The vertical organisation of the state remains a thorn in a flesh in post-colonial sub-Saharan Africa. Various forms of multilevel systems of government have been established throughout the continent, from federalism in Ethiopia (1996), Nigeria (1999) and South Sudan (2011); devolution in Kenya (2010) and South Africa (1996); to decentralised unitary systems in Uganda (1995) and Namibia (1990). These systems, which are often entrenched in the respective constitutions of these countries, have been adopted to advance the realisation of certain objectives linked to development, democracy and peace. National integration and the deepening of democracy in South Africa and many other countries is to a certain extent attributed to decentralised governance. However, some of these systems are not working well, especially on the development front, despite having been in place for some time. Others are yet to function effectively as they have not gained the much needed traction.
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Background: On 9 March 2017, the Constitutional Court (the Court) confirmed a decision of the High Court, which had declared the Local Government: Municipal Systems Amendment Act, 2011 (Amendment Act) unconstitutional and entirely invalid. The Amendment Act had mainly sought to make changes to the Local Government: Municipal Systems Act of 2000 (Principal Act) while making a minor related amendment to the Local Government: Municipal Structures Act of 1998. The process of its enactment had wrongly followed the procedure laid out under section 75 of the Constitution instead of the appropriate procedure under section 76. The Court confirmed this invalidity in the case of South African Municipal Workers’ Union v Minister of Cooperative Governance & Traditional Affairs and Others [2017] ZACC 7.
On 21 February 2019 the then Minister of Cooperative Governance and Traditional Affairs, Dr Zweli Mkhize, delivered his address on the Municipal Structures Amendment Bill in Parliament. In his address he stressed that the Amendment Bill is aligned to the tasks that President Cyril Ramaphosa mentioned when giving the State of the Nation Address in February 2019. Among these tasks is the need to accelerate inclusive growth, job creation, improving the education system, improving the conditions of life for all South Africans, fighting state capture and corruption, skills development and strengthening the State’s capacity to respond to the needs of the people. Dr Mkhize further stressed that the Amendment Bill will strengthen municipal governance and address the management of local government elections. It remains to be seen whether this will be yet another case of over-promising and under-delivering by our government or a win for effective governance in municipalities.
Food security is typically and administratively considered the exclusive concerns of national and provincial government, but a plausible case can be made that municipalities should and can also play a role.
The latest municipal audit results (2017-18) released by the Auditor-General (AG), Kimi Makwetu, found amongst others that a third of municipalities are not in a financial position to pay their creditors. The financial woes of municipalities weigh heavily on municipal creditors, in particular, bulk services suppliers, such as Eskom and water boards. As of June 2018, municipalities owed Eskom R18,26 billion with arrears amounting to R9,12 billion while debt to Water Boards stood at R 9,05 billion with arrears at R5,85 billion, respectively.
The Dullah Omar Institute is very proud to re-introduce the Local Government Bulletin, our regular newsletter with articles, updates and opinion pieces on local government law, policy and practice. The first Bulletin appeared in 1999, on the eve of the first democratic local government elections. The founding editors were Nico Steytler (now South African Research Chair in Multilevel Government) and Johann Mettler (now City Manager of Nelson Mandela Bay Metropolitan Municipality) assisted by Jaap de Visser (now Director of the Dullah Omar Institute).
Protest action has become part of South Africa’s political landscape. The extent to which it is increasingly marked by violence is cause for alarm
The Municipal Systems Amendment Act was signed into law by the President on 5 July 2011 and is set to have a major impact on municipal governance. Regulations to give further substance to the Act are on their way.
Following the delimitation in 2009 and 2010 of wards in which successful local elections were held on 18 May 2011, the Municipal Demarcation Board (MDB) has commenced a review of municipal boundaries. It envisages finalising this process in 2013, after which wards will be delimited for the 2016 local elections.
In 2007, in response to the capacity constraints bedevilling local government, the National Treasury issued regulations setting out minimum competency requirements which all municipal financial and supply chain management officials have to meet. The regulations took effect on 1 January 2008, but gave a fiveyear period of grace within which all financial and supply chain management officials throughout the country were required to attain the minimum competency levels. For these officials, the countdown reaches zero on 1 January 2013.
Lagoon Bay Lifestyle Estate (Pty) Ltd v the Minister of Local Government, Environmental Affairs and Development Planning of the Western Cape and Two Others [Case number: 10751/2011, Western Cape High Court]
It is the most rigorous analysis of local government published by government. The 2011 Local Government Budgets and Expenditure Review, released in September, is the National Treasury’s analysis of long-term trends in local government finances and performance. We will have a close look at the wealth of information in this report, in this and forthcoming issues of the Bulletin. We begin with a general introduction to the document, focusing on its purpose and importance as a barometer of local government.
There is more to the 2011 Local Government Budgets and Expenditure Review than numbers. The review tells a story about the policy behind the numbers. It lays down the policy line, sends clear signals about policy shifts on the way, issues warnings, educates us, and sometimes brings out the big stick or applies the brakes.
After much anticipation and a lengthy process of review, the new regulations under the Preferential Procurement Policy Framework Act of 2000 (Procurement Act ) have finally been released. The Preferential Procurement Regulations 2011 will only take effect on 7 December 2011, but clearly hold implications for the way in which municipalities procure goods and services. In this article, the most essential aspects of the regulations are highlighted.
Community protests have become prevalent in South Africa in recent times, with the incidence of violence in these protests rising (see page 10). The ongoing strike by the South African Municipal Workers’ Union (SAMWU) provides a classic example of gatherings with a high level of violence.
Community protests have become almost commonplace in South Africa. In 2009 protest activity reached a peak of 17.75 protests every month, on average. This prompted the Community Law Centre to survey data on the frequency of protests and on some of the underlying causes. A report, Community Protests in South Africa: Trends, Analysis and Explanations, was produced in August 2010 (see LGB 12(4), pp 14–16). Jelani Karamoko, an intern from Harvard Law School, recently updated the report to reflect current data on media-reported community protests. While the update produced some new findings, it also confirmed many of the trends that had already been identified.
The proposals contained in the Local Government: Municipal Property Rates Amendment Bill (see LGB 13(2), July 2011, pp 13–15) have attracted much attention. The media, the public and estate agents have all critiqued the provisions on the rating of residential properties which are not the primary residence of the property owner: for example, investment properties that have been purchased to let, or holiday residences.
The South African Municipal Workers’ Union made allegations of serious financial irregularities and mismanagement of fiduciary duties against the municipal manager of the Greater Taung Local Municipality, Mr Mpho Mofokeng.
Electoral Commission of the Republic of South Africa v Inkatha Freedom Party (CCT 33/11) [2011] ZACC 16 (10 May 2011)
The court in this case confirmed that it was unfair for an organ of state to afford one bidder an opportunity to amend its bid after the close of tenders and before evaluation and not allow other bidders to do the same. This is particularly the case where an organ of state indicates in the bid documents that non-compliant bids will be disqualified.
On 16 July 2009 the Department of Cooperative Governance and Traditional Affairs (COGTA) launched an ambitious project dubbed ‘Operation Clean Audit 2014’. This operation is part of a bigger project called ‘Operation Clean Up’, which has three other components: Clean Cities and Towns, Debt Collection, and Public Mobilisation and Revenue Enhancement.
By now, all municipal councils will have held their first council meeting and constituted most of their political structures. This article provides some basic governance information and highlights key issues that will be on the municipal council’s agenda for its first 100 days in office.
Widespread disgruntlement over allegations thatcandidates nominated by communities had been irregularly removed by the ANC led to a promise by President Jacob Zuma that any candidates found to have been nominated in an improper way would be removed after the May polls. This was seen as a desperate attempt to stop aggrieved communities from boycotting the local government elections.
After a lengthy process of public consultation on amendments to the Municipal Property Rates Act of 2004, the Department of Cooperative Governance and Traditional Affairs finally released a Bill on 9 June, giving the public two weeks to comment.
On 6 May this year, the Department of Rural Development and Land Reform published a Spatial Planning and Land Use Management Bill for public comment, with a deadline of 6 June. What follows is a basic outline of the Bill.
The KwaZulu-Natal Planning and Development Act came into operation on 1 May 2010 and governs land use planning and development management. KwaZulu-Natal is thus the only province that has put land use legislation into operation since promulgation of the 1996 Constitution.
Manana v King Sabata Dalindyebo Municipality (345/09) [2010] ZASCA 144 (25 November 2010).
The last issue of the LGB highlighted some key battlegrounds in the 2011 local elections. This issue looks at the aftermath.