SUBMISSIONS

ON BEHALF OF THE CITY OF CAPE TOWN

TO

THE PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE

ON CLAUSE 6 OF

THE LOCAL GOVERNMENT LAWS AMENDMENT BILL [B28-2007]

_____________________________________________________________________

1.                   The City of Cape Town objects to the amendment proposed in terms of clause 6 of the Bill.  Under the legislation currently in place, municipalities of a type that allows for a ward participatory system have a choice whether or not to establish such committees.  The effect of adopting the proposed amendment would be to introduce a statutory obligation on such municipalities to establish ward committees.  The statutory purpose of such committees is to exercise such powers and duties as the municipal council may delegate to them.  The establishment of ward committees would be purposeless, indeed absurd, if powers and duties were not to be delegated to them and accordingly the implication of the proposed amendment is to introduce an obligation to devolve (undefined) powers and duties of the municipal council to ward committees.

2.                   The basis of the City of Cape Town’s objection to the adoption of the proposal in clause 6 of the Bill is that it would encroach impermissibly on the constitutionally ordained institutional autonomy of the local sphere of government.

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)

  1. A consideration of chapter 7 of the Constitution gives the following relevant insights:

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 Cape Town

 

 

9 October 2007



[1] Pimstone 'Local Government' in Chaskalson et al Constitutional Law of South Africa (1996) (Revision Service 5, 1999) ch 5A at 5A-26 to 5A-27.

[2] Section 160(2) of the Constitution prohibits the devolution of the municipal council’s legislative powers.