Over the past two years, the Local Government Bulletin has published a series of articles examining judgments concerning the power of traditional leaders to allocate land.
Powers and functions
Local government is partially responsible for fulfilling the right to housing. This responsibility is not without challenges.
In a series of judgments, the courts have made it clear that the unlawful practice of allocating municipal land by some unscrupulous traditional leaders needs to stop.
On 18 July 2024, President Ramaphosa signed the then Climate Change Bill into law. The new Climate Change Act 22 of 2024 marks a significant milestone in South Africa’s journey toward building climate resilience. However, the commencement date has not been proclaimed yet, which means that the Act has not yet come into operation.
Headline: The phrase “don’t talk to me, talk to me my lawyer” backfired when the City of Ekurhuleni (the City) found itself bound to a consent order granted by the Johannesburg High Court on 12 February 2020.
Headline: Perhaps it is a bit controversial to bring the Bible into local government matters, however, this particular wisdom from the Bible is suited for this discussion. The Bible contains many scriptures that speak about taking back what belongs to you, encouraging one to reclaim what is rightfully yours.
Time and again, the place and role of local government under the new constitutional dispensation is brought under the microscope. What are municipalities responsible for? What kind of decisions can they make? Can national and provincial governments veto municipal decisions? Can they decide where a metro can exercise a municipal function in its area? These are some of the questions that emerge.
What recourse do citizens have when the State fails to realise the fundamental right of access to housing? Five recent judgments have affirmed the 133 applicants’ right to housing, yet the applicants in the Thubakgale v Ekurhuleni Metropolitan Municipality matter are still without adequate housing. Where and when does the buck stop?
In 2023, the quality of South Africa’s water was put in the spotlight when several cholera outbreaks and deaths were recorded. The outbreaks were initially recorded in Hammanskraal, but later spread across four provinces, including Mpumalanga.
Mining in South Africa often takes place in rural areas, where the main source of the livelihood and subsistence of rural residents is derived from their land and livestock. Mining activities often force people to leave the land they use for subsistence farming and grazing. It results in communities no longer having enough land for farming, therefore severely compromising their ability to make a living.
The article elucidates how technological, human, economic, and social capacity at the local government level have contributed to achieving Commitment 5 of the Green Economy Accord and provided the best strategies and practices to support waste recycling and reuse in South Africa.
This article discusses some of the highlights of the preliminary report on "The state of local government law enforcement” prepared by the Institute for Security Studies for the South African Local Government Association.
This article is the first instalment in a series of articles that unpack the five main reasons behind the rejection of the Spatial Planning and Land Use Management of 2013 (SPLUMA) by traditional leaders in rural areas.
On 12 July 2023 the Constitutional Court overturned an order of constitutional invalidity made by the Pretoria High Court (High Court), and instead declared the Administrative Adjudication of Road Traffic Offences Act (AARTO) to be consistent with the Constitution. The AARTO will thus regulate the administration, collection and settlement of fines related to road traffic offences, irrespective of whether the offence is committed on a municipal, provincial or national road.
The Constitution creates a jurisdictional, functional and institutional space that is reserved only for municipalities. When acting in this space, municipalities are not subservient to national or provincial governments as was the case before the Constitution came into effect.
This article explores how municipalities in Germany are dealing with the energy shortage since the outbreak of the war in Ukraine and outlines the legal framework of municipal economic activity. The war in Ukraine has disrupted supply chains across Europe and prompted sharp price increases, especially in the energy market. This has an impact on customers, the economy, and, most significantly, local governments.
South Africa is an industrial hub in sub-Saharan Africa and its transport industry is a 333 790 billion-rand industry that significantly contributes to taxes and employment. Many goods crisscross roads that fall under the responsibility of national, provincial, district, and local spheres of government, more specific to this discussion, are municipal roads.
Since the pre-colonial era, traditional leaders have allocated land to residents in terms of indigenous law. In the democratic era, traditional leaders continue to allocate land to residents and issue permissions to occupy (PTO). These PTOs are sometimes issued by traditional leaders to a resident that is willing to pay to occupy land that is owned by the municipality. This can give rise to illegal occupation of municipal land and municipalities having to incur enormous expenditure in trying to service these developments.
Land-grabbing is a term that captures the story of land dispossession in South Africa. The term has its roots in our apartheid history in which the authoritarian government initially deprived the Black majority (broadly defined) of their property. In democratic South Africa, land grabbing is often used to describe the process in which South Africans (black and white, men, women and children) are dispossessing the state and private businesses of land.
The right to protest is essential to South Africa’s constitutional order. Protests played an important role in South Africa’s transition from apartheid to the current democratic dispensation. Protests continue to play a vital role in enabling citizens to hold the government accountable. It then goes without saying that the right to protest, as provided for in section 17 of the Constitution, should not be limited unjustifiably. In Right2Know Campaign v City Manager of Johannesburg Metropolitan Municipality, the Court confirmed the importance of the right to protest in South Africa.
Coastal and marine management is a potential area of focus for municipalities in their local economic development initiatives. However, the local government sphere currently has limited capacity to carry out this mandate. In addition, the lack of general capacity in government, from the national to the local sphere, is a major threat to sustainable coastal management.
A reflection of the impact of disasters in the local government sector provides a good platform for a discussion on the need to implement business continuity plans for municipalities. A business continuity plan refers to the processes and procedures a municipality must implement to ensure that mission-critical functions can continue during and after a disaster or crisis.
In Govan Mbeki Local Municipality and Another v Glencore Operations South Africa (Pty) Ltd and Others, the Supreme Court of Appeal (SCA) had to determine the constitutionality of section 76 of the Govan Mbeki Spatial Planning and Land Use Management By-law of 2016, and section 86 of the Emalahleni Municipal By-law on Spatial Planning and Land Use Management of 2016 (SPLUMA) which imposed restrictions on the transfer of property in these municipalities. The constitutionality of these provisions was challenged in Court on the basis that they exceeded local government powers in terms of section 156 of the Constitution read with Schedule 4B. The SCA agreed with the High Court's decision that the provisions were unconstitutional and therefore invalid.
A simple google search of South Africa’s railway leads one to pictures and videos of dilapidated railway networks, in sharp contrast of what one would imagine when told ‘South Africa has the best railway system on the continent [of Africa]’. The dilapidated Goerge Goch station has even become a popular meme on [South African] twitter, often used to express shock at anything but the horrifying state of one of many railway stations in South Africa. Behind the ‘thixo wase Goerge Goch’ phrase, lies the sad reality that the once mighty railway lines of South Africa are quickly becoming no more.
In Choisy-Le-Roi Owners v The Municipality of Stellenbosch the Court addressed the question of how a Municipality’s Spatial Development Framework (‘MSDF’) should be interpreted. The judgment confirms that a municipality may not rely on a draft MSDF in making spatial planning decisions and if it does, it runs the risk of having its decision struck down by a court of law. Thus, only the approved MSDF may be utilised when making spatial planning-related decisions.
In June 2020, the Constitutonal Court handed down an important judgment for local government. In Telkom SA SOC Limited v City of Cape Town and Another, the question was whether Telkom, as a holder of rights under the Electronic Communications Act (ECA), must comply with municipal planning and building regulation bylaws before exercising those rights.
In City of Cape Town v the Minister of Energy, the Court had to decide whether the case between the City of Cape Town and the national Minister responsible for energy (the Minister) amounted to an intergovernmental dispute which had to be resolved in terms of dispute settlement procedures provided for in Chapter 3 of the Constitution and Chapter 4 of the Intergovernmental Relations Framework Act 13 of 2005. The Court ruled that the dispute between the City and the Minister was an intergovernmental dispute which the parties should have resolved in terms of the Intergovernmental Relations Framework Act before any of the parties could approach a court of law for resolution.
The national government has a shared responsibility with provinces and municipalities to ‘secure the wellbeing of the people’. It may achieve this objective through legislative and policy interventions, among other ways. When pursuing these interventions, it may not do so in a way which infringes the autonomy of provinces except in limited circumstances provided for by the Constitution.
Courts have on several occasions delivered judgments which held that Eskom must first exhaust the alternative remedies available to it to hold municipalities accountable for non-payment for bulk electricity supply before approaching the courts for further relief or restricting bulk electricity supply.
The School for Public Leadership at Stellenbosch University in partnership with the Hanns Seidel Foundation conducted a research study on the impact of the Covid-19 pandemic on municipal fiscal sustainability in the Western Cape (WC) province, which was completed in April 2021. The district municipalities (DMs) in the sample included Central Karoo, West Coast and Cape Winelands. This article aims to distil the key findings relating to DMs from that study. A previous Local Government Bulletin article dealt with sampled WC local municipalities.
The National Strategic Plan (NSP) to address Gender-based violence and femicide (GBVF) aims to create an enabling environment in which women can feel safe. Absent from the NSP is the role of city planning towards this goal. This article will illustrate how gender-sensitive planning and urban design (GSP&UD) together with the implementation of the development principle of ‘spatial justice’, in the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA), may serve as a mechanism for the improved safety of women.
How can we improve the quality of governance in municipalities? What do we need to do in local government to promote stability, allow development to take place and create sustainable communities? A recent research report by the Local Government Sector Education and Training Authority (LGSETA) examined these issues.
The Constitution does not make explicit reference to ‘spatial equity’. However, the spatial inequalities that are characterised by poor living conditions, continuous struggles for basic amenities, severe shortages of housing stock and an infrastructure backlog, can amount to indirect racial discrimination. Thus, spatial inequalities can clearly implicate the right to equality as stipulated by section 9(2) of the Constitution.
The African School on Decentralisation (ASD) is a collaboration between the South African Research Chair in Multilevel Government, Law and Development located at the Dullah Omar Institute (DOI) of the University of the Western Cape and the Centre for Federalism and Governance Studies (CFGS) of Addis Ababa University. The two institutes were to hold the inaugural course of the ASD under the theme ‘Decentralisation and Development in Africa’ from 25 May to 5 June 2020 in Cape Town, South Africa. Regrettably, the rapid spike in the spread of the coronavirus (otherwise known as COVID-19) across the continent witnessed from March 2020 necessitated the postponement of the ASD to 2021.
Since the declaration of the state of national disaster by the Minister of Cooperative Government on 18 March 2020, and the subsequent announcement of a Lockdown by the President on 26 March, municipalities have implemented various measures in response to the COVID-19 pandemic. This article analyses some of the measures taken by eThekwini Metropolitan Municipality (Metro) more than 90 days into the Lockdown. While disaster management is a shared national and provincial government competence, municipalities play a crucial role during disasters in terms of their constitutional functions (listed under Schedule 4B and 5B) and their assigned functions (s99 and 126), such as housing.
The COVID19 pandemic has emphasised the importance of local government. Apart from delivering essential services and helping to mitigate the adverse impact of the Lockdown on livelihoods, municipalities also play a crucial role in enforcing the Lockdown Regulations through their law enforcement and, where applicable, municipal police services. During the Lockdown period, law enforcement and metropolitan police departments (MPDs) have been cooperating with the South African Police Services (SAPS) and the South African National Defense Forces (SANDF) to enforce the Lockdown Regulations.
The coronavirus, which causes the disease COVID-19, is wreaking havoc across the world and South Africa is no exception. On 15 March, President Cyril Rhamaphosa declared a national state of disaster and announced a raft of measures to contain the spread of the virus.
South Africa has gone into lockdown to curb the spread of COVID-19. One of the very many concerns surrounding the impact of the lockdown relates to access to food. The rules with respect to supermarkets, and our access to them during the lockdown, are reasonably clear.
Municipalities play a critical role in service delivery, development and democracy. What is often forgotten in the assessment of local government is that, before 1994 (and even before 2000), there were significant parts of the country where no local authorities existed. One of those areas is the rural areas of South Africa, where traditional leaders continue to be the face of local government. This is something which traditional leaders have been for many centuries.
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 role of sustainable human settlements in the response to the HIV and AIDS epidemic
Municipalities are key institutions in bringing about sustainable human settlements that respond adequately to the challenges and implications of the HIV and AIDS epidemic.
Reviewing the Children's Act: Implications for local government
The Children’s Amendment Act (Act 41 of 2007) was signed into law on 18 March this year. The Act, together with draft regulations recently published for public comment, represents the final step in the arduous, ten-year journey of reviewing the Child Care Act.
Navigating the grey areas: Reflections on the Western Cape powers and functions review process
The powers and functions shared between provincial and local government have traditionally been a source of great confusion and concern for municipalities. Ill-defined powers and functions have often led to duplication, inefficiencies and arguably even deterioration in the delivery of services to communities.
Can a municipality levy taxes retrospectively
Generally, a municipality may only levy taxes (other than property rates) in terms of empowering legislation. The Municipal Fiscal Powers and Functions Act (Act 12 of 2007) outlines a procedure whereby a municipality may apply to the National Treasury for approval to impose new taxes.
Heeding the call for sustainable energy use putting solar energy to work
Energy experts agree that the installation of domestic solar water heaters (SWHs) could significantly reduce the demand for electricity. The figures suggest that a roll-out of SWHs could eliminate the need for one large coal power station (and thus significantly reduce CO2 emissions).
The Municipal Fiscal Powers and Functions Act.
The Municipal Fiscal Powers and Functions Act gives effect to section 229 (1) and 229 (2) of the Constitution and is one of the final building blocks in the creation of a regulatory framework to coordinate macro-economic tax policy objectives across all three spheres of government.
Where to Now With District Municipalites? Redefining Their Role and Application.
The debate about district municipalities- their performance and their future is widespread. Some critics question whether districts have served their function. Others contend strongly that they should be disestablished. In the debate. This argument for redefining the role of districts is not based on the current capacity problems or adjustments to the new system, it is more systematic than that.
The Housing Dilemma: Reviewing Local Governmnt Functions.
An essential part of the current review of government structures is evaluating the success of local government in meetings its constitutional obligations to citizens. Key to the current review of structures is the extent to which powers and functions designated enable it to meet its developmental mandate. This article proposes a model for analysing which functions should be performed by local government and applies this model to housing. It concludes that the location of housing as a national/provincial function competency needs to be revisited.
Name Changing of Towns: Public Participation At the Forefront Once More.
The Supreme Court of Appeal recently examined the processes surrounding the changing of town names and the extent to which they must facilitate public consultation in the case of Chairpersons Association v The Minister of Arts and Culture , the Chairman of the South African Geographical Names Council and the Municipality of Makhado. This is to be distinguished from the changing of names of municipalities in terms of section 16 of the Municipal Systems Act.
From the Courts: Town planning schemes: Who has the Jurisdiction?
This judgment considered the constitutional dimension of town planning schemes and zoning. Which sphere of government has jurisdiction to determine land use applications and to amend zoning schemes?
Decentralised Response to HIV & AIDS.
In recent years, many municipalities have started formulating and implementing their HIV and AIDS response strategies and much progress has been made. However, most are still grasping with the issue and responses are often limited in nature, concentrating on some aspects of a comprehensive AIDS response but not yet to the extent of a well-coordinated and integrated HIV and AIDS strategy.
Stepping Stones and Stumbling Blocks: Changing Municipal Boundaries.
The Municipal Demarcation Board (MDB) is entrusted with the often difficult task of demarcating municipal boundaries. Disputes around cross-boundary municipalities and the changing of municipal boundaries have recently been the focus of violent protests by communities affected by these decisions. The MDB recently published a proposal about the incorporation of the Paarl, Wellington, Stellenbosch and Drakenstein municipalities into the Cape Town Metropolitan Municipality. The notice attracted much attention in the media and raised important questions around how the MDB engages with proposals received from the public.
The Property Rates Act: A Tool For Poverty Alleviation.
Property rates are an important source of revenue for municipalities and this is reflected in the preamble to the Property Rates Act of 2004.There is a need to provide local government with access to a sufficient and buoyant source of revenue necessary to fulfil its developmental objectives. At the same time, however, a municipality's financial health should not be attained at the unjustifiable expense of the poor within its area. The power to impose rates should take into account the imbalances of the past and the burden of rates on the poor.
From the Courts: Outdated Ordinances- A constitutional Headache
This case highlights the need for provincial governments to carefully re-evaluate all ordinances predating the constitutional dispensation because in all likelihood, many of their provisions are unconstitutional.
Defining Local Government Powers: The Need For Guidance.
The powers and functions of local government are listed in schedules 4B and 5B of the Constitution. The schedules list functional areas without detailed definitions of each area. There is a considerable overlap between local government functional areas and those of provincial government, listed in Schedules 4A and 5A. Due to this, there is a degree of confusion about who does what. A lack of clarity about role definition may prejudice service delivery and cause conflict over resources and authority.
Property Rates Act in Operation.
After some delays, the Municipal Property Rates Act of 2004 was finally brought into operation on 1 July 2005. This comprehensive Act institutes a uniform structure to the levying of property rates, which was previously governed a number of old provincial ordinances. This article highlights only a number of key features of the Act.
Johannesburg's Special Cases Policy: A New Start For the Indigent.
On 4 May 2005 the City of Johannesburg started registering beneficiaries under the Special Cases Policy of 2004. The main purpose of the policy is to write off municipal services debts owed by indigent people and to provide subsidisation of basic services for identified classes of people.
From the Courts: Powers of Municipalities to Impose Property Rates.
A recent judgment by the Constitutional Court clarifies the powers, duties and status of municipalities and pronounces positively on the powers of municipalities to impose property rates. This case is a significant victory for municipalities in their efforts to value property and levy property rates.
The REDs Are Coming.
Regional Electricity Regulations (REDs) have been under discussion since the early 1990s and numerous debates have been held for and against them. At last the process seems to have been pushed beyond a point of no return with the announcement by the President Mbeki that the first RED will be operational by June 2005 and the last of the of the six by january 2007.
Single Public Service: Challenges Ahead
For many years, municipal councils have enjoyed the freedom to determine the recruitment, appointments, promotions, transfers and dismissals of their employees. This is in line with section 160 (1) (c) of the Constitution, which provides that a municipality may employ personnel that are necessary for the effective performance of its function.
Collecting Service Debts: Constitutional Court Speaks.
A recent judgment by the Constitutional Court confirms that the electricity and water charges owed to a municipality must be paid before a property can be transferred to an new owner. This is a major victory for municipalities in their effort to collecting outstanding service charges.
Powers Over Liquor Matters: A Case Study of Provincial and Local Powers over Retail Liquor.
The demarcation of local government powers vis-a-vis other spheres of government is fast becoming a critical area of research and intergovernmental dialogue. It is expected that municipalities will start asserting their institutional integrity. This article presents a case study of the demarcation of the powers of local government in the regulation of the liquor retail industry.
From the Courts: Property Rates on Agricultural Land
The issue before the Court in Boshoff v Nkwetana Munisipaliteit 1935/2003 FS was whether the municipality had the authority to levy rates on agricultural land and whether it followed the correct procedure in doing so.
From the Courts: Is There a Right to View?
Though there is no common law right to a view, the case of Paolo v Jeeva N.O and Others 2004 (1) SA 396 SCA has led to the perception among the public that certain laws do protect an existing view. As a result of media coverage, it is widely believed that section 7 of the National Buildings Regulations and Building Standards Act obliges a municipality to refuse any building plan for a building that will interfere with the view of an adjoining property.
Socio Economic Rights and Basic Municipal Services.
The socio-economic rights in the Bill of Rights bind all organs of state, including municipalities. These rights may also impose positive obligation. Through the delivery of basic services municipalities fulfil some of these obligations.
Section 78 of the Systems Act and Municipal Policing.
The Supreme Court of Appeal has delivered a significant judgment in which it was required to interpret the provisions of section 78 of the Local Government: Municipal Systems Act, 2000.
Guarding against Unfunded Mandates: The Systems Amendment Bill.
Municipalities will receive greater protection against unfunded mandates in terms of the Municipal Systems Amendment Bill approved in September this year by the Portfolio Committee on Local Government.
Co-Operative Government at Work.
Earlier this year, the City of Cape Town entered into an innovative public -public partnership with the Department of Water Affairs and Forestry. This is a good illustration of co-operative government principles at work to ensure effective service delivery.
Local Government is in Good Health.
The core principles, values and features of the new local government system are sound. This is the conclusion of the national Portfolio Committee on Local Government after a major study tour of the municipalities at the beginning of 2003.
The 'Big Four' Functions: Finality on SIght
On 3 June 2003, Minister Sydney Mufamadi published a notice for all nine provinces which revokes authorisation in terms of section 84 (3) of the Municipal Structures Act. These authorisations deal with four important district municipal functions, namely,the bulk supply of water, electricity and sewage purification works and municipal health services.
From SALGA: Report on the Local Government Laws Amendment Bill
The Portfolio Committee on Provincial and Local Government passed this Bill on 22 October 2002 and the National Assembly passed two days later. The Bill at the time of writing is scheduled to be passed by the National Council of Provinces on 7 November. It should be signed into law by the middle of November.
From SALGA: Bringing the NLTTA in Line with the New Local Government Dispensation.
The Portfolio Committee on Transport convened a public hearing on the implementation of the National Land Transport Transition Act (NLTTA) at Parliament on 4 September.
From SALGA: immigration Bill: Another Unfunded Mandate?
This is an abbreviated version of SALGA's submission to the joint session of Parliament's Portfolio Committee on Home Affairs and the Select Committee on Social Servies dealing with the Immigration Bill.
Electricity Restructuring: Short-Circuting Municpalities?
Important recent developments in the electricity distribution industry (EDI) could have a significant impact on municipalities. A recent court challenge raises the crucial issue of the right of municipalities to supply and distribute electricity.
Assignment to Local Government
When the new Premier of the Western Cape took office in January 2002, he vowed to devolve as many provincial functions as possible onto local authorities which have the capacity to perform them. Assignment is the most important way of bringing functions down to local government.
President's Coordinating Council sets Agenda for Local Government
At a special President's Coordinating Council (PCC) workshop on 14 December 2001, the agenda was set for building a strong and development-oriented local government. The PCC adopted wide-ranging resolutions which chart the way forward in both the short and medium term.
From the Courts: Guarding Against Disruption of Local Government
MEC for Local Government and Planning of the Western Cape v Paarl Poultry Enterprises CC Rosendal Poultry Farm 2002 (2) BCLR 133 (CC)
From the Courts: ‘Municipal planning’ and ‘regional planning and development’ Where does municipal planning end and provincial planning begin?
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]
Riot Damage: Who Pays?
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
Service Delivery Protests: Less Frequent, More Violent.
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 Municipality's Role In Implementing The Gatherings Act.
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.
KZN Planning and Development Act.
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.
Draft Spatial Planning and Land Use Management Bill.
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.
Trends in Community Protest: From 2007 to 2010.
The research was undertaken by Hirsh Jain, a Harvard Law School visiting fellow at the Community Law Centre. This article summarises Jain’s findings relating to the frequency of protests, the incidence of violent protests, the impact of the 2008/09 economic recession, the geographical spread of protests per province, and the types of concerns that fuel protests.
The Toilet War.
The City of Cape Town built unenclosed toilets in Makhaza, an informal settlement in Ward 95 of Khayelitsha. It did so on the understanding that the community would erect their own enclosures. This led to a public outcry, protests by the ANC Youth League (ANCYL), an investigation by the Human Rights Commission and even a court challenge. The media has dubbed the dispute ‘the toilet war.
Municipal Duties to Occupiers Facing Evictions From Private Land.
While a number of recent judgments have confirmed the duty of municipalities to ‘meaningfully engage’ with unlawful occupiers before seeking to evict them from municipal land, they did not clearly establish the duties of municipalities to occupiers who face eviction from private land.
Limits on Withholding Municipal Clearance Certificate.
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.
Constitutional Court Shows the DFA the Door.
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.
Undermining Local Planning.
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.
Service Delivery by External Providers.
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.
Public Hearing on Service Delivery
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.
Making Local Economic Development Work: Some Reflections From the Field.
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.
Wolf in a Sheep's Clothing
Section 156(1) of the Constitution is the basis for the status of local government in the Constitution. It provides that municipalities have authority over the matters listed in Schedules 4B and 5B of the Constitution. Schedules 4B and 5B, in turn, each contain a list of topics called ‘functional areas’. This constitutional protection of local government’s authority sets South Africa apart from most other countries. Usually, local government is not referred to in a constitution.
South Africa's Water and Sanitation Provision.
“Water is life, sanitation is dignity.” This is the cornerstone of the Strategic Framework for Water Services published by the Department of Water Affairs and Forestry (DWAF) in 2003. It also served as the first line of the landmark High Court judgment in the case of Mazibuko and Others v City of Johannesburg and Others (4) SA 471 (W) 2008 (see LGB 10(2), April/May 2008), which dealt with municipalities’ constitutional obligations to deliver water to poor communities.
Fault Lines Around Water Service Delivery.
South Africa has one of the most progressive legislative and policy frameworks for water services in the world, which includes a constitutional right of access to water and a national free basic water (FBW) policy. Within this framework, water is conceived of as a social good and a vital part of poverty alleviation within the broader developmental mandate of government. However, when it comes to implementation at the local government level, where water services are located, the reality is quite different.
The Constitutionalisation of Local Government.
In the last decade we have seen a shift in the way local government is conceived-socially, politically and in the legal context. The changes status of local government has been evident in the courts and the increased judicial scrutiny of the activities by the institutions of local government.
Designing and implementing HIV and AIDS Initiatives: Local Government's Role.
"In line with the mandate assigned to municipalities as part of the vision of developmental local government, municipalities are expected to be active role players in all efforts to prevent the spread the of HIV and to mitigate the negative consequences of AIDS for communities". The various frameworks and plans guiding the HIV and AIDS response of local government insist on the municipalities role in mainstreaming HIV, and also in coordinating the local responses.
Provinces vs Structures Act: Demarcartion Board Walks off with the Spoils.
On 15 October 1999, the Constitutional Court laid down judgments on a range of constitutional challenges to the Structures Act 117 of 1998 that had been brought forward b the Western Cape and KwaZulu-Natal provincial executives. Most of the complaints levelled against the Act had to do with the constitutional scheme of the division of powers between the three spheres of government in relation to local government.
From the Courts: Prosecution by a Local Authority- Central Transitional Metropolitan Council v Winchester 1997 (3) BCLR 312 (N)
Durban Central Transitional Metropolitan Council (DCTMC) prosecuted Mr Winchester for failing to obtain licenses for his dogs. The DCTMC had acquired this power to prosecute by delegation from the Attorney-General through section 8 of the Criminal Procedure Act 51 of 1977.
Evictions: Municipalities and the Constitution: The Right to Housing.
Two court cases dealing with evictions: Case One: Vanessa Ross v South Peninsula Municipality (1999) JOL 5298 (C). Case Two: Grootboom and Others v Oostenberg Municipality, Cape Metropolitan Council, Premier of the Province of the Western Cape, National Housing Board and Government of the Republic of South Africa (Case no: 6826/99)0
A Council's Legislative Powers
In 1999 (1) LGL, Bulletin 6, the impact of the recent case of Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council1999 (1) SA 374 (CC) in confirming the new constitutional status of local government structures was highlighted. In this case the Constitutional Court held that 'a local government is no longer public body exercising delegated powers. Its council is a deliberative legislative assembly with legislative and executive powers recognised in the Constitution itself.
From the Provinces: Gauteng Social Services
Gauteng Welfare Relations Act 17 of 1998
Municipal Police Services
Visible policing has long been considered as indispensable in the fight against crime and lawlessness. Quick-fix solutions such as rent-a-cop schemes, were put forward as the answer. With the passing of the South African Police Services Amendment Act 83 of 1998, the legal framework has been created for the establishment of municipal police services.
Municipal Structures Act: Division of Powers and functions: Who does What in the District?
Section 83 of the Municipal Structures Act stipulates that a municipality has those functions and powers assigned to it in terms of sections 156 and 229 of the Constitution.
Division of Powers and Functions between District and Local Municipalities
This is a report from the Municipal Demarcation Board and the Department of Provincial and Local Government on the process of division of functions between district and local municipalities
Implementing the New Division of Functions and Powers
This is an edited version of a framework document, dated 11 October 2000 and prepared jointly by the Municipal Demarcation Board and the Department of Provincial and Local Government.
Who makes the laws? Dividing Legislative Power between Provincial and Local Government
As from the day of the forthcoming local government elections, local government's legislative and executive powers are going to be squarely based on the Constitution.
From the Courts: The Constitution, By-laws and Billboards- City of Cape Town v Ad Outpost (Pty) 2000 (2) BCLR 130 (C)
City of Cape Town's By-law 1959 of 1966 requires any person, intending to display a sign, to make a written application for prior approval by the municipality. Displaying or attempting to display a new sign without prior approval constitutes an offence.