National Land Transport Bill should not diminish municipal powers
On the difficult matter as to whether the National Land Transport Bill will diminish certain municipal powers or provincial powers when this and similar national legislation is agreed to in the National Assembly, has led to a number of constitutional challenges of late. In the case of the National Land Transport Bill currently awaiting the President’s signature into law, the President gave this as the reason given for sending the Bill back to Parliament for reconsideration.
President Ramaphosa in this instance has called for more consideration of the need to retain local government authority on issues defined after a challenge was made by City of Cape Town Municipality. Mostly such cases of Bills returned result from the governing party not hearing properly the case put forward by interest groups and ‘powering’ legislation through Parliament using their majority vote. Whilst this is a perfectly valid process it should not happen where queries on constitutional correctness have already arisen
A similar situation, but a failure to consult with all groups, has occurred with the Copyright Amendment Bill, the Protection of State Information Bill, the Liquor Products Amendment Bill of recent and the Financial Intelligence Centre Amendment Bill back in 2016. In this case, the reason given by the President in all cases was that wider consultation was required with public and more consultation than envisaged by the drafters of the Bill in question.
When considering legislation, the presidency seeks counsel and and is bound to consider all submissions and petitions made earlier to Parliament. In some cases, this includes listening to concerns from beyond the country, such as foreign governments and international bodies.
Accordingly, the presidency will act either passing the Bill into law or sending the Bill back to Parliament with his final views on their constitutionality. More often than not Bills are signed straightaway into the statute book and simply await a gazette from the minister providing the necessary regulations to implement the law.
In the case of the National Land Transport Bill, submissions by the SA Local Government Association (SALGA) and the City of Cape Town submitted to the President have clearly influenced matters, the issue being whether national or a provincial government is compromised or impeded by a restraint on a municipality’s ability or right to exercise its powers or perform its functions. Cape Town said the Bill does, the transport portfolio committee ANC MPs having chosen to ignore the fact that that the DA would not support the Bill for this reason.
In the last round of hearings on the Bill, City of Cape Town objected to the clause that asserted that the power vested in municipalities by the constitution could be eroded or even negated affecting the City’s ability to negotiate new contracts.
Councillors complained angrily that the Bill queried the City’s ability to plan, implement and manage its business. Cape Town was obviously referring to its bus contracts and their value to commuters in terms of the state’s current inability to provide rail commuter services as a national service. The important South African Local Government Association (SALGA) joined in with a similar complaint.
President Ramaphosa’s letter to Parliament returning the Bill states, “The Constitution states that a municipality has the right to govern on its own initiative the local government affairs of its community, subject at all times to national and provincial legislation.” He further stated, “ One of the matters over which municipalities have competence is municipal public transport.”
The Bill has been in the making for a number of years, first being introduced to Parliament in 2016 and passed by the National Assembly in 2018. It lapsed at the end of the fifth Parliament in 2019, was later revived and passed by both houses in March 2020 and sent to Ramaphosa for assent. There it has sat for no apparent reason but now, at last, attended to.