The Ministry of Cooperative Governance and Traditional Affairs was a party in the proceedings in which the Constitutional Court confirmed the North Gauteng High Court decision that had been brought by the South African Municipal Workers’ Union (“SAMWU”) and declared as invalid SECTION 56A of the Municipal Systems Amendment Act 7 of 2011.
In doing so, the Constitutional Court confirmed the constitutional invalidity of the Amendment Act on the procedural challenge, and did not entertain or consider the substantive challenge.
The order by the Constitutional Court was framed as that directed at the Legislature and it afforded the Legislature 24 months to correct the defect in the manner in which the Amendment Act was tagged. Although there was some confusion as to who was responsible to effect the order, that confusion has now been dealt with and we have now placed the Amendment Bill back in Parliament.
We have approached the Constitutional Court to alert it that the legislation will not be enacted in time as ordered by the Court. We have asked the Court to grant an extension period of another 12 months. The Court will now consider the matter and determine our request. It is important to note however, that whatever the Court decides is appropriate with regard to whether the extension will be granted, COGTA will, in accordance with the decision of the Court ensure that the Bill is reintroduced in the new Parliament after the national general elections for it to be passed following the correct procedure. In any event, the Amendment Bill is now before Parliament and awaits the new Parliament to ensure that it is passed.
It is also important to state that municipalities should not panic as this is not one of those situations where the Act was already in place and its suspension would result lead to a lacuna or vacuum. While we await the directives of the Constitutional Court in this regard, nothing will prevent the 6th Parliament from considering and passing the Amendment Bill, following the correct procedure as initially directed.
We ask that all involved exercise some patience and allow Parliament to finish its own process.
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