Like most post-colonial states in Africa, Kenya inherited its local government structure from the colonial government. The City of Nairobi was created by royal charter in 1950 and a local government ordinance was passed in 1960 to regulate local government. Local government in the colonial era was primarily meant to serve the growing white settler community in Nairobi and other areas.
In City of Cape Town v Real People Housing (77/09) [2009] ZASCA 159 (30 November 2009), the Supreme Court of Appeal clarified the meaning of section 118(1) of the Municipal Systems Act. This provision gives municipalities the power to block the transfer of ownership of property in certain circumstances.
ANC Umvoti Council Caucus and Others v Umvoti Municipality 2010 (3) SA 31 (KZP)
In a recent Supreme Court of Appeal decision, CC Groenewald v M5 Developments, the court held that the unsuccessful bidders had a right, under section 62 of the Municipal Systems Act, to appeal against the municipality’s decision to award a tender. The court cautioned, however, that even though an appeal under this provision was a ‘wide appeal’, involving a rehearing of the issues, it did not allow the appeal authority to revisit all tenders and to award the tender to a bidder who had not appealed or, as in this case, whose appeal was out of time.
The Gauteng Development Tribunal was making land use management decisions and bypassing municipal land-use planning processes on the basis of the DFA. The SCA held that this violates municipalities’ right to administer ‘municipal planning’, listed in Schedule 4B of the Constitution as a municipal power. The SCA concluded that, when the Constitution provides that municipalities have authority over ‘municipal planning’, it includes land-use planning and management. Certain sections of the DFA were declared unconstitutional.
While some progress has been made towards facilitating women’s involvement in government structures and programme implementation, there is still a long way to go before the goal of gender equality is achieved. Research conducted by Alison Todes, Pearl Sithole and Amanda Williamson investigated the extent to which women’s issues have been incorporated at local government level, and concluded that municipalities tend to lag behind national policy and guidelines in giving priority to the goal of gender equality. This article summarises their findings and suggests future directions.
Elsana Quarry, a mining company, was granted mining rights on a farm situated within the jurisdiction of the Swartland Municipality. The municipality requested the Court to prohibit Elsana from conducting the mining activities because the farm had not been rezoned by the municipality in terms of its zoning scheme. The Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) requires those who obtain mining rights to comply with any ‘relevant law’. The Swartland Municipality argued that this meant that Elsana should have applied for rezoning under both the Western Cape Land Use Planning Ordinance 15 of 1985 (LUPO) and the municipality’s zoning scheme.
The delivery of municipal services by external providers is strictly regulated. Not only do the general constitutional requirements for procurement apply, but other, more specific rules, also govern these relationships. The Municipal Systems Act, read with the Municipal Finance Management Act, for example, says that to make use of an external provider for the delivery of a municipal service, a municipality must use competitive bidding as a procurement method, comply with a process of community consultation and ensure that the entire process is fair, equitable, transparent, competitive and cost-effective.
The report by COGTA on the state of South African local government clearly identifies interference by political parties as a cause of the ‘dysfunctionality’ and ‘instability’ of municipalities. As the Local Government Turnaround Strategy states, political parties are ‘undermining the integrity and functioning of municipal councils through .... inappropriate interference in councils and administration.
In response to widespread and ongoing service delivery protests across South Africa, Parliament has established a special committee to investigate and gather information about the causes of these protests. This ad hoc committee is tasked with conducting visits to urban and rural areas, holding public hearings and generally exercising coordinated oversight in respect of service delivery and, more particularly, the problems impeding service delivery.
In urban areas, the poor continue to struggle to access well-located land. Secondary residential property markets are also constrained from functioning effectively in black townships. Recent research supported by the South African Cities Network (SACN) and Urban Landmark hasinvestigated how municipal property rates policies are, or could be, used to promote access by the poor to urban land markets.
After a decade of significant advancement in the provision of services to all communities, the Policy Review on Provincial and Local Government (COGTA 2009) and other research demonstrated that confidence in government at the local level has begun to decline sharply. Service delivery protests and dissatisfaction with local government have increased over the past few years, with growing evidence that faltering service provision, poor capacity and weak administration have driven many municipalities into ‘distress’ mode.
The introduction of new rates tariffs by a municipality is rarely ever greeted without public debate – or, in some instances, even conflict. In this case, the Stellenbosch Ratepayers’ Association applied for the invalidation of a rate tariff which had been introduced by the municipality.
As the local government turnaround strategy gains momentum (see page 7 and the editorial) and energy is focused on assessing the state of local government, the role of provincial oversight in respect of municipalities, including interventions, is critical. The Mnquma case revisited what is required of provinces in the context of an intervention. The judgment, while contributing to the debate, may, however, have raised more questions than it provided answers.
The Community Law Centre recently brought local government practitioners together to discuss the elements that are fundamental to any turnaround strategy. The following recommendations are some of the key deliberations of that meeting.
The Municipal Budget and Reporting Regulations (‘Budget Regulations’) came into operation in April 2009. They give further content to the Municipal Finance Management Act (MFMA) of 2004 and regulate issues such as municipal financial policies, the annual budget, adjustment budgets, in-year reporting and noncompliance with time provisions. Furthermore, the Budget Regulations aim to provide clearer and more stringent regulations around matters of unforeseen and unavoidable expenditure. They also deal with expenditure that is unauthorised, irregular and fruitless and wasteful.
Constitutional democracies are often ‘messy’. Systems in a democracy are largely dependent on a number of processes. If these processes are not synchronised, it may lead to development trajectories that are not determined by common visions, but are rather informed by the vicissitudes of those who participate in those processes.
This is a shortened version of the address by Yunus Carrim, Deputy Minister of Cooperative Governance and Traditional Leadership, to the Institute of Local Government Managers’ annual conference on 18 November 2009.
Knowledge creation and sharing are intensified at the annual Knowledge Week gatherings at the DBSA, as development practitioners interact and debate current development issues that impact on the aspirations of South Africa and the region.
The Constitutional Court has ruled that the disconnection of electricity supply to a block of flats by the Johannesburg municipality without prior notice was unlawful, and ordered its immediate reconnection. The Court set aside a decision of the South Gauteng High Court which held that there is no obligation on the Johannesburg municipality to afford procedural fairness to tenants with whom City Power has no contractual relationship before taking a decision to disconnect their electricity.
Municipalities have registered a tremendous democratic and service delivery record, yet the public perception of them is troubling. Municipalities are too often identified with corruption, inefficiency and inaccessibility. Councillors are sometimes perceived as inward-focused and too preoccupied with the political goings-on within the council and the technicalities of the municipal administration. As a consequence, there is a serious breakdown in the relationships between councillors and communities. This is evidenced by continuing community protests, directed at councillors and municipal officials.
Local government, in its democratic form, is a mere nine years old. However, the amalgamation and consolidation of municipalities and the establishment of new ones have all taken place at different times. The result is that the exact stage of development in which any given municipality finds itself may differ vastly from that of its neighbour. In the pursuit of developmental local government, the establishment, consolidation and sustainability phases that the sphere has undergone (and continues to undergo) have been well documented.
In recent months the courts have stressed the importance of the roles and functions of these committees. Contracts have been set aside because bid committees were not properly constituted, proper procedures were not followed at meetings or bids were evaluated based on specifications different from those initially advertised. With reference to the case law, it is particularly important for municipalities to comply with the following rules, as failing to do so leads to costly litigation.
Much, if not most, of our country’s problems – particularly poverty and unemployment – stem from our under-resourced and underperforming local government system. So much so, that it is now imperative that municipalities become the focus of government activity.
The Intergovernmental Relations Framework Act (the Act) took effect on 15 August 2005. With it came the promise of cooperative governance and a ‘seamless’ government, through which the constitutional ideals of cooperation in good faith and mutual trust between the spheres of government could be realised. It was hoped that this would result in spheres coordinating their actions and legislation, and assisting, supporting, informing and consulting one another.
The issue of mandates and functions continues to occupy the minds of many local government practitioners, and the question of who is responsible for Cape Town’s rebellious baboons is an interesting case study. This article examines the issue and makes suggestions for a possible solution to this particular monkey puzzle.
Local economic development (LED) in South Africa has received considerable attention in recent months. This has ranged from LED-related conferences to the finalisation of a number of strategic national reports on the state of LED in South Africa. Progress certainly has been made with LED over the past decade, but these initiatives highlight the fact that the national LED landscape is still weighed down by many challenges.
On 20 October 2009 President Zuma demonstrated his commitment to dealing with some of the key challenges that face local government. In a unique forum which brought together mayors, municipal managers and other key local government stakeholders, President Zuma engaged in a frank discussion about the obstacles which municipalities face in trying to fulfill their developmental and service delivery mandate. The discussion points addressed some of the root problems that continue to undermine service delivery and as such bear repeating here.
Local Government in Kenya