Local Government: Municipal Structures Amendment Bill & Customary Initiation Bill: proposed amendments

Meeting report

The Chairperson said the Committee had received negotiating mandates on these two Bills from the nine provinces the previous week and engaged on the proposed amendments of the provinces. He pointed out the difference between the Municipal Structures Amendment Bill and the Municipal Systems Amendment Bill as some people confused the two. He noted apologies from the Minister and Director General.

Municipal Structures Amendment Bill: Select Committee proposed amendments
Dr Kevin Naidoo, Executive Manager: Municipal Governance, Department of Cooperative Governance and Traditional Affairs (COGTA), said that the Select Committee proposed amendments (C-list) were drafted together with the Parliamentary Legal Advisor.

The Long Title was amended to include “to provide for transitional arrangements in respect of municipalities with a plenary executive system”

In Clause 1 on definitions, he spoke to the definitions of ‘by-elections’ where ‘authorised representation would be inserted and ‘councillor’, where the definition of “Code of Conduct” as well as “by the Electoral Commission” would be inserted.

In Clause 8 on qualifications of councillors, section 21A in Act 117 of 1998 would be inserted and “Code of Conduct for councillors  21A The Code of Conduct contained in Schedule 7 applies to every member of a municipal councillor” would be inserted after section 21.

In Clause 9(b)(5) the words “by the Electoral Commission” would be added at the end of the sentence.

In Clause 10(c)(5) there would be a consequential amendment of "by the Electoral Commission”

In Clause 12(c)(2) on the vacation of office the words “as defined … of 2007” will be removed.

In Clause 13(1A) on the meeting of municipal councils the words “ of the municipality” and “ on good cause shown designate a person to” is removed.

In Clause 19(a) on the composition of executive committees “elected” is replaced by “determined”.

In Clauses 19(d) and 19(e) the words “through an authorised representative” is added.

He spoke to the new clauses added as a consequence of the amendment to Section 43 of the Principal Act.

In Clause 21(a) on the amendment of Section 45 the word “Election” is replaced by “Determination” followed by the following consequential amendments in Sections 45 46 and 48.

In Clause 21(b) the word “elect” is replaced by “determined”.
 
In Clause 22 the word “elected” is replaced by “determined”.

In Clause 23(2) the word “elected” is replaced by “determined”.

A new Clause is inserted after Clause 21 which is the importation of the code of conduct from the municipal systems act into the municipal structures act to bring the two acts into alignment.

Clause 23(c) dealing with the establishment of MPAC, is deleted and replaced with “initiate and develop the oversight report of the annual report as required in terms of section 129 of the Local Government Municipal Finance Management Act, 2003 (Act No 56 of 2003).

In Clause 27(a)(3)(B) on the electoral system for metro and local councils, “seats” is replaced with “votes”.

In Clause 30 on the breaches of the Code of Conduct for councillors, the word “ chairperson is replaced by the word “speaker”.

On investigations of breach in 30(4)(b) the words “by the MEC” is added at the end of the sentence.

In Clause 30, 30(8)(6) is replaced by 30(8)(7) and at the end of the sentence the words “the rules of natural justice” is replaced with “section 3 of the Promotion of Administrative Justice Act, 2000 (Act No 3 of 2000)”.

There would be a new Clause following Clause 31, Clause 32, on the Transitional Arrangements.

The Short Title would be amended by deleting “2018’ and replacing it with “2020”.

Ms Fatima Ebrahim, Parliamentary Legal Advisor, said she had supported issues around transitional arrangements in previous meetings and the Bill contained no transitional arrangements and the Department was best placed to advise on the matter.

The Committee approved the C-list for the Local Government: Municipal Structures Amendment Bill.                        

Customary Initiation Bill: Select Committee proposed amendments
Mr Mashwahle Diphofa, Director General at Department of Traditional Affairs, introduced the presenter, Dr Rinaldi Bester Chief Director: Policy and Legislation, Department of Traditional Affairs.

Dr Bester said the drafting of the document had been a collaboration with the State Law Advisor and the Parliamentary Legal Advisor. The amendments included:

Clause 1 definitions of ‘abuse’, ‘area of jurisdiction’ ‘emergency services’, ‘kingship or queenship council’, ‘local house’, ‘standards for initiation school premises’, ‘TKLA’, ‘traditional community’, ‘traditional council’, and ‘traditional leader’. The inclusion of the definition for TKLA meant that when that Act was passed, there would be no need to amend this Act again. The inclusion of ‘traditional community’, ‘traditional council’, and ‘traditional leader’ definitions were consequential amendments due to the inclusion of the TKLA definition.

Clause 2, the words “physical and mental” to describe abuse was removed as the definition for abuse encompassed both words.

Clause 2, the fact that a principal should have five initiation seasons experience was removed from 4(a) and this proviso is placed in a sub-clause 4(b) on its own, while 4(c) indicated that a care giver, traditional surgeon or traditional health practitioner could only be involved in initiation practices ten years after graduation from initiation school.

Clause 2(7), add no one can be discriminated against based on gender or sexual orientation.

Clause 2(8)(a) “Every initiate has the right to confidentiality regarding his or her health status” is added. Clause 2(8)(b) A medical certificate required in terms of the act is regarded as confidential. subclause (8)(c) the confidential status of a medical certificate cannot be used as a reason for non-compliance with the act.

Clause 4(1)(a) on the National Initiation Oversight Committee (NIOC), the “two” members of the National House is replaced with “three” members of the National House.

Clause 4(1)(f) the Department of Women is amended to its new name: Department of Women, Youth and Persons of Disabilities and a consequential amendment to reflect the broader portfolio of the department.

Clause 4(1)(h) the word “and” at the end of the sentence is deleted

Clause 4(1)(i) indicates the inclusion of one senior member of the Department of Sport, Arts and Culture with knowledge of cultural customs, while the existing (i) becomes (j).

Clause 4(4) where there is reference to subsection (1)(h) the consequential amendment reads (1)(j).

Clause 5(1) is amended so that the first meeting of the NIOC must be convened and chaired by the Minister or if so directed, by the Director General.

Clause 15(e) “provisioning” is replaced by “availability”, and ends with “and accessibility of the schools”.

Clause 15(g) on developing criteria and requirements for initiation schools, the following is added after the words “… safety requirements,” to take into account the new definition on standards of initiation schools, “… and taking into account the standards for initiation school premises insofar as such standards are not inconsistent with this Act,”

Clause 21(10) on principals and care-givers, takes account of the inclusion of provision for sign language practitioners and braille services where applicable.

Clause 22(1)(c) on parents or guardians, the medical practitioner from which certificates are obtained has to practice in the province where the initiation school is located.

Clause 24(2)(a) on medical practitioners, the word “any” is replaced with “the relevant” male initiate.

Clause 28(1)(d) on consent and prohibition, the words “or coerced” is added: “No child or any other person may be forced to undergo virginity testing…”

Clause 31(2)(b) on a qualified counsellor providing counselling to initiates, the words “ … and if requested by them, to the parents or legal or customary guardian of the deceased initiate” is added.

Clauses 32(1) and Clause 32(2) on allowances and expenditure, there are consequential amendments because of the change in section 4(1)(i) becoming 4(1)(j).

Clause 33(d) on offences, “ physical or mental” is deleted due to comprehensive definition of abuse in Clause 1.

Clause 42, the short title date of 2018 should change to 2020.

Ms Phumelele Ngema, Parliamentary Legal Advisor, said she had had discussions on these amendments and worked together with the other stakeholders and was in agreement with what was said.

Ms Shaikh asked if the State Law Advisor was present for comment.

Ms Harriet Mekwa, State Law Advisor, said she had been part of discussions and had no further comment to make at this stage.

Mr C Smith (DA, Free State) appreciated the clear presentations.

The Committee approved the C-list for the Customary Initiation Bill.                   

The Chairperson said the two Bills would be taken back to the provinces to get their final mandates. After the final mandates are approved by this Committee, the Bills will be taken to the NCOP House for adoption.

The meeting was adjourned.