South African Municipal Worker's Union v Minister of Co-Operative Governance and Traditional Affairs (3558/2013) [2016] ZAGPPHC 733 (23 February 2016)

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[2016] ZAGPPHC 733
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South African Municipal Worker's Union v Minister of Co-Operative Governance and Traditional Affairs (3558/2013) [2016] ZAGPPHC 733 (23 February 2016)

IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
23/2/2016
CASE
NUMBER: 3558/2013
Reportable:
Yes
Of
interest to other judges: Yes
Revised.
In
the matters between: -
SOUTH
AFRICAN MUNICIPAL WORKER’S
UNION
Applicant
AND
THE
MINISTER OF CO-OPERATIVE
GOVENANCE
First

Respondent
AND
TRADITIONAL AFFAIRS
THE
SPEAKER OF THE NATIONAL COUCIL
OF
Second

Respondent
PROVINCES
THE
CHAIRPERSON OF THE NATIONAL COUNCIL
OF
Third

Respondent
PROVINCES
THE
PREMIER OF THE EASTERN
CAPE
Fourth

Respondent
THE
PREMIER OF THE FREE
STATE
Fifth

Respondent
THE
PREMIER OF
GAUTENG
Sixth

Respondent
THE
PREMIER OF
KWAZULU-NATAL
Seventh

Respondent
THE
PREMIER OF
MPUMALANGA
Eighth

Respondent
THE
PREMIER OF THE NORTHERN
CAPE
Ninth

Respondent
THE
PREMIER OF
LIMPOPO
Tenth

Respondent
THE
PREMIER OF NORTH
WEST
Eleventh

Respondent
THE
PREMIER OF THE WESTERN
CAPE
Twelfth

Respondent
THE
SOUTH AFRICAN LOCAL GOVERNMENT
ASSOCIATION
Thirteenth

Respondent
JUDGMENT
JANSEN
J
"Quiscustodiet
ipsos custodes?"
[1]
This application consists of two issues: -
[1.1.] The first
issue is a declaration of invalidity sought in relation to the entire
Local Government Municipal Systems Amendment
Act 7 of 2011 ("
the
Amendment Act
") allegedly due to an incorrect procedure
followed in enacting it.
[1.2.] The second
issue is whether section 56A of the Amendment Act is a justifiable
limitation in terms of section 36 of the Constitution
of the Republic
of South Africa, 1996
("the Constitution")
on the
right to make free political choices in terms of section 19(1) of the
Constitution.
[2]
Different sets of counsel represented the respondents in respect of
the two different issues. Effectively the application was
argued as
two different applications.
[3]
It was argued at the hearing of these special motions by the first
respondent that it was unnecessary to adjudicate upon the
second
issue set out above.
[4]
Even though there were attempts at pre-trial meetings by the first
respondent to have the two issues dealt with separately,
the
applicant wished both to be heard contemporaneously. In the matter of
Tongoane and Others v National Minister for Agriculture and
Land Affairs and Others
(CCTl00/09) [2010) ZACC 10;
2010
(6)
SA 214
(CC);
2010 (8) BCLR 741
(CC) (11 May 2010)
("Tongoane"),
the Constitutional Court
held that it would be an exercise in futility should a court hold
that an entire statute is unconstitutional,
to analyse sections of it
in order to ascertain the validity or demise thereof or demise. As
the court first had to hear argument
in order to assess the
constitutional validity or otherwise of the statute as a whole, it
also heard the issue regarding the unconstitutionality
of section 56A
thereof, were it to hold that the statute as a whole was not
unconstitutional.
[5]
The matter was set down for three days. On the first day the legal
representatives were called in to sort out the court files
which were
in a state of disarray. Notwithstanding the loss of a day, the
parties managed to finish their arguments within two
days.
Furthermore, the attorney for the applicants filed an affidavit
explaining that all files had been in a perfect format and
that he
had no explanation why heads of argument and the like were inserted
at the front of the court bundles, etc. The court accepts
his
explanation unconditionally. The problems no doubt arose because
there were two previous postponements of this matter, the
first
occasioned by what the respondents termed "new evidence" in
reply in an affidavit of a Professor Tapscott whereupon
Louw J
allowed the first respondent to reply to Professor Tapscott's
affidavit. The second postponement was occasioned by the fact
that a
point was raised from the bar by the respondents' representatives
that a proper Rule 16A notice had not been placed on the
designated
notice board by the registrar of this court. The applicant's
correspondent attorney deposed to an affidavit that she,
personally,
saw the registrar post the notice on the notice board "sufficiently
timeously" prior to the hearing of the
matter. Nonetheless it
was ordered that a new Rule 16A be affixed to the notice board by the
registrar.
[6]
One can hence understand that the files may have been re-organised in
the process.
[7]
Three times was a charm for the applicant and argument proceeded
before this court.
The first issue
(Procedural):
[8]
The nub of this issue is: should the Amendment Act have been
promulgated in terms of section 75 or section 76 of the Constitution?
[9]
It is contended by the applicant that the Amendment Act should have
been passed in terms of section 76 of the Constitution which

regulates ordinary Bills affecting provinces and not section 75,
which regulates ordinary Bills not affecting provinces.
Defacto
it
was passed in terms of section 75.
[10]
As is clear from the section 75 and section 76 procedures: -
[10.1.] Section 76
gives more weight to the position of the National Council of
Provinces (the "NCOP"), chiefly through
the requirement
that if one House rejects a Bill accepted by the other, the
legislation must be referred to the Mediation Committee;
[10.2.] If the NCOP
objects to a version of the Bill approved by the Mediation Committee,
in respect of a Bill which has been introduced
in the National
Assembly, the Bill lapses unless it is passed again by the National
Assembly with a two-thirds majority; and
[10.3.] In respect
of section 76 Bills, each provincial delegation casts only one vote.
The support of five of the nine provincial
delegations is a
prerequisite. However, when the NCOP deals with a Bill that does not
affect the provinces a section 75 Bill -
each delegate to the NCOP
votes as an individual (or party member) and a majority of those
present must support the Bill for it
to be passed. The laws for which
the Constitution prescribes the section 75 process are (as are
national issues) important to provinces
but are not laws which
concern provincial government as such.
[11]
What is important to note is that in terms of section 76(3), which
refers to ordinary Bills affecting provinces, the following
is
prescribed: -
"(3)
A
Bill must be dealt with in accordance with the procedure established
by either subsection (1) or subsection (2) if it falls within
a
functional area listed in Schedule 4 or provides for legislation
envisaged in any of the following sections:
-
(a)
section 65(2)
;
(b)
section
163
;
(c)
section 182
;
(d)
section 195(3) and (4)
;
(e)
section 196; and
(f) section
197."
[emphasis added]
The
Three Tiers of Government in South Africa:
[12]
The Constitution provides for an intergovernmental system with
special emphasis on social services and the delivery of basic

services.
[13]
In
section 40(1) the Constitution provides for a "..•
government
•.•
constituted
as national, provincial and local spheres of government which are
distinctive, interdependent and interrelated".
The
term "distinctive" is used to indicate that each sphere
exists in its own right and is the final decision-maker on
a defined
range of functions and is accountable to its constituency for its
decisions.
[1]
[14]
Most social services are shared functions between the national and
provincial governments. Basic services such as water, electricity
and
refuse-removal fall within the municipal infrastructure performed
within
a regulatory framework imposed by national and
provincial legislation.
[15]
The regulatory framework for purposes of monitoring is set by the
national government. The national legislature has the duty
to
intervene in order to enforce its regulatory framework, when
necessary.
[16]
Parliament is therefore entitled to enact legislation which enforces
its regulatory framework. The same applies to provinces
which also
have all regulatory and supervisory powers over municipalities.
Municipalities on the other hand, must operate within
the framework
prescribed for them. Thus, although "distinctive", the
municipal, provincial and national spheres are interdependent.
[17]
It is for this reason that the boundaries between the different
spheres of government are termed as "soft".
[18]
Co-operative government in terms of section 41(1)(c) of the
Constitution requires effective, transparent, accountable and
coherent governance. Hence each sphere of government must collaborate
in order to attain common goals.
[19]
How the three tiers of government operate was first analysed in the
Constitutional case of
Ex
Parte President of the
Republic of South Africa: In re Constitutionality of the Liquor Bill
(CCT12/99)
[1999] ZACC 15
;
2000 (1) SA 732
;
2000 (1) BCLR
1
(11 November 1999).
In this matter the President himself had
referred the matter to the Constitutional Court, invoking the
provisions of section 84(2)(c)
of the 1996 Constitution for the first
time.
[20]
The Liquor Bill had been passed by the National Assembly on 31 August
1998 in terms of section 76(1). The President refused
to assent to it
and referred it back to the National Assembly which simply referred
it back to the President with no amendments.
[21]
The Western Cape government and the Minister of Trade and Industry
lodged affidavits on instructions of the Constitutional
Court.
[22]
Part A of Schedule 5 of the Constitution lists the functional areas
of exclusive legislative competence of the three tiers
of government.
Parliament may only intervene in terms of section 44(2) of the
Constitution, when it is necessary. Section 44(2)
and (3) provides as
follows: -
"(2)
Parliament may intervene, by passing legislation in accordance with
section 76 (I), with regard to a matter falling within
a functional
area listed in Schedule 5, when it is necessary-
(a)
to maintain national security;
(b)
to maintain economic unity;
(c)
to maintain essential national standards;
(d)
to establish minimum standards required for the
rendering of services; or
(e)
to prevent unreasonable action taken by a province
which is prejudicial to the interests of another province or to the
country as
a whole.
(3)
Legislation with regard to a matter that is reasonably necessary for,
or incidental to
, the effective exercise of a power
concerning any matter listed in Schedule 4 is, for all purposes,
legislation with regard to a matter listed in Schedule 4."
[emphasis added]
[23]
Whether intervention is necessary depends on various legal, factual
and policy factors. The President found himself ill-equipped
to
express an opinion - hence the referral to the Constitutional Court.
[24]
The Bill was introduced in terms of section 76 read with section 44(l
)(b)(ii) and section 44(2) of the Constitution. According
to the
Minister of Trade and Industry the National Assembly was entitled to
reconsider the Bill based on the
"national legislature's
legitimate right to intervene in order to preserve the economic unity
and to establish national standards".
[25]
The judgment emphasises that the Constitution constitutes the
Republic as
"one, sovereign, democratic state"
.
Cooperative governance is therefore envisaged. Other provisions,
such as section 40(1) expressly stipulates that the
"government
is constituted as national, provincial and local spheres of
government which are distinctive, interdependent and
interrelated''
(as pointed out above). National legislation is vested in parliament,
provincial legislature in the provincial sphere and in municipal

councils in the local sphere. Section 40 is part of Chapter 3. All of
this includes a "new philosophy", which creates
a
cooperative governance with concomitant obligations. In terms of
section 40(2) all spheres of government are bound by the government

principles set out in Chapter 3 of the Constitution. Each sphere has
a constitutional duty
"not
(to)
assume any
power or function except those conferred on them in terms of the
Constitution".
[26]
In terms of section (104)(l )(a)(i}-{ii) the legislative power vested
in the provincial legislature is,
inter alia,
to pass
legislation for its province regarding: -
"(i) any
matter within a functional area listed in Schedule 4;
(ii) any
matter within a functional area listed in Schedule 5."
[27]
Similarly section 104(4) provides that provinces may legislate with
regard to matters reasonably necessary for, or incidental
to, the
exercise of a power concerning a Schedule 4 matter and that such
legislation, for all purposes, is Schedule 4 legislation.
What is
difficult to understand is the role of section 44(3) for Schedule 5
matters. As was pointed out by Cameron J, section 44(3)
allows for an
extended encroachment on the exclusive competences by permitting
national legislation for Schedule 5 when there is
a reasonably
necessity for such legislation, or when it is incidental to the
effective exercise of a Schedule 4 power. Cameron
J was at pains to
point out that another construction is that section 44(3) has no
bearing on Schedule 5, but merely delineates
the ambit of national
legislation covered by section 146, which regulates conflicts between
national and provincial legislation
falling within functional areas
listed in Schedule 4. He held that such a construction is supported
by the fact that section 44(3)
alludes to Schedule 4 legislation.
[28]
Schedules 4 and 5 of the Constitution provide as follows: -
"Schedule
4
FUNCTIONAL
AREAS OF CONCURRENT NATIONAL AND PROVINCIAL LEGISLATIVE COMPETENCE
PART A
Administration
of indigenous forests Agriculture
Airports other
than international and national airports Animal control and diseases
Casinos,
racing, gambling and wagering, excluding lotteries and sports pools
Consumer
protection Cultural matters Disaster management
Education at
all levels, excluding tertiary education
Environment
Health
services
Housing
Indigenous law
and customary law, subject to Chapter 12 of the Constitution
Industrial
promotion
Language
policy and the regulation of official languages to the extent that
the provisions of section 6 of the Constitution expressly
confer upon
the provincial legislature's legislative competence
Media services
directly controlled or provided by the provincial government, subject
to section 192
Nature
conservation, excluding national parks, national botanical gardens
and marine resources
Police to the
extent that the provisions of Chapter 11 of the Constitution confer
upon the provincial legislatures legislative competence
Pollution
control Population development Property transferfees
Provincial
public enterprises in respect of the functional areas in this
Schedule and Schedule 5
Public
transport
Public works
only in respect of the needs of provincial government departments in
the discharge of their responsibilities to administer
functions
specifically assigned to them in terms of the Constitution or any
other law Regional planning and development
Road traffic
regulation Soil conservation Tourism
Trade
Traditional
leadership, subject to Chapter 12 of the Constitution Urban and rural
development
Vehicle
licensing Welfare services
PART B
The following
local government matters to the extent set out in section 155(6)(a)
and (7):
Air pollution
Building
regulations
Child care
facilities
Electricity
and gas reticulation
Firefighting
services
Local tourism
Municipal
airports
Municipal
planning
Municipal
health services
Municipal
public transport
Municipal
public works onlv in respect of the needs of municipalities in the
discharge of their responsibilities to administer functions

specifically assigned to them under this Constitution or anv other
law
Pontoons,
ferries, jetties, piers and harbours, excluding the regulation of
international and national shipping and matters related
thereto
Storm water
management systems in built-up areas Trading regulations
Water and
sanitation services limited to potable water supply systems and
domestic waste-water and sewage disposal systems
(emphasis
added)
Schedule 5
FUNCTIONAL
AREAS OF EXCLUSIVE PROVINCJAL LEGJSLATIVE COMPETENCE
PART A
Abattoirs
Ambulance
services
Archives other
than national archives
Libraries
other than national libraries
Liquor
licences
Museums other
than national museums
Provincial
planning
Provincial
cultural matters
Provincial
recreation and amenities
Provincial
sport
Provincial
roads and traffic
Veterinary
services, excluding regulation of the profession
PART B
The following
local government matters to the extent set out for provinces in
section 155 (6) (a) and (7):
Beaches and
amusement facilities
Billboards and
the display of advertisements in public places
Cemeteries,
funeral parlours and crematoria
Cleansing
Control of
public nuisances
Control of
undertakings that sell liquor to the public
Facilities for
the accommodation, care and burial of animals
Fencing and
fences
Licensing of
dogs
Licensing and
control of undertakings that sell food to the public
Local
amenities
Local sport
facilities
Markets
Municipal
abattoirs
Municipal
parks and recreation Municipal roads
Noise
pollution
Pounds Public
places
Refuse
removal, refuse dumps and solid waste disposal Street trading
Street
lighting
Traffic and
parking "
[emphasis added]
[29]
Clearly
an overlap of Schedule 4 and 5 is inevitable. A similar issue arose
in 1941 in the Indian Federal Court when Sir Maurice
Gwyer CJ stated:
-
"It must
inevitably happen from time to time that legislation though
purporting to deal with a subject in one List touches
also upon a
subject in another List, and the different provisions of the
enactment may be so closely intertwined that blind adherence
to a
strictly verbal interpretation would result in a large number of
statutes being declared invalid because the legislature enacting
them
may appear to have legislated in a forbidden sphere.”
[2]
[30]
In terms of section 104(1)(b) each province may pass legislation for
"its province". However, the national legislature
may
override such legislation for purposes of national security and
essential national standards, including the minimum standards

required for the rendition of services.
[31]
Intra-provincially the provincial legislation falls within the
provinces' function - inter-provincially, the national legislature

may interfere.
[32]
A determination of the character of the legislation is called for,
which is complicated. One piece of legislation may have
various
substantial characters. Different parts of the legislation may thus
require different assessments.
[33]
In
Ex Parte Speaker of the KwaZulu-Natal
Provincial Legislature: In re KwaZulu­ Natal Amakhosi and
Iziphakanyiswa Amendment Bill
of 1995
[1996]
ZACC 15
;
1996 (4) SA 653
(CC);
1996 (7) BCLR 903
(CC),
the Constitutional Court had to determine whether a provincial Bill
fell within the legislative competence granted to the provinces
in
Schedule 6 of the interim Constitution. Chaskalson J expressed the
opinion that the "purpose" of legislation is very
relevant:
-
"It may
be relevant to show that although the legislation purports to deal
with a matter within Schedule 6 its true purpose
and effect is to
achieve a
different goal which falls outside the
functional areas listed in Schedule 6
. In such a
case a Court would hold that the province has exceeded its
legislative competence. It is necessary, therefore, to consider

whether the substance of the legislation, which depends not only on
itsform but also on its purpose and effect, is within the legislative

competence of the KwaZulu­ Natal provincial legislature."
[emphasis added]
[34]
Not only the stated purpose of legislation but also its effect is
therefore determative of the purpose of legislation. Hence
the
citation of the preamble to the Amendment Act earlier on in this
judgment.
[35]
The goal of the study
Oversight Model of the South African
Legislative Sector September 2001
, compiled by the Legislative
sector of South Africa, is to encourage the development of common
standards, vision and principles
and the implementation of best
oversight practices in South Africa as set out in the preamble to the
document. It aims to make
different spheres of the government
partners in the attainment of different service delivery areas.
[36]
Sub. cap
Oversight According to the Elements of the Sector
Oversight Model
the following is stated at page 12: -
"Firstly,
the term 'oversight' in the South African political context, as in
many others, is customarily perceived as the purview
of opposition
politicians. Those exercising oversight are generally afforded the
luxury of hindsight, and are ultimately divorced
from the
responsibility for failure. The model attempts to redefine this image
of oversight by introducing an oversight regime
based less on
institutional or political confrontation. Instead, it tries to
redefine legislatures as a central component in the
Public Service
delivery machine. The redefinition rests on the understanding that if
the legislatures' oversight role is exercised
in pursuit of good
government, then the legislatures also bear some responsibility for
overall government performance.
…
..
Secondly, the
Westminster-based parliamentary system sanctions a government with a
clear majority topursue the platform upon which
it was brought to
power. Therein lies government's prerogative. Yet, the need for
accountabilitv, transparencv. and representativity
are never taken
for
g
ranted. Securing these three
essential principles in the system, without compromising its
strengths, is what the Budget Cycle Model
(BCM) seeks to achieve."
[emphasis added]
[37]
Attached hereto is an addendum of the constitutional provisions which
refer directly and indirectly to oversight and accountability
on the
part of the three tiers of government as set out in the
Oversight
Model of the South African Legislative Sector.
[38]
From the sections of the Constitution, as set out in attached
addendum, it is abundantly clear that the three tiers government
are
distinctive, interdependent and interrelated at the same time, with
very soft boundaries between them, as put by Christina
Murray and
Richard Simeon, in the article
"Tagging" Bills in
Parliament section 75 or section
76 published in 2006 Volume 123
Issue 2 SALJ at page 232.
[39]
Furthermore, as can be seen from the constitutional sections cited,
Schedule 4 presents a plethora of "functional areas"
in
respect of which both the provincial and national legislature may
enact laws.
[40]
Only in respect of a small number of largely unimportant functions
set out in Schedule 5, do the provinces have exclusive jurisdiction

and even then, the national legislature may step in, for certain
clear and limited purposes.
[41]
It is because of this significant overlap between national and
provincial legislation that it is necessary for the NCOP to
approve
Bills which "affect" provinces in terms of section 76 of
the Constitution.
[42]
Section 76 thus requires a super-majority to override the NCOP. The
section 75 procedure ensures that even when provinces are
not the
governing institutions, their concerns will be taken into account,
because a section 75 Bill will enjoy scrutiny twice.
[43]
It can
readily be understood that how an act is classified is very
important. Whether a provincial delegation votes as a unity in
terms
of section 76, or as individuals, may, in most cases, be
determinative as to whether the NCOP passes a Bill.

The outcomes may differ substantially depending upon the approach
adopted.
[3]
[44]
In South Africa, the quandary is exacerbated by the wording of
section 44(1)(b)(ii) which provides that
"legislation with
regard to any matter within afunctional area listed in Schedule 4
and
any other matter required by the Constitution
must
follow the s 76 route".
[
emphasis added]
[45]
Section 76(3), as stated,
inter alia
provides that legislation
which
"falls within a functional area listed in Schedule 4''
has to follow the section 76 route.
[46]
Murray and Simeon
op cit.
argue convincingly that the
"tagging" procedure currently used by the Parliament is
inaccurate: -
"The
division of powers under the 1996 Constitution
The soft
boundaries between the spheres of government are evident in a number
of aspects of the model of multi-level government
established by the
Constitution. The concurrent jurisdiction of the national sphere and
provinces over many important matters is
just one example. Others
include the expectation, in s 125, that provinces
will usually
implement national legislation that falls within functions listed in
schedule 4; the responsibility that provinces
and the national
government share for supporting local government; the national
sphere's obligation to support provincial government,
spelt out most
clearly in s 125; the largely centralized revenue-raising power
balanced by a constitutional requirement of equitable
sharing of
revenue; the criteria set out in s 146for determining what law should
prevail when national and provincial laws conflict
(these assume that
the national government will establish norms and standards which
provinces will maintain); national powers of
intervention in both the
provincial and local sphere and provincial powers of intervention in
local government; the establishment
of a single public service; and,
perhaps most complicated of all, overlapping responsibility for
policing under ss 206 and 207."
[47]
Other
than in countries such as Canada and the United States, the learned
authors
loc.
cit.
point
out that the different tiers of government do not compete in South
Africa, but have to work together to a societal goal, in
a
co-operative and symbiotic model. South Africa, as is the case with
Germany, has functions according to an "integrated"

model.
[4]
[48]
The national legislature prescribes the nine provincial delegations
which make up the NCOP (although the representatives of
local
governments may also participate in the NCOP, but have no voting
rights). The provincial premier is the head of a delegation.
Six
delegates are permanent members and are nominated by their
constituencies. There are three other members of the provincial

legislature. Three further members are chosen on an
ad hoc
basis
because of their expertise when the Bill is being considered.
[49]
The
national sphere has exclusive legislative power over matters relating
to public service. With section 75 legislation the NCOP
has a mere
indirect engagement. Under section 75 the NCOP has little pressure it
can put on the National Assembly. Its views are
considered lightly
and are easily ignored by the National Assembly.
[5]
[6]
[50]
Thus the NCOP "passes" a section 76 Bill but only
"considers" a section 75 Bill.
[51]
The single most important sentence in Murray and Simeon's article is
the following at
op cit.
page 29: -
"(T)hus,
through the s 76 and s 75procedures the Constitution ensures that all
Bills will be considered from a provincial perspective
and that no
Bill will be passed too hastily.
...
Thus, just as whether
judges interpret federal or provincial powers narrowly or broadly can
greatly influence the nature of decentralization
in a federal system,
so whether s 76 is interpreted narrowly or broadly will have major
consequences for the integrity, effectiveness
and influence of the
provinces ."
[52]
Each Bill introduced in Parliament includes in its attached
memorandum a statement in which the law advisors advise in respect
of
which section they believe the Bill should be tagged. However, the
ultimate decision as to how a Bill should be tagged must
be taken by
Parliament. A Joint Tagging Mechanism ("
JTM
")
comprised of the Speaker, Deputy Speaker of the National Assembly,
the Chairperson and the Deputy Chairperson of the NCOP,
is
responsible for tagging. If agreement cannot be reached by the JTM, a
second legal opinion must be obtained, thereafter a reference
to the
National Assembly (when there is still no agreement) is called for
and, as a last resort, a reference to the Constitutional
Court.
[53]
In other words, for purposes of tagging the purpose of the Bill is
the overriding consideration. This is so,
a fortiori,
because
of the provisions of section 44(3) of the Constitution. In
Tongoane
at paragraph [60] it was held that
"(t)he more it
(a Bill
)
affects the interests, concerns and capacities
of the provinces, the more say the provinces should have on its
content".
[54]
That the procedure to be adopted in adopting a Bill is not dictated
by legislative competence is borne out by section 76(3)
which
requires the section 76 route to be followed for certain classes of
legislation including section 195(3) and (4) as well
as section 197 -
over which provinces have no legislative competence.
[55]
In
order to "tag" a Bill, Parliament must not only consider
the "functional areas" listed in Schedules 4 and
5 but also
the subject matter of the Bill. Peter W Hogg comments as follows on
the Canadian position: -
"The
process is, in Laskin 's words, 'an interlocking one, in which the
British North America Act and the challenged legislation
react on one
another and fix each other's meaning'. Nevertheless, for the purposes
of analysis it is necessary to recognise that
two steps are involved:
the characterisation of the challenged law (step 1) and the
interpretation of the power-distributing provisions
of the
Constitution (step 2).
"
[7]
[56]
Unfortunately many laws concern various functions, such as water laws
and environmental laws. An example is the Disestablishment
of South
African Housing Trust Limited Bill B3-2002, now the
Disestablishment
of South African Housing Trust Limited Act 26 of 2002
, which was
treated as a Bill concerning a company and not the Schedule 4 matter
"housing".
[57]
The Joint Tagging Mechanism works with a "pith and substance
approach". The true nature and character of the Bill
is sought
to be ascertained. It is not uncommon that it may be clear that a
Bill in certain respects does affect provinces and
in other respects
not and hence different sections of the Bill have, theoretically, to
follow different routes in order to be passed.
Such Bills qualify as
so-called "mixed Bills".
[58]
This leads to an inchoate and fragmentary approach to the enactment
of Bills. Premiers must then comment on incomplete Bills,
which is
clearly an impossible task. New Joint Rules of Parliament are
imminent, declaring that mixed Bills must be passed both
by the NCOP
and individual delegates (which is bound to give rise to dissent).
[59]
In
Australia a different approach is adopted. Evatt J held as follows in
Huddart
Parker Ltd v Commonwealth
[1931] HCA 1
;
(1931) 44 CLR 492
at 527:
[8]
-
"The task
is essentially different under the Australian Constitution. The
question is still one of construction; but it is
construction of the
express powers conferred upon the central Parliament. No doubt the
powers of the States are very important,
but their existence does not
control or predetermine those duly granted to the Commonwealth. The
legislative powers of the States
are only exclusive in respect of
matters not covered by specific enumeration of Commonwealth powers.
It is the grant to the Commonwealth
that must first be ascertained.
Whatever self-governing powers remain belong exclusively to the
States."
[60]
The doctrine of "pith and substance" was once the vogue in
patent law as well. The correct approach to adopt is a
purposive
approach, which contextualises the Bill in accordance with the test
to be adopted in order to interpret a written document
as stated by
Wallis JA in
Bothma-Botha Transport (Edms) Bpk v S Bothma
&
Seun Transport (Edms) Bpk
[2013] ZASCA 176
;
2014
(2) SA 494
(SCA).
[61]
Cameron AJ in the
Liquor Bill
case made it clear that one
should shy away from the pith and substance test and rather pose the
question as to how a Bill affects
the constitutional jurisdiction of
provinces or municipalities. The learned judge thus, already,
espoused the concept of purposive
construction.
[62]
The purposive construction allows provinces to be actively involved
in Bills which affect them.
[63]
Section
76 procedures ensure that, as envisaged by section 41(1) that
intergovernmental relations be conducted with
"mutual
trust and good fai th"
and
that each sphere, including the national sphere, must respect
"the
geographical, functional
[and]
. . .
institutional
integrity"
of
the others. This is a central purpose of the NCOP; and section 76 is
its most effective tool.
[9]
[64]
In order to assess the contention that the Bill should have been
passed in terms of section 76, regard has to be had to the
contents
of the Amendment Act. The preamble thereto gives an expose of its
contents: -
"LOCAL
GOVERNMENT: MUNICIPAL SYSTEMS AMENDMENT ACT 7 0F 2011
To amend the
Local Government: Municipal Systems Act, 2000
, so as to insert and
amend certain definitions; to make further provision for the
appointment of municipal managers and managers
directly accountable
to municipal managers;
to provide for procedures and
competency criteria (or such appointments
, and for
the consequences of appointments made otherwise than in accordance
with such procedures and criteria;
to determine
timeframes within which performance agreements of municipal managers
and managers directly accountable to municipal
managers must be
concluded
; to make further provision for the
evaluation of the performance of municipal managers and managers
directly accountable to municipal
managers; to require employment
contracts and performance agreements of municipal managers and
managers directly accountable to
municipal managers
to
be consistent with the Act and any regulations made by the Minister;
to require all staff systems and procedures of a municipality
to be
consistent with uniform standards determined by the Minister by
regulation
; to bar municipal managers and managers
directly accountable to municipal managers from holding political
office in political parties;
to regulate the employment of municipal
employees who have been dismissed;
to provide for
the Minister to make regulations relating to the duties,
remuneration, benefits and other terms and conditions of
employment
of municipal managers and managers directly accountable to municipal
managers; to provide for the approval of staff
establishments of
municipalities by the respective municipal councils
;
to prohibit the employment of a person in a municipality if the post
to which he or she is appointed is not provided for in the
staff
establishment of that municipality; to enable the Minister to
prescribe frameworks to regulate human resource management
systems
for local government and mandates for organised local government; to
extend the Minister's powers to make regulations relating
to
municipal staf f matters; to make a consequential amendment to the
Local Government: Municipal Structures Act, 1998
, by deleting the
provision dealing with the appointment of municipal managers; and to
provide tor
matters connected t
herewith."
[emphasis added]
[65]
The Minister's powers to enact regulations pertaining to
municipalities, in respect of the matter set out above,
prima
facie
appears to affect local municipalities directly and
provinces only tangentially.
[66]
An important case to consider is the matter of
Democratic
Alliance v President of South Africa and Others
2014 (4)
SA 402
(WCC).
This case, it was argued on behalf of the second
and third respondents, is effectively on all fours with the present
case.
[67]
A clear distinction was drawn between the following two concepts: -
[67.1.] Legislative
competence (which involves the determination of the subject- matter
or the substance of the legislation).
[67.2.] Whether the
provisions of a Bill in substantial measure fall within a functional
area listed in schedule 4.
[68]
These two separate tests were listed in
Tongoane
at
paragraphs [58] and [59].
[69]
It was emphasised in the Democratic Alliance case that a so-called
"pith and substance" test is used for legislative

competence and the "substantial measure" test for tagging.
In terms of the pith and substance test for legislative competence,

provisions which fall outside the pith and substance of the
legislation are seen as merely incidental. On the other hand, in
terms
of the substantial measure test all the provisions of a Bill
are taken into account, even incidental provisions, in order to
establish
whether the Bill in substantial measure affects functional
areas listed in schedule 4.
[70]
It is important to note that the terms of section 76(3) of the
Constitution are peremptory.
[71]
The legislative and executive powers to support local government can
be employed by provincial government to strengthen government

structures, powers and functions and to prevent a decline or
degeneration of such structures, powers and functions as was held
in
the
Ex parte Chairperson of the National Assembly: in re
Certification of the Constitution of the Republic of South Africa
1996 (4) SA 744
(CC)
(
"The First
Certification"
Judgment) at paragraph [367].
[72]
Section l54 of the Constitution reads as follows: -
"(1) 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.
(2) Draft
national or provincial legislation that affects the status,
institutions, powers or functions of local government must
be
published for public comment before it is introduced in Parliament or
a provincial legislature, in a manner that allows organised
local
government, municipalities and other interested persons an
opportunity to make representation with regard to the draft
legislation.
"
[73]
Section 154(2) of the Constitution recognises, by implication, that
both national and provincial legislation may affect
"the
status, institutions, powers or functions of local government".
[74]
Section 155(6) of the Constitution builds on the powers granted to
provincial governments over municipalities by section 154,
and
provides a further dynamic on the part of provinces in respect of the
manner in which municipalities legislate and administer.
It reads as
follows: -
"(6) Each
provincial government ...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.
(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 by regulating
the
exercise by municipalities of their executive authority referred to
in section 156 (1)."
(emphasis added)
[75]
Section 155(7), in particular, affords national and provincial
governments the power to regulate
the exercise of municipal
executive authority by setting standards and minimum requirements. It
was thus submitted that setting
such standards and minimum
requirements directly affect the interests, concerns and capabilities
of provincial governments.
[76]
However, the term
"regulating"
within the context of
section 155(7) has been held by the Constitutional Court to connote
"a broad managing or controlling rather than direct
authorisation fanction" (
The First Certification
Judgment
at paragraph [377].) The regulatory power
enables both national and provincial governments to set standards and
minimum requirements
and monitor compliance with those standards.
[77]
The Memorandum on the Objects of the Local Government Municipal
Systems Amendment Bill 2010
pertinently stipulates the
following: -
"The
Local Government: Municipal Systems Act (Act
No. 32 of 2000) ("the
Systems Act'?, authorises the Minister to set norms and standards or
guidelines in relation to personnel
matters, but does not give the
minister any effective regulatory powers relating to these matters
especially as far as they relate
to municipal managers and managers
directly accountable to municipal mangers. The main object of this
Bill is to grant the Minister
adequate regulatory powers in respect
of municipal managers and managers directly accountable to municipal
managers. The Bill furthermore
also addresses key elements of the
Local Government Turnaround Strategy. "
[78]
In the
First Certification Judgment
at paragraph [371]
the Constitutional Court described the legislative and executive
power granted to provinces to promote the development
of local
government capacity
"to perform its functions and manage
its affairs"
as
"more dynamic"
than its support role and concluded that: -
"Taken
together these competences are considerable and facilitate a measure
of provincial government control
over the
manner in which municipalities administer those matters in parts B of
NT schs 4 and 5.
This control is not purely
administrative. It could encompass control over municipal legislation
to the extent that such legislation impacts on the manner of
administration of LG matters.
"
(emphasis
added)
[79]
It is for the above reasons that the applicant contends that the
Amendment Act constitutes legislation envisaged by section
76(3) of
the Constitution.
Legislation
envisaged in section 76(3):
[80]
The Applicant submits that because the Bill provides for legislation
envisaged in section 76(3) of the Constitution (notably
section
195(3) and (4) and section 197) it should have been tagged as an
ordinary Bill affecting the provinces. It is accordingly
necessary to
establish whether the Bill: -
[80.1.]
Constitutes
national legislation as envisaged by section 195(3) which ensures the
promotion of the values and principles in section
195(1) of the
Constitution;
[10]
or
[80.2.]
Regulates
the appointment of people in public administration on policy
considerations;
[11]
or
[80.3.]
Regulates
the functions and structure of the public service;
[12]
or
[80.4.]
Regulates
terms and conditions of employment in the public service;
[13]
or
[80.5.]
Deals
with whether an employee in the public service may be favoured or
prejudiced only because they support a political party or
cause.
[14]
[81]
It is the applicant's contention, particularly due to the
introduction of regulations to be issued in terms of the Amendment

Act, that the said Bill provides for legislation envisaged in terms
of section 195(3) and (4) as well as section 197(1), (2) and
(3) of
the Constitution.
The
first respondent's submissions:
[82]
The first respondent correctly identifies the amendments introduced
by the municipal Systems Amendments Act as relating to
the following
issues: -
"Appointment
of a municipal manager;
Appointment of
managers directly accountable to the municipal manager;
Limitation of
political rights of municipal managers and managers directly
accountable to the municipal manager;
Employment
contracts of municipal managers and managers directly accountable to
the municipal manager;
Employment of
dismissed staff and record of disciplinary proceedings;
Staff
establishments;
Bargaining
council agreements;
Regulations;
Code of
Conduct for councillors."
[83]
The only section of the Amendment Act which has a wider range than
municipal government is the permissive section allowing
the Minister
to make regulations relating to the duties, remuneration, benefits
and the terms and conditions of employment of municipal
managers and
managers directly accountable to the municipal manager and other
matters as set out above.
[84]
The first respondent discusses the governance structures of local
governments. According to the Systems Act a municipality
consists of
political structures. administrative structures, and the community of
the municipality.
[85]
The three critical organs of municipal governance are: -
1. the municipal
council
2. the mayor
3. the municipal
manager
[86]
The interplay between these organs is critical for effective service
delivery and good governance.
[87]
The political structure of a municipality includes the municipal
council, the executive structures, namely the executive committee,

executive mayor, and the committees of the councils.
[88]
The Constitution vests both the legislative and executive powers of a
municipality in a municipal council (section 151(2) of
the
Constitution).
[89]
The councillors are elected to represent local communities on
municipal councils and are bound by the Code of Conduct for
Councillors.
[90]
The Systems Act also draws a clear distinction between the political
structures and the municipal administration.
[91]
A political office bearer is defined as follows in the Systems Act: -
a) The
Speaker;
b) The
Executive Mayor;
c) The Mayor;
d) The Deputy
Mayor;
e) The Deputy
Executive Mayor; and
f) Members of
the Executive Committee
[92]
The council of a municipality, in terms of section 4 of the Systems
Act, has a duty,
inter alia
to: -
a)
exercise the municipality's executive and legislative
authority and use the resources of the municipality in the best
interest of
the local community;
b)
provide, without fear or prejudice, democratic and
accountable government;
c)
encourage an involvement of the community;
d)
strive to ensure that municipal services are provided
to the local community in a financially and environmentally
sustainable manner;
e)
give members of the local community equitable access to
municipal services to which they are entitled; and
f)
contribute, together with other organs of state, to the
progressive realisation of the fundamental rights contained in
sections
24, 25, 26, 27 and 29 of the Constitution.
[93]
The Systems Act also provides the legal framework for the appointment
and functioning of the most senior levels of municipal

administration, namely the municipal manger and mangers directly
accountable to him or her. In terms of section 54A(l )(a), the

municipal manger is the head of the administration of a municipal
council.
[94]
The importance of a municipal manager as the head of the
administration of a municipal council was emphasised in the case of
Executive Council of the Western Cape v Minister of Provincial
Affairs and Constitutional Development Executive Council of KwaZulu

Natal v President of the Republic of South Africa
1999
(12) BCLR 1360
CC
at paragraph [109],where it is stated that the
manager is:
"...a key structure of a municipality and not
merely a personnel appointment as contemplated in section 161 (d) of
the Constitution".
[95]
The municipal manager is the primary interface between the political
structures and office bearers and the municipal administration.
The
functions of a municipal manager, who must meet prescribed financial
management competency levels, are set out in section 55
of the
Systems Act.
[96]
The mainstay of the applicant's argument is the constitutional
provisions which enable both national and provincial governments
to
set standards and minimum requirements for local government and to
monitor compliance with those standards.
[97]
The applicant also contends that the "broad purpose" of the
Bill also falls squarely within the ambit of section
97(1}-{2) and
section 195(3}-{4) of the Constitution.
The
second and third respondent's submissions:
[98]
The second and third respondents submit the following: -
[98.1.] The section
to which regard has to be had is section 76(3) of the Constitution.
[99]
It was emphasised by the second and third respondent that the goal of
tagging was to ensure that provinces fully and effectively
exercise
their appropriate role in the process of considering national
legislation which substantially affect them, as was held
in
Tongoane
at paragraph [69]. The principle that the question of tagging is
broader than the determination of legislative competence was accepted

by the second and third respondents.
[100]
The second and third respondents unreservedly accepted the
"substantial measure" test for tagging which permits
a
consideration of all the provisions of a Bill and their impact on
matters which substantially affect provinces. It accepted the
dictum
in
Tongoane
at paragraph [72] that
"(w)hether a
Bill is a section 76 Bill is determined in two ways. First, by the
explicit list of legislative matters in section
76(3)(a)-(f), and
second by whether the provisions of a Bill in substantial measure
fall within a concurrent provincial legislative
competence".
[101]
In
Democratic Alliance v President of South Africa and Others
supra
at paragraph [88] it was emphasised that a Bill must not
be tagged as requiring a section 76 procedure if it would only cause
certain
knock-on effects on matters in respect of which provinces may
regulate in terms of Schedule 4. Furthermore, in the said matter it

was held that only legislation which directly regulates the matters
referred to in section 76(3) and (4) namely sections 44(2),
65(2),
163, 182, 195(3) and (4), 196, 197, 220(3) and Chapter 13 were
determinative of whether a Bill should follow the section
76
procedural route. Furthermore, the knock-on effects could only play a
role when it had such an effect on all provinces uniformly.
[102]
It was emphasised that the applicant did not contend that the
Amendment Act in substantial measure fell within the provincial

legislative competence and that the question was confined to whether
the Amendment Act fell within the provisions of section 195(3)
and
(4) and/or section 197 of the Constitution. Furthermore, it
wasemphasised that the applicant, as a second string to its bow,
as
set out above, suggested that the monitoring, supervision and support
powers of provincial government played a role in the tagging
process.
It was pointed out that this argument was not mentioned in the
affidavits and that such powers would differ from province
to
province and municipality to municipality and could not therefore
give the NCOP an enhanced legislative vote as it had to collect
the
votes of all nine provinces.
[103]
In any event, the Joint Tagging Mechanism obtained a legal opinion
that the Amendment Act be classified as a section 75 Bill.
On 4
August 2010 the Chairperson of the NCOP accepted this recommendation
and the speaker did so on 3 August 2010. At no point
in time was the
tagging of the Bill questioned. It is further important to note that
the Bill preceding the Amendment Act, namely
the
Local Government:
Municipal Systems Act 32 of 2000
, was also tagged as a
section 75
Bill.
[104]
In any event the second and third respondent made short shrift of the
section 195(3)
argument in stating that the national legislation
contemplated by
section 195(3)
is primarily the Public Service Act.
It was argued on the behalf of the second and third respondent that
the Amendment Act deals
with only a particular category of employees
at municipal level
vis-a-vis
"the public administration"
or "the public service".
[105]
It was further argued that because the Amendment Act deals with
employees at municipal level only, it does not substantially
affect
the provinces.
[106]
Section 197 of the Constitution provides as follows: -
"19
7
P
ublic Service"
(1)
Within public administration there is a public service for the
Republic, which must function, and be structured, in terms of
national
legislation, and which must loyally execute the lawful
policies of the government of the day.
(2) The terms
and conditions of employment in the public service must be regulated
by national legislation. Employees are entitled
to a/air pension as
regulated by national legislation.
(3)
No
employee of the public service may be favoured or prejudiced only
because that person supports a particular political party or
cause.
(4)
Provincial governments are responsible for the
recruitment, appointment, promotion, transfer and dismissa
l
of members of the public service in their administrations within a
framework of uniform norms and standards applying to the public

service."
[107]
Section !96(4)(f)(iv) refers, for example, only to national and
provincial organs of state.
[108]
Section 196 of the Constitution provides for a Public Service
Commission to promote, investigate, monitor and enforce the
values
and principles set out m section 195 throughout the public services.
[109]
Section 195(4) stipulates that
"(t)he
appointment in public administration of a number of persons on policy
considerations is not precluded, but national
legislation must
regulate these appointments in the public service".
[110]
This national legislation is the Public Service Act 103 of 1994.
[111]
It is significant that a "public service" is identified
within the public administration in section 197. Thus public

administration does not equate to public service. Section 197(2)
stipulates that the terms and conditions of the public service
must
be regulated by national legislation. Significantly section 197(4)
relates to how provincial governments must deal with members
of the
public in their administration within a framework of uniform norms
and standards applying to the public services.
[112]
It was argued on behalf of the second and third respondent that
"public service" refers to only national and provincial

departments and government components. A department is also defined
as such in the Public Service Act. Thus, it was argued, employees
at
local government level are not part of the public service. It was
submitted that the only legislation envisaged in section 197
is the
Public Service Act which does not include municipal employees.
However, this argument is circuitous given the fact that
one cannot
interpret a provision of the Constitution with reference to an Act.
One must give effect to the provisions of the Constitution.

Nonetheless, the only national legislation in place, currently, is
that envisaged in section 197(1).
[113]
The
Local Government Municipal Systems Act 32 of 2000
section 50(1)
and (2) states the following in respect of public administration: -
"50.
Basic values and principles governing local public administration
(1)
Local public administration is governed by the
democratic values and principles embodied in section 195(1) of the
Constitution.
(2)
In administering its affairs, a municipality must
strive to achieve the objects of local government set out in section
152(1) of
the Constitution, and comply with the duties set out in
sections 4(2) and 6."
[114]
It was thus submitted that the Amendment Act does not deal with the
overall legislative framework envisaged by section 195(3)
and (4) of
the Constitution but a small subsector of employment relations within
municipalities.
[115]
Should the second and third respondents' submissions be accepted,
then the proper route to have followed in enacting the Amendment
Act
was, indeed, section 75.
[116]
The question does not end there, however. It is wholly unclear why
the local sphere should not, along with the national and
provincial
sphere, be regarded as the public service and the tendency is to
suggest that all public servants must be integrated
into one single,
public service.
[117]
At present, the Public Service consists of national and provincial
government staff. Over the next few years government will
try to
place employees of all three spheres of government in a public
administration regime, as the Public Administration Management
Act 11
of 2014 ("the PAM") indicates (which was assented to on 19
December 2014).
[118]
Currently, the "public service" is not considered to
include municipal employees.
Section
195 and the Public Administration:
[119]
I have referred to section 195(1) above and do not repeat its
provisions.
[120]
Section 195(2)
et. seq.
read as follows: -
"195
Basic values and principles governing public administration
(1)
…
(2)
The
above principles apply to-
(a)
administration in every sphere of government;
\
(b)
organs of state; and
(c)
public enterprises.
(3)
National legislation must ensure the promotion of the
values and principles listed in subsection (1).
(4)
The
appointment in public administration of a number of
persons on policy considerations is not precluded, but
national legislation must regulate these appointments in
the public service.
(5)
Legislation regulating public administration may
differentiate between different sectors. administrations or
institutions.
(6)
The
nature and functions of different sectors. administrations or
institutions of public administration are relevant factors to
be
taken into account in legislation regulating public administration.”
(emphasis added)
[121]
Section 195(5), thus, clearly indicates that legislation may
differentiate between different sectors, administrations or
institutions as the current Public Service Act does.
The
background to the passing of the Amendment Act:
[122]
In establishing the route which should have been followed m passmg
the Amendment Act, assistance may be gleaned from the reasons
why it
was promulgated, which contextualises its provisions.
[123]
The Amendment Act is but one measure aimed at improving and
contributing to a better functioning and effective local government

for purposes of delivering quality services to the citizens of this
country.
[124]
Local government has played a significant role since the ushering in
of the new municipal dispensation in December 2000. More
people have
increased access to basic services and more opportunities have been
created for their participation in the society.
[125]
Professor Nico Steytler, together with Professor Jaap de Visser and
Ms Annette May, conducted research as a team for the Community
Law
Centre in 2009, which study is entitled
"The Quality of
Local Democracy: a study into the functionality of municipal
governance arrangement" .
The first respondent (who in
large part limited his argument to the constitutionality or otherwise
of section 65(A)) submitted this
study in evidence.
[126]
The first respondent submitted that more than 30 interviews were
conducted.
"More
than 30 interviews were conducted with municipal office bearers,
councillors and officials in 5 municipalities in 4 provinces
(North West, Gauteng, Eastern Cape and Western Cape), which differed

according to size, location and levels of functionality. Although the
interviews were a small sample, the in depth interviews revealed

behavioural dynamics that were uncontested, if not confirmed, by the
wide readership of local government stakeholders the report
enjoyed.
"
[127]
The memorandum to the Amendment Act pertinently states that the South
African Local Government Association ("
SALGA
") was
consulted on the Amendment Act as well as the provincial departments
responsible for local government. SALGA represents
the views of all
municipal councils and its members are best placed to appreciate the
significance of any problems within a municipality.
The memorandum
similarly makes it clear that all the departments responsible for
local government were consulted and that the Bill
was published for
public comment in terms of section 154(2) of the Constitution.
[128]
In this regard it is not without significance that it is the labour
union of South African Municipal Workers which launched
this
application. One can understand a reluctance on the part of employees
to be bound by more stringent employment provisions.
The fact that
neither of the provinces, nor SALGA nor the Institute for Local
Government Management of South Africa ("
ILGM
"), a
body representing senior managerial positions in local government,
deemed it fit to oppose this application, is significant.
[129]
The Minister identified the problem that the local government system
was gradually becoming less effective due to internal
and external
negative practices.
[130]
He further identified that satisfactory practices are not
institutionally sound but depends on a few leaders and personalities.
[131]
There is already a Code of Conduct in place for councillors in the
Systems Act. This Code provides, for example that: -
·
Councillors
are elected to represent local communities on municipal councils, to
ensure that municipalities have structured mechanisms
of
accountability to local communities, and to meet the priori ty needs
of communities by providing services equitably, effectively
and
sustainably with in the means of the municipality.
·
The
Code also prohibits a councillor from interfering in the
administration of the municipality, unless the council has given the

councillor a mandate.
·
The
Code also prohibits the instructing of an employee of council without
authorization.
·
It is
a criminal offence for a councillor to attempt to influence the
municipal manger, any other staff member, or an agent of a

municipality to not enforce an obligation in terms of the Systems
Act, other legislation, a bylaw or a council decision.
[132]
The political office bearers of a municipality have been referred to
above.
[133]
The government further identified that a deliberate subversion of
policy intent can happen due to the capture of systems by
local
elites (bureaucrats or politicians, and business people), interest
groups and individuals utilising corrupt and criminal
means to
advance personal interest rather than the community and public
interest.
[134]
By 2009 many local governments had been crippled leading to the
increase of protests against poor service delivery.
[135]
Hence the government investigated the state of local government
nationally and convened a National Indaba on local government
on 21
to 22 October 2009 which was attended by senior government officials
from all three spheres of government, traditional leaders,

representatives from labour civil society, academics and the business
sector.
[136]
As set out in the answering affidavit of the first respondent: -
"The
government came to the conclusion that one of the major negatives in
local government sphere of local government is corruption,
nepotism
and lack of accountability and improper influence by political
elites."
[137]
The Indaba adopted certain declarations,
inter alia
that there
was a need for a National Turnaround Strategy for Local Government.
Hence the Department of Cooperative Governance and
Traditional
Affairs (COGTA) developed a Local Government Turnaround Strategy
which was adopted by the Cabinet on 25 November 2009.
One of the
objectives identified in this strategy was to improve performance and
professionalism in municipalities.
[138]
As stated by the first respondent in his heads of argument: -
"The
government also identified that it is important to prohibit holding
joint offices because of the conflicting pressures
that this places
on individuals
and because of its impact on public perception
of local government
administration."
[139]
The key problems which were targeted by the Amendment Act were
identified by the Acting Minister as follows: -
·
First,
that the Bill sent a clear message that municipalities must and will
be more professional in a manner in which they do their
business;
·
Second,
the amendment sought to ensure that competent and well qualified
officials are appointed to provide the best possible service
to the
people;
·
Third,
they also regulate various matters on human resource management in a
manner that promotes great uniformity and predictability
across
municipalities;
·
They
deepen accountability of senior municipal officials to the council
and by the same token, place certain obligations on political
elected
officials.
"
[140]
Once this is so the Amendment Act may be seen as national
intervention to set higher standards and minimum requirements for

local government and to monitor compliance with these standards.
[141]
The applicant's argument is concerned with the question whether the
Amendment Act "provides for legislation envisaged"
in one
of the listed provisions (in particular sections 195 and 197). The
phrase "provides for legislation envisaged in"
requires
that the legislation in question should to a substantial extent
directly regulate the matters contemplated in the listed
provisions.
[142]
Although section 76(3) requires the section 76 route to be followed
inter alia
where the legislation falls within a functional
area listed in Schedule 4 (being subject- matter in respect of which
the national
and provincial legislatures have concurrent legislative
competence), the question is whether section 76 necessarily has to be
followed
merely because there is concurrent legislative competence.
In terms of section 104(1)(b) provincial legislatures have
legislative
competence
inter alia
on "any matter for
which a provision of the Constitution envisages the enactment of
provincial legislation". The national
legislature has a similar
power by virtue of its residual legislative authority (section
44(1)(a)(ii)). The Constitution might,
conceivably, quite outside the
functional areas of Schedule 4, envisage the enactment of legislation
on the same subject matter
by both national and provincial
legislatures.
[143]
In this regard the following was held in
Tongoane
supra
at paragraph [72]: -
"To
summarise: any Bill whose provisions substantially affect the
interests of the provinces must be enacted in accordance
with the
procedure stipulated in section 76. This naturally includes proposed
legislation over which the provinces themselves have
concurrent
legislative power, but it goes further. It includes Bills providing
for legislation envisaged in the further provisions
set out in
section 76(3)(a)-(f), over which the provinces have no legislative
competence, as well as Bills the main substance of
which falls within
the exclusive national competence, but the provisions of which
nevertheless substantially affect the provinces.
What must be
stressed, however, is that the procedure envisaged in section 75
remains relevant to all Bills that do not, in substantial
measure,
affect the provinces. Whether a Bill is a section 76 Bill is
determined in two ways. First, by the explicit list of legislative

matters in section 76(3)(a)-(f), and second by whether the provisions
of a Bill in substantial measure fall within a concurrent
provincial
legislative competence."
[144]
Sections 154 and 155(7), dealing with local government, appear to be
examples of the latter kind, since both national and
provincial
governments are authorised thereunder to pass legislation to support
and strengthen the capacity of municipalities to
manage their own
affairs and to oversee the effective performance by municipalities of
their functional areas of responsibility.
[145]
The original Municipal Structures Act 117 of 1998 ("the
Structures Act") appears to be national legislation enacted

pursuant to sections 154 and 155(7). Although most of the original
Structures Act was legislation contemplated in section 155(2),
the
provision therein (contained in section 82) for the appointment of
municipal managers probably fell within sections 154 and
155(7)
rather than section 155(2). The original Systems Act further
regulates the functions and employment· of municipal
managers
in sections 55 to 57.
[146]
The Amendment Act, which seems to be concerned mainly with municipal
managers, appears to be legislation of a similar kind
- it transfers
the appointment provision from section 82 of the Structures Act to
section 54A of the Systems Act and amends other
aspects of the
Systems Act relating to municipal managers.
[147]
If this analysis is correct, the question is whether national
legislation of the kind contemplated in sections 154 and 155(7)
is
required to follow the section 76 route. On the face of it, the
answer is no because those provisions are not listed in section

76(3). It is also not legislation of the kind contemplated in section
76(4) because the Systems Act and the Amendment Act do not
directly
regulate Schedule 5 functional areas (any more than they regulate
Schedule 4 functional areas) but are concerned with
the support,
strengthening and oversight, in general, of the functioning of
municipalities.
[148]
The question is whether the Amendment Act can be characterised as
national legislation of the kind contemplated in section
195(3),
section 195(4) or section 197. Given the fact that the public
administration referred to in section 195 refers to all spheres
of
government, it could be stated that the Amendment Act is, indeed,
legislation envisaged in at least section 195(3).
[149]
However, the reference to a public service within the public
administration within section 197(1) would seem to indicate the

contrary. In terms of section 197(2) the terms and conditions in the
public service must be regulated by national legislation,
which
currently is the Public Service Act which does not include municipal
employees. It can cogently be argued that until the
Public Service
Act is amended, municipal employees, as yet, are not considered to
form part of the public service.
[150]
It would appear from section 195(2)(a) that municipal employees form
part of the public administration. Thus there may be
separate
national legislation in respect of municipal employees in terms of
section 195(3).
[151]
When regard is had to section 195(2)(a) of the Constitution it is
stated that the principles set out in section 195(1) apply
to
administration in every sphere of government. In the Local Government
Turnaround strategy at page 23 it is made clear that the
vision for
the future is a single public service. Section 195(6) makes it clear
that the nature and functions of different sectors,
administrations
or institutes of public administration are relevant factors to be
taken into account in legislation relating to
public administration.
[152]
Given the importance of the provinces' enforcement and monitoring
role in respect of municipalities, and its concurrent legislative

competence to legislate in order to support and strengthen local
municipalities it appears as though the more burdensome procedure

prescribed in section 76 should have been followed in enacting the
Amendment Act (as provided for by section 195(3) for example).
[153]
Murray and Simeon state the following regarding when a statute should
be tagged as a section 76 or section 75 statute -
"1. Does
the Bill expect provinces to implement any part of it under s
125(2)(b) of the Constitution? lf so, the Bill should
follow the s 76
procedure.
2. Does the
Bill contain provisions that would normally fall for implementation
by the provinces under s 125(2)(b) but over which
the national
government retains the responsibility for implementation? If so, the
Bill should follow the s 76 procedure.
3. Could this
law, in the future, conflict with a provincial law? Or, in other
words, are there provisions in this law that deal
with matters over
which a province has jurisdiction? If so, the Bill should follow the
s 76 route.
4. Does the
Bill have implications for any policy or law which provinces are
already implementing or may implement? If so, the Bill
should follow
the s 76 procedure.
5. Is the
intrusion of the national Bill on a Schedule 4 matter trivial? If so,
the Bill should follow the s 75 route.
"
[154]
The Structures Act was also tagged as a section 75 statute. This
cannot of course be decisive because the Acts preceding the
Amendment
Act may have been incorrectly tagged. But it does indicate that the
legislation in question was not conceived by the
lawmaker as
providing for legislation of the kind contemplated in the provisions
of the Constitution listed in section 76(3). If
the applicant accepts
that the original legislation was correctly tagged in terms of
section 75, one would expect it to explain
why the Amendment Act
stands on a different footing. The applicant does so with reference
to the 2009 COGTA report "State
of Local Government in South
Africa" at pages 17-18 (paragraph 2.6) which, as is pointed out
by Professor Steytler, contributed
fundamentally to the passing of
the Amendment Act: -
"2.6
Weak
national and provincial oversight of local government
Section 154(1)
of the Constitution requires both the National and the Provincial
Governments by legislation or other means to support
and strengthen
the capacity of municipalities to manage their own affairs, to
exercise their powers and to perform their functions.
Failure in this
regard may result in the invocation by the national sphere of
government to the provincial sphere of section 100
of the
Constitution.
Provincial
supervision, monitoring and support of local government is a
Constitutional obligation in terms of sections 154(1) and
Section
155(6) and (7) of the Constitution. The provincial sphere can
intervene in a municipality within its jurisdiction in terms
of
section 139 of the Constitution. To give effect to these obligations,
the departments for local government were established
with the
specific mandate to oversee and support municipalities. The principle
for the application of sections 100 and 139 has
always been to invoke
them as a last resort.
However, as
increasing performance challenges built up within the local sphere
over the last decade, with over 30 municipalities
having experienced
an intervention, it became apparent that these mechanisms were not
well-supported by national government or
sufficiently
institutionalised, due to the absence of post- intervention
measurement of improvement, and the weak application of

intergovernmental checks and balances, i.e. the oversight and review
process by the Minister, the NCOP and the Provincial Legislatures.
"
[155]
The same report at page 19 (paragraph 2.7) states the following: -
"2.
7
Governance and oversight: the role of the provincial
Departments responsible Local Government and the Offices of the
Premiers
The provincial
Departments responsible for Local Government and
the Offices
of the Premier are the oversight, support and lead governance
entities in provinces. Both offices have previously been
found
to be under-resourced, poorly structured and capacitated, and
often lacking a core focus  on their oversight and governance
mandates. Systemic weaknesses and low capacity translate into poor
responsiveness and structural ability to act as a responsive
sphere of government."
[156]
Some of these issues stipulated above were already addressed in the
Organised Local Government Act 52 of 1997
which provides for the
recognition of national and provincial organisations representing the
different categories of municipalities.
Clearly the provinces' role
in overseeing and monitoring the municipalities is given great
prominence. Hence, it appears that one
can rely on
section 195(3)
to
argue that the Amendment Act should have followed the section 76
route.
[157]
When regard is had to all that is stated above it would appear as
though the Public Service Act is still determinative as
to the
categories of government included therein which are limited to
national and provincial governments. Nonetheless, the municipalities

and their interaction with the provinces are coming to the forefront
and is an issue which commands serious consideration.
[158]
Given all the above considerations it is held that the incorrect
route was followed in enacting the Amendment Act. The correct
route
should have been section 76 particularly because of the enhanced
importance of the interplay between the municipalities and
provinces.
[159]
In consequence, the Amendment Act is held to be unconstitutional.
[160]
In the result it is unnecessary to deal with the substantive issue,
namely section 56A.
Conclusion:
[161]
In the premises, the following order is made: -
Order
1. It is declared
that the Local Government Municipal Systems Amendment Act 7 of 2011
is invalid in its entirety for want of compliance
with the procedures
set out in section 76 of the Constitution.
2. In terms of the
provisions of section 167(5) of the Constitution order number (1)
above is referred to the Constitutional Court
for confirmation.
3. No order as to
costs is made as the arguments advanced by the respondents warranted
judicial scrutiny.
_______________________
M
M JANSEN
JUDGE
OF THE HIGH COURT
For
the Applicant:
Advocate Peter Hathorn
(021 423 7483)
structed
by
Chennells Albertyn Attorneys, Notaries and Conveyancers
(021 685 8354)
c/o
Lisel Van Rensburg Attorneys
(012 430 6290) (Ref: No:
LVR/mo/F270)
For
the First Respondent:
Advocate Motimele
SC and
Advocate
F J Nalane
(082 990 1114)
Instructed
by
The State Attorney (Miss AGF Mokgale/0268/2013/Z65)
For
the Second and Third respondents:
Advocate Renata Williams
SC
(021 424 6844),
Advocate
Karrisha Pillay
(021 426 4052) and
Advocate L Dzai
(021
424 5239) (079161
5398)
ADDENDUM
Constitutional
provisions on oversight and accountability
The
relevant constitutional provisions that refer directly and indirectly
to oversight and accountability are as follows: -
Section 41(2)
An Act of Parliament must establish or provide for
structures and institutions to promote and facilitate
intergovernmental
relations, and for appropriate mechanisms and
procedures to facilitate settlement of intergovernmental disputes.
Section 42(3) and (4)
(3) The National Assembly is elected to represent
the people and to ensure government by the people under the
Constitution.
It does this by choosing the President, by providing
a national forum for public consideration of issues, by passing
legislation
and by scrutinising and overseeing executive action.
(4) The National Council of Provinces represents
the provinces to ensure that provincial interests are taken into
account
in the national sphere of government. It does this mainly
by participating in the national legislative process and by
providing
a national forum for public consideration of issues
affecting provinces.
Section 55(2)
The National Assembly must provide for mechanisms
-
(a) to ensure that all
executive organs of state in the national sphere of government
are  accountable  to
it;  and
(b) to maintain
oversight  of -
(i) the exercise of
national executive authority, including the implementation of
legislation; and
(ii) any organ of
state.
Section 55(2)
The National Assembly must provide for mechanisms
to ensure that all executive organs of state in the national
sphere of government
are accountable to it; and to maintain
oversight of-
(i) the exercise of
national executive authority, including the implementation of
legislation; and
(ii) any organ of
state.
Section 56
The National Assembly or any of its committees may
-
(a) summon any person
to appear before it to give evidence on oath or affirmation, or to
produce documents;
(b) require any person
or institution to report to it;
(c) compel, in terms
of national legislation or the rules and orders, any person or
institution to comply with a summons or
requirement in terms of
paragraph (a) or (b); and
(d) receive petitions,
representations or submissions from any interested persons or
institutions.
Section 66(2)
The National Council of Provinces may require a
Cabinet member, a Deputy Minister or an official in the national
executive
or a provincial executive to attend a meeting of the
Council or a committee of the Council.
Section 67
Not more than 10 part-time representatives
designated by organised local government representing the
different categories
of municipalities may participate in the
proceedings of the National Council of Provinces, when necessary,
but may not vote.
Section 69
The National Council of Provinces or any of its
committees
may -
(a) summon any person
to appear before it to give evidence on oath or affirmation, or to
produce documents;
(b) require any person
or institution to report to it;
(c) compel, in terms
of national legislation or the rules and orders, any person or
institution to comply with a summons or
requirement in terms of
paragraph (a) or (b); and
(d) receive petitions,
representations or submissions from any interested persons or
institutions.
Section 70(1)
The National Council of Provinces 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.
Section 89
(1) The National Assembly, by a resolution adopted
with a supporting vote of at least two thirds of its members, may
remove
the President from office only on the grounds of -
(a) a serious
violation of the Constitution or the law;
(b) serious
misconduct; or
(c) inability to
perform the functions of office.
(2) Anyone who has been removed from the office of
President m terms of subsection (!)(a) or (b) may not receive any
benefits
of that office, and may not serve in any public office.
Section 92
(2) Members of the Cabinet are accountable
collectively and individually to Parliament for the exercise of
their powers and
the performance of their functions.
(3) Members of Cabinet must ... provide Parliament
with full and regular reports concerning matters under their
control.
Section 93(2)
Deputy Ministers are accountable to Parliament for
the exercise of their powers and the performance of their
functions.
Section 100(2)
If the national executive intervenes in a province
by assuming responsibility for the relevant executive obligation
which
that province cannot or does not fulfil, the national
executive must submit a written notice of the intervention to the
National
Council of Provinces within 14 days after the
intervention began. The intervention must end if the Council
disapproves the
intervention within 180 days after the
intervention began or by the end of that period has not approved
the intervention.
The Council must, while the intervention
continues, review the intervention regularly and may make any
appropriate recommendations
to the national executive.
Section 102
(1) If the National Assembly, by a vote supported
by a majority of its members, passes a motion of no confidence in
the Cabinet,
excluding the President, the President must
reconstitute the Cabinet.
(2) If the National Assembly, by a vote supported
by a majority of its members, passes a motion of no confidence in
the President,
the President and the other members of the Cabinet
and any Deputy Ministers must resign.
Section 59
(I) The National Assembly must facilitate public
involvement in the legislative and other processes of the Assembly
and its
committees, and conduct its business in an open manner,
and hold its sittings, and those of its committees, in public, but

reasonable measures may be taken to regulate public access,
including access of the media to the Assembly and its committees.
Section 114(2)
A provincial legislature must provide for
mechanisms to ensure that all provincial executive organs of state
in the province
are accountable to it; and to maintain oversight
of-
(i) the exercise of provincial executive authority
in the province, including the implementation of legislation; and
(ii)
any provincial organ of state.
Section 115
A provincial legislature or any of its committees
may-
(a) summon any person
to appear before it to give evidence on oath or affirmation, or to
produce documents;
(b) require any person
or provincial institution to report to it;
(c) compel, m terms of
provincial legislation or the rules and orders, any person or
institution to comply with a summons
or requirement m terms of
paragraph (a) or (b); and
(d) receive petitions,
representations or submissions from any interested persons or
institutions.
Section 116(1)
A provincial legislature 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.
Section 125(4)
Any dispute concerning the administrative capacity
of a province in regard to any function must be referred to the
National
Council of Provinces for resolution within 30 days of the
date of the referral to the Council.
Section 130(3) and (4)
(3) The legislature of a province, by a resolution
adopted with a supporting vote of at least two thirds of its
members, may
remove the Premier from office only on the grounds
of.-
(a) a serious
violation of the Constitution or the law;
(b) serious
misconduct; or
(c) inability to
perform the functions of office.
(4) Anyone who has been removed from the office of
Premier in terms of subsection
(3) (a) or (b) may not receive any benefits of
that office, and may not serve in any public office.
Section 133(2) and (3)
(2) Members of the Executive Council of a province
are accountable collectively and individually to the provincial
legislature
for the exercise of their powers and the performance
of their functions.
(3) Members of the Executive Council of a province
must provide the provincial legislature with full and regular
reports concerning
matters under their control.
Section 139(2)
If a provincial executive intervenes in a
municipality which cannot or does not fulfil an executive
obligation by assuming
responsibility for the relevant obligation
in that municipality the provincial executive must submit a
written notice of
the intervention to the Cabinet member
responsible for local government affairs, the relevant provincial
legislature and
the National Council of Provinces within 14 days
after the intervention began. The intervention must end if the
Cabinet member
responsible for local government affairs
disapproves the intervention within 28 days after the intervention
began or by the
end of that period has not approved the
intervention; or the Council disapproves the intervention within
180 days after the
intervention began or by the end of that period
has not approved the intervention. The Council must, while the
intervention
continues, review the intervention regularly and may
make any appropriate recommendations to the provincial executive.
Section 118
(I) A provincial legislature must facilitate
public involvement in the legislative and other processes of the
legislature
and its committees, and conduct its business in an
open manner, and hold its sittings, and those of its committees,
in public,
but reasonable measures may be taken to regulate public
access, including access of the media to the legislature and its

committees.
Section 139(3)
When the relevant provincial executive intervenes
in a municipality which cannot or does not fulfil an executive
obligation
by dissolving the Municipal Council, the provincial
executive must immediately submit a written notice of the
dissolution
to the Cabinet member responsible for local government
affairs; and the relevant provincial legislature and the National

Council of Provinces. The dissolution takes effect 14 days from
the date of receipt of the notice by the Council unless set aside

by that Cabinet member or the Council before the expiry of those
14 days.
Section 139(6)
When the relevant provincial executive intervenes
in a municipality which cannot or does not approve a budget or any
revenue-raising
measures necessary to give effect to the budget;
or which, as a result of a crisis in its financial affairs, is in
serious
or persistent material breach of its obligations to
provide basic services or to meet its financial commitments, or
which
admits that it 1s unable to meet its obligations or
financial commitments, the relevant provincial executive must
submit
a written notice of the intervention to the Cabinet member
responsible for local government affairs; and, the relevant
provincial
legislature and the National Council of Provinces,
within seven days after the intervention began.
Section 146(6)
A law made m terms of an Act of Parliament or a
provincial Act can prevail only if that law has been approved by
the National
Council of Provinces.
Section 154
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.
Section 155(6)
Each provincial government must establish
municipalities in its province in a manner consistent with the
applicable national
legislation and, by legislative or other
measures, must-
(a) provide for the
monitoring and support oflocal 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.
Section 155(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.
Section 231(2), (3) and (4)
(2) An international agreement binds the Republic
only after it has been approved by resolution in both the National
Assembly
and the National Council of Provinces, unless it is an
agreement referred to in subsection (3).
(3) An international agreement of a technical,
administrative or executive nature, or an agreement which does not
require
either ratification or accession, binds the Republic
without approval by the National Assembly and the National Council
of
Provinces, but must be tabled in the Assembly and the Council
within a reasonable time.
(4) Any international agreement becomes law in the
Republic when it is enacted into law by national legislation; but
a self­
executing provision of an agreement that has been
approved by Parliament is law in the Republic unless it is
inconsistent
with the Constitution or an Act of Parliament.
Note:
This is not an exhaustive list of provisions of the Constitution.
[1]
Intergovernmental Relations and Service Delivery in South Africa: A
ten year overview - commissioned by the Presidency August
2003
Chapter 2.
[2]
Subrahmanyam Chettiar v Muthuswami Goudan
AIR 1947 FC 47
at 51
quoted in Federation of Hotel & Restaurant Association v Union
of India
AIR 1990 SC 1637
paragraph 13. See also Cameron AJ in the
Liquor Bill case supra note 4 paragraph 61: 'It is sufficient to say
that, although
our Constitution creates exclusive provincial
legislative competences, the separation of thefunctional areas in
Schedules 4 and
5 can never be absolute.
[3]
"[T]he
categories of laws enumerated in sections 91 and 92 are not in the
logical sense mutually exclusive; they overlap
or encroach upon one
another in many more respects than is usually realised. Toput it
another way, many rules of law have onefeature
that renders them
relevant to a provincial class of laws and another feature which
renders them equally relevant logically to
afederal class of laws.
It is inherent in the nature of classification as a process that
this should be so."
: W R Lederman 'Classification of laws and the British North America
Act' in W R Lederman Continuing Canadian Constitutional
Dilemmas
(1981) 236 quoted in P Macklem, R C B Risk, C J Rogerson, K E
Swinton, L E Weinrib & J D Whyte Canadian Constitutional
Law 2
ed (1997) 173.
[4]
Ex
parte Chairperson of the Constitutional Assembly: In re
Certification of the Amended Text of the Constitution of the
Republic
of South Africa,
1996 1997 (2) SA 97
(CC)
(Certification
judgment II)
paragraph
64
:
"In substance the NCOP has no more than a delaying power, and
if its support is not secured, the legislation can be passed
by a
simple majority in the NA."
[5]
Ex
parte Chairperson of the National Assembly: in re Certification of
the Constitution of the Republic of South Africa
1996 (4) SA 744
(CC)
("The
First Certification" Judgment) at paragraph [419].
[6]
Liquor
Bill case
supra note 4 paragraph 25.
[7]
Peter W Hogg Constitutional Law of Canada loose-leaf ed (2003)
paragraph 15.4 at 15-6,
quoting
Bora Laskin 'Tests for the validity of legislation: What's the
"Matter"?'
(1955)
11
University
of Toronto
LJ 114 at 127. Abel has argued that the process is actually a
three-step one: "identification of the 'matter' of the statute,

delineation of the scope of the competing classes, and then a
determination of the class into which the challenged statute falls"

- Albert S Abel Laskin's
Canadian
Constitutional Law
4 ed (1975) 97; Anthony Blackshield & George Williams
Australian
Constitutional Law and Theory: Commentary & Materials
3 ed (2002) 648-653 where the impact of the second step on the first
step is emphasised.
[8]
Quoted in Michael Crommelin 'Federalism' in P D Finn (ed) Essays on
Law and Government (1995) 168 at 178.
[9]
Murray and Simeon op cit. at p 20.
[10]
Section 195(1) states:
"Basic
values and principles governing public administration.-(1) Public
administration must be governed by the democratic
values and
principles enshrined in the Constitution, including the following
principles:
(a) A high
standard of professional ethics must be promoted and maintained.
(b) Efficient.
economic and effective use o( resources must be promoted.
(c) Public
administration must be development-oriented.
(d) Services
must be provided impartially. (airlv. equitablv and without bias.
(e) People's
needs must be responded to, and the public must be encouraged to
participate in policy-making.
(f) Public
administration must be accountable.
(g) Transparency
must be fostered by providing the public with timely, accessible and
accurate information.
(h) Good
human-resource management and career-development practices. to
maximise human potential, must be cultivated.
(i) Public
administration must be broadly representative of the South African
people, with employment and personnel management
practices based on
ability, objectivity, fairness. and the need to redress the
imbalances of the past to achieve broad representation."
[emphasis added]
[11]
section 195(4).
[12]
section 197(1).
[13]
section 197(2).
[14]
section 197(3).