Ramaphosa refers transport bill back to parliament for reconsideration

President Cyril Ramaphosa has declined signing into law the National Land Transport Amendment Bill, which seeks to regulate land transport across SA.

The president sent the legislation back to parliament as he expressed reservations about its constitutionality. In the main, Ramaphosa is concerned that the bill usurps powers of municipalities and gives them to the national government and provinces - something that goes against the constitution.

“I have considered the bill and I also sought legal advice on its constitutionality.

“Given my reservations about the constitutionality of aspects of the bill, I cannot assent to it and am therefore referring it back to the National Assembly,” said Ramaphosa in a letter dated September 9, addressed to National Assembly speaker Nosiviwe Mapisa-Nqakula.

He said that while section 11 of the existing National Land Transport Act, a 2009 law, sets out the respective responsibilities of the three spheres of government - national, provincial and local - regarding national land transport, clause 7 of the new bill seeks to amend that section and, in doing so, will alter the statutory responsibilities of the three spheres.

Ramaphosa highlighted submissions by the SA Local Government Association and the city of Cape Town, saying they contended that the manner in which clause 7 did this was not consistent with the constitution.

Cape Town had objected to the clause asserting that the power vested in municipalities by the constitution to negotiate new contracts would be stripped by various subsections of the bill if they were not reversed. The city argued that the section took away its power and assigned a default responsibility of concluding contracts to the province. It argued that municipalities had this responsibility in the past, and had demonstrated the ability to plan, implement and manage contracts.

Ramaphosa seemed to agree.

“Under the constitution, municipalities have original constitutional powers. This has been made clear by the Constitutional Court,” said Ramaphosa.

He said it was clear from the constitution that a municipality has the right to govern, on its own initiative, the local government affairs of its community, subject to national and provincial legislation.

The national or a provincial government may not compromise or impede a municipality's ability or right to exercise its powers or perform its functions, he added.

Ramaphosa said one of the matters over which municipalities have competence is “municipal public transport”, as per schedule 4B of the constitution.

He said while parliament was competent to pass laws regarding matters in schedule 4B, that schedule makes clear that parliament may do so only “to the extent set out in section 155 (6) (a) and (7)", which in turn provide for each provincial government to establish municipalities in a manner consistent with legislation.

The national government and the provincial governments have the legislative and executive authority to see to the effective performance by municipalities of their functions, he said.

Ramaphosa said the Constitutional Court had repeatedly considered the effect of these provisions on the extent of parliament's powers to make laws on municipal functions.

He said the three main principles that emerged from those cases were that the national and provincial governments were permitted to “regulate the exercise by local government of its schedule 4B functions”.

This includes the power to prescribe “norms and standards” for this purpose, he said.

The national and provincial governments were not generally permitted, via legislation, to assume the local government functions for themselves and the narrow instance where provincial governments may assume the powers of local governments was through section 139 of the constitution having met the procedures required by that section, he said.

Section 139 contains specific and detailed requirements and procedures for provincial governments to intervene in local governments. Those must be complied with for such intervention or assumption of powers to be valid.

“I have reservations about whether parts of clause 7 of the bill complies with these principles,” concluded Ramaphosa.

The bill has been in the making for more than five years. It was first introduced to parliament in September 2016 and passed by the National Assembly in 2018.

It lapsed while in the National Council of Provinces [NCOP] at the end of the fifth parliament in May 2019. It was revived later that year and passed by both houses in March 2020 and sent to Ramaphosa for assent.

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