1. Introduction

The main purpose of the Bill is to establish criteria and procedures for the determination of municipal boundaries by an independent authority as required by Section 155 (3) (b) of the Constitution.

The Bill provides for the establishment of an independent, impartial Municipal Demarcation Board (MDB), whose main function will be the determination of municipal boundaries throughout the country. The Board will consist of no fewer than 11 and no more than 15 members, to be appointed by the President for a period of five years, and be broadly representative of South African society, The Chairperson and Deputy Chairperson are to be appointed, by the President, from among the Board members. Vacancies on the Board must be advertised and suitably qualified persons may apply for appointment to the Board. A selection panel consisting of the President of the Constitutional Court; a judge designated by the Chief Justice; a member of the Commission for Gender Equality; two persons with specific knowledge of boundary demarcation, one of whom is designated by the Minister of Provincial and Constitutional Affairs in consultation with the MECs for local government and the other is designated by South African Local Government Association (SALGA); and the Chairperson of the Select Committee for Constitutional Affairs and Public Administration.

The Minister for Provincial Affairs and Constitutional Development must determine the exact number of members of the Board and may alter, from time to time, the number originally determined. This number, however, cannot be reduced unless a vacancy occurs, which then subsequently is not filled.

The main powers of the Board relate to the determination of staff establishments and the appointment of employees. It may also enlist the services of any person, including any organ of state, to perform a specific function. In addition, the Board may perform, institute or defend any legal action.

The Board may also establish one or more committees to assist it in its tasks. In the event of establishing a committee, the Board must determine the functions of that committee, appoint its chairperson and other members, and determine the procedures for the committee, including the renumeration, allowances and other conditions of office.

The Bill enables the Board to determine and redetermine municipal boundaries and to publish such determination or redetermination in the relevant Provincial Gazette. Furthermore, provision is also made for any person who is aggrieved by the determination to submit his or her objections, in writing, within 30 days of the determination. The Board must then consider the objection and either confirm, vary or withdraw its determination.

Once the Board has determined a municipal boundary, it must forward particulars to the Electoral Commission . If the Electoral Commission is of the view that a boundary determination will materially affect the representation of voters in the council, the determination comes into being from a date set by the MEC for Local Government, and published in the relevant Provincial Gazette, taking into account the date of the next municipal council elections. If, on the other hand, it is felt that a determination will not materially affect the representation of voters in the council, the determination becomes effective from a date determined by notice in the Provincial Gazette by the MEC concerned.

3.2 Criteria for Demarcation

The main objectives must be to establish an area that will enable a municipality to render sustainable services; ensure effective, democratic and accountable local government; and create a tax base which would benefit all those living within the municipality.

The Bill lists several factors that should be taken into account when determining municipal boundaries. Some of these include:

• the interdependence of communities and economies according to present and anticipated human settlement patterns, including employment, recreational and spending patterns;
• the financial and administrative capacity to perform municipal functions effectively and efficiently;
• the need to share and redistribute financial and administrative resources;
• existing functional boundaries, including provincial, magisterial district, voting district, traditional authority, health, police and census enumerator boundaries;
• the need to establish a single, unfragmented , cohesive area. For example, there is the need to ‘attach’ a rural area to a town if that town can provide the necessary services and ensure the strengthening of social and economic ties with a particular rural area..

For an area to be recognised as a metropolitan area, it has to be functionally integrated; have a complex and diverse economy; have strong social and economic ties with its constituent units; and have a high population density. Once these criteria have been met, the Minister, in consultation with the MECs and the Board, may, by notice in the Government Gazette, designate an area as a metropolitan area.

3.3 Demarcation Procedures

Before the Board considers any determination of a municipal boundary, it must publicly state its intention to consider the matter and invite public representations within a period of not less than 21 days. Such notices must be made public through newspapers and the radio. In addition, the MEC of the province concerned as well as each municipality within the area must be notified.

The Bill also sets out the procedures for the holding of public meetings, the holding of formal investigations and the powers of investigating committees.

In terms of Section 155(6) of the Constitution, all provinces are required to establish municipalities within their boundaries. In the opinion of the Department of Constitutional Development and the State Law Advisers this Bill must, therefore, be dealt with in accordance with procedures set out by the National Council of Provinces (NCOP).

For more information, please contact Bea Abrahams at tel. 021 4488702 or by fax at 021 470624 or by e-mail at philaw@wn.apc.org.

PHILA

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