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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT
15/99
THE EXECUTIVE COUNCIL OF THE PROVINCE OF THE
WESTERN CAPE Applicant
versus
THE
MINISTER FOR PROVINCIAL AFFAIRS
AND CONSTITUTIONAL DEVELOPMENT
OF THE REPUBLIC OF SOUTH AFRICA First Respondent
THE MUNICIPAL DEMARCATION BOARD Second
Respondent
and
Case CCT 18/99
THE EXECUTIVE COUNCIL OF KWAZULU-NATAL Applicant
versus
THE
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA First Respondent
THE MINISTER
FOR PROVINCIAL AFFAIRS
AND CONSTITUTIONAL DEVELOPMENT Second Respondent
THE MUNICIPAL DEMARCATION BOARD Third Respondent
Heard on : 24 - 25 August 1999
Decided on : 15 October 1999
JUDGMENT
NGCOBO
J:
INTRODUCTION
[1] These two cases raise
important questions relating to the authority to establish municipalities and
their internal structures.
They arise out of a dispute between the governments
of the Western Cape and KwaZulu-Natal, on the one hand, and the national
government
on the other. The dispute concerns the constitutionality of certain
provisions of the Local Government: Municipal Structures Act,
No 117 of 1998
(“the Structures Act”). The Structures Act became law on 11
December 1998, but only came into operation
on 1 February 1999. It is the
second of the three statutes envisaged to transform local government, and
establishes municipalities
throughout the
country.[1] The first local
government elections in respect of these new municipalities are scheduled for no
later than 1 November 2000. There
is accordingly some urgency in the
matter.
[2] The Western Cape government instituted proceedings in this
Court on 26 April 1999, on an urgent basis. In its notice of motion
it
challenged the constitutional validity of sections 5(1) and (2), 6(2), 13(2), 40
to 80, 82 and 91(1). It also originally sought
urgent interim relief, alleging,
amongst other things, that if it were obliged to comply with the disputed
provisions of the Structures
Act, notwithstanding the challenge to their
constitutionality, enormous expense and adverse consequences would ensue should
the challenge
prove to be successful.
[3] The Minister for Provincial
Affairs and Constitutional Development of the Republic of South Africa, the
first respondent,[2] gave notice that
he would oppose the application, whilst the Municipal Demarcation Board, the
second respondent, informed the Registrar
that it would abide by the decision of
the Court. Directions were given by the President of the Court fixing times for
the lodging
of affidavits, and the application for interim relief was set down
for hearing. The claim for interim relief was subsequently withdrawn
by the
Western Cape government with the consent of the first respondent, and the matter
was dealt with in the ordinary way as an
opposed application.
[4] The
Western Cape government subsequently filed a notice of intention to amend, in
terms of which it extended the challenge to
include sections 4 to 13, 16(1)(a)
and 93(2). No objection was raised to this notice. At the commencement of the
hearing, Mr Heunis,
who, together with Mr Schippers, appeared on behalf of the
Western Cape government, sought to extend the challenge further to include
sections 18(4), 29(1), 30(5) and 36 to 39. Mr Trengove, who, together with Mr
Chaskalson, appeared on behalf of the national government,
did not object to
this amendment either. In these circumstances, the amendments must be
allowed.
[5] The KwaZulu-Natal government instituted its proceedings by
way of notice of motion during May 1999. It sought an order declaring
sections
4, 5, 7 to 11, 13, 20, 24(1), 32, 33 and 93(2) of the Structures Act to be
inconsistent with the Constitution and also that
its application be consolidated
with or heard simultaneously with the Western Cape application. The President
of the Republic of
South Africa, the Minister for Provincial Affairs and
Constitutional Development and the Demarcation Board were cited as the first,
second and third respondents respectively.
[6] As the disputes involved
in these cases raise similar issues concerning the constitutionality of the
provisions of the Structures
Act, the President of the Court issued directions
that the cases be heard together. It will be convenient also to consider them
together in this judgment.
[7] In this judgment, the applicants will be
referred to as the Western Cape or KwaZulu-Natal, as the case may be, or jointly
as
the provinces. The respondents will be referred to as the national
government (since the Demarcation Board did not oppose the
application).
[8] Since these cases were argued, the Cape of Good Hope
High Court has handed down a judgment in which it deals with some of the
issues
which were argued before this
Court.[3] I have considered that
judgment. As will appear from this judgment, I do not agree with some of the
conclusions reached by that
Court.
JURISDICTION
[9] In
approaching this Court directly, the provinces asserted jurisdiction in terms of
section 167(4)(a) of the Constitution, alleging
that each matter “concerns
a dispute between organs of state in the national and provincial sphere of
government relating to
the constitutional status, powers or functions of organs
of state in the national and provincial sphere”. In the alternative,
KwaZulu-Natal asserted jurisdiction in terms of section 167(6)(a) read with Rule
17 of this Court which amongst other things allows
a party to approach this
Court directly when the interests of justice so require. The national
government neither challenged nor
conceded jurisdiction on the bases
asserted.
[10] Jurisdiction in terms of section 167(4)(a) raises a
number of questions including: first, what characterises the dispute envisaged
in the section? Is it the identity of the parties to the dispute, or the subject
matter of the dispute; second, is the dispute envisaged
in the section the same
dispute as contemplated in section 41(3) of the
Constitution;[4] third, if the present
dispute falls within the purview of section 41(3), was there compliance with
that section? The present dispute
concerns the constitutionality of certain
provisions of the Structures Act. The constitutionality of these provisions
could have
been raised by any interested person in the High Court. Indeed, the
Cape Metropolitan Council challenged some of these provisions
in the Cape of
Good Hope High Court. Does the fact that the challenge to the validity of the
Structures Act was brought in the
present cases by the provincial governments
and not a municipal government mean that only this Court has jurisdiction to
decide them?
In addition, in the papers of the Western Cape application, the
national government has disputed the assertion that there was compliance
with
section 41(3). These questions were not argued, understandably so, because the
right of the parties to come directly to this
Court was not put in issue. It
was accepted by all the parties that these cases raised important constitutional
issues which called
for decision by this Court, and that even if section
167(4)(a) is not applicable, the cases should be dealt with by way of direct
access in terms of Rule 17. For the reasons set out below, I am satisfied that
this is so, and that these applications should be
decided by this
Court.
[11] The issues raised here are of considerable national
importance. The dispute relates to the authority to establish municipalities
and their internal structures in all provinces. In terms of the Structures Act,
the local government elections must be held no later
than 1 November 2000.
Prior to that date a considerable amount of preparatory work must be undertaken,
including the demarcation
of boundaries and the establishment of municipalities.
The issues raised in these cases are real and not abstract. They need to
be
resolved as a matter of urgency. The issues here relate to constitutional
interpretation and involve no dispute of fact. In
these circumstances any delay
in resolving the present dispute is likely to prejudice the public interest and
disrupt the local government
elections. The interests of justice, therefore,
require that leave to come directly to this Court be granted.
THE
CONTROLLING PROVISIONS OF THE CONSTITUTION
[12] Chapter 7 of the
Constitution deals with local government. It makes provision for the
establishment of municipalities “for
the whole of the territory of the
Republic”.[5] The objects of
local government are, amongst other things, “to provide democratic and
accountable government for local
communities”;[6] “to
ensure the provision of services to communities in a sustainable
manner”;[7] and “to
promote social and economic
development”.[8] The executive
and legislative authority of municipalities to govern local government affairs
of their communities are subject to
national and provincial
legislation.[9] However, “[t]he
national or a provincial government may not compromise or impede” the
ability or right of the municipalities
to exercise their powers or perform their
functions.1[0] The national and
provincial governments are moreover required to “support and strengthen
the capacity of municipalities to
manage their own affairs, to exercise their
powers and to perform their
functions”.1[1]
[13] Section
155 deals with the establishment of
municipalities.1[2] It makes
provision for three different categories of municipality, namely, category A,
self-standing municipalities, category B,
municipalities that form part of a
comprehensive co-ordinating structure, and category C, municipalities that
perform co-ordinating
functions.1[3]
In addition, it also makes provision for national legislation to define
different types of municipality that may be established within
each such
category.1[4] It sets out a scheme
for the allocation of powers and functions between the national government,
provincial government and the Demarcation
Board in relation to the establishment
of municipalities. In terms of this scheme: (a) national legislation must
establish criteria
for determining which category of municipality should be
established in a particular
area,1[5] must define the types of
municipality that may be established within each such
category,1[6] must establish
criteria and procedures for the determination of municipal boundaries by an
independent authority (which is the Demarcation
Board),1[7] and must make provision
for the division of powers and functions between municipalities with shared
powers;1[8] (b) the Demarcation
Board must determine the municipal boundaries in accordance with the criteria
and procedures established by such
national
legislation;1[9] and (c) provincial
legislation must determine which types of municipality should be established in
its province.2[0] In addition,
provincial governments “must establish municipalities” in their
provinces “in a manner consistent
with the legislation enacted in terms of
subsections (2) and (3)” of section
155.2[1]
[14] In terms of
section 156, municipalities have executive authority in respect of matters
listed in part B of Schedule 4 and part
B of Schedule 5 and “any other
matter assigned to [them] by national or provincial
legislation”.2[2] They are
empowered to make “by-laws for the effective administration of the
matters” which they have the right to administer.
However, subject to
section 151(4), a by-law which is in conflict with national or provincial
legislation is
invalid.2[3]
[15] The
remaining provisions deal with the composition and election of municipal
councils,2[4] membership of
municipal councils,2[5] their term
of office,2[6] and internal
procedures.2[7] Municipal councils
may elect an executive committee or other committee, but this power is subject
to national legislation.2[8]
National legislation may provide criteria for determining the size of a
municipality, whether municipal councils may elect an executive
committee or any
other committee, and the size of an executive committee or any other committee
of a municipal council.2[9]
Municipal councils have the power to make by-laws which prescribe rules and
orders for their internal arrangements, business and
proceedings, and the
establishment, composition, procedures, powers and functions of their
committees.3[0] Finally, in terms
of section 164 national or provincial legislation may deal with any matter
relating to local government not dealt
with in the
Constitution.3[1]
THE
LOCAL GOVERNMENT: MUNICIPAL STRUCTURES ACT
[16] The Structures Act
represents the final phase in the long and extremely complex process of
transforming racially determined
local government into democratically determined
local government. The process had its genesis in the Local Government
Transition
Act, 209 of 1993 (“the Transition Act”). This statute
envisaged three phases for the
transition.3[2] It commenced with
the pre-interim phase, which ran from 2 February 1994 until the first democratic
local government elections;3[3] the
interim phase, which commenced with the first democratic local government
elections, and which will run until “the implementation
of final
arrangements to be enacted by a competent legislative authority”; and the
final phase, which will commence with the
implementation of the provisions of
the Structures Act.
[17] Mr Olver, the Deputy Director General for Local
Government, who deposed to the answering affidavit on behalf of the national
government in both applications, deals with the history of local government
which, like so much of our history, was characterised
by racial discrimination
and segregation.3[4] Those
divisions have left deep scars on our society, and as Mr Olver points out, vast
disparities still exist in different local
government areas in relation to
service infrastructure, tax bases and institutional capacity. That was not and
could not be disputed
by the provinces.
[18] This history is referred to
in the preamble to the Structures Act, which records that:
“. . . past policies have bequeathed a legacy of massive poverty, gross inequalities in municipal services, and disrupted spatial, social and economic environments in which our people continue to live and work . . . ”
[19] The preamble then goes on to set out a vision
for local government:
“. . . in which municipalities fulfil their constitutional obligations to ensure sustainable, effective and efficient municipal services, promote social and economic development, [and] encourage a safe and healthy environment . . .”
[20] The Structures Act provides a detailed
framework for the final phase of the transition to democratic local government,
which,
according to the preamble, is “to be transformed in line with the
vision of democratic and developmental local government”.
Mr Olver
explains why the various provisions of the Structures Act are considered by the
government to be the best way of dealing
with this. That, however, is not an
issue before this Court. The means chosen must be consistent with the
requirements of the Constitution.
If they are, they are valid. If they are
not, they are invalid, even if they are an effective way of dealing with the
problems
that exist.
[21] Broadly speaking, the Structures Act deals
with the definition and creation of municipalities. It establishes the criteria
for determining the different categories of
municipality;3[5] assigns the
application of these criteria;3[6]
defines the types of municipalities that may be established within the different
categories of municipality;3[7]
provides guidelines for selecting types of
municipalities;3[8] makes provision
for the establishment of
municipalities;3[9] makes provision
for internal structures of municipalities, including various committees that may
be established;4[0] sets out the
functions and powers of
municipalities;4[1] and deals with
other miscellaneous matters such as transitional arrangements and
regulations.4[2]
THE
CONSTITUTIONAL CHALLENGE
[22] The constitutional challenges can be
divided into two main groups. First, it was contended that the provisions of
the Structures
Act encroach on the powers of the provinces. This challenge
concerned in particular the provincial power to establish municipalities
in
terms of section 155(6) of the Constitution. Second, it was contended that the
Structures Act encroaches on the constitutional
powers of municipalities. This
challenge related in particular to a municipal council’s power to elect
executive committees
or other committees in violation of section 160(1)(c) of
the Constitution and their power to regulate their internal affairs in terms
of
section 160(6) of the Constitution.
[23] In regard to both these
complaints, the national government contended that although the Constitution
allocates powers to provinces
and municipalities in Chapter 7, it does not
deprive Parliament of legislating in relation to the same matters. The broad
contention
advanced by the national government was that, in terms of section
44(1)(a)(ii) of the Constitution, Parliament has legislative capacity
in all
fields other than the exclusive powers referred to in Schedule 5. The powers
vested in the provinces and municipalities in
Chapter 7 of the Constitution are
accordingly concurrent with those of the national government, so it was argued.
This broad contention
shall be considered before I turn to the specific
challenges themselves.
THE CONCURRENCY ARGUMENT
[24] In
order to set the stage on which the constitutional challenges will be
considered, it is necessary first to consider the contention
by the national
government that in terms of section 44(1)(a)(ii) it has, except for matters
falling within Schedule 5, concurrent
powers with the provinces and
municipalities.
[25] The legislative power vested in Parliament by
section 44(1)(a)(ii) “to pass legislation with regard to any matter . .
.
excluding, subject to subsection (2), a matter within a functional area listed
in Schedule 5” must be exercised, in terms
of subsection (4), “in
accordance with, and within the limits of, the Constitution”. Thus, where
on a proper construction
of the Constitution such limits exist, they constrain
the residual power of Parliament.
[26] There are a number of such
constraints in the Constitution. The most obvious example is the power to pass
or amend a provincial
constitution which, on a proper construction of section
104(1) of the Constitution, is clearly an exclusive provincial competence.
Other provisions of the Constitution also place constraints on the powers of
Parliament. A few examples are: the provisions of
Chapter
2,4[3] the “manner and
form” procedures prescribed by the Constitution for the passing of
legislation,4[4] the entrenchment of
the judicial power in the courts by Chapter 8, the protection given to state
institutions protecting democracy
by Chapter 9, legislation sanctioning the
withdrawal of money from a provincial revenue fund which, apart from the
provisions of
the Constitution, is an exclusive provincial
competence,4[5] and the fiscal
powers of provinces and municipalities which in terms of Chapter 13 are subject
to regulation, but not repeal, by
Parliament.
[27] The question then is
whether, on a proper construction of Chapter 7 of the Constitution dealing with
local government, the provinces
are correct in contending that there are certain
constraints upon Parliament’s powers. If regard is had to the plan for
local
government set out in Chapter 7, we see that there is indeed a
comprehensive scheme set out in the Chapter for the allocation of
powers between
the national, provincial and local levels of government. That is apparent not
only from the way the Chapter is drafted,
with the allocation of specific powers
and functions to different spheres of government, but also from the provisions
of section
164 that:
“Any matter concerning local government not dealt with in the Constitution may be prescribed by national legislation or by provincial legislation within the framework of national legislation.”
[28] The
submission that Parliament has concurrent power with the other spheres of
government in respect of all powers vested in
such spheres by Chapter 7 is
inconsistent with the language of the provisions of Chapter 7 itself, and cannot
be reconciled with
the terms of section 164. If Parliament indeed had full
residual power in respect of all matters referred to in Chapter 7, there
would
have been no need for the reference in section 164 to “any matter not
dealt with in the Constitution”. The only
explanation that Mr Trengove
could offer for this conundrum was that the provision was necessary because
national legislation includes
subordinate legislation. But this is no answer.
If subordinate legislation was contemplated one would expect that to have been
referred to specifically. In any event, if Parliament has residual powers in
respect of all matters dealt with in Chapter 7, that
would include the power to
pass laws dealing with such matters and to sanction the making of subordinate
legislation if that should
be necessary. The power to sanction subordinate
legislation is an incident of the legislative power, and does not require a
provision
such as section 164. It is necessary, therefore, to consider the
allocation of powers made in Chapter 7 and to decide whether, on
a proper
construction of each of those provisions, they constrain Parliament in the
manner contended for by the provinces.
[29] Municipalities have the
fiscal and budgetary powers vested in them by Chapter 13 of the Constitution,
and a general power to
“govern” local government affairs. This
general power is “subject to national and provincial
legislation”.4[6] The powers
and functions of municipalities are set out in section 156 but it is clear from
sections 155(7) and 151(3) that these
powers are subject to supervision by
national and provincial governments, and that national and provincial
legislation has precedence
over municipal legislation. The powers of
municipalities must, however, be respected by the national and provincial
governments which
may not use their powers to “compromise or impede a
municipality’s ability or right to exercise its powers or perform
its functions” (emphasis
supplied).4[7] There is also a duty
on national and provincial governments “by legislative and other
measures” to support and strengthen
the capacity of municipalities to
manage their own affairs4[8] and an
obligation imposed by section 41(1)(g) of the Constitution on all spheres of
government to “exercise their powers and
perform their functions in a
manner that does not encroach on the geographical, functional or institutional
integrity of government
in another sphere”. The Constitution therefore
protects the role of local government, and places certain constraints upon the
powers of Parliament to interfere with local government decisions. It is
neither necessary nor desirable to attempt to define these
constraints in any
detail. It is sufficient to say that the constraints exist, and if an Act of
Parliament is inconsistent with
such constraints it would to that extent be
invalid.4[9]
[30] Chapter 7
of the Constitution also allocates powers and functions to national and
provincial governments in relation to the
establishment and supervision of local
governments. These provisions also place constraints upon the power that
Parliament has
under section 44. For example, the provision of section 155(5)
that “[p]rovincial legislation must determine the different
types of
municipality to be established in the province” is the allocation of a
specific power to the provincial level of government.
National legislation
inconsistent with such provisions would also be inconsistent with the
Constitution and to that extent invalid.
[31] It is in this context that
the various arguments put forward by the provinces have to be
considered.
DISCUSSION OF THE CHALLENGES
[32] It will be
convenient to consider the constitutional challenges to the Structures Act under
the following headings: (a) establishment
powers; (b) encroachment on municipal
powers; (c) challenge to Chapter 4 and related provisions; and (e) supremacy
clause.
A. ESTABLISHMENT POWERS
[33] Under this heading I
consider the constitutional validity of sections 4, 5, 6(2), 11, 12 and
13.
Sections 4 and 5
[34] Sections 4 and 5 of the Structures
Act provide:
“Application of criteria
4. (1) The Minister must apply the criteria set out in section 2 and determine whether an area in terms of the criteria must have a single category A municipality or whether it must have municipalities of both category C and category B.
(2) The Minister may determine that an area must have a category A municipality only after consultation with the MEC for local government in the province concerned, the Demarcation Board, SALGA and organised local government in the province.
Declaration of metropolitan areas
5. (1) If the Minister determines that an area must have a single category A municipality, the Minister, by notice in the Government Gazette, must declare that area as a metropolitan area.
(2) When declaring an area as a metropolitan area the Minister designates the area by identifying the nodal points of the area but must leave the determination of the outer boundaries to the Demarcation Board.”
[35] The principal
issue for determination in this regard is the location of the power to apply the
criteria for determining the
categories of municipality. The relevant provision
of the Constitution is section 155, which deals with the establishment of
municipalities.
That section provides:
“Establishment of Municipalities
155. (1) There are the following categories of municipality:
(a) Category A: A municipality that has exclusive municipal executive and legislative authority in its area.
(b) Category B: A municipality that shares municipal executive and legislative authority in its area with a category C municipality within whose area it falls.
(c) Category C: A municipality that has municipal executive and legislative authority in an area that includes more than one municipality.
(2) National legislation must define the different types of municipality that may be established within each category.
(3) National legislation must -
(a) establish the criteria for determining when an area should have a single category A municipality or when it should have municipalities of both category B and category C;
(b) establish criteria and procedures for the determination of municipal boundaries by an independent authority; and
(c) subject to section 229, make provision for an appropriate division of powers and functions between municipalities when an area has municipalities of both category B and category C. A division of powers and functions between a category B municipality and a category C municipality may differ from the division of powers and functions between another category B municipality and that category C municipality.
(4) The legislation referred to in subsection (3) must take into account the need to provide municipal services in an equitable and sustainable manner.
(5) Provincial legislation must determine the different types of municipality to be established in the province.
(6) Each provincial government must establish municipalities in its province in a manner consistent with the legislation enacted in terms of subsections (2) and (3) and, by legislative or other measures, must -
(a) provide for the monitoring and support of local government in the province; and
(b) promote the development of local government capacity to enable municipalities to perform their functions and manage their own affairs.
(6A) . . . .
(7) The national government, subject to section 44, and the provincial governments have the legislative and executive authority to see to the effective performance by municipalities of their functions in respect of matters listed in Schedules 4 and 5, by regulating the exercise by municipalities of their executive authority referred to in section 156(1).”
[36] Mr Dickson,
who, together with Ms Gabriel, appeared for KwaZulu-Natal, led the attack in
this regard. He argued in support
of the contention made in the founding
affidavit that the power to apply the criteria vested exclusively in the
provincial governments.
This power, he maintained, is contained in section
155(6) which gives the provincial governments the power to
“establish”
municipalities. He submitted that the power to
establish municipalities encompasses the application of the criteria. In the
course
of oral argument, however, he made two concessions: first, that the power
is not expressly provided for, although he nevertheless
maintained that it
arises by implication; and second, that the power comprehended in section 155(6)
is an executive power.
[37] In its founding affidavit, a similar
contention was made by the Western Cape, which also contended that section 5 of
the Structures
Act was inconsistent with section 155(3)(b) of the Constitution.
This section requires municipal boundaries to be determined by
an independent
authority and so, it was contended, the empowerment of the national government
to apply the criteria to determine
which “areas” should have
category A municipalities has the effect of usurping a function of the
demarcation of the municipal
boundaries by the Demarcation Board. In its
argument the Western Cape supported both contentions, submitting in respect of
the second
contention that the identification of nodal points of an area forms
part of the process of demarcation and that the criteria contained
in section 2
of the Structures Act should accordingly be applied by the Demarcation Board and
not the Minister.
[38] Mr Trengove contended that the Constitution is
silent on where the power to apply the criteria resides. This being the case,
he submitted, the matter falls to be governed by section 164 of the
Constitution.5[0]
[39] The
contention by KwaZulu-Natal is premised on the proposition that section 155(6)
confers legislative power on the provinces
to establish municipalities. This
contention cannot be upheld. Whenever the framers of the Constitution intended
to confer legislative
powers, they said so expressly. Chapter 7 of the
Constitution follows this pattern. Although the words “national
government”
and “provincial government” are used loosely in
Chapter 7 to refer both to the legislature and to the
executive,5[1] when a legislative
power is contemplated, then consistently with the pattern of the Constitution,
it is expressly stated. Thus,
section 154(1) refers to “by legislative
and other measures”; 154(2), “national or provincial
legislation”;
155(1), “executive and legislative authority”;
155(2), “national legislation”; 155(3) and (4), “national
legislation”; 155(5), “provincial legislation”; the second
part of 155(6), “by legislative or other measures”;
155(7),
“legislative and executive authority”; 156(3), “national or
provincial legislation”; 157(1)(b), “national
legislation”;
157(2) and (6), “national legislation”; 158(1)(a), “national
legislation”; 158(1)(b),
“national legislation”; 158(2),
“national legislation”; 159(1) and (2), “national
legislation”;
160(1)(c), “national legislation”; 160(5),
“national legislation”; 160(8)(c), “national
legislation”;
161, “provincial legislation within the framework of
national legislation”; and 164, “by national legislation or
by
provincial legislation within the framework of national
legislation”.
[40] In my view, if the framers of the Constitution
had intended to confer legislative powers on the provinces to establish
municipalities,
they would have said so expressly as they did in other
provisions of the Constitution conferring legislative powers.
[41] In
the course of his argument, Mr Dickson conceded that section 155(6) does not
expressly confer the legislative powers contended
for. He nevertheless
submitted that that power arose by implication. Having regard to the pattern
used in the Constitution in conferring
legislative power, it would require a
clear implication that this was intended. Such implication does not arise.
Indeed, there
are considerations which militate against such
implication.
[42] First, the initial part of section 155(6) states that
provincial governments “must establish” municipalities. This
is an
executive act. It has to be done in a manner consistent with the national
legislation referred to in subsections (2) and (3)
of section 155. There is no
reference to provincial legislation in this context. This must be contrasted
with the second part of
section 155(6), which deals with matters which have to
be carried out by provincial governments by “legislative or other
measures”.
The second part of section 155(6), therefore, confers
legislative powers on the provinces in relation to the matters referred to
therein.
[43] Second, the legislative history of section 155(6)
refutes any suggestion that it confers legislative powers. The unamended
text
of section 155(2)(a) of the Constitution, as it was first presented for
certification, read as follows:
“(1) National legislation must determine -
(a) the different categories of municipality that may be established;
(b) appropriate fiscal powers and functions for each category; and
(c) procedures and criteria for the demarcation of municipal boundaries by an independent authority.
(2) Provincial government, by legislative or other measures, must -
(a) establish municipalities;
(b) provide for the monitoring and support of local government in the province; and
(c) promote the development of local government capacity to perform its functions and its ability to manage its own affairs.
. . .”
In the certification
proceedings5[2] this Court held that
“NT 155(2)(a) . . . afforded [provincial governments] the legislative
competence to ‘establish municipalities’”.
In its amended
form, section 155(6) now limits the legislative powers of the provincial
governments to monitoring and providing
support to local government, and
promoting the development of local government. This legislative history
supports the conclusion
that section 155(6) intended to confer only executive
powers on the provinces in relation to the establishment of municipalities.
It
neither confers legislative power expressly nor by implication.
[44]
The next question for determination is whether the Constitution is silent on the
issue of the application of the criteria,
as contended by Mr Trengove. A
provision in a Constitution must be construed purposively and in the light of
the constitutional
context in which it
occurs.5[3] Our history, too, may
not be ignored in that process. Local government is the closest government can
get to the people. That is
where the delivery must be seen to be taking place.
The challenge facing the government at the local government level is
profound.5[4] Our history has
produced a rigid pattern of racial division in society. Black residential areas
were, and still are, characterised
by a lack of amenities, physical
infrastructure and services. Where these exist, they are of inferior quality
compared to those
enjoyed in historically white residential
areas.5[5] Local government was
equally divided along racial
lines.5[6] In recognition of this
history, the negotiations relating to the transformation of local government
were conducted separately from
the negotiations regarding the transition of
power at the national and provincial
levels.5[7] These negotiations gave
birth to the Local Government Transition Act, 209 of 1993, which was intended to
govern the transition of
local government from a racially determined to a
democratically elected local
government.5[8] In the light of
this history, it is unlikely that the question of the application of the
criteria, which is foundational to the
establishment of municipalities and the
transition to the new order, would have been left unattended.
[45] With that prelude, I now turn to consider the argument advanced by
Mr Trengove. In my view, a decision on this issue turns
ultimately on the
proper construction of sections 155(3)(a) and (b) read with section 155(6). In
order to determine the question
presented here, it is necessary to construe
these provisions in the context of the constitutional scheme of the allocation
of powers
and functions of the national government, provincial government and
the Demarcation Board in relation to the establishment of municipalities.
In
this respect there is, in my view, a fundamental flaw in the line of reasoning
pursued both by counsel for KwaZulu-Natal and
the national government, as
neither takes sufficient account of the fact that the provisions of section
155(3)(a) must be read together
with subsection (3)(b).
[46] The
scheme of the allocation of powers and functions which emerges from section 155
of the Constitution is the following: (a)
the role of the national government is
limited to establishing criteria for determining different categories of
municipality,5[9] establishing
criteria and procedures for determining municipal
boundaries,6[0] defining different
types of municipalities that may be established within each
category,6[1] and making provision
for how powers and functions are to be divided between municipalities with
shared powers;6[2] (b) the power to
determine municipal boundaries vests solely in the Demarcation
Board;6[3] and (c) the role of the
provincial government is limited to determining the types of municipalities that
may be established within
the
province,6[4] and establishing
municipalities “in a manner consistent with the [national] legislation
enacted in terms of subsections (2)
and
(3)”.6[5] The question that
arises is where the power to apply the criteria to establish categories of
municipality naturally falls in this
constitutional scheme of powers and
functions. In my view, the answer to this question must be sought in the
functions required
to be performed under this scheme.
[47] The authority
to determine municipal boundaries vests solely in the Demarcation Board.
Municipal boundaries include boundaries
of different categories of municipality.
There is nothing in subsection (3)(b) to suggest that the boundaries referred to
therein
exclude the boundaries of categories of municipality. Indeed, Mr
Trengove accepted that that is so. In fulfilling its constitutional
obligation
to determine the boundaries of the categories of municipality, the Demarcation
Board must not only apply the criteria
for determining municipal boundaries, but
it must, of necessity, apply the criteria for determining when an area should
have a particular
category of municipality. Such necessity arises from the fact
that, in the context of Chapter 7, the determination of boundaries
cannot take
place in isolation; it can only occur in relation to the boundaries of a
specific category (or categories) of municipality.
Without determining the
category of municipality, the determination of the boundaries becomes a
meaningless exercise. In this constitutional
scheme of functions, the task of
applying the criteria for determining when an area should have a particular
category of municipality
naturally falls on the Demarcation Board. In this
sense, subsections (3)(a) and (b) must be read together. The Demarcation Board
must determine municipal boundaries in accordance with the criteria and the
procedure established for that purpose in the light of
the criteria for
determining the categories of municipality.
[48] The view expressed by
O’Regan J in her judgment rests on the premise that section 155(3)(a) does
not expressly say who
must apply the criteria. That is so if section 155(3)(a)
is viewed in isolation. I do not agree with the conclusion that because
section
155(3)(a) does not say so expressly, section 164 must, therefore, apply.
Section 155(3)(a) cannot be construed in isolation
but must be construed
purposively and in the context in which it occurs. It occurs in the context of
the scheme of the allocation
of powers and functions in relation to the
establishment of municipalities set out in section 155, and it is that context
which must
inform its construction. In particular, it must be construed in the
light of section 155(3)(b) and the functions that are required
to be performed
under section 155(3)(b). Once it is accepted that the Demarcation Board cannot
determine the boundaries without
applying the criteria contemplated in section
155(3)(a) and, therefore, that the authority to determine boundaries necessarily
entails
the application of those criteria, the conclusion that the Demarcation
Board is the proper authority under the Constitution to apply
the criteria
contemplated in section 155(3)(a) is unavoidable. This construction of sections
155(3)(a) and (b) accords with the
scheme of the allocation of powers and
functions in section 155.
[49] Nor do I agree with the view that the
criteria contemplated in section 155(3)(a) are intended only to determine
whether a category
A municipality should exist or not and that they have no
application to the determination of when category B or C municipalities
must
exist. This construction, in my view, is inconsistent with the plain language
of section 155(3)(a) and the context in which
it occurs. Apart from this, the
determination of an area where a category A municipality should exist does not
necessarily lead
to a determination of where a category C municipality should
be, and how many category B municipalities should be established within
such
category C municipalities. The Demarcation Board still has to determine how
many category C municipalities have to be established,
and how many category B
municipalities have to be established within each category C municipality.
These are questions that the
Demarcation Board has to determine by applying the
criteria specified in the Demarcation Act read with the Structures Act. It is
only by applying these criteria that the Demarcation Board can determine the
relevant areas, and in practice, these questions are
answered in the process of,
and are inextricably linked to, a decision as to where the outer boundaries
should be of the category
C municipalities and the category B municipalities
within them. If the Demarcation Board does not have the authority to apply the
criteria for determining where the category A municipalities must be, it must
follow that it has no authority to apply the criteria
to determine where the
category C municipalities must be and where the various category B
municipalities must be.
[50] The purpose of section 155(3)(b) may well
have been to guard against political interference in the process of creating new
municipalities,
and to this extent the function of determining municipal
boundaries is entrusted to an independent authority.
[51] Fixing nodal
points may have profound political implications, as it may determine that there
will or will not be metropolitan
councils in particular parts of the country.
This would have a far greater effect than the setting of boundaries of the
category
A, B and C municipalities thus determined. However, the question
before us is not what the political effect of national government
applying the
criteria is, but who, upon a proper construction of sections 155(3)(a) and (b),
has the constitutional authority to
apply the criteria.
[52] In the
scheme of the allocation of powers relating to the structure, functioning and
establishment of municipalities, the obligation
to determine municipal
boundaries implies more than just drawing the line where the boundaries should
be. The Demarcation Board
can only determine boundaries if it knows what it is
determining boundaries for. It must have a category of municipality in mind.
The criteria required by the Constitution must therefore enable it to determine
this threshold question. If section 155(3)(b) is
read with section 155(3)(a)
there must accordingly be “criteria” and “procedures”
sufficient to enable the
Demarcation Board to carry out its duties without any
further legislation or executive action from the national or provincial levels
of government. It is an accepted principle of interpretation that where two
subsections deal with the same subject matter these
are usually read
together.6[6] This rule of
construction is applicable in constitutional interpretation. It is consistent
with a purposive interpretation of the
Constitution. It is also significant
that in terms of section 155(6), municipalities have to be established in a
manner consistent with the legislation enacted in terms of sections 155(2)
and (3). The provision does not say that the establishment must
be consistent
with the legislation enacted in terms of sections 155(2) and (3) and national
legislation. This seems to me to contemplate
that the criteria and procedures
prescribed by national legislation in terms of sections 155(2) and (3) for
determining categories
and determining boundaries will indeed be sufficient to
enable the Demarcation Board to carry out its boundary determining
obligation.
[53] There is no need for the criteria to be self-executing.
It is sufficient if the criteria can be applied by the Demarcation Board
to
determine where the different categories of municipality should be. If the
criteria are not sufficient for this purpose the legislation
would be
inconsistent with the Constitution. That is not the position in the present
case. If section 2 of the Structures Act is
read with section 25 of the
Demarcation Act there are criteria sufficient to enable the Demarcation Board to
make the various decisions
that have to be made. It can do so by applying the
criteria after hearing all interested parties. That is consistent with
democracy
and accords with the scheme of the Constitution, which requires an
independent body to determine the boundaries of municipalities.
[54] The Constitution requires that there be three categories of
municipality. That is not a legislative choice. What is left for
legislation
is the setting of criteria for determining where there should be category A, B
and C municipalities. Legislation which
does not prescribe criteria for
determining when and where there should be different categories would be
unconstitutional. The Constitution
does not require there to be wards. That is
a legislative choice. If that choice is made, then legally there must be
category A,
B and C municipalities and the electoral system must make provision
for wards. The matter is then referred to an independent authority/authorities.
The independent authority has to determine the boundaries of the different
categories of municipality in accordance with criteria
and procedures determined
by national legislation. That is also how the independent authority must
determine the boundaries of the
wards. There seems to be no difference. In my
view, the Minister could not be empowered to fix nodal points for each of the
wards
as this would have adverse implications for democracy. The criteria must
be applied by the independent authority in accordance with
the prescribed
procedures. Once this is accepted, there is no reason why the same should not
apply to the application of the criteria
to decide where different categories of
municipality must be.
[55] I conclude therefore that the scheme for the
allocation of powers relating to the structure, functioning and establishment of
municipalities contemplates that the Demarcation Board should determine the
boundaries in accordance with the criteria and procedures
prescribed by the
legislation contemplated by sections 155(2) and (3) and that it should be able
to do so without being constrained
in any way by the national or provincial
governments. The argument that the Constitution is silent on the application of
the criteria
must therefore fail.
[56] It is in this context that
section 155(6) must be interpreted. Seen in this context, it means that the
provincial government
must establish municipalities in accordance with the
boundaries as determined by the Demarcation Board. The establishment powers
of
the provincial governments entail nothing more than the power to set up
municipalities under the existing legislation. They do
not comprehend the power
to apply the criteria for determining when an area should have a particular
category of municipality. Nor
does the Constitution authorise the national
government to apply the criteria.
[57] National legislation is confined
to setting criteria for determining categories and criteria and procedures for
the determining
of boundaries. It is not specifically authorised to do more
than this. If it was contemplated that national legislation could,
in addition
to setting criteria for categories, also determine who should apply the
criteria, one would have expected this to have
been said explicitly. Having
regard to the careful allocation of powers in section 155, the omission is not
without significance.
[58] It cannot be suggested that section 5 is
severable from section 4. Section 5 deals with the declaration of category A
municipalities
after the Minister has applied the criteria in terms of section 4
of the Structures Act. When declaring an area as a metropolitan
area, the
Minister is required to identify the “nodal points of the area”.
The expression “nodal points”
is not defined and it is difficult to
discern exactly what it means. The Cape of Good Hope High Court suggested in
its judgment
that it has its ordinary meaning of “central
point”.6[7] Another possible
meaning of “nodal points” is the meaning given by the Oxford English
Dictionary6[8] which defines a
“nodal point” as “a stopping- or starting-point; a centre of
convergence or divergence; a point
constituting a node of any kind”. It
is not necessary here to decide the exact meaning of “nodal points”.
What
is important for the purposes of the present case is the fact that the
Minister is empowered to fix more than one point, and that
the fixing of the
points determines whether there will be category A municipalities or not. In
addition, this has a material impact
on where the boundaries of category A
municipalities will be. This, in my view, interferes with the function of the
Demarcation
Board to determine municipal boundaries. In any event, the
declaration of an area as a metropolitan area is part of the application
of the
criteria. Section 5 of the Structures Acts is therefore not severable from
section 4.
[59] It follows that, in purporting to authorise the Minister
to apply the criteria set out in section 2 of the Structures Act, sections
4 and
5 have fallen foul of the provisions of the Constitution. For that reason they
are invalid.
Section 6
[60] As indicated
previously,6[9] section 155(1) of
the Constitution specifies three categories of municipality: category A
municipalities, which have exclusive municipal
executive and legislative
authority in their areas; category B municipalities, which share municipal
executive and legislative authority
in their areas with category C
municipalities within whose area they fall; and category C municipalities for
areas that include more
than one municipality.
[61] Section 6 of the
Structures Act provides:
“(1) If a part of an area that in terms of section 3 must have municipalities of both category C and category B, is declared in terms of subsection (2) as a district management area, that part does not have a category B municipality.
(2) The Minister, on the recommendation of the Demarcation Board and after consulting the MEC for local government in the province concerned, may declare a part of an area that must have municipalities of both category C and category B as a district management area if the establishment of a category B municipality in that part of the area will not be conducive to fulfilment of the objectives set out in section 24 of the Demarcation Act.
. . .”
[62] Section 6(3) of the Structures Act makes
provision for the manner in which the declaration of a district management area
may
be withdrawn and the consequences attaching to such
withdrawal.
[63] The Western Cape raised two objections to the
constitutionality of section 6(2). First, no provision is made within the
categories
of municipality recognised by section 155 of the Constitution for a
district management area. The Constitution permits only three
categories of
municipality, and a district management area is a fourth category, so it was
argued. Second, the authority vested
in the Minister to determine whether or
not there should be a district management area within a category C municipality
is inconsistent
with the power of provinces to “establish”
municipalities.
[64] As indicated
above,7[0] the function of the
Demarcation Board includes the determination of the boundaries of the categories
of municipality. Section 6
deals with a situation where, having regard to the
demarcation criteria set out in section 24 of the the Demarcation
Act,7[1] an area which is within a
category C municipality is not conducive to the establishment of a category B
municipality. In such an
event, the Demarcation Board must recommend to the
Minister that it is not conducive to establish a category B municipality in that
particular area. In terms of section 6(2) of the Structures Act, the Minister,
on the recommendation of the Demarcation Board and
after consultation with the
MEC,7[2] may declare such an area a
district management area.
[65] The answer to the first objection is
that a district management area is neither a category nor a type of
municipality. It is
a geographical area that is governed by only one
municipality. What section 155(1) requires is that a category C municipality
should
be a municipality in an area that includes more than one municipality.
It does not require that there be category B municipalities
for the whole of
such area; nor does it require the category C municipality to share any or all
of its functions with a category
B municipality. This is to be contrasted with
the position of a category B municipality, which is obliged to share municipal
executive
and legislative authority in its area with a category C municipality.
[66] A district management area is not a separate municipality, but is
part of the district municipality by which it is governed.
It is, therefore,
also not a fourth category of municipality. A district municipality, as defined
in section 1 of the Structures
Act, is a category C municipality, as described
in section 155(1)(c) of the Constitution, and has only to include more than one
municipality
within its area. No more than that is required by the
Constitution. The first objection is, therefore, without
merit.
[67] The second objection is premised on the proposition that the
provinces have legislative powers to establish municipalities.
This proposition
has already been
rejected.7[3]
[68] In my
view, the problem with section 6(2) lies elsewhere. Upon a proper construction,
it gives the Minister a discretion to
decide whether to accept the
recommendation of the Demarcation Board in relation to where the boundaries
should be. In the exercise
of this discretion the Minister may, therefore,
reject a boundary determined by the Demarcation Board. Yet the scheme for the
allocation
of powers relating to the structure, functioning and establishment of
municipalities contemplates that the Demarcation Board should
determine
boundaries in accordance with the criteria and procedures prescribed by the
legislation contemplated in sections 155(2)
and (3), and that it should be able
to do this without being constrained in any way by the national or provincial
governments. If
section 6(2) is to have any meaning, it subjects the decision
of the Demarcation Board in relation to the municipal boundaries to
the
discretion of the Minister. This, in my view, is impermissible. To the extent
that section 6(2) of the Structures Act gives
the Minister a discretion whether
to accept the boundaries determined by the Demarcation Board in respect of
categories of municipality,
it is inconsistent with sections 155(2) and (3) of
the Constitution.
Section 11
[69] Section 11 of the Structures
Act provides:
“Provincial legislation must determine for each category of municipality the different types of municipality that may be established in that category in the province.”
It was contended that section 11 is
inconsistent with sections 155(5) and (6) of the Constitution which make
provision for provincial
legislation to determine “the different types of
municipality to be established in the province”, and to do so “in
a
manner consistent with the legislation enacted” in terms of section
155(2). The only difference between section 11 of the
Structures Act and
section 155(5) of the Constitution is that the Act refers to the different types
of municipality to be established
for each category, whilst the Constitution
refers only to the different types of municipality to be established. The
addition of
the words “for each category” in section 11 does not
detract in any way from the powers of the provincial legislature,
and counsel
were unable to point to any specific basis for objection. The Constitution
requires the provincial legislation to be
consistent with the national
legislation enacted in terms of section 155(2). According to section 155(3) the
national legislation
that is required has to set criteria for the different
types of municipality that may be established in each category. The Act
does this, and as the selection to be made by the provinces must be consistent
with such criteria, the provisions of section
11 are not inconsistent with
section 155(5) of the Constitution. In view of the express provisions of
sections 155(2) and (5) of
the Constitution, section 11 may not have been
necessary. But since section 11 accurately reflects the powers of the
provincial
legislature to determine the different types of municipality for each
category, its provisions are not inconsistent with the
Constitution.7[4]
Sections 12 and 16(1)(a)
[70] Section 12 is a procedural
section that sets out the steps to be taken in establishing a municipality.
Section 16 deals with
the amendment of notices issued in terms of section
12.7[5] The constitutional
complaint against section 12 was that the national government has no
constitutional authority to tell the provinces
how to set about establishing
municipalities. To do so, the provinces maintained, violates section 155(6) of
the Constitution, which
empowers the provinces to establish
municipalities.
[71] This challenge is premised on the proposition that
section 155(6) of the Constitution confers the legislative power to establish
municipalities upon the provinces. This proposition has already been considered
and rejected.7[6] The Constitution
confers only executive powers on the provinces to establish
municipalities.
[72] The executive powers of the provinces to establish
municipalities must, of course, be exercised within the framework of
legislation.
In relation to the legislative regulation of such establishment,
the Constitution is silent, and national legislation may prescribe
how this
establishment is to be done in terms of section 164 of the
Constitution.
[73] The power to establish municipalities in section
155(6) must be distinguished from the power to determine the types of
municipality,
dealt with in section 155(5). The latter power vests in the
provinces. It allows them, prospectively, to determine the types of
municipality that will exist in each of the areas of the province (as divided by
the Demarcation Board) when the municipalities are established. Section
155(6) is concerned with the actual establishment of the municipalities and
confers executive powers only on the provinces
to do so. Section 12 gives effect
to section 155(6) and therefore does not offend the Constitution.
[74] The only provision in section 12 which requires separate
consideration is section 12(3)(b). Section 12(3) provides that:
“(3) The notice establishing the municipality must specify-
(a) the category of municipality that is established;
(b) the type of municipality that is established; . . .”
[75] As will become evident when I deal with
section 13, section 155(5) confers upon the provincial government both the
legislative
and executive power to establish types of municipality in the
province. Therefore, to the extent that section 12(3)(b) refers to
the type of
municipality that is established, it may appear to be dealing with a matter
which falls within the competence of the
provinces. In my view, it does not.
Section 12(3) provides a legislative framework within which categories of
municipality are
to be established. This is within the competence of the
national government. The reference to the type of municipality was, in
my view,
intended to ensure that the notice establishing a municipality is both coherent
and comprehensive.7[7] Properly
construed, section 12(3)(b) simply requires the provincial government to include
in the notice of establishment the type
of municipality that will be operational
in the area being established. This type will have already been determined by
the province
in terms of section 155(5), in the exercise of its legislative and
executive function to decide upon the type of each municipality
to be
established.
[76] Section 12 is therefore not inconsistent with the
Constitution and the constitutional challenge to it must fail, as must the
challenge to section 16(1)(a).
Section 13
[77] Section 13
provides:
“(1) The Minister, by notice in the Government Gazette, may determine guidelines to assist MECs for local government to decide which type of municipality would be appropriate for a particular area.
(2) An MEC for local government must take these guidelines into account when establishing a municipality in terms of section 12 or changing the type of a municipality in terms of section 16(1)(a).”
[78] The
provinces contended that Parliament has no powers to prescribe to the provinces
guidelines which they must take into account
in the exercise of their
legislative power to determine the types of municipality that may be established
in the provinces.
[79] On its face, the issue raised by the provinces
may appear to be insignificant. However, upon a proper consideration, the issue
is not a trivial one. It goes to the fundamental principle of the allocation of
powers between the national government and the provincial
governments. This
principle is entrenched, for instance, in section 41(1)(e) of the Constitution
(all spheres of government must
respect the constitutional status, institutions,
powers and functions of government in the other spheres); section 41(1)(g)
(spheres
of government must exercise their powers and perform their functions in
a manner that does not encroach on the geographical, functional
or institutional
integrity of government in another sphere); and section 44(4) (when exercising
its legislative authority, Parliament
must act in accordance with, and within
the limits of, the Constitution). These provisions must be understood in the
light of the
supremacy of the Constitution, set out in section 2 of the
Constitution, which provides:
“This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid . . .”
[80] All these
provisions underscore the significance of recognising the principle of the
allocation of powers between national government
and the provincial governments.
The Constitution therefore sets out limits within which each sphere of
government must exercise its
constitutional powers. Beyond these limits,
conduct becomes unconstitutional. This principle was given effect to by this
Court
in Fedsure when it said:
“It seems central to the conception of our constitutional order that the legislature and executive in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law.”7[8]
[81] Limits on the powers and functions on each sphere of
government must therefore be observed. The enquiry, therefore, is whether
the
impugned provisions deal with a matter which falls within the powers conferred
upon the sphere of government enacting the challenged
provision. If it does not
fall within its powers, that sphere of government has acted outside its powers
and the impugned legislation
cannot stand. The importance or otherwise of the
matter in issue is not relevant. It is the principle that is relevant and which
must be given effect to.
[82] The question, therefore, is whether what
section 13 purports to do falls within the powers conferred upon the national
government.
Section 155(5) confers on the provinces the power to determine the
different types of municipalities which may be established within
a province.
This power must necessarily include the legislative and executive power to
establish the types in the provinces and
to determine in which areas the types
are to be established. Section 155(5) must be read with section 155(6), which
deals with the
establishment of municipalities. Read together, these two
provisions mean that in relation to the establishment of categories of
municipality in the province, the provincial governments have executive powers
only, while in relation to the establishment of the
types of municipalities,
provincial governments have both the legislative and executive
powers.
[83] Section 13 of the Structures Act, in peremptory terms,
tells the provinces how they must set about exercising a power in respect
of a
matter which falls outside the competence of the national government. It is
true that the MEC is only required to take the
guidelines into account, and is
not obliged to implement them. That the MEC, having taken the guidelines into
account, is not obliged
to follow them, matters not. Nor is the fact that the
Minister may decide not to lay down any guidelines, of any moment. What matters
is that the national government has legislated on a matter which falls outside
of its competence.
[84] Section 13 deals with a matter which section
155(5) of the Constitution vests in provincial legislatures, namely the
determination
of “the different types of municipality to be established in
the province”. The section is, therefore, inconsistent
with section
155(5) of the Constitution.
B. ENCROACHMENT ON MUNICIPAL
POWERS
[85] Here I consider the challenge to sections 7 to 10, 20
and 33.7[9] Section 7 defines five
types of municipality that may be established within each category of
municipality. The types of municipality
are defined according to systems of
municipal government. They are the collective executive system, mayoral
executive system, plenary
executive system, subcouncil participatory system, and
ward participatory system. Sections 8, 9 and 10 set out the different types
of
municipality that may be established under each of the three categories of
municipality. Except for category C municipalities,
which comprise only the
executive systems, the types of municipalities that may be established in the
other categories of municipality
comprise combinations of both the executive and
participatory systems. Section 20 deals with the determination of the number of
councillors in a municipal council. Section 33 lays down the criteria for the
establishment of committees by municipalities.
Sections 7 to 10 and
33
[86] The constitutional challenge directed at sections 7 to 10 is
that they encroach upon the municipal power to choose whether to
have an
executive committee, or some other committee, as set out in the provisions of
section 160(1)(c) of the Constitution. The
gist of the argument which counsel
presented was this: although section 160(1)(c) of the Constitution provides that
the power to
elect committees is “subject to national legislation”,
the national legislation there contemplated is limited to the
national
legislation provided for in section 160(5)(b). That subsection provides that
national legislation may establish criteria
for determining whether municipal
councils may elect an executive committee, or other committees of a municipal
council. It was
argued that sections 7 to 10 do not constitute criteria as
contemplated by section 160(5)(b), as criteria imply an element of
choice.
[87] The fallacy in the argument lies in the fact that it
assumes that national legislation referred to in section 160(1)(c) is limited
to
the legislation contemplated in section 160(5)(b). That is not so. Section
160(1)(c) confers this power “subject to national
legislation”.8[0] What this
provision conveys is that the right of municipalities to elect committees will
not prevail where there is national legislation
to the
contrary.8[1] There is nothing
either in section 160(1)(c) or elsewhere in the Constitution to suggest such a
limitation. In my view the national
legislation referred to in section
160(1)(c) must include any other legislation passed by Parliament in terms of
Chapter 7 of the
Constitution. If the source of the power to pass such
legislation is those other provisions of Chapter 7 of the Constitution, and
not
section 160(5)(b), the question whether the legislation is also sanctioned by
section 160(5)(b) is not relevant. If the legislation
is within the scope of
national legislation sanctioned by Chapter 7, the municipal power to elect
committees must be exercised subject
to that legislation. The provisions to
which objection is taken are those dealing with typology and they are sanctioned
by section
155(2). The municipal power to elect executive or other committees
is therefore subordinate to these provisions and to the provincial
power to
select types of municipalities. If this has the effect of precluding particular
municipalities from electing executive
or other committees, that results from
the provisions of the Constitution itself and cannot be challenged as being a
breach of section
160(5)(b). Once it is clear that the
first leg of the provinces’ contention is flawed, it is not necessary for
us to consider the
second leg, that is, whether the typology itself constitutes
“criteria” as contemplated by section 160(5)(b).
[88] It
follows that the challenge to sections 7 to 10 and section 33 must
fail.
Section 20
[89] In terms of section 160(5)(a) of the
Constitution, “[n]ational legislation may provide criteria for determining
. . .
the size of a Municipal Council”.
[90] Sections 20(1) and
(2) of the Structures Act provide:
“(1) The number of councillors of a municipal council -
(a) must be determined in accordance with a formula determined by the Minister by notice in the Government Gazette, which formula must be based on the number of voters registered on that municipality’s segment of the national common voters roll;
(b) may not be fewer than three or more than 90 councillors, if it is a local or district municipality; and
(c) may not be more than 270 councillors, if it is a metropolitan municipality.
(2) Different formulae may be determined in terms of subsection (1)(a) for the different categories of municipalities.”
[91] KwaZulu-Natal has
raised two objections to sections 20(1) and (2). The gist of the first
objection is that these provisions
do not provide criteria as required by
section 160(5)(a) of the Constitution, but instead provide for a mandatory
formula. There
is no merit in this objection. Criteria are standards by which
a thing is judged, assessed or
identified.8[2] The formula
contemplated in section 20(1)(a) constitutes such a standard and is, therefore,
a criterion as contemplated in section
160(5)(a) of the Constitution.
[92] The submission that section 20(1)(a) is invalid because it
provides “a mandatory formula” is equally without merit.
It fails
to have sufficient regard to the provisions of section 157 of the Constitution.
The composition and election of municipal
councils is dealt with in section 157
of the Constitution. Section 157(1) anticipates the election of councillors in
accordance
with a scheme set out in subsections (2), (3), (4) and (5). Section
157(2) provides:
“The election of members to a Municipal Council as anticipated in subsection (1)(a) must be in accordance with national legislation, which must prescribe a system -
(a) of proportional representation based on that municipality’s segment of the national common voters roll, and which provides for the election of members from lists of party candidates drawn up in a party’s order of preference; or
(b) of proportional representation as described in paragraph (a) combined with a system of ward representation based on that municipality’s segment of the national common voters roll.”
[93] Sections
160(5)(a) and 157(2) of the Constitution must be read together. The formulae in
section 20 of the Structures Act are
no more than these provisions require.
[94] The second objection was that section 20 is bad because it fails to
provide clear or adequate criteria on which the formulae
are to be based. This
objection is premised on the proposition that when Parliament delegates its
law-making functions it must provide
clear or adequate criteria for the exercise
of the delegated power. It is not necessary to decide the correctness of this
proposition
because, even if it is correct, section 20(1)(a) of the Structures
Act prescribes the framework within which the Minister must exercise
delegated
authority. In terms of section 20(1)(a), the “formula must be based on
the number of voters registered on that municipality’s
segment of the
national common voters roll”. This, in my view, circumscribes the power
delegated to the Minister. The delegation
does not, therefore, amount to the
assignment of plenary legislative power to the Minister as contended by
KwaZulu-Natal.
[95] It follows that the challenge to sections 20(1) and
(2) of the Structures Act must fail.
C. THE CHALLENGE TO CHAPTER 4 AND
RELATED PROVISIONS
[96] The Western Cape contended that the
provisions of Chapter 4, and sections 18(4), 29(1), 30(5) and 36 to 39 of the
Structures
Act are inconsistent with section 160(6) of the Constitution, which
provides:
“A Municipal Council may make by-laws which prescribe rules and orders for -
(a) its internal arrangements;
(b) its business and proceedings; and
(c) the establishment, composition, procedures, powers and functions of its committees.”
[97] The
question for determination is whether Chapter 4 and the other provisions
challenged are in conflict with section 160(6)
of the Constitution. It is
necessary first to determine the proper ambit of the power conferred upon
municipalities by section 160(6).
[98] Section 160(6) comes into operation
once a municipality has been established, its membership determined and its
structures put
in place. Section 160(6) confers on municipalities exclusive
powers in relation to a narrow area. This relates to the power to
make rules
and orders for their “internal arrangements” and their
“business and proceedings” as well as the
“establishment,
composition, procedures, powers and functions of [their] committees”.
This power, therefore, relates
to internal domestic matters that are necessary
for the effective performance by the municipalities of their constitutional
obligations.
However, this power is subject to the provisions of the
Constitution. Provisions of the Constitution to which this power is subject
and
which would therefore constrain its ambit include section 154(1) (national and
provincial governments must support and strengthen
the capacity of
municipalities to manage their own affairs), section 155(7) (national and
provincial governments have the power to
ensure that municipalities perform
their executive functions effectively), section 155(6)(a) (power of provincial
government to monitor
and support local governments and to promote their
development to enhance their ability to manage their own affairs), section
160(1)(c)
(power of municipalities to appoint committees is subject to national
legislation)8[3] and section 160(8)
(right of members of a municipal council to participate in its proceedings and
those of its committees may be
regulated by national
legislation).
[99] To determine the proper ambit of the power conferred
upon municipalities by section 160(6), it is useful to compare section
160(6)
with other provisions in the Constitution which deal with “rules and
orders” in relation to the national legislature
and provincial
legislatures. Section 57 is a provision similar in language to section 160(6).
It provides, in pertinent part:
“(1) The National Assembly may -
(a) determine and control its internal arrangements, proceedings and procedures; and
(b) make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement.
(2) The rules and orders of the National Assembly must provide for -
(a) the establishment, composition, powers, functions, procedures and duration of its committees;
(b) the participation in the proceedings of the Assembly and its committees of minority parties represented in the Assembly, in a manner consistent with democracy;
. . .”8[4]
[100] It
is clear that this provision confers a power upon the National Assembly to
regulate its internal proceedings, business and
working committees. However,
that power must be read in the context of the other provisions of the
Constitution regulating the National
Assembly, such as the regulation of the
election and removal of the Speaker and
Deputy-Speaker,8[5] the regulation
of the voting procedures and quorums in the National
Assembly8[6] and the regulation of
public access to the National
Assembly.8[7] In addition, it
should be noted that in the case of the national legislature, the election,
appointment and functioning of what
is, in effect, its executive committee, the
President and Cabinet, is fully regulated by sections 83 to 102. Thorough
constitutional
regulation of provincial executives is similarly to be found in
sections 125 to 141. These provisions make it plain that the constitutional
power of legislatures to regulate the internal proceedings of committees is a
narrow power, not a broad one, and is related not to
the executive committees of
these legislatures, but only to other committees entrusted with specific tasks
or portfolios. The power
also does not relate to a power to regulate the main
structural components of the legislature, which are fully regulated by the
Constitution,
but only to those working committees which either chamber of the
legislature may decide to establish, and also disestablish, from
time to time.
[101] In my view, section 160(6) should be interpreted in a similar
fashion. Although it is an important power conferred upon municipalities,
its
scope is relatively narrow and does not relate to the power to regulate the
establishment or functioning of the executive of
municipal councils, whatever
form that executive may take, or any other committee of the municipality which
is a key part of its
democratic structure. It relates only to task and working
committees which may be established and disestablished from time to
time.
[102] The provisions in Chapter 4 of the Structures Act which are
impugned by the provinces as invading the power of municipalities
in terms of
section 160(6) are the following: the establishment and composition of executive
committees and mayors (sections 42 to
53); the election, powers and functions of
executive mayors and mayoral committees (sections 54 to 60); the establishment,
composition,
powers and functions of metropolitan subcouncils (sections 61 to
71); and the establishment and powers and functions of ward committees
(sections
72 to 78). All these matters relate to the regulation of the executive of the
local government or to committees which
form part of the structure of a
particular municipality, such as ward committees and metropolitan subcouncils.
These are not committees
contemplated by section 160(6). These are matters
concerning “powers, functions and other features of local
government”
which are required to be provided for in national or
provincial legislation.8[8] There
can be no objection therefore to their being regulated by national legislation.
[103] The committees which fall within those contemplated in section
160(6)(c) are those regulated by section 71, 79 and 80 of the
Structures
Act.8[9] The challenge to these
provisions is premised on the proposition that the constitutional power of the
municipalities to appoint
committees is without limits. This premise is wrong.
The power of municipalities to appoint committees is subject to section
160(1)(c).
They have the power to elect “an executive committee or other
committees subject to national legislation”. There is
nothing in this
provision which suggests that “other committees” are limited to any
particular committee. This provision
governs the appointment of any committee,
including the committees contemplated in section 160(6)(c) of the Constitution.
The effect
of section 160(1)(c) is that the power of the municipalities to
appoint committees contemplated in section 160(1)(c) is subject to
national
legislation. Therefore there can be no objections to sections 71, 79 and
80.
[104] Apart from this, these provisions largely repeat the
provisions of the Constitution which afford municipal councils the power
to
determine whether to establish committees or not. They do not limit that power
in any way.9[0] As such, no
complaint can be made about them.
[105] Several of the provisions
require separate consideration. Section 79(2)(a) requires that a municipal
council must determine
the functions of a committee. In my view, even though
this is a mandatory provision it does not invade the ambit of the section
160(6). When a municipality establishes a committee in the context of section
160(6), it seems plain that it must determine the
functions of that committee.
If that is so, section 79(2)(a) constitutes no invasion or limitation of the
municipality’s power,
merely an articulation of it. Section 80(2)
provides that the numbers of a committee may not exceed the number of members of
the
executive committee or mayoral committee. This limitation of the numbers of
committee members is a criterion for determining the
size of a committee. The
national legislature is empowered to determine such criteria in terms of section
160(5)(c).9[1] Section 80(4)
provides that a committee must report back to the executive committee or mayor
“in accordance with the directions
of the executive committee or executive
mayor”. This provision does not restrict the powers of municipalities in
terms of
section 160(6) either. It merely requires a committee to report back
in accordance with the instructions given to it.
[106] Sections
79(2)(c) and section 80(3)(a) require the municipal council or the executive
committee or mayor to appoint chairpersons
for committees it appoints. In my
view, these provisions are not a limitation of the power conferred upon
municipalities by section
160(6) in that they relate to a matter which may be
regulated by national legislation in terms of section 160(1)(c). To the extent
that national legislation may regulate the “election of other
committees”, that in my view is broad enough to regulate
the question of
the appointment of chairpersons of such committees. Sections 79(2)(c) and
80(3)(a) therefore are not beyond the
competence of the national legislature.
[107] It was also contended that section 82 is unconstitutional. In
terms of this section a municipal council is obliged to “appoint
a
municipal manager who is the head of administration and also the accounting
officer for the municipality”. The appointment
of the municipal manager
and determination of terms and conditions of employment are done by the council,
subject to approval by
the executive committee or executive mayor, where
appropriate.9[2] The municipal
manager is the head of the administration and the chief accounting officer of
the municipality;9[3] responsible
for calling the first meeting of a municipal council after it has been
elected;9[4] and responsible for
calling by-elections (after consultation with the Independent Electoral
Commission (“the
IEC”)).9[5] It is significant
that if the municipal manager does not call by-elections within the prescribed
period, the MEC for Local Government
in the province (after consultation with
the IEC) must do so.9[6] In
addition, the municipal manager has designated duties in relation to elections
and these include informing the chief electoral
officer if no party applies for
registration or every party is
rejected,9[7] and the determination
of nomination forms for municipal office
bearers.9[8] In addition, newly
appointed councillors are required to declare their financial interests to the
municipal manager,9[9] or any change
in their financial interests.10[0]
Municipal managers must also be informed of the names of traditional leaders in
council.10[1]
[108] In
terms of section 216(1)(a) of the Constitution, the national government
“must establish a national treasury and prescribe
measures to ensure both
transparency and expenditure control in each sphere of government . .
.”.10[2] This provision
imposes a constitutional obligation on the national government to set up
appropriate structures for the municipalities
to control their expenditure. The
office of the municipal manager is one such structure. In addition, in terms of
section 190(1)(a)
of the Constitution, the IEC must manage the municipal
elections in accordance with national legislation. To the extent that the
municipal manager performs duties in relation to municipal elections, the
appointment of the municipal manager is in accordance with
the power of the
national government to regulate municipal elections. Finally, it would
nevertheless be permissible for national
government to make provision for the
appointment of the municipal manager in terms of section 155(7). That provision
authorises
national government to enact legislation to regulate the exercise by
municipalities of their executive
authority.10[3]
[109] It
is therefore clear that the municipal manager is a key structure of a
municipality and not merely a personnel appointment
as contemplated in section
160(1)(d) of the Constitution. I am therefore satisfied that national government
has the constitutional
authority to enact section 82.
[110] The Western
Cape also challenged sections 18(4), 29(1), 30(5) and 36 to 39 on the same basis
as Chapter 4. None of these sections
deal with matters contemplated in section
160(6). Sections 36 to 39 of the Structures Act regulate the elections of
speakers of
municipalities, as well as their functions and term of office. The
election and removal of the Speaker of the National Assembly
is regulated by
section 52 and schedule 3, Part A of the Constitution. The fact that the
Speaker of the National Assembly is directly
regulated by the Constitution in
this way is a strong indication that when the National Assembly is given power
in terms of section
57 to regulate its internal affairs by rules and orders,
this does not extend to regulating the election of speakers. The same,
it seems
to me, must apply to the power given to municipalities in terms of section
160(6). It does not extend to the regulation
of the office of speaker.
[111] Section 18(4) deals with the identification of full-time members
of a municipal council. This is not a matter which relates
to internal
arrangements, business, proceedings or committees. Section 29(1) deals with the
convening of meetings of municipalities.
The convening of national and
provincial legislatures is regulated directly by the Constitution in terms of
sections 51(1), 63(1)
and 110. It is clear that this is not considered to be
something that falls within the rules and orders of these legislatures.
Neither
is it a matter which falls within section 160(6) of the Constitution. Section
30(5) requires a report from the executive
committee or executive mayor before a
municipal council takes certain decisions. This is a regulation of the
legislative procedure.
Once again legislative process is carefully regulated by
the Constitution in relation to the national legislature by sections 73
to 82,
and in relation to provincial legislatures by sections 119 to 124. The
regulation of legislative process is not, therefore,
a matter which falls within
the ambit of section 160(6).
[112] Chapter 4, sections 18(4), 29(1),
30(5) and 36 to 39 are, therefore, not inconsistent with section 160(6) of the
Constitution.
Section 91(1)
[113] Section 91(1)
provides:
“The MEC for local government in a province, within a policy framework as may be determined by the Minister, and by notice in the Provincial Gazette, may exempt a municipality in the province from a provision of section 36(2), (3) or (4), 38 to 41, 45 to 47, 48(2), (3) and (4), 50 to 53, 58, 65 to 71, 75 and 76.”
[114] As indicated
earlier,10[4] sections 36 to 78
set up six institutions: speakers, executive committees, mayors, executive
mayors, metropolitan subcouncils, and
ward committees. The provisions of these
sections may be divided into two broad categories: substantive sections - those
dealing
with establishment, powers and functions; and procedural sections -
those dealing with the way in which the bodies conduct their
affairs. It is
only in respect of this latter category that exemptions may be
granted.10[5] The exemptions that
may be granted are not in the nature of temporary exemptions, granted to deal
with an unexpected event. This
seems clear from a reading of section 91(2)
which provides that:
“[a] municipality exempted from a provision of this Act in terms of subsection (1) may pass its own legislation with regard to the matter dealt with in the exempted provision.”
The purpose of the
exemption then, is to grant municipalities greater autonomy to regulate their
affairs.10[6] Such a provision is
in accordance with the requirements of section 154(1) of the Constitution, which
provides:
“The national government and provincial governments, by legislative and other measures, must support and strengthen the capacity of municipalities to manage their own affairs, to exercise their powers and to perform their functions.”
[115] The constitutional challenge to
section 91(1) by the Western Cape is premised on the proposition that it was not
open to national
government to regulate municipalities in the manner Chapter 4
purports to do. Since I have held that the objection to Chapter 4
is without
substance, it follows that this attack on section 91(1) must likewise
fail.
[116] The constitutional complaint of KwaZulu-Natal rests on a
different basis. While not challenging the purpose of the provision,
it
objected to the manner in which the national legislation sought to regulate the
granting of exemptions. The gist of the complaint
was that section 91(1) is
unconstitutional because it provides no safeguards against “abuse and
arbitrary application”
of the power it confers on the Minister.
[117] I would point out at the outset that the enquiry is not whether
the delegated power is open to abuse. The fact that the delegated
power may be
abused does not determine the question whether there is constitutional authority
to delegate the power in question.
The enquiry is whether there is
constitutional authority to delegate the power in question. Once it is
accepted, as here, that
such authority exists, the fact that such power may be
abused is not a relevant consideration. If delegated power is abused, the
conduct of those abusing the power would be unconstitutional and therefore open
to challenge. Accordingly, if either the Minister
or the provincial MEC abuse
their power in the sense that they act illegally, their conduct may be
challenged.
[118] This challenge by KwaZulu-Natal rests on the
proposition that in delegating its law-making authority, Parliament must provide
safeguards against the abuse of the delegated power. It is not necessary to
decide here the correctness of this proposition because
there are sufficient
safeguards against the abuse and arbitrary application of the power to exempt
municipalities. The power has
first been delegated to the Minister of the
national government who is a member of, and therefore accountable to,
Parliament. The
Minister is required to formulate “a policy
framework” for the granting of exemptions. The decision whether to exempt
a municipality is to be exercised by a provincial MEC on a case by case basis.
This will obviously require some investigation into,
amongst other things, the
capacity of the municipality to manage its own affairs. The MEC is a member of,
and therefore accountable
to, the provincial government. An exemption to a
particular municipality will presumably be granted pursuant to an application by
the municipality concerned. It seems to me that in these circumstances there
are sufficient safeguards against the abuse or arbitrary
application contended
for by KwaZulu-Natal.
[119] For these reasons, the constitutional attack
on section 91(1) must fail.
D. MISCELLANEOUS
PROVISIONS
Under this heading I deal with the constitutional attacks
on sections 24(1) and 32(1).
Section 24(1)
[120] Section
159(1) of the Constitution provides:
“The term of a Municipal Council may be no more than five years, as determined by national legislation.”
[121] The
constitutional attack on section 24 is premised on the proposition that it
constitutes an impermissible assignment of plenary
legislative power to the
Minister, and that it does not constitute “subordinate legislation”
within the meaning of section
239 of the
Constitution.10[7] Section 24
provides:
“(1) The term of municipal councils is no more than five years as determined by the Minister by notice in the Government Gazette, calculated from the day following the date or dates set for the previous election of all municipal councils in terms of subsection (2).
(2) Whenever necessary, the Minister, after consulting the Electoral Commission, must, by notice in the Government Gazette, call and set a date or dates for an election of all municipal councils, which must be held within 90 days of the date of the expiry of the term of municipal councils . . .”
[122] The authority of Parliament to
delegate its law-making functions is subject to the
Constitution,10[8] and the
authority to make subordinate legislation must be exercised within the framework
of the statute under which the authority
is delegated.
[123] The
competence of Parliament to delegate its law-making function was recognised by
this Court in Executive Council, Western
Cape.10[9] The Court
held:
“The legislative authority vested in Parliament under s37 of the Constitution is expressed in wide terms - 'to make laws for the Republic in accordance with this Constitution'. In a modern State detailed provisions are often required for the purpose of implementing and regulating laws and Parliament cannot be expected to deal with all such matters itself. There is nothing in the Constitution which prohibits Parliament from delegating subordinate regulatory authority to other bodies. The power to do so is necessary for effective law-making. It is implicit in the power to make laws for the country and I have no doubt that under our Constitution Parliament can pass legislation delegating such legislative functions to other bodies. There is, however, a difference between delegating authority to make subordinate legislation within the framework of a statute under which the delegation is made, and assigning plenary legislative power to another body, including . . . the power to amend the Act under which the assignment is made.”
[124] Although the Court was concerned with the
interim Constitution, it seems to me that the same principle applies to the
present
Constitution. It is a principle of universal application which is
recognised in many countries.11[0]
This authority is, of course, subject to the Constitution. The enquiry is
whether the Constitution authorises the delegation of
the power in question.
Whether there is constitutional authority to delegate is therefore a matter of
constitutional interpretation.
The language used in the Constitution and the
context in which the provisions being construed occur are important
considerations
in that process.
[125] The Constitution uses a range of
expressions when it confers legislative power upon the national legislature in
Chapter 7.
Sometimes it states that “national legislation must”; at
other times it states that something will be dealt with “as
determined by
national legislation”; and at other times it uses the formulation
“national legislation may”. Where
one of the first two
formulations is used, it seems to me to be a strong indication that the
legislative power may not be delegated
by the legislature, although this will of
course also depend upon context.
[126] Section 159(1) of the
Constitution makes it clear that all municipal councils will have a uniform term
of office, subject to
a maximum of five years. It requires national legislation
to determine such term of office by using the expression “as determined
by
legislation”. The term so established is subject to the prescribed
maximum of five years. Section 159(2) requires that
a municipal election be
held within 90 days of the date that the previous council was dissolved or its
term expired. The term of
office of an elected legislative body such as a
municipal council is a crucial aspect of the functioning of that council. In
the
case of the National Assembly, section 49(1) of the Constitution determines
the term, and in the case of the provincial legislatures,
section 108(1) of the
Constitution determines the terms. Given its importance in the democratic
political process, and given the
language of section 159(1), the conclusion that
section 159(1) does not permit this matter to be delegated by Parliament, but
requires
the term of office to be determined by Parliament itself, is
unavoidable. In addition to the importance of this matter, I also take
cognizance of the fact that it is one which Parliament could easily have
determined itself for it is not a matter which requires
the different
circumstances of each municipal council to be taken into consideration. All
that is required is to fix a term which
will apply to all councils. In my view,
this is not a matter which the Constitution permits to be delegated. The
delegation was,
therefore, impermissible and section 24(1) must be held to be
inconsistent with section 159(1) of the Constitution.
Section
32
[127] KwaZulu-Natal contended that section 32 seeks to set out a
comprehensive blue-print for municipal delegation and in doing so
violates the
autonomy of municipalities recognised in section 160(2) of the
Constitution.11[1] In my view
there is no merit in this argument. Section 160(2) simply prohibits
municipalities from delegating certain matters.
It does not give them an
unqualified right to delegate any other matter. Section 32 requires a municipal
council to “develop
a system of delegation that will maximise
administrative and operational efficiency . . .
”.11[2] In addition, it
provides how the power to delegate may be exercised and to which structures it
may be delegated. It does not in
any way take away from municipalities the
power to delegate matters other than those excluded by section
160(2).
[128] Section 154(1) of the Constitution confers wide
legislative authority on national government in respect of municipalities.
It
authorises national and the provincial governments to enact legislation to
empower the municipalities to manage their own
affairs.11[3] This is wide enough
to confer legislative authority on national government to enact section 32.
Section 32 is, therefore, not inconsistent
with section 160(2) of the
Constitution.
E. SUPREMACY CLAUSE
[129] Section 93(2)
provides:
“If any conflict relating to the matters dealt with in this Act arises between this Act and the provisions of any other law, except the Constitution, the provisions of this Act prevail.”
[130] The
constitutional challenge to section 93(2) is premised on the proposition that it
is in conflict with sections 146 to 150
of the Constitution. These are the
provisions which deal with conflicts between laws. The premise is wrong. Upon
a proper construction,
there is no conflict between section 93(2) and these
provisions of the Constitution.
[131] While the manner in which the
provision is drafted may not be the most felicitous, the essence of what it
conveys is nonetheless
clear.11[4]
The section expressly recognises the supremacy of the Constitution. It provides
that if there is any conflict between the Structures
Act and the provisions of
the Constitution, which includes sections 146 to 150 of the Constitution, the
Constitution prevails. It
follows that sections 146 to 150 of the Constitution
and not section 93(2) will determine whether national legislation will prevail
over provincial legislation. The constitutional attack on section 93(2) must,
therefore, fail.
SUMMARY
[132] To sum up, therefore, I
conclude that: (a) sections 4 and 5 are unconstitutional insofar as they empower
the Minister to declare
an area a metropolitan area, since that task belongs to
the Demarcation Board; (b) section 6(2) is unconstitutional insofar as it
gives
a discretion to the Minister to accept the recommendation of the Demarcation
Board in declaring a district management area,
since that too is a task for the
Demarcation Board; (c) section 13 is unconstitutional insofar as it empowers the
Minister to prescribe
guidelines for the MEC to take into account when deciding
which type of municipality would be appropriate for a particular area,
since the
power to do so belongs to the provinces; and (d) section 24(1) is
unconstitutional insofar as it delegates the power to
determine the term of
office of municipal councils to the Minister, because the Constitution requires
that the term of office be
determined by national
legislation.
REMEDY
[133] Sections 4, 5, 6(2), 13 and
24(1) of the Structures Act have been found to be inconsistent with the
Constitution. Two related
questions arise for determination: first, is it
possible to excise these sections and second, do the remaining provisions of the
Structures Act give effect to the purpose of the Structures
Act?11[5]
[134] In regard
to sections 4 and 5, both questions, in my view, must be answered in the
affirmative. These two sections relate
to the application of the criteria,
which, I have found, the Minister has no power under the Constitution to apply.
Sections 2 and
3 read with section 25 of the Demarcation Act provide sufficient
criteria to enable the Demarcation Board to carry out its functions.
Sections 4
and 5, therefore, can be severed from the Structures Act. The same is true of
sections 13 and 24(1).
[135] Section 6(2) has been found to be
unconstitutional. Subsections (1) and (3) are dependent on subsection (2). The
mechanism
for declaring management areas does not, in itself, offend the
Constitution. It appears to contemplate areas which are not yet ready
to be
declared as category B municipalities, but which in due course may become
suitable for the establishment of category B municipalities.
If the entire
section 6 is struck down, there will be no mechanism for declaring district
management areas. In addition, we have
found that section 6(2) offends the
Constitution only to the extent that it gives the Minister a discretion, the
exercise of which
might interfere with the function of the Demarcation Board.
In these circumstances, it seems to me that the national government
must be
given the opportunity to correct the defect in section 6. In the interim,
however, the provisions of section 6(2) must be
applied in a manner which will
not interfere with the function of the Demarcation
Board.
COSTS
[136] Then there is the question of costs.
In Ex Parte Gauteng Provincial Legislature: In Re Dispute Concerning the
Constitutionality of Certain Provisions of the Gauteng School
Education Bill of
1995,11[6] this Court
confirmed that the general rule in civil litigation that costs should follow the
result is not as readily applicable in
this Court as in others. Dealing with
costs in constitutional matters, Mahomed DP said the following:
“A litigant seeking to test the constitutionality of a statute usually seeks to ventilate an important issue of constitutional principle. Such persons should not be discouraged from doing so by the risk of having to pay the costs of their adversaries, if the Court takes a view which is different from the view taken by the petitioner. This, of course, does not mean that such litigants can be completely protected from that risk. The Court, in its discretion, might direct that they pay the costs of their adversaries if, for example, the grounds of attack on the impugned statute are frivolous or vexatious or they have acted from improper motives or there are other circumstances which make it in the interest of justice to direct that such costs should be paid by the losing party.”11[7]
[137] The
above rule was applied in Ex Parte Speaker of the KwaZulu-Natal Provincial
Legislature: In re KwaZulu-Natal Amakhosi and Iziphakanyiswa Amendment Bill of
1995;
Ex Parte Speaker of the KwaZulu-Natal Provincial Legislature: In re
Payment of Salaries, Allowances and other Privileges to the Ingonyama
Bill of
1995.11[8] On the other hand,
this Court has in the past made orders for costs against national or provincial
government when it has been an
unsuccessful
party.11[9]
[138] In the
present cases there seem to me to be important considerations which militate
against the award of costs. First, the
provinces have failed in their challenge
to the constitutionality of the Structures Act as a whole. Second, while the
provinces
may have been successful on important issues relating to the
application of the criteria, they failed in their principal assertion
that the
power to apply the criteria was a provincial competence. Third, the issues
which these cases were concerned with were of
considerable national importance,
involving as they did the authority to establish municipalities. Fourth, the
issues raised were
both difficult and substantial, and the opposition to the
challenge not without substance. In these circumstances the interests
of
justice require that no order as to costs be
made.
ORDER
[139] In the event, the following order is
made:
1. The application for direct access under Rule 17 is granted.
2. The application to amend the notice of motion is granted.
3. Sections 4, 5, 13 and 24(1) of the Local Government: Municipal Structures Act, 117 of 1998 are inconsistent with the provisions of the Constitution and accordingly invalid.
4. 4.1 Section 6(2) of the above Act is inconsistent with the provisions of the Constitution and accordingly invalid;
4.2 the declaration of invalidity in paragraph 4.1 above is suspended for a period of one year, as from the date of this order, in order to afford Parliament an opportunity of correcting the defect in question;
4.3 pending the correction of the defect in question or the expiry of the
period of one year, whichever occurs first, the Minister must, under the provisions of section 6(2) of the said Act, approve every recommendation made by the Demarcation Board for purposes of section 6 and make a declaration under section 6(2) accordingly;
4.4 in the event of the period of one year referred to in paragraph 4.3 above expiring before the defect in question is corrected, the declaration of invalidity in paragraph 4.1 above will only take effect as from the date of such expiry.
5. Save for the above the main applications are dismissed.
6. All parties in both applications are to pay their own costs, including the costs incurred in connection with the interim relief.
Chaskalson P, Langa DP, Ackermann J,
Goldstone J, Madala J and Sachs J concur in the judgment of Ngcobo J.
O’REGAN J:
[140] I have had the opportunity of reading
the judgment prepared by Ngcobo J. I dissent from his conclusion that sections
4, 5
and 6(2) of the Local Government: Municipal Structures Act, 117 of 1998
(the Structures Act) are unconstitutional and accordingly
dissent from his order
in that respect. In my view, those provisions give rise to no constitutional
rupture for the reasons that
follow.
The constitutional
scheme
[141] The principal constitutional provision relevant to
determining the constitutionality of sections 4, 5 and 6 is section 155
which,
for ease of understanding, I repeat:
“Establishment of Municipalities
(1) There are the following categories of municipality:
(a) Category A: A municipality that has exclusive municipal executive and legislative authority in its area.
(b) Category B: A municipality that shares municipal executive and legislative authority in its area with a category C municipality within whose area it falls.
(c) Category C: A municipality that has municipal executive and legislative authority in an area that includes more than one municipality.
(2) National legislation must define the different types of municipality that may be established within each category.
(3) National legislation must —
(a) establish the criteria for determining when an area should have a single category A municipality or when it should have municipalities of both category B and category C;
(b) establish criteria and procedures for the determination of municipal boundaries by an independent authority; and
(c) subject to section 229, make provision for an appropriate division of powers and functions between municipalities when an area has municipalities of both category B and category C. A division of powers and functions between a category B municipality and a category C municipality may differ from the division of powers and functions between another category B municipality and that category C municipality.
(4) The legislation referred to in subsection (3) must take into account the need to provide municipal services in an equitable and sustainable manner.
(5) Provincial legislation must determine the different types of municipality to be established in the province.
(6) Each provincial government must establish municipalities in its province in a manner consistent with the legislation enacted in terms of subsection (2) and (3) and, by legislative or other measures, must —
(a) provide for the monitoring and support of local government in the province; and
(b) promote the development of local government capacity to enable municipalities to perform their functions and manage their own affairs.
(6A) . . .
(7) The national government, subject to section 44, and the provincial governments have the legislative and executive authority to see to the effective performance by municipalities of their functions in respect of matters listed in schedules 4 and 5, by regulating the exercise by municipalities of their executive authority referred to in section 156(1).”
It
is clear from section 155(1) that the Constitution provides for three categories
of local government. These were described by
this Court in the second
Certification judgment as “(a) self-standing municipalities, (b)
municipalities that form part of
a comprehensive co-ordinating structure, and
(c) municipalities that perform coordinating
functions.”12[0] The
Structures Act refers to these three categories of municipality as metropolitan
municipalities, local municipalities and district
municipalities.
[142] It is also clear that section 155 specifies four
requirements which national legislation must meet. First, it must define
the
different types of municipality that may be established within each category of
municipality.12[1] Secondly, it
must provide “the criteria for determining when an area should have a
single category A municipality or when
it should have municipalities of both
category B and category
C”.12[2] Thirdly, it must
provide criteria and procedures for the determination of the boundaries of all
municipalities which must be drawn
by an independent
authority.12[3] Fourthly it must
make provision for an appropriate division of powers and functions between local
and district municipalities.12[4]
All this is subject to section 155(4) which requires the legislation to
“take into account the need to provide municipal services
in an equitable
and sustainable manner”.
[143] Once national legislation has
provided the types of municipality which may be established for each category of
municipality,
each province must, by legislation, select a provincial list of
types of municipality for each category from the national
list.12[5] This provincial list
will then be applicable in the province concerned. The province must establish
the municipalities12[6] and
thereafter monitor and support local government and promote the development of
local government capacity within the
province.12[7]
[144] The
process for establishing municipalities contemplated by section 155 seems to me
to be the following: (a) the enactment
of national legislation contemplated in
section 155(2)and (3); (b) the identification for each area of the category of
municipality
to be established by the application of criteria to be set out in
the national legislation; (c) the determination of boundaries for
municipalities
by an independent body which shall apply criteria and follow procedures
established in the national legislation; (d)
the enactment of provincial
legislation in each province identifying the types of municipality which may be
established in each province;
and (e) the establishment of municipalities by
provinces in terms of the relevant national and provincial legislation.
Challenge to sections 4 and 5 of the Structures Act
[145] My
difference with Ngcobo J relates to the question whether sections 4 and 5 of the
Structures Act are in conflict with section
155 of the Constitution. They read
as follows:
“4. (1) The Minister must apply the criteria set out in section 2 and determine whether an area in terms of the criteria must have a single category A municipality or whether it must have municipalities of both category C and category B.
(2) The Minister may determine that an area must have a category A municipality only after consultation with the MEC for local government in the province concerned, the Demarcation Board, SALGA and organised local government in the province.
5. (1) If the Minister determines that an area must have a single category A municipality, the Minister, by notice in the Government Gazette, must declare that area as a metropolitan area.
(2) When declaring an area as a metropolitan area the Minister designates the area by identifying the nodal points of the area but must leave the determination of the outer boundaries to the Demarcation Board.”
In summary, these provisions
require the Minister to apply the criteria provided in section 2 of the
Structures Act to determine whether
an area shall have a category A municipality
or not. The Minister is required to ident