Study Unit 1:



STUDY UNIT 12: LOCAL GOVERNMENT:

12.1 INTRODUCTION:

- Local sphere of government has an important role to play in the democratisation process.

- Regarded as the cornerstone of modern democracies.

12.2 LOCAL GOVERNMENT IN HISTORICAL CONTEXT:

- Pre 1993: Apartheid systems at local level – highly fragmented, illegitimate & dysfunctional.

Separation between developed white areas and underdeveloped, under-serviced, unrepresented black areas.

- 1980’s: Crisis in local authorities – consumer boycotts & civil unrest threatening to erupt.

Negotiations between white municipal structures and back civic representatives resulted

in three principle outposts.

• An agreement of Local Government Finances and Services.

• Local Government Transition Act.

• Chap. 10 Interim Constitution.

Aided in restructuring local bodies, addressed the delineation of racial & social lines.

Pimstone argues: The hasty negotiation process, resulted in drafting deficiencies.

- New order: The 1996 Constitution recognised status of local government.

12.3 IMPORTANCE OF PARTICIPATORY GOVERNMENT:

- Many countries experienced with new ways of improving democratic decision making at grassroots level. (Sri-Lanka, Belgium, Germany, Australia, Ghana, Nigeria).

- Brynard: Reasons why public participation in matters that directly affects the public are important:

• Facilitates access to information re: local conditions, needs, desires, attitudes which is important in adopting policy decision to implement.

• Participation provides people who will be affected by policy the opportunity to express their views, or influence public officials.

• Involving and educating the public. Benefit of involvement: people more likely to stay committed to the project/policy if they are involved in its planning. The identify with it as their own.

• Participation ensures the democratisation of planning process in particular and public management process in general.

Most counties: participation in local government is a basic democratic right.

• Participation is a means of balancing demands for central control against requirements of local government. The more distant from the public government policies are, the less popular they are.

• Participation plays the watchdog role = openness and participation reduce possibility of corruption & help maintain high standards of behaviour. Empowers citizens to directly influence public officials which helps to overcome bureaucratic dysfunctioning caused by citizen involvement.

- The success of a participatory democracy depends on the active involvement of the people at lowest level.

- To make the process of participation easier – important to address practical problems:

• Language problems.

• Difference in attitudes and expectations.

• Mutual feelings of distrust.

• Suspicion and resentment.

- Necessary to educate citizens on a regular basis;

• Forums available to them in which they can express their views.

• Free to comment on proposed policies.

• Important that people know about government initiatives and are aware of the policies emanate from the national/provincial sphere.

12.4 BRIDGING THE GAP – CHAPTER 7 CONSTITUTION:

12.5 ESTABLISHMENT OF MUNICIPALITIES:

s 155:

- Local government is characterised by municipalities.

- Municipalities must be created for the entire Republic.

- Different categories must be set up in different regions.

- The Local Government: Municipal Structures Act: Defines the different types of municipalitites that may be established in each category.

e.g;

• Local councils or city councils;

• Metropolitan councils;

• District councils;

• Rural councils.

- There are about 300 government institutions in SA.

12.6 COMPOSITION AND ELECTION OF MUNICIPAL COUNCILS:

- s 157: Composition & election of municipal councils.

- Proportionality is the overriding principle in terms of which municipal councillors must be elected.

- The Local Government: Municipal Structures Act: Gives effect to the principal by providing elections be held in terms of a list / proportional electoral system combined with ward representation.

- s 158:

12.7 POWERS VESTED IN THE LOCAL SPHERE OF GOVERNMENT:

- No longer plays a predominantly administrative role. – Confirmed by section 151 (2).

- This was confirmed in Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1998: Court stated local government is no longer a public body exercising delegated powers.

It has legislative and executive powers recognised by the Constitution.

- s 156:

12.8 SELF ASSESSMENT:

1) Discuss the reason behind the creation of local government as an ``autonomous'' sphere

of government. (5)

2) Explain the importance of involving people at grassroots level in the functioning of government. (10)

3) Describe, giving an example, the effect of Chapter 7 of the 1996 Constitution on the

legal status of local government. (5)

4) Compare the term ``sphere'' with the term ``level'' of government and explain the

connotation of each term in constitutional law. (5)

5) Review local government in the context of intergovernmental relations. (5)

6) Discuss whether local government is nothing more than an administrative

``handmaiden''. (10)

7) Briefly discuss the composition, functioning and powers of the local sphere of

government. (8)

12.9 CONCLUSION:

From the above discussion it is clear that the recognition of local government as an autonomous sphere of government is necessary to improve the quality of life experienced by members of the community and

to give them a sense of involvement in the political processes that govern their daily lives. If they are to live up to their promises, the national and provincial spheres of government must do all that they can to develop the capacity and integrity of the municipalities. In the Certification judgment par 373 the Constitutional Court put it as follows:

What the NT seeks hereby to realise is a structure for local government that, on the one hand reveals a concern for the autonomy and integrity of local government and prescribes a hands-off relationship between local government and the other levels of government and, on the other, acknowledges the requirement that higher levels of government monitor local government functioning and intervene where such functioning is deficient of defective in a manner that compromises this autonomy. This is the necessary hand-on component of the relationship.

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CASE LIST:

|1. |Wiechers and Budhu: Current Judicial trends pertaining to | |

| |devolution & assignment of powers to local government 2002 | |

|2. |Robertson and Another v City of Cape Town and Another; | |

| |Truman-Baker v City of Cape Town 2004 | |

|3. |Executive council of the Western Cape v Minister of Provincial | |

| |Affairs; ,Executive Council of KwaZulu Natal v President of RSA | |

| |1999 | |

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SECTIONS OF THE CONSTITUTION FOR THIS CHAPTER:

CHAPTER 4

PARLIAMENT (ss 42-82)

42 Composition of Parliament

(1) Parliament consists of-

(a) the National Assembly; and

(b) the National Council of Provinces.

(2) The National Assembly and the National Council of Provinces participate in the legislative process in the manner set out in the Constitution.

(3) The National Assembly is elected to represent the people and to ensure government by the people under the Constitution. It does this by choosing the President,

by providing a national forum for public consideration of issues, by passing legislation

and by scrutinizing and overseeing executive action.

(4) The National Council of Provinces represents the provinces to ensure that provincial interests are taken into account in the national sphere of government. It does this mainly by participating in the national legislative process and by providing a national forum for public consideration of issues affecting the provinces.

(5) The President may summon Parliament to an extraordinary sitting at any time conduct special business.

(6) The seat of Parliament is Cape Town, but an Act of Parliament enacted in accordance with section 76 (1) and (5) may determine that the seat of Parliament is elsewhere.

43 Legislative authority of the Republic

In the Republic, the legislative authority-

(a) of the national sphere of government is vested in Parliament, as set out in section 44;

(b) of the provincial sphere of government is vested in the provincial legislatures, as set out in section 104; and

(c) of the local sphere of government is vested in the Municipal Councils, as set out in section 156.

44 National legislative authority

(1) The national legislative authority as vested in Parliament-

(a) confers on the National Assembly the power-

(i) to amend the Constitution;

(ii) to pass legislation with regard to any matter, including a matter within a functional area listed in Schedule 4, but excluding, subject to subsection (2), a matter within a functional area listed in Schedule 5; and

(iii) to assign any of its legislative powers, except the power to amend the Constitution, to any legislative body in another sphere of government; and

(b) confers on the National Council of Provinces the power-

(i) to participate in amending the Constitution in accordance with section 74;

(ii) to pass, in accordance with section 76, legislation with regard to any matter within a functional area listed in Schedule 4 and any other matter required by the Constitution to be passed in accordance with section 76; and

(iii) to consider, in accordance with section 75, any other legislation passed by the National Assembly.

(2) Parliament may intervene, by passing legislation in accordance with section 76 (1), with regard to a matter falling within a functional area listed in Schedule 5, when it is necessary-

(a) to maintain national security;

(b) to maintain economic unity;

(c) to maintain essential national standards;

(d) to establish minimum standards required for the rendering of services; or

(e) to prevent unreasonable action taken by a province which is prejudicial to the interests of another province or to the country as a whole.

(3) Legislation with regard to a matter that is reasonably necessary for, or

incidental to, the effective exercise of a power concerning any matter listed in Schedule 4 is, for all purposes, legislation with regard to a matter listed in Schedule 4.

(4) When exercising its legislative authority; Parliament is bound only by the Constitution, and must act in accordance with, and within the limits of, the Constitution.

55 Powers of National Assembly

(1) In exercising its legislative power, the National Assembly may-

(a) consider, pass, amend or reject any legislation before the Assembly; and

(b) initiate or prepare legislation, except money Bills

(2) The National Assembly must provide for mechanisms-

(a) to ensure that all executive organs of state in the national sphere of government are accountable to it; and

(b) to maintain oversight of-

(i) the exercise of national executive authority, including the implementation of legislation; and

(ii) any organ of state.

57 Internal arrangements, proceedings and procedures of National Assembly

(1) The National Assembly may-

(a) determine and control its internal arrangements, proceedings and procedures; and

(b) make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement.

58 Privilege

(1) Cabinet members, Deputy Ministers and members of the National Assembly-

(a) have freedom of speech in the Assembly and in its committees, subject to its rules and orders; and

(b) are not liable to civil or criminal proceedings, arrest, imprisonment or damages for-

(i) anything that they have said in, produced before or submitted to the Assembly or any of its committees; or

(ii) anything revealed as a result of anything that they have said in, produced before or submitted to the Assembly or any of its committees.

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AIMS OF THE STUDY UNIT:

1) Discuss the reason behind the creation of local government as an ‘autonomous’ sphere of

government.

2) Explain the importance of involving people at grass-roots level in the functioning of

government.

3) Illustrate the effect of Chapter 7 of the 1996 Constitution on the legal status of local

government.

4) Compare the term ‘sphere’ with the term ‘level’ of government and explain the

connotation of each term in constitutional law.

5) Review local government in the context of intergovernmental relations.

6) Discuss whether local government is nothing more than an administrative ‘handmaiden’

to national government.

7) Discuss the composition, functioning and powers of the local sphere of government.

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‘Autonomous local government’ vs ‘administrative handmaiden’

The Constitution confirms local government is an autonomous sphere, but when looking at the objects, powers & duties of local government tends to suggest it is nothing more than an administrative handmaiden of the other spheres.

Agree / Disagree after studying;

s 156 (3): Local government cannot legislate in conflict with provincial / national.

s 156 (4): National & provincial government must assign local government those local matters that would be most effectively administered locally and where they have the capacity to.

s 156 (5): Gives municipalities power reasonably necessary for performance of their functions. (Pimstone: Argued this gives impression that local plays a predominant administrative role which is at odds with the description of local as a sphere that is autonomous and one that enjoys original powers).

ACTIVITY 66: pg 255:

1) Study the article by Wiechers and Budhu, which appears in your Reader, and then

answer the questions that follow:

a) Critically evaluate whether you agree with the authors' submission that local government is an important vehicle designed to bring development to the people. (10)

b) Briefly discuss the approach that the courts have adopted in dealing with local government

matters. Refer to relevant case law to substantiate your answer. (10)

c) Briefly explain the practical consequences that have resulted since the establishment of local government autonomy. (10)

d) Critically analyse whether local government is indeed autonomous or simply the

``handmaiden'' of the other spheres of government. (10)

2) Summarise, in your own words, what the Constitutional Court stated in the Fedsure case. (5)

3) Compare the effect of the term ``sphere'' with the term ``level'' of government and explain the implications of each concept on the institutional status of local government. (6)

4) Name at least two institutions in which local government plays a consultative role. (4)

Organised local government plays a role in the following:

1. 10 Part-time representatives from different municipal

categories participate in NCOP proceedings. This allows local government to have a small say in the national legislative process. s 163 with 67.

2. 2 Nominees may serve on the Financial & Fiscal Commission – opportunity to address equitable division of nationally raised revenue. s 163 with 221.

3. Section 4 of Organised Local Government Act allows for consultation between the SA Local Government Assoc. which promotes and protects the interests of local government. s 163 with 154 (2).

- The political culture supporting cooperation will take time to develop. The capacity to function in an interactive manner depends on;

Legal allocation of power, financial & management capacity, interpretation of powers of other spheres, the extent to which local government actions are controlled and regulated.

The context of intergovernmental relations:

s 154 (1): The national & provincial governments must support & strengthen municipalities to manage their own affairs, to exercise their powers and functions.

s 151 (2): Draft national & provincial legislation affecting the status, powers etc. of local government must be published for public comment before intro into Parliament to make representations.

s 151 (4): The national/provincial government may not impede a municipalities ability / right to exercise its powers / perform its functions.

The principles of cooperative government of s 40 & 41 are reiterated in sections 151.

From a legislative perspective the above can be achieved by creating mechanisms in enactments –

Parliament has already undertaken this by incorporative cooperative features in e.g. Housing Act, Water Services Act.

s 154 with s 139: Sects out the steps for provincial government to take where a municipality cannot / does not fulfil an executive obligation stipulated in legislation.

ACTIVITY 64: pg 250

1) You are a member of a task team created to advise Parliament on whether the recognition

of local government is a necessary precondition to the achievement of democratic

objectives. Write down the key points that you will refer to in your address to Parliament. (10)

2) Brynard lists a number of reasons why public participation at grassroots level is

fundamental to fulfilling democratic aspirations. Can you think of at least five reasons

why such participation may defeat the desired result? List them. (10)

3) List some of the factors that may hamper effective participation at grassroots level. (10)

(This question is an open question and requires you to think beyond the information that we have provided.)

Local government in transformation:

- Chapter 7 recognised local government and vested original powers in local authorities transforming the status of the local government.

- First time in SA’s history, provision been made for autonomous local government with own constitutionality and independent existence.

- Fedsure v Greater Johannesburg Metropolitan Council 1999: CC stated; Local government no longer a public body exercising delegated powers. Legislative powers recognised in the Constitution. Thus materially different to what it was when Parliament was supreme. Includes the power to make by-laws and impose rates. Chapter 7 is extension of the principle of cooperative government. Chapter 7 provisions promote intergovernmental relations between provincial and local authorities. It also functions as a framework for the implementation of new local government legislation.

Local government as a ‘sphere’ of government:

- s 151: 1. Local spheres of government consist of municipalities, which must be established for the whole territory of the Republic.

2. The executive & legislative authority of a municipality is vested in the Municipal Council.

3. A municipality has the right to govern local government affairs of its community subject to national & provincial legislation.

s 151 (1)-(3): Reaffirms the status of local government as a structure on its own. The use of the word sphere in section 151 has 2 consequences;

1. Recognition as a sphere means it cannot be abolished by the national or provincial governments.

2. Illustrates a shift away from hierarchical divisions towards a vision of government where each sphere has equal status. It is self reliant, has constitutional status to express its unique character.

The more cooperative model is based on decentralisation of powers by the central government , this means central governmental no longer has the power to grant, revoke/limit the powers of the lower sphere and override local government decisions.

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