subject to certain requirements, be determined across the provincial boundary. Madam Speaker, Sixteen cross-boundary municipalities, for example, Ekurhuleni, Tshwane, Bushbuckridge and Kgalagadi, were established in terms of the relevant statutory provisions, affecting five provinces in the Republic, namely Gauteng, Limpopo, Mpumalanga, Northern Cape and North West. Consequently, provincial boundaries are still to this day determined by reference to the boundaries of magisterial districts, rather than by reference to municipal boundaries. These two concepts are totally different in many respects. Magisterial districts are defined areas in which courts exercise jurisdiction, whereas municipal boundaries are the geographical areas, designated by the Municipal Demarcation Board, within which a democratically elected legislative and executive authority exercise the powers granted to such municipality in the Constitution and subsequent laws.
This state of affairs has not only resulted in some legal and practical difficulties, particularly in respect of service delivery, but also, in the cross-boundary municipal dispensation.
The Department of Provincial and Local Government (DPLG) has done a profile of municipal performance and it was found that cross-boundary municipalities are among those municipalities whose performance is sub-optimal. There are many reasons for this sub-optimal performance. But, the main reason is due to the fact that the various provinces often have different legislation for similar functions applicable to such a cross-border municipality. When the laws of more than one province need to be administered in a cross-boundary municipality, this not only leads to confusion, but it is also a costly exercise.
It is difficult at any given time to say who has got ultimate responsibility over such municipalities. Therefore, sometime neither province takes responsibility, and they do not budget accordingly. Some of the other challenges that are being experienced include, inter alia, in the area of:
* Health - different legislation and funding from two provinces;
* Housing - subsidisation of such projects negatively impact on delivery of housing;
* Traffic - a cross-boundary municipality must administer laws of two provinces, resulting in confusion for road users; and
* Ambulance services - in one part of the cross-boundary municipality the service may be rendered by the district municipality, and in the other part by the local municipality.
The experience of the last six years has shown that cross-boundary municipalities present legal, financial and administrative challenges that make it difficult for government to provide services to communities in an equitable and sustainable manner.
Consequently, on 1 November 2002, the Presidential Co-ordinating Council resolved amongst others, that:
* The notion of cross-boundary municipalities be abolished; and
* Provincial boundaries be reviewed so that no municipality straddles two or more provincial boundaries.
The decision of the Presidential Co-ordinating Council (PCC) was influenced by the above reality and the challenges experienced in the joint administration by provinces of the cross-boundary municipalities. The objective is therefore to obtain legal, financial, administrative and functional certainty to enhance service delivery by providing that all municipalities fall within a specific province.
On 19 August 2005 and 31 October 2005 the Municipal Demarcation Board published maps in the Government Gazette reflecting proposals for boundary changes received from the Minister for Provincial and Local Government. I will not go into the detail of those proposals, as the Minister of Provincial and Local Government is better placed to do so, except to say that the proposed boundaries are meant to assist the State to provide services to communities in an equitable and sustainable manner. It is also meant to promote social and economic development at regional and local level, and to enable integrated and effective local government.
In order to give effect to the resolution of the PCC, the Constitutional Amendment before the House seeks to re-determine the geographical areas of the provinces to avoid municipal boundaries stretching over provincial boundaries. In addition, the Cross-boundary Municipalities Laws Repeal Bill, 2005, which is presently before Parliament, seeks to repeal all laws providing for cross-boundary municipalities and to deal with certain consequential implications in respect of municipal boundaries.
Madam Speaker
Let me now turn to discuss each provision of this Constitutional Amendment Bill.
Clause 1 seeks to amend section 103 of the Constitution to:
* firstly, list the respective provinces in alphabetical order;
* secondly, to provide that the geographical areas of the respective provinces comprise the sum of the indicated geographical areas
reflected in the various maps referred to in the Notice listed in the proposed new Schedule 1A; and
* thirdly, to provide that whenever the geographical area of a province is re-determined by an amendment to the Constitution, an ordinary Act of Parliament may provide for transitional measures to regulate the legal, practical and any other consequences of the re-determination. Such transitional measures will be provided for in the Cross-boundary Municipalities Laws Repeal Bill, 2005, presently before Parliament and will regulate matters such as the transfer of provincial functions, assets, rights, obligations, duties or liabilities from province to another.
Clauses 2 and 3 of the Bill seek to repeal sections 155(6A) and 157(4) (b) of the Constitution that deal with cross-boundary municipalities, removing the principle of cross-boundary municipalities from the Constitution.
Clause 4 of the Bill seeks to insert a new Schedule 1A in the Constitution that defines the areas of the provinces with reference to the geographical areas that are reflected in municipal demarcation maps that are contained in official notices published by the Municipal Demarcation Board. It needs to be pointed out that by using municipal demarcation maps, the greatest common denominator of geographical areas is used, namely six metropolitan municipalities and 46 district municipalities. These structures represent wall to wall municipalities, whilst local municipal areas do not cover the whole of the territory of the Republic.
Although there are no cross-boundary municipalities on the provincial boundary between the Eastern Cape and KwaZulu-Natal, a decision was taken to resolve the challenges relating to that boundary in a manner that would avoid going through a process of first establishing cross-boundary municipalities. Those challenges are being addressed in the Cross-boundary Municipalities Laws Repeal Bill, 2005, through proposed demarcations of municipalities. In so far as those proposed demarcations impact on district municipalities, such proposals are reflected in the proposed new Schedule 1A to be inserted in the Constitution.
It is very important that a vital distinction needs to be emphasised and understood by this House. Although the maps being used are based on municipal boundaries, the Constitutional Amendment passed today does not entrench the boundaries of such municipalities. The boundaries of municipalities must still be demarcated in terms of section 155(3) of the Constitution by an independent authority, that is, the Municipal Demarcation Board. We are merely using the sum total of these maps in Schedule 1A to denote the collective area which will comprise a province. In other words, these maps are used to define the outer boundary of each province and not to define the boundaries of the six metropolitan and 46 district municipalities which they reflect. Or stated differently, the outer boundaries of these municipal demarcation maps which form the boundary of the province are indeed also the boundary of the province.
This model seems to me not to be satisfactory. However, that is what we have inherited from the past and we continue with the same model in this Constitutional Amendment. The building blocks of our provinces, including the provincial boundaries, in the Interim Constitution and the Constitution are magisterial districts. The alternative we have progressed to now is to use the municipal boundaries as defined by the Municipal Demarcation Board. However, this means that each time a magisterial district was amended in the past or a municipal boundary is amended in the future, we must amend the Constitution. That seems to be absurd. Is it not time that we actually obtain the expertise of someone to actually technically define exactly what each provincial boundary is? For example, the boundary at Limpopo Province of the Limpopo River in the North, the Kruger National Park in the East, the border with Botswana in the West, and so on.
I would propose that the viability of this proposal of defining the specific provincial boundaries in the Constitution be examined and implemented if found acceptable. It just makes sense. To use municipal boundaries, the smallest governmental unit, which are the most likely to be changed for a variety of reasons, or even worse, magisterial districts, as the building blocks of your provinces, including provincial boundaries, means you will have to amend the Constitution regularly and unnecessarily. It leads to absurdities. If the Municipal Demarcation Board changes a municipal boundary in the middle of the province, which does not affect the provincial boundary, you still need to amend the Constitution, so that the particular provincial building block is reflected correctly in the Constitution. The time has arrived, in my view, to change this model. But, that is for another occasion.
In conclusion, this Constitutional Amendment removes the principle of Cross-Boundary Municipalities from the Constitution and merely defines the geographical area, including by implication, the provincial boundary, of each province in the new Schedule 1A of the Constitution; whereas it is in the Cross-Boundary Municipalities Laws Repeal Bill, which is presently being processed with this Constitutional Amendment, where the exact new municipal boundaries under review and as defined by the Municipal Demarcation Board, will be legislated into law.
Madam Speaker,
Although their job is only half done, I would like to thank the Chairpersons and members of the Portfolio Committees on Justice and Constitutional Development, sitting with the Portfolio Committee on Provincial and Local Government and the Select Committees on Security and Constitutional Affairs and on Local Government and Administration, for the time and effort that they have put into finalising this rather technical, but sensitive, Constitutional Amendment within the short time-frame given to them. We now await their finalisation in the next week or two of the Cross-Boundary Municipalities Laws Repeal Bill. Upon its passing the legislative framework will be in place for the next local government elections to take place, by no later than 6 March 2006.
I commend the passing of this Constitutional Amendment to the House.
I thank you.
Issued by: Department of Justice and Constitutional Development
15 November 2005
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