LOCAL
GOVERNMENT LAWS AMENDMENT BILL, 2007
MEMORANDUM
1.
None of the provisions contained in the Local Government
Laws Amendment Bill affect the legal profession or bear on the administration
of justice. However, the
constitutionality of clause 6 of the bill may conceivably be an issue. It proposes an amendment of s 72 of the
Local Government: Municipal Structures
Act 117 of 1998 (‘the Structures Act’).
2.
Part 2 of Chapter 1 of the Structures Act deals with the
various types of municipality, and s 72(2) and s 73(1) of the
Structures Act assume that metropolitan or local authorities have a choice
whether or not to establish ward committees in circumstances where they belong
to a ward participatory type of municipality.
Likewise ss 42(2), 54(2), 55(1) and 61(2) of the Structures Act
similarly give municipalities a choice whether or not to establish, and devolve
power to, an executive committee, an executive mayor or metropolitan
subcouncils, as the case may be.
3.
These provisions of the Structures Act recognise that local
government is not a subordinate tier of government, being one of the three
spheres of government which are distinctive, independent and interrelated[1]. As such it is up to the municipal council,
being the seat of plenary power in the sphere of local government, to determine
the extent to which it is to devolve its executive function.
4.
The proposed clause 6 amendment of s 72 of the
Structures Act replaces a permissive power to create ward committees with an
obligation to do so, in the case of ward participatory type municipality. This is unobjectionable to the extent that
the object of a ward committee is to enhance participatory democracy in local
government (s 72(3) of the Structures Act) and the functions of a ward
committee are to make recommendations on any matter affecting its ward to the
ward councillor, or through the ward councillor, to the metropolitan or local
council, the executive committee, the executive mayor or the relevant
metropolitan subcouncil (s 74(a) of the Structures Act).
5.
Section 7(e) of the Structures Act, however, describes a
ward participatory system as being one which ‘allows for matters of local
concern to wards to be dealt with by committees established for wards’. This suggests an executive function, and if
so, this would necessarily involve some or other executive delegation in order
to make a ward committee properly effective in its statutory purpose, which is to
deal with matters of local concern.
6.
It is in this context that a concern about the constitutionality
of clause 6 arises. If the obligation to
create ward committees is accompanied by an obligation to delegate to these
committees the necessary executive power to deal with matters of local concern
to their wards, this would appear to amount to a prescription to a municipal
council that it must devolve certain plenary executive powers.
7.
Whereas Chapter 7 of the Constitution in certain instances
limits the power of municipal councils to devolve powers, creating an
obligation on a municipal council to devolve part of its plenary executive
power is a different issue and probably at odds with Chapter 7 of the
Constitution.
S P
For and Behalf of the Chairperson
of the Parliamentary Committee of
the General Council of the Bar of
South Africa
5 October 2007