The Minister for Justice and Constitutional Development intends introducing the Constitution of the Republic of SouthAfrica Third Amendment Bill, 2002, in the National Assembly. The Bill is hereby published for public comment in accordance with section 74(5)(a) of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996). Any person wishing to comment on the proposed amendments is invited to submit written comments to the Minister for Justice and Constitutional Development. Comments should kindly be directed to the attention of Mr J J Labuschagne, Private Bag X 81, Pretoria, 0001, by not later than 7 August 2002.
! Words in bold type in square bracketsindicateomissions from existing enactments.
To amend the Constitution of the Republic of South Africa, 1996, to provide for Bills regulating certain financial matters to be dealt with in Parliament in terms of section 76(1) of the Constitution; to provide for the change of the name of the Northern Province to Limpopo Province; to further regulate provincial supervi-sion of, and intervention in, local government; to further regulate the process of review by theNationalCouncil of Provinces wheretherehasbeennational executive intervention in provincial government and provincial executive interven-tion in local government; and to provide for matters connected therewith.
Amendment of section 76 of Act 108 of 1996 1.
"(b) envisaged in Chapter 13,and which [affects] includes provisions affecting the financial interests of the provincial sphere of government.".
Amendment of section 100 of Act 108 of 1996 2.
(i) unless it is approved by the Council within  180 days of its first sitting after the intervention began: 2 if it is disapproved by the Council earlier: and 20 the Council [must] may review the intervention regularly and may make any appropriate recommendations to the national executive.
Amendment of section 103 of Act 108 of 1996 3.
of subsection (1) of the following paragraph: "(8) [Northern Province] Limpopo Province".
(b) approve a budget or revenue-raising measures giving effect to the budget:--.or.
fulfil any other obligation specified by an Act of Parliament, the serious or persistent breachof which threatens the health and safety of residents of the municipality, 15 the relevant provincial executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation [, including-].
to maintain economic unity.
(3)If a municipality.
assuming responsibility for the implementation of therecovery plan: and approving a budget and revenue-raising measures giving effect to 40 the recovery plan.
(4)Section 100applies if a provincial executive cannot or does not fulfil an obligation in terms of subsection (3).
(d)theCouncil [must] may reviewthe inteVentiOn regularly and may make any appropriate recommendations to the provincial executive.
the implementation of this section.
This Act is called the Constitution of the Republic of SouthAfricaThird AmendmentAct, 2002, and takes effect on a date determined by thePresident by proclamation in the Gazette.
simplify the process of review by the National Council of Provinces where provincial executive interventions in local affairs have taken place: and address financial crises in municipalities; and secondly, to change the name of the Northern Province.
The proposed amendment to section 76(4)(b) seeks to avoid the splitting of a Bill, dealing with legislation contemplated in that section, into sections 75 and 76 Bills where some provisions of such a Bill affect the financial interests of provinces and others do not. The effect of the proposed amendment would be that all Bills envisaged in Chapter 13 of the Constitution that contains even a single provision affecting the financial interests of the provincial sphere of government, will in future be dealt with in accordance with the procedure set out in section 76(1) of the Constitution. However, this amendmentdoes not affect the parliamentary procedure formoney Bills which is regulated by sections 76(6) and 77(2) of the Constitution.
The proposed amendment to section 100 is aimed at simplifying the review process by the National Council of Provinces of an intervention by the national executive in a province in terms of that section. The proposed amendment further relaxes the time frames within which such an intervention must lapse. It also grants the National Council of Provinces a discretion to review the intervention on a regular basis.
Section 104(2) of the Constitution provides that the legislature of a province, by a resolution adopted with a supporting vote of at least two thirds of its members, may requestParliament to change the name of that province. On 12 February 2002the Legislature of the Northern Province resolved to request Parliament to change the name of that Province from "Northern Province" to "Limpopo Province". A request to that effect was subsequently made to Parliament in accordance with section 104(2) of the Constitution. Clause3 seeks to amend section 103 of the Constitutionso as to give effect to that request.
fulfil any other obligation specified by an Act of Parliament, the serious or persistent breach of which threatens thc health and safety of residents of the municipality.
2.4.2.1 The proposed new section 139(3) seeks to provide a missing piece in the Government's overall strategy for dealing with municipal financialproblems as discussed in the "Policy Framework for Municipal Borrowing and Financial Emergen- cies" which was published on 28 July 2000 in Government Gazette No. 21423. The intention of that policy framework is to provide a comprehensive approach to resolving financial crises in municipalities. Financial recovery usually requires the adoption or modification of municipal budgets, taxes and tariffs, which areregarded as being legislative matters. In terms of the Constitution only a municipal council can act in such legislative matters. However, there will be cases in practice where a municipal council cannot or will not act, and it is therefore necessary to provide an alternative in order to implement a financial recovery plan.
2.4.2.2 The new section 139(3) therefore provides that if a municipality, as a result of a crisis in its financial affairs, is in a serious or persistent breach of its obligations to provide basic services or to meet its financial obligations. the provincial executive must intervene by taking effective steps to resolve the crisis, which may include the adoption of a recovery plan for the restoration of the municipality to financial health. The municipality would be required to implement the plan itself, but if it fails todo so, the provincial executive would assume the responsibility for the implementation of the recovery plan. The recovery plan would regulate, and to the extent necessary to resolve the crisis, limit the municipality's executive and legislative powers over the budget and revenue-raising measures. If the provincial executive fails to fulfil its obligation in terms of the proposed new section 139(3), the national executive may, in accordance with section 100 of the Constitution, intervene by issuing a directive to the province that it must act, or by assuming responsibility where this is necessary.
The proposed amendment to the existing section 139(2) (theproposed new section 139(5)) is aimed at simplifying the review process by the National Council of Provinces of an intervention by a provincial executive ina municipality in terms of that section. This proposed review process of interventions in terms of this section is similar to that proposed inrespect of interventions in terms of section 100. The proposed amendment further extends the period within which the Cabinet member responsible for local government affairs may end an intervention.
The State Law Advisers and the Department of JusticeandConstitutional Development are of the opinion that the proposed amendments fall within the ambit of section 74(3)(b) of the Constitution and consequently require the approval of both the National Assembly and the National Council of Provinces.