A perspective on local government's role in realising the right to housing and the answer of the Grootboom judgment

This article examines the responsibilities of the three spheres of government with regard to implementing the right of access to housing and, in particular, the responsibility of local government. Local authorities are obliged, just as much as national and provincial government, to protect basic rights and advance their realisation. When it comes to implementing an economic, social or cultural right, however, local government is bound by its constitutional mandate. The Constitution, the author argues, does not place the primary obligation to implement the right to housing on local government. However, in Government of the Republic of South Africa v Grootboom the Constitutional Court held that that access to land cannot be separated from access to housing or access to basic services, such as water and sewage removal. Local government thus plays a key part in fulfilling those ancillary aspects of the right of access to housing.Department of HE and Training approved lis

Institutional subsidiarity in the South African constitution

This article attempted to clarify the role played by section 156(4) of the Constitution by tracing some of the origins and manifestations of the principle of subsidiarity, on which this provision is modelled. It was argued that, although modelled on it, section 156(4) is different from the classic manifestation of subsidiarity, which would have established a principled and automatic bias for local government that only gives way to a reasoned argument in favour of other spheres of government. Section 156(4) works the other way around. It establishes a preference and not an automatic bias for local government. This preference must be substantiated with an argument that the assignment of the power to local government is functional in that it enables such government to achieve its developmental objects. It was further argued that section 156(4) of the Constitution may not be easily enforced separately by the courts, in part because of the deference shown by the courts to political decisions surrounding the configuration of the state. However, the experience of judicial enforcement of the subsidiarity principle in Germany may offer some guidance in this respect. The principle of subsidiarity should play a guiding role in lawmaking and the interpretation of competencies by the courts. A brief review of legislation and court judgments surrounding, for example, local government's role in land use management, indicates that the principle is not given nearly the recognition it deserves.Department of HE and Training approved lis

The political-administrative interface in South African municipalities assessing the quality of local democracies

South African municipalities experience serious challenges in dealing with the interface between politicians and officials. Inappropriate political interference in administrative matters as well as strained relations between key political and administrative officials in the municipalities appear to be the order of the day. Oftentimes, the lack of a separation of powers between legislative and executive authority at local government level is blamed for this. This contribution has attempted to draw the attention away from the conflation of legislative and executive authority in the municipal council while still recognising it as an important background. It is suggested that, instead of spending energy on examining a possible separation of powers in local government, the relevant stakeholders (i.e. national lawmakers, municipalities and supervising provinces) should consider smaller institutional changes to the governance makeup of municipalities. Even more importantly, the political and administrative leadership of municipalities and political structures that surround them should be acutely aware of the consequences that inappropriate political leadership has on the functioning of municipalities and therefore on service delivery

Property rates as an instrument for development: an analysis of South African policy, law and practice

When local governments impose property taxes, their primary objective is to fund their expenditure. However, the role of local government can be seen as far more than simply the provision of local public services. Local government can be an agent of its community, responsible for using its authority in a manner that creatively responds to local needs and thereby enhances the well-being of its area. This chapter asks if this interpretation of the role of municipalities has consequences for the manner in which they tax properties. South African municipalities have recently been equipped with a new property rates framework, which permits them to differentiate between categories of properties and to legislate for various kinds of property rates discounts. This framework presents a new approach to the use of property rating, by positioning it as an instrument with a stated developmental objective in addition to its revenue-raising function. This chapter therefore examines to what extent and how South African municipalities actually use their power to levy property rates as a developmental instrument. Do they use property rates as an instrument to reduce poverty, facilitate access to economic opportunities and encourage sustainable use of resources? Or does property tax remain an instrument primarily deployed to raise revenue that funds service delivery? In attempting to answer these questions, the author was limited by the lack of independent research on this topic, and draws primarily from official reports

Powers of Local Government

The Constitution recognises and makes provision for three levels of government that derive their powers from the Constitution. The constitutional status of a municipality, as part of the third sphere of government, is thus materially different from what it was when Parliament was supreme. Under the parliamentary sovereignty, the institution of elected local government could have been terminated at any time by the central or provincial governments. The judgement, delivered by the Constitutional Court in Fedsure Life Assurance and Others v Greater Johannesburg Transitional Metropolitan Council and Others1 forms the bedrock of any analysis of local government’s powers. It was in this case that the Constitutional Court made an unequivocal statement as to the status of local government in the post-1994 constitutional framework.Department of HE and Training approved lis

Demarcating provincial and local powers regarding liquor retail

Local government’s newly acquired status as a fully-fledged sphere of government with constitutionally protected powers is slowly gaining momentum. Now that the dust is slowly settling around the demarcation and establishment of local government institutions, the demarcation of local government powers visà- vis other spheres of government is fast becoming a critical area of academic research and intergovernmental dialogue. As they become aware of their constitutional scope, municipalities will start asserting their institutional integrity with powerful metropolitan municipalities taking the lead. In an earlier article in this journal, the approach to local government powers as set out in the Constitution was outlined.1 This article takes the matter further and presents a case study on the demarcation of local government powers in one specific area, namely the regulation of the liquor retail industry. In the Liquor Bill judgment of 2000 more clarity was provided about national versus provincial powers regarding the liquor retail industry.2 Another important issue is the division between provincial and local powers. Schedule 5A of the Constitution lists ‘Liquor licences’ as a provincial competency. Schedule 5B of the Constitution lists ‘Control of undertakings that sell liquor to the public’ as a local government competency. This apparent overlap in the constitutional regime on provincial and local legislative powers over liquor retail matters raises two demarcation issues. The first demarcation issue is: what is the difference between ‘Liquor licences’ (a provincial competency) and ‘Control of undertakings that sell liquor to the public’ (a local government competency)? This question will be dealt with in sections 2 and 3 of this article.Department of HE and Training approved lis

A perspective on local government's role in realising the right to housing and the answer of the Grootboom judgment

No Abstrac

Developmental local government in South Africa: institutional fault lines

This paper provides a brief introduction to the recent history of, as well as the legal and policy framework for, local government in South Africa. It discusses the transformation of local government from a racially configured, illegitimate arm of the apartheid government into a system designed to produce developmentally oriented municipalities. The progress made by South African municipalities towards realising the vision of developmental local government is remarkable and unprecedented. Over the last 13 years, municipalities have embarked on the extension of infrastructure and development, whilst absorbing fundamental changes to their internal governance and management arrangements, financial management systems and intergovernmental responsibilities. The new local government system offers great potential for the realisation of a better life for all citizens, facilitated by a new generation of municipalities. However, the challenges remain huge and some of these can be attributed to institutional fault lines. These include challenges that come with large, inclusive municipalities, new executive systems and the political appointment of senior officials. The paper also identifies the downside of overzealous institutionalisation of community participation. With regard to intergovernmental relations, the paper highlights the need for a clearer definition of local government mandates and a greater recognition of the role of big cities. The current insistence on comprehensive intergovernmental alignment of policies and budgets is questioned, and suggestions are made to substitute this with an approach of selective alignment around key national priorities

Special interest councillors in Zimbabwe: a review of law and practice in terms of the 2013 Constitution

Local governance in Zimbabwe has a chequered history. Despite high hopes for democratic local governance on the attainment of political independence in 1980, it has often defied democratic practice and is yet to bring tangible benefits to communities. Attempts at democratising local governance through the amendment of local government legislation have not yet brought about vibrant democratic practices. This article explores section 4A of the Urban Councils Act, which provides that the Minister of Local Government may appoint special interest councillors onto urban councils. It examines the extent to which this has enhanced or inhibited democratic local governance. It then proceeds to examine this phenomenon against regional instruments on local democracy and finally assesses whether it can stand the test of the freshly promulgated Constitution.Department of HE and Training approved lis

Electing councillors: A guide to municipal elections

The electoral system for local government combines ward elections with proportional representation. It is regulated in at least four different statutes, the Electoral Act 73 of 1998, the Local Government: Municipal Structures Act 117 of 1998, the Local Government: Municipal Electoral Act 27 of 2000 and the Local Government: Municipal Systems Act 32 of 2000. More rules can be found in various regulations under these Acts. The result is an advanced but complex electoral system. This manual outlines the main features of the system in an accessible manner. The objective is to assist anyone who participates in the election or assists in making it happen. This includes voting officials, government officials, councillors, candidates, political parties and members of civil society. The manual also addresses the rules for filling vacancies in between elections. While the manual is comprehensive. it does not address every detail of the electoral system or every conceivable interpretation of the electoral laws. Further detail can be found in the various acts and regulations or obtained from the Independent Electoral Commission