SUBMISSIONS
ON BEHALF
OF THE CITY OF
TO
THE
PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
ON CLAUSE 6
OF
THE LOCAL
GOVERNMENT LAWS AMENDMENT BILL [B28-2007]
_____________________________________________________________________
1.
The City of
2.
The basis of the City of
3.
Local government under the democratic constitutional
dispensation adopted in 1996 is not a subordinate tier of government. On the contrary, it is one of the three spheres
of government which, in terms of Chapter 3 of the Constitution, are defined in
s 40 as ‘distinctive, interdependent and interrelated’. Section 41 of the Constitution directs that
all spheres of government must, amongst other matters, respect the
constitutional status, institutions, powers and functions of government in the
other spheres; not assume any power or function except those conferred on them
in terms of the Constitution; and exercise their powers and perform their
functions in a manner that does not encroach on the geographical, functional or
institutional integrity of government in another sphere.
4.
The fundamental departure that these provisions represent
from the old order was stressed by the Constitutional Court in City of Cape
Town and Another v Robertson and Another 2005 (2) SA 323 (CC) (2005 (3) BCLR
199) at para 58-61. In this respect it
was pointed out in the judgment of Mr Justice Moseneke that the autonomy
and status of local government under the 1996 Constitution was greater than had
obtained under the interim Constitution:
‘[58] The advent of the Constitution has enhanced, rather
than diminished the autonomy and status of local government that obtained under
the interim Constitution. In the First Certification Judgment, this Court
stated:
'[Local
Government] structures are given more autonomy in the [New Text] than they have
in the [interim Constitution] and this autonomy is sourced in the [New Text]
and not derived from anything given to [Local Government] structures by the
provinces.'
[59] Subsection 40(1) of the Constitution entrenches the
institutions of local government as a sphere of government and pronounces all
spheres of government to be distinctive, interdependent and interrelated.
Subsections 41(e) 78 and (g) 79 articulate and preserve the geographical,
functional and institutional integrity of local government. In turn, ss 43(c)
and 151(2) 81 confer original legislative and executive authority on municipal
councils. The Constitution expressly precludes the national or a provincial
government from impeding the proper exercise of powers and functions of
municipalities. Thus a municipality has the right to govern the local
government affairs of its area and community.
However, the duties, powers and rights of municipalities have to be exercised
subject to national or provincial legislation as provided for in the
Constitution.
[60] The Constitution has moved away from a hierarchical
division of governmental power and has ushered in a new vision of government in
which the sphere of local government is interdependent, 'inviolable and
possesses the constitutional latitude within which to define and express its
unique character'[1]
subject to constraints permissible under our Constitution. A municipality under
the Constitution is not a mere creature of statute, otherwise moribund, save if
imbued with power by provincial or national legislation. A municipality
enjoys 'original' and constitutionally entrenched powers, functions, rights and
duties that may be qualified or constrained by law and only to the extent the
Constitution permits. Now, the
conduct of a municipality is not always invalid only for the reason that no
legislation authorises it. Its power may derive from the Constitution or from
legislation of a competent authority or from its own laws.
[61] It is indeed trite that, when a court is seized with
the delineation of the powers, functions, rights and duties of a sphere of
government conceived and entrenched under the Constitution, the proper starting
point of the enquiry must be the Constitution itself.’
(my underlining)
5.1 The executive and
legislative authority of a municipality is vested in its municipal council.
(s 151(2))
5.2 A municipality has the
right to govern, on its own initiative, the local government affairs of
its community, subject to national and provincial legislation, as provided
for in the Constitution. (s 151(3))
5.3 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. (s 151(4))
5.4 The national government
and provincial governments, by legislative and other measures, must support and
strengthen the capacity of municipalities to manage their own affairs, to
exercise their powers and to perform their functions. (s 154(1))
5.5 The Constitution provides
for the establishment of three different categories of municipality and
provides for legislation to define the different types of municipality that may
be established within each category. (s 155)
5.6 Each provincial
government must establish municipalities in its province in a manner consistent
with the legislation enacted in terms of subsections 156(2) and (3) and, by
legislative or other measures, must-
(a) provide
for the monitoring and support of local government in the province; and
(b) promote
the development of local government capacity to enable municipalities to
perform their functions and manage their own affairs. (s 155(6))
5.7 A municipal council-
(a) makes
decisions concerning the exercise of all the powers and the
performance of all the functions of the municipality;
(b) must elect
its chairperson;
(c) may
elect an executive committee and other committees, subject to national
legislation; and
(d) may
employ personnel that are necessary for the effective performance of its
functions. (s 160(1))
5.8 The municipal council is
afforded an implied power to delegate its functions, save in the four
categories described in s 160(2).
5.9 National legislation may provide criteria
for determining-
(a) the size of
a municipal council;
(b) whether
municipal councils may elect an executive committee or any other committee;
or
(c) the
size of the executive committee or any other committee of a municipal council.
(s 160(5)).
6.
It is evident from the aforegoing that the seat of plenary
power in the sphere of local government is the municipal council. It is also evident that the legislation
contemplated in terms of ss 154(1) of the Constitution is permitted to be empowering
in character and not of a sort that would derogate from the plenary powers of a
municipal council. National legislation
may prescribe criteria for determining whether a municipal council may elect an
executive committee or other committees and the size of such committees. The effect of such legislation might well be
to forbid a municipal council from devolving its powers to committees or other
structures. The latter restriction is
expressly contemplated by the Constitution.
7.
There is, however, nothing in the Constitution which permits
the national or the provincial legislature to prescribe to a municipal council
that it must constitute committees to execute certain of its
functions. The constitutional object of
the provisions which enjoin the enactment of legislation to define the types of
municipality within each category is to regulate the extent to which a
municipal council may devolve any of its powers to other organs such as
committees, sub-councils and ward committees.
The object of such provisions is not to prescribe to municipal councils
how they must conduct their government, but rather to regulate the extent to
which such councils in appropriate circumstances may devolve the original and
plenary powers invested in terms of the Constitution.
8.
The Constitutional Court pointed out in Executive Council,
Western Cape v Minister of Provincial Affairs and Constitutional Development
and Another; Executive Council, Kwazulu-Natal v President of the Republic of
South Africa and Others 2000 (1) SA 661 (CC) at paragraph 102 that ward
committees are not committees of the sort contemplated by s 160(6) of the
Constitution; they are committees of the sort contemplated by
s 160(1)(c). The Court held (at
paragraph 103) that ‘The power of municipalities to appoint committees is
subject to s 160(1)(c). They have the power to elect 'an executive
committee or other committees subject to national ‘legislation'. There is
nothing in this provision which suggests that 'other committees' are limited to
any particular committee. This provision governs the appointment of any committee,
including the committees contemplated in s 160(6)(c) of the Constitution. The
effect of s 160(1)(c) is that the power of the municipalities to appoint
committees contemplated in s 160(1)(c) is subject to national legislation’. The references to the ‘power’ of
municipalities are significant.
Regulating a power is an exercise quite distinguishable from prescribing
an obligation.
9.
There is no provision in the Constitution which permits
national or provincial legislation to prescribe to a municipal council that it must
devolve its plenary executive powers.[2] On the contrary, the general tenor of chapter
7 in this respect is to permit national legislation to limit the power of
municipal councils to devolve powers.
10.
The provisions of s 7 of the Local Government:
Municipal Structures Act are entirely consistent with the explanation of the
constitutional context set out above.
That section defines the ‘systems’ of municipal government that may be
implemented by a municipal council.
Section 7 provides as follows:
‘The different types of municipality that may be established
within each category of municipality are defined in accordance with the
following systems of municipal government or combinations of those systems, as
set out in sections 8, 9 and 10:
(a) Collective
executive system which allows for the exercise of executive authority
through an executive committee in which the executive leadership of the
municipality is collectively vested.
(b) Mayoral
executive system which allows for the exercise of executive authority
through an executive mayor in whom the executive leadership of the municipality
is vested and who is assisted by a mayoral committee.
(c) Plenary
executive system which limits the exercise of executive authority to the
municipal council itself.
(d) Subcouncil
participatory system which allows for delegated powers to be exercised
by subcouncils established for parts of the municipality.
(e) Ward
participatory system which allows for matters of local concern to wards
to be dealt with by committees established for wards.’
Particular attention is directed to
the use of the expression ‘allows for’ (i.e. permits) in subsections (a),
(b),(d) and (e) and use of the word ‘limits’ in subsection (c). The language is consonant with the
interpretation of the relevant constitutional framework offered above; more
particularly the incidence of plenary power in the municipal council and the
provision for the enablement (‘allowing for’) or limitation of authority to
devolve that power, as appropriate.
11.
Section 8 of the Structures Act proceeds from the provisions
of s 7. The types of municipality
that may be established in terms of s 8 are defined by the systems of
municipal government or combinations of systems of such government that may be
implemented in the various types of municipality contemplated under
s 8(a)-(h). Nothing obliges any
municipal council to devolve power if it does not choose to. Indeed, the municipal councils of certain types
of B and C category municipalities are not empowered to devolve their executive
powers- see ss 9(e) and 10(c) of the Structures Act.
12.
The emphasis on a constitutional regulation on the
devolution of a municipal council’s powers, as distinct from any prescription
of such devolvement, is also evident in s 59 of the Local Government:
Municipal Systems Act which provides that a municipal council may not devise a
system of delegations that is any manner inconsistent with s 160(2) of the
Constitution, or the Structures Act.
13.
It is therefore submitted that a provision that prescribes
to a municipal council that it must create certain committees with the implied
attendant obligation to devolve powers and duties on such committees would be
inconsistent with the provisions of the Constitution.
A.G.
BINNS-WARD SC
Counsel for
the City of
9 October
2007