The basic premise of the constitutional provisions relating to the dispersal of powers between organs of state, is that the Constitution does not embody, in the words of the Constitutional Court, "competitive federalism" but, on the contrary, one of "co-operative government".

The primary objective of co-operative governance is to minimize the negative consequences, namely the threat to coherency alluded to above, that decentralisation inevitably entails.

Section 3 of the Local Government: Municipal Systems Bill seeks to underscore the constitutional principle of co-operative governance by providing that -

1. municipalities must, within the system of co-operative government, seek to integrate the exercise of its legislative and executive authority with the policies, programmes, legislation and institutional arrangements of national and provincial government (s 3(1)); and
2. an exception to that duty on local government exists in the event where that provision compromises or impedes its ability or right to exercise its powers or perform its duties (s 3(2)).

These provisions are problematic in that they conflict with, or at least do not correctly reflect, co-operative government.

1. The nature and content of co-operative government depend on the type of relation to which it is applied. Confusion over the nature of the relation between spheres and a subsequent incorrect application of co-operative government has the potential to create or aggravate disputes. A distinction should be made between relations of inequality and those of equality.

The Constitution defines clear lines of subordination between the three spheres of government. Examples of subordination are the powers of intervention in terms of section 100 and section 139. Another example is the overriding legislative power of national government in terms of section 44(2). A degree of subordination is also created by the scheme of legislative powers, laid out in the Constitution. The limited scope of this paper does not allow for an in-depth discussion of this constitutional scheme of legislative powers and the status of local government therein, save to say that the degree of (in)equality in the relationship between local government on the one hand and provincial and national government on the other hand depends, inter alia, on the subject matter. The defining question here is whether the subject matter is a Schedule 4B matter, a Schedule 5B matter or a matter assigned to local government in terms of section 156(1)(b) of the Constitution. For example, in exercising its authority on a Schedule 5B matter, local government enjoys greater autonomy vis-à-vis national government as compared to its position vis-à-vis provincial government.

Until the circumstances, which create subordination (inequality), exist, the spheres are equal partners with regard to their respective functional areas. Therefore, a sweeping statement, saying that municipalities must always (in both unequal and equal relations) seek to integrate the exercise of their authority with national and provincial does not accord with the versatility in application of co-operative government. In relations of equality, co-operative government can never mean that local government must integrate with national or provincial government. Rather, its application will emphasise respect for the institutional status of local government.

2. Perhaps more importantly, the duty, imposed by co-operative government on local authorities to co-ordinate their actions and legislation with other spheres is but one side of the coin. Jus as much as local government must co-operate with national and provincial governments, national and provincial governments must also co-operate with local governments. Section 3(1) in its present form presents co-operative governance as duty on local government to take national and provincial interests into account. However, national and provincial governments must also take the interests of local government into account. Section 41 (1) of the Constitution speaks of the duty on all spheres to co-operate in mutual trust and good faith with one another.

1. Firstly, the exception to local government’s duty to seek integration with national and provincial government is superfluous: section 151(4) of the Constitution already states that national or provincial governments may not compromise or impede a municipality’s ability or right to exercise its powers or perform its functions. Deleting subsection (2) would make no difference since section 151(4) of the Constitution has general and overriding application.
2. Secondly, subsection (2) has the potential to create confusion with regard to the principles of co-operative government. Co-operate government obliges the different spheres of government to co-operate with each other and consider, whatever actions are being taken, not only their own interest but also the interest of the totality. Crucial in the applications of co-operative government is respect for one another’s institutional integrity (section 41(1)((e) of the Constitution). Respect for the constitutional status and the duty to abstain from compromising or impeding that status is inherent to co-operative government and not an exception to it.
3. Thirdly, subsection (2) reiterates section 151(4) out of context. Section 151(4) is directed at national and provincial spheres and instructs them to guard, in the exercise of their powers, against compromising or impeding local government’s institutional status. In its present form, subsection (2) is directed at municipalities and seems to allow them to refrain from seeking integration if that would result in a threat to their own constitutional status as if the onus is on local government to prevent their participation in the unconstitutional exercise of authority by other spheres.

A. It is recommended that the wording of subsection 3(1) be changed as follows:

3.(1) [Municipalities] A municipality must within the constitutional system of co-operative government envisaged in section 41 of the Constitution -

1. [seek to integrate the exercise of their legislative and executive authority with the policies, programmes, legislation and institutional arrangements of the national and provincial spheres of government] co-operate with national and provincial spheres of government and other municipalities by co-ordinating the exercise of its legislative and executive authority with the policies, programmes, legislation and institutional arrangements of those other spheres of government and municipalities;
2. participate in organised local government to the extent necessary -

(i) to seek solutions for problems relating to local government generally;

(ii) to develop common approaches for local government as a distinct sphere of government; or

(iii) to facilitate compliance with the principles of co-operative government and intergovernmental relations as set out in section 41 of the Constitution ; and

3. seek to comply with any agreements concluded by organised local government within its mandate on behalf of local government.

B. It is recommended that subsection 3(2) be deleted.

Jaap de Visser

Prof Nico Steytler

Johann Mettler

Local Government Project

Community Law Centre, UWC