5A Local Government. Gideon Pimstone

Transcription

1 5A Local Government Gideon Pimstone Page 5A.1 Introduction A--1 5A.2 A brief history of local government in South Africa A--1 (a) Apartheid local government A--1 (b) Multi-Party Negotiating Process: the Local Government Negotiating Forum A--2 5A.3 Agreement on local government finances and services A--3 5A.4 The Local Government Transition Act 209 of A--3 (a) Original provisions A--3 (i) Provincial Committees A--4 (ii) The Administrator A--4 (iii) Pre-interim phase A--5 (iv) Interim phase A--6 (v) Transitional provisions A--8 (b) Proclamations R58 and R A--9 (c) The Local Government Transition Act Second Amendment Act 89 of A--10 (d) The Local Government Transition Act Second Amendment Act 97 of A--11 (i) Metropolitan structures and powers A--11 (ii) Non-metropolitan powers and duties A--12 (iii) Alteration of municipalities A--13 (iv) Organized local government (OLG) A--13 (v) Finances A--13 (vi) Demarcation Boards A--14 (vii) Ministerial powers A--14 (viii) Co-operative government A--14 5A--i

2 CONSTITUTIONAL LAW OF SOUTH AFRICA Page 5A.5 The interim Constitution A--14 (a) Relationship to the LGTA A--14 (b) Chapter A--16 (i) Establishment and status A--16 (ii) Powers and functions A--17 (iii) Council resolutions A--17 (iv) Executive committees A--17 (v) Administration and finance A--18 (vi) Elections A--18A (c) Traditional authorities and local government A--19 (d) Constitutional Principles A--19 5A.6 The certification process A--20 (a) Certification A--20 (b) Certification of the amended text A--21 5A.7 The final Constitution A--22 (a) Relationship to the LGTA and the interim Constitution A--22 (b) Status of municipalities and co-operative government A--26 (i) Sphere of government A--26 (ii) Co-operative government A--27 (c) Objects, powers and duties A--33 (d) Rights issues A--36 (e) Institutional models A--37 (f) Procedures A--38 (g) Administration A--40 (h) Fiscal matters A--40 5A--ii

3 LOCAL GOVERNMENT 5A.1 INTRODUCTION E 3, At the time of writing, local government in South Africa is in the process of fundamental transformation. In terms of the legislative timetable established by the Local Government Transition Act (LGTA), 1 this transformation has entered the interim phase, 2 which commenced on the day after the holding of the first democratic municipal elections. The interim phase is set to terminate on the finalization of municipal arrangements, more particularly the re-demarcation of municipal jurisdictions, the promulgation of legislation to give effect to local government provisions of the final Constitution, and the holding of the second democratic municipal elections. The transition from race-based, authoritarian apartheid structures to non-racial, democratic structures has been a profoundly complex endeavour. 3 It has been marked by a high degree of fluidity and variation in municipal functioning, and a confusing overlap in the operation of the three principal legislative frameworks which together have shaped and will continue to shape the transition: the LGTA, the interim Constitution, and the final Constitution. The ongoing nature of local government restructuring leaves this chapter somewhat open-ended. 5A.2 A BRIEF HISTORY OF LOCAL GOVERNMENT IN SOUTH AFRICA (a) Apartheid local government Race-based municipal structures and the skewing of access to services and resources according to race have a long history in this country. A plethora of pre-1948 laws controlled the movement and settlement of black South Africans. 4 But it took a series of laws vigorously enacted and enforced by successive apartheid governments to refine the system into one of rigid geographical, institutional, social and material division. The Group Areas Act 5 formed the legislative substratum of apartheid local government, providing for the demarcation and development of separate areas for the statutorily defined population groups, and the forced removal of black communities from areas designated white. Further legislation served to 1 Act 209 of The commencement of the LGTA marked the inception of the pre-interim phase of the transition, with the interim and final phases following in the manner indicated above. See the definitions of interim phase and pre-interim phase in s 1 of this Act. 3 The phrase complexities of the transition was used in Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Amended Text of the Constitution of the Republic of South Africa, (2) SA 97 (CC), 1997 (1) BCLR 1 (CC) at para 85. See too Member of the Executive Council for Development Planning and Local Government in the Provincial Government of Gauteng v Democratic Party & others 1998 (4) SA 1157 (CC), 1998 (7) BCLR 855 (CC) at para 54 and African National Congress & another v Minister of Local Government and Housing, KwaZulu-Natal, & others 1998 (3) SA 1 (CC), 1998 (4) BCLR 399 (CC) at para 6 ( extremely complex matter ). In Executive Council, Western Cape Legislature, & others v President of the Republic of South Africa & others 1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC) at para 178 the process of transition was termed arduous and delicate. 4 Chiefly the Land Act 27 of 1913, the Black (Urban Areas) Act 21 of 1923, the Black Administration Act 38 of 1927 and the Black (Urban Areas) Consolidation Act 25 of Originally Act 41 of 1950, subsequently Act 36 of [REVISION SERVICE 3, 1998] 5A--1

4 establish administrative bodies to oversee municipal functioning in black areas. 1 The result of the implementation of apartheid at local level was a highly fragmented, dysfunctional and illegitimate system of local government marked by a sharp separation between developed, well-serviced and representative local government in white areas, and underdeveloped, nonor under-serviced and unrepresentative local government in black areas. 2 The current transformation of local government in South Africa has been concerned principally with addressing this legacy. 3 (b) CONSTITUTIONAL LAW OF SOUTH AFRICA Multi-Party Negotiating Process: the Local Government Negotiating Forum 2By the mid-1980s, and notwithstanding efforts at cosmetic reform of the role of black local authorities, 4 apartheid local government was in a state of deep crisis. Black local authorities had all but ceased to function and white municipalities faced the devastating impact of consumer boycotts. Out of this crisis emerged a gradual process of negotiation between white municipal structures and black civic representatives, a process which foreshadowed the broader, national negotiation process. In 1992 the South African National Civics Organization (SANCO) began talks with the National Party government regarding the wholesale reshaping of local government. These discussions led to the establishment, in March 1993, of the Local Government Negotiating Forum. The Forum operated as the principal mechanism for negotiating a new local government dispensation. The Forum was comprised of sixty representatives, divided equally into statutory (national, provincial, and established local government) and non-statutory (SANCO and political parties) delegations. Technical working groups were charged with reaching agreement on a new, democratic municipal 1 Such as advisory boards (Urban Black Councils Act 79 of 1961), administration boards (Black Affairs Administration Act 45 of 1971), community councils (Community Councils Act 125 of 1977), upgraded community councils (Black Local Authorities Act 102 of 1982), development boards (Black Communities Development Act 4 of 1984), consultative and management committees and fully-fledged local authorities for coloured and Indian communities under the Group Areas Act and provincial Ordinances. 2 See City Council of Pretoria v Walker 1998 (2) SA 363 (CC), 1998 (3) BCLR 257 (CC) at para 46: White areas in general were affluent and black ones in the main impoverished. Many privileges were dispensed by the government on the basis of race, with white people being the primary beneficiaries. The legacy of this is all too obvious in many spheres, including the disparities that exist in the provision of services and the infrastructure for them in residential areas. See too Beukes v Krugersdorp Transitional Local Council & another 1996 (3) SA 467 (W) at 482A and Fedsure Life Assurance Limited & others v Greater Johannesburg Transitional Metropolitan Council & others 1997 (5) BCLR 657 (W) at 665E--6C. 3 As to this legacy and its legislative underpinnings, see more fully Johan Meyer Local Government in Joubert (ed) The Law of South Africa (1981) vol ; Lawrence Baxter Administrative Law (1984) ; Nazeem Ismail & Chisepo JJ Mphaisha The Final Constitution of South Africa: Local Government Provisions and their Implications Occasional Papers (January 1997) 3--9; Fanie Cloete Local Government Transformation in South Africa (1995) 1--4; J J N Cloete South African Municipal Government and Administration (1997) ; P S Reddy Local Government Restructuring in South Africa in P S Reddy (ed) Readings in Local Government Management and Development ---- A Southern African Perspective (1996) 53--5; Ministry for Provincial Affairs and Constitutional Development The White Paper on Local Government (March 1998) Particularly via the introduction of Regional Services Councils (Regional Services Councils Act 109 of 1985) and Joint Services Boards (KwaZulu and Natal Joint Services Act 84 of 1990), which were to secure the provision of bulk services, provide additional revenue, and facilitate greater consultation and joint decision-making between racially segregated local authorities. 5A--2 [REVISION SERVICE 3, 1998]

5 LOCAL GOVERNMENT model and the process of effecting its introduction. The deliberations of the Forum and its committees were quite distinct, 1 but there was a degree of informal intersection with those of the wider Multi-Party Negotiating Process. The Forum itself met on several occasions, and in November 1993 ratified its three principle outputs: an Agreement on Local Government Finances and Services, the LGTA, and the provisions of IC Chapter 10, the local government chapter. 2 Together, these agreements were entirely to restructure local government in South Africa. But the hurried nature of the local negotiation process and its rather tenuous connection to broader national negotiations have inevitably resulted in drafting deficiencies and difficulties in implementation. 5A.3 AGREEMENT ON LOCAL GOVERNMENT FINANCES AND SERVICES 3In essence, the agreement amounted to a collaborative statement of intent by its signatories. The agreement identified the provision of services as a primary goal. The immediate priority was to provide services at a level that would meet the basic health and functional requirements of each resident. The long-term goal was to achieve equal and equitable access to services by all local residents. It called on transitional local structures to resume, improve, upgrade and extend service provision. The principle of one municipality, one tax base was enshrined. The agreement stipulated that transitional authorities should not inherit institutional debts of black local authorities, while arrear service charges owing by individuals were to be re-evaluated. Service provision was to be founded on the principle of cost recovery, but the reality of service affordability had also to be considered. The agreement sought, in addition, to compel transitional local structures to take practical measures to enhance payment for services. 5A.4 THE LOCAL GOVERNMENT TRANSITION ACT 209 OF 1993 (a) Original provisions The operation of the LGTA commenced on 2 February 1994, almost three months before the commencement of the interim Constitution. The Act presents a loose collection of interim measures to facilitate the orderly passage of local government through the pre-interim and interim phases. Most of its provisions remain operative, but some have been removed or overhauled to suit the course of the transition. The primary role of the LGTA is to reintegrate the fractured, race-based local government system bequeathed by apartheid in local government s restructuring phases. 3 To this end, Part I of the Act includes a broad definition of local 1 See Executive Council of the Western Cape Legislature & others v President of the Republic of South Africa & others 1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC) per Kriegler J at para 181 n See, for example, Fanie Cloete Local Government Transformation in South Africa 4--5; P S Reddy Local Government Restructuring in South Africa See, for example, Chaskalson P in Executive Council of the Western Cape Legislature & others v President of the Republic of South Africa & others 1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC) at para 6. [REVISION SERVICE 3, 1998] 5A--3

6 government body to encompass the myriad apartheid local structures. In addition, the Act is made applicable to the entire territory of South Africa, including the former bantustans. (i) Provincial Committees 4In terms of s 3, Provincial Committees, broadly representative of stakeholders in local government, were appointed by the Transitional Executive Council. 1 These Committees were disestablished on the day preceding the first democratic local elections. The Committees functioned as a brake on the broad powers of the Administrator, the relevant member of provincial government tasked with the responsibility for local government transition in each province. 2 Under s 4 the Administrator, when exercising any power or performing any duty, could do so only with the concurrence of the Committee. A failure to concur resulted in the matter being referred to a Special Electoral Court for a final decision. (ii) The Administrator CONSTITUTIONAL LAW OF SOUTH AFRICA The powers of the Administrator are enumerated in s 10 and include the generalized power to legislate for the transitional regulation of any local government matter, to amend or repeal any law operable within the specific province, including an Act of Parliament, in so far as it relates to such matters, and to apply any law to a local government structure. Specific powers are set out more fully in subsec (3) and include, in respect of local government structures, or some of those structures, the power to establish, to appoint and terminate the office of members, to appoint persons to manage and control, 3 to apply particular laws or suspend or exempt from any law, to dissolve and to disestablish and replace with other bodies. 4 Under 1 The TEC itself was established as a transitional overseeing body under the Transitional Executive Council Act 151 of See Uitvoerende Raad Wes-Kaapse Wetgewer en andere v President van die Republiek van Suid-Afrika en andere 1995 (9) BCLR 1251 (C) at 1259A, where the provincial committee is described as a counterweight ( teenwig ) to the provincial powers. The Administrator ostensibly received such powers by the purported assignation to a competent provincial authority of the executive authority for the administration of the LGTA, under IC s 235(8). I say purported since the majority of the Constitutional Court in Executive Council of the Western Cape Legislature & others v President of the Republic of South Africa & others 1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC) found that the LGTA was not a law which could be so assigned. The powers of the provincial Administrator arose from the operation of the LGTA itself. 3 In Gardener v East London Transitional Local Council & others 1996 (3) SA 99 (E) the applicant, the former East London town clerk, challenged his appointment as acting town clerk by proclamation issued pursuant to s 10 of the LGTA. The appointment had been incorporated in the agreement reached by the relevant negotiating forum. The court found that the relevant MEC had been properly designated as the competent authority in the province by the Premier and was empowered as the Administrator to issue the proclamation establishing the council, and appointing the clerk in an acting capacity, pursuant thereto. The court further held that the powers of the Administrator to incorporate the provisions of a forum agreement by proclamation had, in the light of the circumstances giving rise to the LGTA and the Act s objectives, to be widely construed (at 112C--D). 4 In Gcali NO & another v Member of the Executive Council for Housing and Local Government, Eastern Cape, & others 1996 (4) SA 456 (Tk) the court found that the respondent MEC could not legislate retrospectively under s 10 of the LGTA. The case involved a challenge to the appointment of certain functionaries under a Transkei statute, which had been assigned to the provincial Premier under IC s 235(8). By proclamation, the relevant MEC had sought to amend that statute by allowing for the appointment of commissioner s assistants, who were to be deemed municipal councillors. A provision sought, in addition, to validate retrospectively the appointment of the [continued on p 5A--5] 5A--4 [REVISION SERVICE 3, 1998]

7 s 5 of the Act the Administrator could, in writing, exempt certain local government bodies from the provisions governing the pre-interim phase if satisfied that the body was non-racial and inclusive and had brought about stability at local level through effective government, orderly financial management and a single local government administration. Section 12 of the LGTA, as a counter-weight to provincial power, affords the relevant national Minister the power to make regulations concerning any matter referred to in the Act, after consultation with an Administrator. (iii) Pre-interim phase LOCAL GOVERNMENT 5Part IV of the Act contains provisions specifically pertinent to the pre-interim phase. In terms of s 6 the Administrator was obliged to recognize any extant or subsequently established forum where satisfied that the forum had been established substantially in accordance with certain principles and procedures contained in Schedule 1 to the Act. 1 These principles, in relation to the forum area, included historical and economic boundedness, 2 commercial and industrial linkage, service provision and commuting patterns. In relation to forum membership principles of inclusivity and representivity were emphasized. Forum members were required to indicate whether they were part of a statutory component comprising representatives of already existing local government bodies or representative organizations, or a non-statutory component comprising representatives of any approved organization or body having an interest in local government restructuring. The latter grouping incorporated a diverse range of interests previously unrepresented in elections, civic organizations, trade unions and certain political parties. The rationale underlying such designation was the adoption of a 50/50 statutory/non-statutory formula for nomination of members to the transitional structures negotiated by the forum. This marked the very beginning of the process of integrating previously excluded representatives into the processes of local government. 3 Once a forum was recognized it was deemed to be a negotiating forum for the purposes of the Act. The critical functions of negotiating forums were made apparent in s 7. In sum, and as will have become apparent, they were to provide the vehicles for the creation of the functionaries who would have ordinarily been disqualified under the statute for outstanding moneys owing to the council. The court held that in light of the presumption against retrospectivity, and the interim nature of LGTA powers, that Act could not found retrospective legislation (at 470E--F). In Executive Council of the Western Cape Legislature & others v President of the Republic of South Africa & others 1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC) the explicitly retrospective operation of proclamation R59 was not challenged. Indeed, given the very purpose of the LGTA to ensure orderly municipal transition and its frequent application in response to unforeseen problems, the presumption against retrospectivity should easily have been rebutted. And besides, the Gcali court misapplied the term retrospective. The operation of the proclamation in question was clearly retroactive within the meaning accorded that term in S v Mhlungu & others 1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC) at para In Munisipale Raad van Bainsvlei v Premier van die Provinsie Oranje-Vrystaat en andere 1995 (1) SA 772 (O), 1995 (5) BCLR 543 (O) the applicant municipality sought to set aside inter alia decisions of a negotiating forum to make it a forum member and to incorporate its area of jurisdiction into that of the forum. The court held that forum decisions taken prior to recognition under s 6 of the LGTA could have no legal impact, could not infringe the rights of the applicant. They were akin merely to informal discussions. 2 The principle of bringing together what apartheid had artificially and violently separated. See P S Reddy Local Government Restructuring in South Africa What Cloete calls level[ling] the playing field for the insider (system) and outsider (struggle) parties to the negotiations. See Fanie Cloete Local Government Transformation in South Africa 11. [REVISION SERVICE 3, 1998] 5A--5

8 embryonic transitional local structures that were to function prior to the holding of the first democratic local elections. In addition to negotiations over establishment, forums were duty-bound to settle a range of issues such as the boundaries, size and constitution of the forum, the transitional model to be applied, the functions of the forum, its name and number of seats, and related issues. In respect of such issues, and provided agreements were in accordance with the LGTA, the decisions of the forums were binding on the Administrator. Failure to reach agreement within a specified time resulted in the appointment of independent mediation by the Administrator, the results of which were submitted to the forum for decision. 1 Where the forum still could not reach agreement the Administrator had, depending on the nature of municipality, the choice of applying one of two models of local government to the forum: that of the conventional transitional council, or that of a local government co-ordinating committee. 2 (iv) Interim phase CONSTITUTIONAL LAW OF SOUTH AFRICA E 3, 5, Part V of the Act is germane to the interim phase, the current phase of the transition at the time of writing. The original transitional structures were named transitional local councils where they were situated in non-metropolitan areas, and transitional metropolitan councils where situated in metropolitan areas. The latter were subdivided into transitional metropolitan substructures. 3 After considering any written representation from such structures, and the recommendations of the relevant Local Government Demarcation Board, 4 the Administrator was empowered, by proclamation, to delimit the areas of jurisdiction of these 1 Later the LGTA was amended by Proclamation R174 of 1994, to dispense with mediation and provide for the appointment of an arbitration committee whose timeous decision has to be accepted by the Administrator. See Town Council of Lichtenburg & another v Premier of the North-West Province & others 1995 (8) BCLR 959 (B), in which the court upheld the decision of an Administrator to appoint an arbitration committee, the decision of that committee to establish a transitional local council, and its proclamation by the Premier. Here, the requisite mediation had not been held by the time the LGTA was amended to substitute arbitration committee proceedings. 2 The latter option could also be adopted in certain non-metropolitan areas. The local government co-ordinating committees were endowed with certain powers including budgetary powers under s 7. They operated alongside extant racially segregated local authorities, which maintained all other powers and duties within their racially determined areas of jurisdiction. See Town Council of Lichtenburg & another v Premier of the North-West Province & others 1995 (8) BCLR 959 (B). In effect, this measure was a sop to racist interests that would have resisted pre-electoral integration of municipal structures. 3 Metropolitan area is defined in s 1 of the LGTA to mean any area: (a) comprising the areas of jurisdiction of multiple local governments; (b) which is densely populated and has an intense movement of people, goods and services within the area; (c) which is extensively developed or urbanized and has more than one central business district, industrial area and concentration of employment; and (d) which, economically, forms a functional unit comprising various smaller units which are interdependent economically and in respect of services. Clearly many densely populated urban areas do not fall within this definition. As to the definition see Fedsure Life Assurance Limited & others v Greater Johannesburg Transitional Metropolitan Council & others 1997 (5) BCLR 657 (W) at 661H--2A. The composite nature of such an area could give rise to an inferential legislative intention to sanction intra-municipal cross-subsidization via the transfer of surpluses between metropolitan substructures. 4 A Board was established for each province in terms of s 11 of the Act. Members of the Boards were appointed provincially in accordance with criteria set out in Schedule 5. The Boards functioned to investigate and make recommendations in matters of demarcation of any area pertaining to local government. 5A--6 [REVISION SERVICE 3, 1998]

9 LOCAL GOVERNMENT structures, determine their powers and duties, 1 determine the number of seats, and delimit transitional councils and substructures into wards. 2 Section 9 established a broad framework for the first set of local elections. It stipulated that the relevant Minister could, after consultation with provincial Administrators, determine a day for such elections. The Administrators were empowered to make regulations in relation to a broad array of electoral matters: 3 the determination of wards and polling districts, voters and voting lists, 4 membership of 1 The powers and duties of a transitional metropolitan council had to encompass at least those listed in Schedule 2 to the LGTA. The Schedule contained a list of twenty-five powers and duties ranging from bulk water and electricity supply, sewerage disposal and purification, metro co-ordination and planning to metro recreation, conservation, tourism, economic development, job creation and the establishment, improvement and maintenance of metropolitan infrastructural services and facilities. Item 23 empowered the councils to levy regional services levies, levies or tariffs in respect of any listed function or service and equitable contributions from any substructure based on the gross or rates income of that substructure. Contingent powers of borrowing and lending were also stipulated. Also afforded metro councils were powers to receive, allocate and distribute intergovernmental grants. 2 The latter delimitation exercise was framed by Schedule 3 of the LGTA, which provides that where the transitional structure was comprised of an area encompassing bodies which fell under the aegis of the old Provincial Councils (formerly non-black authorities) and an area encompassing formerly black authorities, no one area was to receive less than half the number of wards allocated. 3 Broad as such powers were, they had to be consistent with the LGTA and the Constitution. The court in Democratic Party v Miller NO & others 1997 (2) BCLR 223 (D) struck down an electoral regulation that purported to provide for the forfeiture of seats to which a party was entitled by votes cast, where it failed to forward sufficient representatives on its list. The court held that a fundamental principle underlying the process of electing democratic local government as envisaged by IC ss 179 and 245(3), and captured in the right to vote in IC s 21, was not only the entitlement to vote but to have the vote counted. The regulation created a formula which disregarded that principle and was therefore unconstitutional (at 227A and 228B). The court in the process rejected an extremely cogent argument for a forfeiture principle, namely that it applied to national elections. 4 In Tumisi & others v African National Congress 1997 (2) SA 741 (O) the respondent had successfully brought an urgent application to set aside the decision of the returning officer allowing appellants to participate as candidates in the local government elections. The court upheld the appeal, stating that although it was possible that the requisite nomination forms did not contain the required number of valid signatures and that this constituted a defect as defined in the specific electoral regulations promulgated under s 9 of the LGTA, no required notice of the defect and opportunity to correct same had been given prior to the nomination day. The returning officer could not therefore have validly rejected the nominations. 5A--7

10 transitional structures including requisite qualifications 1 and terms of office, electoral procedures, expenses, offences and residual matters. (v) Transitional provisions CONSTITUTIONAL LAW OF SOUTH AFRICA 8The LGTA, in ss 15 and 16, specifies a number of transitional provisions. Of cardinal importance are the provisions of s 16(5) and (6). Under subsec (5) any resolution of a transitional council or transitional metropolitan substructure pertaining to the budget of such bodies shall be taken by a two-thirds majority of the members and any resolution of such bodies pertaining to town planning shall be taken by a majority of the members of that body. The failure to approve or prepare a budget by a designated date is visited by possible provincial intervention. Subsection (6) makes provision for the election by transitional councils and transitional metropolitan substructures of an executive committee, 2 in accordance with a system of proportional representation (provided that the transitional structure is to determine the system of proportional representation and the number of members and 1 In O Meara NO v Padayachi & others; O Meara NO & another v Govender & others 1997 (2) BCLR 258 (D) respondents had been nominated as candidates for municipal elections in Durban. The returning officer had thereafter sought orders declaring the candidates disqualified after discovering that they were indebted to a local authority in respect of arrear rates. The relevant KwaZulu-Natal electoral regulation prohibited such persons from standing where amounts were owing for more than three months. Respondents sought to have the regulation concerned set aside, as a violation of political rights under the interim Constitution. The court took the view that as s 9(4) of the LGTA compels any regulation made under s 9 to be in accordance with Schedule 4 of that Act and as the relevant electoral qualification was identical to that contained in Schedule 4, the regulation was susceptible to challenge only if the provisions of Schedule 4, specifically and in identical terms authorizing it, were also unconstitutional. The constitutionality of the LGTA was a matter beyond its jurisdiction and it referred the matter to the Constitutional Court. Pursuant to its deliberations over referral, the court noted that there was a reasonable prospect that the provision would be held to be inconsistent with the political rights provision of the interim Constitution and not to be justifiable under s 33 thereof, the means being disproportionate to the objectives of the provision (at 264H--5B). In Frans v Munisipaliteit van Groot Brakrivier en andere 1998 (2) SA 770 (C), 1997 (3) BCLR 346 (C) the court found that similar regulatory qualifications in the Western Cape did not infringe IC s 24. It held that the decision to terminate the applicant s office was not an administrative one, but followed as a consequence of the operation of law (at 778J--9B, 352F--H). In De Villiers v Munisipaliteit van Beaufort-Wes 1998 (9) BCLR 1060 (C) the court examined the anti-defection provision contained in art 82(1) of the Western Cape electoral regulations, which stipulated that a councillor would cease to hold office where he or she ceases to be a member of the party for which he or she was listed as a party candidate. In casu the relevant party, following disciplinary proceedings against the applicant, had suspended him from holding municipal office for a period of five years, but had allowed him to retain membership of the party. The court gave to the anti-defection clause its literal meaning; that it could be invoked only after the discontinuance of the applicant s membership of his nominating party. To hold otherwise would be to allow for the termination of office of a representative duly elected by means of proportional representation simply by resolution, without terminating party membership (1067G--H). The applicant, as elected representative, was entitled to the rights and privileges that attached to office. To sanction such a dismissal from office would interfere with such rights and privileges, violate the applicant s constitutional rights under FC s 19, and undermine the continuity required for the effective functioning of the council (at 1069E--G). The court, in addition, refused a request to order the removal of the applicant from office (an additional ground for the cessation of office under the regulations), stating that such a power, inasmuch as it interfered with the democratic process and implicated the rights of voters and the applicant, should be exercised cogently and sparingly and only in respect of misconduct which warranted such severe censure (at 1069H--J). 2 Originally peremptory, but amended by the Local Government Transition Amendment Act 12 of 1996 to a discretionary option. See Crowther en andere v Plaaslike Oorgangsraad vir Bethlehem en andere 1997 (8) BCLR 1011 (O), where it appeared that the town clerk did not bring the amendment to the attention of councillors. 5A--8

11 committee quorum) 1 to exercise such powers and functions as the relevant body determines. The executive committee is compelled at least to attempt to exercise these powers and duties on a consensual basis. Where such consensus is unachievable, however, the matter can be decided by a resolution of at least two-thirds of the members of the committee; alternatively, where a majority of the committee decides, a report and recommendation can be made. 8A LOCAL GOVERNMENT 1 But the requirement of proportional representation could not be abandoned. It served to ensure equitable representation of minorities and accommodate diversity. See Louw v Matjila & others 1995 (11) BCLR 1476 (W) at 1482D--E; Crowther en andere v Plaaslike Oorgangsraad vir Bethlehem en andere 1997 (8) BCLR 1011 (O) at 1018A--B; Nasionale Party in die Oos-Kaap en n ander v Port Elizabeth Oorgangsraad en andere 1998 (2) BCLR 141 (SE) at 146D--E; De Villiers v Munisipaliteit van Beaufort-Wes 1998 (9) BCLR 1060 (C) at 1068G. In Louw the applicant sought an order declaring the method of election of the executive committee of the Greater Johannesburg Metropolitan Council and the election result a nullity. The election procedure adopted allowed statutory and non-statutory parties to forward a list of eight names. Each councillor was then to vote for a list of sixteen names, divided between the two components. In effect, the statutory and non-statutory components decided by majority on their eight respective nominations and a list of sixteen was forwarded. Other parties were later invited to submit alternative lists, which none did, and the sixteen councilors listed were elected. The court held that the election procedure did not conform to the requirements of an election by proportional representation, even if a broad view of such requirements were taken. The court gave the order only declaratory effect since the committee had already been sitting for a considerable period. Similarly in Crowther the court ruled the system of election to the committee blatantly majoritarian (at 1019D--H). In Nasionale Party in die Oos-Kaap the court was critical of the broad and flexible requirement of representivity which the Louw court was prepared to apply in characterizing a system of proportional representation (at 146B--C). See also Democratic Party & others v Brakpan Transitional Local Council & others 1999 (6) BCLR 657 (W), where Cloete J read s 16(6) together with FC s 160(8) to require that minority parties should be entitled to representation on the executive committee in direct proportion to their representation on the council itself. 5A--8A

12 8B

13 (b) Proclamations R58 and R59 LOCAL GOVERNMENT E 3, The imprecise drafting of the LGTA and the inevitable play of parochial interests at provincial level (the designated provincial Administrator had enormous powers under the Act) would in time give rise to quite brazen attempts at manipulating the Act to secure narrow political gains. Perhaps to forestall such a turn of events the LGTA was amended in November 1994 by the insertion of a s 16A, which purported to empower the President to amend the Act by proclamation, following approval by select committees responsible for constitutional affairs of the National Assembly and the then Senate. Provision was also made for the possibility of subsequent parliamentary disapproval of the proclamation or elements thereof and the resultant cessation of its effect, without prejudice to the validity of anything done previously under it. A number of proclamations were passed under s 16A. Neither the section not these proclamations elicited any objections at the time. 1 Political shenanigans in the Western Cape 2 resulted in two further proclamations issued by the President. 3 The cumulative effect of these proclamations was to transfer the power of appointment of Provincial Committee members to national government, to render nugatory the appointment by the Western Cape government of two new members, retroactively to invalidate decisions taken by the Provincial Committee to approve politically motivated demarcation proposals, and to prevent the Committee from taking any such demarcation decisions until the full complement of members had been restored by national ministerial appointment. Proclamations R58 and R59 were unsurprisingly challenged by the Western Cape government. 4 The Constitutional Court had much to say regarding constitutional supremacy, the manner and form provisions for passing Bills under the interim Constitution, and the nature and scope of presidential powers of assignment, amendment and adaptation of laws under s 235(8). 5 But of singular importance, and largely subsidiary to the debate over s 235, were interpretations placed by the court on the function of the LGTA. The majority held that the LGTA as the legislative framework for the process of municipal transition was clearly distinguishable from the kind of laws contemplated under s 235 that could be assigned to the provinces. This was so for two broad reasons. First, and in terms of IC s 245(1), the LGTA was the exclusive framework for municipal 1 For example, R54 of 1995, validating transitional councils, established post the dates specified in s 7 of the LGTA; Proclamation R65 of 1995, establishing rural local government; Proclamations R35 and R174 of 1995, dealing with electoral and related issues. 2 Here the relevant MEC had sought to exploit powers under s 3(5) of the LGTA (that members of the Provincial Committee held office at the pleasure of the provincial Executive Council and any vacancy in the Committee was to be filled by the Council) to dismiss a Committee member and appoint members sympathetic to blatant attempts at gerrymandering substructure demarcations. The appointments resulted in the required majority to approve such demarcation efforts, and thereby obviated the need for resolution by the Special Electoral Court. 3 Proclamations R58 of 7 June 1995 and R59 of 8 June Originally under ordinary grounds of administrative review. See Uitvoerende Raad Wes-Kaapse Wetgewer en andere v President van die Republiek van Suid-Afrika en andere 1995 (9) BCLR 1251 (C). 5 Executive Council of the Western Cape Legislature & others v President of the Republic of South Africa & others 1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC). In essence the court held unanimously that Parliament could not, via the device of s 16A, bypass the requisite manner and form provisions of the interim Constitution to amend the LGTA. In addition, a majority of 9 to 2 held that the impugned proclamations could not be validated via s 235, and of the majority only Chaskalson P and Sachs J took the view that the LGTA could be assigned at all under the s 235 mechanism. [REVISION SERVICE 3, 1998] 5A--9

14 CONSTITUTIONAL LAW OF SOUTH AFRICA transition. 1 The provisions of IC Chapter 10, the local government chapter, were concerned with the post-transition framework. For a law to be assigned to a province it had to fall within a provincial functional area specified by IC Schedule 6 and outside the framework of s 126(3)(a)--(e) (matters over which Parliament had legislative pre-eminence). The relevant schedule item read local government, subject to the provisions of Chapter 10. The LGTA thus fell outside the category of laws dealing with Schedule 6 matters. Further, it was pre-eminently a law which could not effectively, or at all, be dealt with by provincial legislation and required national regulation and co-ordination according to uniform norms and standards. It thus fell within the broad category of s 126(3)(a) and (b) matters. 2 Secondly, the operational processes of the LGTA and s 235 were completely at odds with respect to the mechanism by which power was transferred to the provincial authorities. In regard to the former, such power arose ex lege. Under s 235 the President was not obliged to assign the law until requested to do so by the provincial Premier. 3 These conclusions were buttressed by examining the context in which the LGTA was adopted. The LGTA was characterized as the product of a separate negotiation process, and was intended to operate exclusively in its own arena, to manage local government restructuring throughout the country according to a blueprint governing every step of a turn-key operation. 4 (c) The Local Government Transition Act Second Amendment Act 89 of The first fundamental amendment to the LGTA came with the Second Amendment Act 89 of The Act commenced before the holding of the first local elections. The predominant function of the amendment was to create a basic framework for rural local government, hitherto completely absent from the LGTA. The amendment reflected the rather ad hoc approach adopted by the LGTA drafters, who tended to respond to municipal exigency rather than to anticipate it. It was, in addition, a product of the more pronounced disorganization of rural municipal government. A Part VA was introduced into the LGTA. It served to delineate the transitional institutional types of rural municipal government. Three such types are mentioned: district councils (mostly second-tier authorities containing smaller primary level authorities, but also the only tier authority in certain regions), transitional representative councils, and transitional rural councils. Certain areas, the remaining areas, have no primary local government. 5 Under s 9B the relevant provincial authority is afforded powers to complement those under s 10, powers of delimitation, determination of the number of council members and certain election-related powers. In s 9C the function of transitional representative councils becomes apparent. They are to function as rudimentary local structures in rural areas with both elected and nominated members. Their composition is an attempt to achieve a representative balance between defined interest groups, landowners/farmers, farm 1 See Ackermann and O Regan JJ at para 153 and Kriegler J at paras See Ackermann and O Regan JJ at para 153 and Kriegler J at para See Ackermann and O Regan JJ at para 155 and Kriegler J at para Per Kriegler J at para 180. See too Beukes v Krugersdorp Transitional Local Council & another 1996 (3) SA 467 (W) at 476G:... [S]pecial factors attended the transition to fully democratic [local] structures. 5 See generally African National Congress & another v Minister of Local Government and Housing, KwaZulu- Natal, & others 1998 (3) SA 1 (CC), 1998 (4) BCLR 399 (CC) at paras A--10 [REVISION SERVICE 3, 1998]

15 labourers, women and traditional leaders. Rather than possessing innate powers, they are intended to support rural development and service initiatives and to complement democratic rural institutions. Section 9D provides that district councils be composed of members elected or nominated in accordance with the membership proportions of its primary municipal structures. A formula is provided for election or nomination from remaining areas. (d) The Local Government Transition Act Second Amendment Act 97 of 1996 The most significant modification of the LGTA came with the Second Amendment Act 97 of The cumbersome, ill-fitting amendment was intended to embellish the sparse provisions covering the post-electoral, interim phase. A new Part VIA was inserted specifically to deal with various facets of this phase. 1 (i) Metropolitan structures and powers LOCAL GOVERNMENT 11 The powers and functions of metropolitan structures are detailed in s 10C, read with Schedules 2 and 2A. The structures were retitled metropolitan councils and metropolitan local councils (formerly substructures). Features of the municipal developmental and redistributive role were inserted together with rather bald commitments to the principles of co-operative government. These commitments served to tie the expression of the municipal role in the LGTA more closely to the vision of the final Constitution, then drafted but not yet promulgated, 2 the burgeoning policy vision encapsulated in the local government White Paper process, 3 and legislative efforts at adumbrating the developmental duties of government. 4 Section 10C(1) outlines three principle objects of metropolitan councils: promoting integrated economic development, equitable redistribution of resources, and equitable delivery of services. While these principled commitments are doubtless laudable, they are in effect mere statements of intent. There is no further attempt in the revised LGTA to give meaningful expression to them. What are termed the powers and duties of metropolitan councils are assembled in Schedule 2. The powers and duties there stated are both more numerous and more detailed than those originally lodged under the former Schedule 2. Item 1 restates the authorization afforded metropolitan councils to determine and claim equitable contributions from metropolitan local councils for specific prescribed purposes. 5 Section 10C(5) requires prior consultation with the relevant metropolitan local councils or councils and provides a rudimentary procedure where the local council is aggrieved by the determination. 1 Other amendments were introduced by the Second Amendment Act, the most noteworthy being the repeal of s 11, dealing with Local Government Demarcation Boards and the substitution for the term Administrator of the term MEC ---- the member of the provincial executive council responsible for local government in the province. 2 A comparison between the provisions of the Second Amendment Act and those of the final Constitution is dealt with more fully below, 5A.7(a). 3 At the time of the enactment of the Second Amendment Act the Department of Constitutional Development had already published two lengthy and overlapping policy blueprints ---- a discussion document, Towards a White Paper on Local Government in South Africa and a Green Paper on Local Government. 4 Particularly in the Development Facilitation Act 67 of Such powers had been already afforded the Johannesburg Transitional Metropolitan Council under item 23(c) of Premier s Proclamation 35 of See Fedsure Life Assurance Limited & others v Greater Johannesburg Transitional Metropolitan Council & others 1997 (5) BCLR 657 (W). [REVISION SERVICE 3, 1998] 5A--11

16 Item 3 affords metropolitan councils the power to formulate and implement an integrated development plan defined somewhat circuitously in s 10B as a plan aimed at integrated development and management of the jurisdictional area of the council, compiled in accordance with the principles and land development objectives contained in the Development Facilitation Act. The plan is to incorporate land use, transport and infrastructure planning together with integrated development planning. Municipal water supply, sewerage purification and disposal, electricity supply, roads and transport functions, and other powers and duties are thereafter recounted in some detail. The emphasis is on bulk service delivery, in accordance with the large jurisdictional area of the metropolitan councils. In s 10C and in addition to the powers and duties already mentioned, metropolitan councils are afforded powers and duties delegated or assigned them by other spheres of government, with the proviso that no power or duty be so delegated or assigned without the provision of sufficient resources for its exercise. This provision, which was intended to prevent the imposition of what are termed unfunded mandates, has been noticeably underplayed by national and provincial governments that routinely burden the local sphere with obligations, without providing the resources to enable fulfilment. Metropolitan local councils powers and duties are to be found in Schedule 2A. There is considerable overlap with the powers and duties of the metropolitan councils, but the scale is reduced, the service delivery functions are localized. Also present is the power to formulate a local integrated development plan with a localized focus. Such plans are co-ordinated and monitored by the metro council. Present in s 10C(4) are provisions allowing for the reallocation of powers and duties between the metropolitan council and its local councils in accordance with the principles of practicability, technological advisability, and economic and financial efficiency. Section 10C(8) read with Schedule 8 provides for a dispute resolution procedure where the allocation of powers and duties is contested. Section 10C(6) permits the metropolitan council, at the request of the relevant MEC and under such conditions as the MEC may prescribe, to intervene and assume responsibility for conferred or imposed power or duty which a metropolitan local council can or does not exercise. This intervention power mimics the broader powers of intrusion into local government affairs, afforded provincial government under the final Constitution. 1 (ii) Non-metropolitan powers and duties CONSTITUTIONAL LAW OF SOUTH AFRICA 12 Notwithstanding the 1995 Second Amendment Act, detailed above, the conception of non-metropolitan local government structures and powers, particularly the rural component, has been far less articulate than that of metropolitan local government. This is both a reflection of the enormity of the problem of restructuring non-metropolitan municipalities and an incipient metropolitan bias which is undeniably a feature, not only of the LGTA but the local government policy process as a whole. Nevertheless, the institutional models emerging from the first election are sketched in s 10D. District councils, local councils and rural councils are given those powers and duties conferred on them under the s 10 provincial proclamation that gave rise to their existence. In reality only the district and local councils have any meaningful powers and duties. Representative councils, a further rural structure, have no endogenous powers and duties. District councils, as the second-tier non-metropolitan 1 See s 139, discussed below, 5A.7(b)(ii). 5A--12 [REVISION SERVICE 3, 1998]