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[2002] ZACC 28
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Democratic Alliance and Another v Masondo NO and Another (CCT29/02) [2002] ZACC 28; 2003 (2) BCLR 128 ; 2003 (2) SA 413 (CC) (12 December 2002)
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 29/02
DEMOCRATIC ALLIANCE First Appellant
MICHAEL SEAN MORIARTY Second
Appellant
versus
AMOS MASONDO N.O. First
Respondent
MINISTER OF PROVINCIAL AND Second Respondent
LOCAL
GOVERNMENT
Heard on : 14 November 2002
Decided on : 12
December 2002
JUDGMENT
LANGA DCJ:
[1]
The issue in this matter is
whether minority political parties in a municipal council are entitled to
representation on a mayoral
committee established under the provisions of the
Local Government: Municipal Structures Act 117 of 1998 (the Structures Act).
The
appellants are respectively the main opposition party in the Johannesburg
metropolitan council and the leader of its caucus in the
council. The first
respondent is the executive mayor of that council and the second respondent is
the national minister responsible
for the administration of the Structures
Act.
[2]
The appellants contend that
the current mayoral committee appointed by the first respondent is
unconstitutional because minority parties
are not represented on it. Only
members of the African National Congress, the majority party in the council,
have been appointed
to the mayoral committee.
[3]
The proceedings were
initiated by the appellants in the High Court in Johannesburg. The Court held
that the composition of the mayoral
committee was neither in conflict with the
relevant provisions of the Structures Act, nor with the Constitution. The
application
was dismissed with costs. What is before us is an appeal against
that decision.
[4]
The contention by the
appellants that minority parties must be represented on the mayoral committee is
based on their interpretation
of section 60 of the Structures Act, read with the
provisions of section 160(8) of the Constitution. Section 60 of the Structures
Act provides:
“(1) If a municipal council has more than nine members, its executive
mayor—
(a) must appoint a mayoral committee from among the
councillors to assist the executive mayor;
(b) may delegate specific responsibilities to each member of the
committee;
(c) may delegate any of the executive mayor’s powers to the respective
members; and
(d) may dismiss a member of the mayoral committee.
(2) The mayoral committee must consist of the deputy executive mayor (if any)
and as many councillors as may be necessary for effective
and efficient
government, provided that no more than 20 per cent of the councillors or 10
councillors, whichever is the least, are
appointed.”
Section 160(8) of the Constitution provides:
“Members of a Municipal Council are entitled to participate in its
proceedings and those of its committees in a manner
that—
(a) allows parties and interests reflected within the Council to be fairly
represented;
(b) is consistent with democracy; and
(c) may be regulated by national
legislation.”
[5]
The appellants argued that
on a proper construction of section 60(1)(a) of the Structures Act, read with
the Constitution, the representation
of minority parties is a requirement even
though the subsection does not expressly say so. They contended further that if
the provision
is not capable of bearing such a meaning, it is inconsistent with
section 160(8) of the Constitution, which requires the fair representation
of
minority parties and interests in the committees of a municipal council. It is
relevant to mention that the appellants did not
challenge the constitutional
validity of the executive mayor exercising executive authority within the local
government structures.
[6]
The respondents, on the
other hand, argued that neither the Constitution nor the Structures Act requires
a mayoral committee to have
minority party representation. They contended that
a mayoral committee is not a committee of the municipal council within the
meaning
of section 160(8) and the section accordingly has no application to
it.
The constitutional and legislative
scheme
[7]
The framework for local
government is contained in Chapter
7
[1]
of the Constitution and it is
clear that, in this scheme, municipal councils occupy a central position. The
Chapter provides, among
other things, for the establishment of municipalities
for the whole territory of the
Republic;
[2]
sets out the relationship
of local government with the national and provincial spheres of government and
defines the internal powers
and functions of municipal
councils.
[3]
In the national and
provincial spheres of government, there is a distinct separation between the
executive and legislative authority;
in local government, the Constitution vests
both the executive and legislative authority of a municipality in its municipal
council.
[4]
[8]
The Constitution reserves a
significant role for national legislation. A municipal council may elect an
executive committee and other
committees subject to national
legislation.
[5]
Such legislation may
provide criteria for determining whether municipal councils may elect an
executive committee or other committees
as well as the size of such
committees.
[6]
[9]
There is no express mention
of the institution of the mayor or a mayoral committee in Chapter 7, but the
Constitution clearly envisages
the enactment of legislation to elaborate on and
regulate the powers and functions of a municipal council and its organs. In
particular,
section 164 of the Constitution provides for national and provincial
legislation to govern any area not dealt with by the
Constitution.
[7]
One of the areas
specifically designated by the Constitution to be dealt with by national
legislation is to define the “types”
of
municipality.
[8]
The executive
mayoral system is one of the types determined by the Structures
Act.
[9]
[10]
The Constitution also
envisages the delegation of certain functions of a municipal council to its
various organs. Section 160(2)
however prescribes that certain important powers
and functions of the municipal council may not be
delegated.
[10]
[11]
In terms of section
160(6)(c) the municipal council “may make by-laws which prescribe rules
and orders for the establishment,
composition, procedures, powers and functions
of its committees”. Finally, section 160(8) provides for committees of a
municipal
council to be fairly representative. It is this provision which is in
issue in this case.
[12]
The Structures Act and the
Local Government: Municipal Systems Act 32 of 2000 (the Systems Act) were
enacted to give effect to the
provisions of Chapter 7 of the Constitution. The
Structures Act provides for three types of executive system
s
in
municipal governance: a plenary executive system, an executive committee (or
collective executive) system and the executive mayoral
system. In the plenary
system, all executive and legislative decisions are taken by the whole
council.
[11]
In the executive
committee system, the municipal council elects an executive committee to which
the executive functions of the municipal
council are delegated subject to the
Constitution and other
legislation.
[12]
The Structures Act
expressly requires that the executive committee “must be composed in such
a way that parties and interests
represented in the municipal council are
represented in the executive committee in substantially the same proportion they
are represented
in the
council.”
[13]
In an executive
mayoral system, executive power is delegated to the executive
mayor.
[14]
The delegation is
however also regulated by the Constitution and relevant national legislation.
The Johannesburg municipal council
has an executive mayoral system. Since the
council has more than nine members, the executive mayor is obliged to appoint a
mayoral
committee from among the members of the
council.
[13]
Section 60(1) gives the
power to the executive mayor to appoint members of the mayoral committee and to
dismiss them. The function
of the mayoral committee is to assist the executive
mayor. The executive mayor also has the power to delegate specific
responsibilities,
executive powers and functions to members of the mayoral
committee. The mayor’s power to delegate is, however, not completely
unfettered. In terms of section 60(3) the municipal council may designate
certain of the executive mayor’s powers and functions
to be “. . .
exercised and performed by the executive mayor together with the other members
of the mayoral
committee.”
[15]
[14]
Section 79 of the
Structures Act governs the establishment of committees “necessary for the
effective and efficient performance
of any of its functions or the exercise of
any of its powers” by a municipal council. Section 80 is concerned with
the appointment
of committees of councillors by a municipal council to assist
the executive mayor. It provides, in relevant part, as
follows:
“80. Committees to assist . . . executive
mayor—
(1) If a municipal council has an . . . executive mayor, it may appoint in terms
of section 79, committees of councillors to assist
the . . . executive
mayor.
(2) Such committees may not in number exceed the number of members of the. . .
mayoral committee.
(3) The . . . executive
mayor—
(a) appoints a chairperson for each committee from the . . . mayoral
committee;
(b) may delegate any powers and duties of the . . . executive mayor to the
committee;
(c) is not divested of the responsibility concerning the exercise of the power
or the performance of the duty; and
(d) may vary or revoke any decision taken by a committee, subject to any vested
rights.
(4) Such a committee must report to the . . . executive mayor in accordance with
the directions of the . . . executive
mayor.”
Is the mayoral committee a
committee of the municipal council?
[15]
The appellants contend that
since executive authority is vested in the municipal council, any committee that
exercises that authority
is a committee of the council within the meaning of
section 160(8) of the Constitution. If the submission is correct, it would
follow
that the mayoral committee is a committee of the municipal council to
which the requirement of minority party representation is applicable.
In order
to establish the validity of the submission, it is necessary to have regard to
the relevant constitutional provisions,
in particular section 160, as well as
the objects of local government as envisaged by the
Constitution.
[16]
The objects of local
government as set out in section 152 of the Constitution
are:
“(a) to provide democratic and accountable government for local
communities;
(b) to ensure the provision of services to communities in a sustainable
manner;
(c) to promote social and economic development;
(d) to promote a safe and healthy environment;
and
(e) to encourage the involvement of communities and community organisations in
the matters of local government.”
[17]
The first of these objects
or purposes is the development and promotion of democracy. As correctly pointed
out by O’Regan J,
this is an important transformative goal as the nation
is emerging from an era where democracy was denied to the majority of the
population. It involves ensuring that the will of the majority prevails and
also that the views of the minority are considered.
The second purpose,
however, is equally important. It is to ensure that government is efficient and
effective in the rendering
of services and the promotion of social and economic
development. The two purposes are mutually reinforcing – they give
meaning
to each other. They are both indispensable to the enormous task of
reconstructing society in the functional areas of local
government.
[18]
Section 160(8) is couched
in terms very similar to provisions concerning the national legislature (section
57(2)(b)) and the provincial
legislatures (section 116(2)(b)). The purpose of
these provisions is to ensure that minority parties can participate meaningfully
in the deliberative processes of parliament, provincial legislatures and
municipal councils respectively. In the context of local
government, this form
of representation finds expression in the municipal council and in committees
elected by it. On the other
hand, Sections 91 and 132 of the Constitution which
deal with the executive in the national and provincial governments respectively,
do not require minority party representation. This is so because the primary
purpose of an executive committee and committees which
perform executive
functions is to ensure effective and efficient government and service
delivery.
[19]
The primary function of the
mayoral committee is not concerned with the deliberative process, but with
rendering assistance to the
mayor in the exercise of his or her authority. This
is with a view to ensuring efficient and effective government at local
government
level. The powers and functions of the executive mayor are set out
in section 56 of the Structures
Act.
[16]
[20]
This approach is supported
by the textual context. Section 160(1)(c) of the Constitution speaks of
committees elected by the municipal
council. Sub-section 5 likewise refers to
elected committees. Both sections 160(6)(c) and 160(8) merely refer to
“
its
” committees without giving an indication as to what the
requirements are for a particular committee to fall within their scope.
On a
contextual reading of these provisions, it is clear, in my view, that the
committees referred to in sections 160(6)(c) and
160(8) (the committees of a
municipal council) are the same committees that are referred to in sections
160(1)(c) and 160(5)(b),
namely, committees which are elected by the municipal
council.
[21]
The local government system
is a hybrid one in that both executive and legislative authority is vested in
the municipal council.
It should be noted, however, that the powers of a
municipal council to delegate are wide. The executive mayor is an organ of
state
and in terms of section 238 of the Constitution legislation may make
provision for a local authority to delegate powers to him or
her as well as to
other political structures or office bearers, such as a city
manager.
[17]
These are structures
and office bearers that are provided for and regulated by the national
legislation envisaged in sections 164
and 155(2) of the Constitution.
Delegation of the authority of the municipality is now governed by section 59 of
the Systems Act
[18]
and section 56
of the Structures Act. There has been no challenge to the constitutionality of
either of these provisions.
[22]
It is, in my view, not
correct to emphasise the importance of one aspect only of the purposes of local
government. The democratic
principle and the requirement of minority party
representation in the deliberative processes of government are important, but so
is the need for effective and efficient delivery of services. The Constitution
accordingly allows the legislature the leeway to
determine
how
those
purposes should be achieved by local government. The Constitution permits the
delegation of powers and functions by a municipal
council but requires that this
should be determined and regulated by national legislation. In this the
legislature is afforded a
certain amount of flexibility subject always to the
provisions of the Constitution.
[23]
If the council can delegate
authority to a city manager or an executive mayor, section 160(8) of the
Constitution has no application
to the delegation. Nor does it have application
to the mayor appointing a personal committee chosen by her or him to share the
responsibilities
of office. Such a committee is simply not the type of
committee contemplated by section 160(8). It is not a committee of the council.
Its function is to assist the mayor discharge the responsibilities of office.
The mayor is entitled to choose that committee because
he or she is personally
responsible for what it does. To force the mayor to choose a multiparty
committee to discharge these responsibilities
would be to blur the distinction
between an executive mayoral system and an executive committee
system.
[24]
The Structures Act does
not, in terms, describe the mayoral committee as a committee of the municipal
council, nor does it expressly
require that the mayoral committee should have
minority party representation. Moreover, there appears to be no basis for
implying
the conclusion contended for by the appellants. On the contrary, there
are a number of factors that point to a deliberate distinction
in the Structures
Act between committees of the municipal council and the mayoral
committee.
[25]
The first is that section
60(1)(a) is clear and unambiguous. All the powers in section 60(1) to appoint,
dismiss and to delegate
are given to the executive mayor. The municipal council
cannot appoint the members of the mayoral committee and cannot dismiss them
except by removing the executive mayor in terms of section 58 of the Structures
Act. Also significant is the fact that the mayoral
committee dissolves if and
when the mayor ceases to hold office.
[26]
The second factor is that
in dealing with a different kind of executive authority, namely, the executive
committee system, the Structures
Act expressly requires that the executive
committee be composed in a manner that ensures proportionality in the
representation of
parties and interests in the
council.
[19]
No such requirement is
expressed in the case of a mayoral committee. This fact may not be sufficient
in and of itself to point
to the mayoral committee not being a committee of the
municipal council, but it supports the clear intention of section
60.
[27]
The third factor concerns
the provisions of sections 79 and 80 of the Structures Act. The committees
envisaged in these two sections
are clearly committees of the municipal council.
Committees established under section 80 have the same stated purpose as that of
the mayoral committee – to assist the executive mayor. The Structures
Act, however, provides for them to be appointed by different
institutions, one
by the municipal council and the other by the executive mayor. The nature of
their relationship to each other
and to the executive mayor is provided for in
section 80(3) of the Structures Act. There is a direct link between members of
the
mayoral committee and the executive mayor, who has control over them. On
the other hand, the link with the councillors appointed
by the municipal council
is indirect, with members of the mayoral committee being installed by the
executive mayor as chairpersons
for the respective committees. The distinction
made by the Structures Act between the mayoral committee and the respective
municipal
committees is a deliberate one and, in my view, is a powerful
indicator against the interpretation contended for by the
appellants.
[28]
The appellants have however
pointed to the power of the municipal council under section 60(3) of the
Structures Act to designate powers
and functions that the executive mayor may
not exercise or perform alone, but together with members of the mayoral
committee. They
argued that this is an indication that the mayoral committee is
a committee of the municipal council and that the Structures Act
did not intend
to treat it as something different. It was argued that if the mayoral committee
is a creature of the executive mayor,
the mayor should alone determine the form
of assistance that should be rendered by the mayoral committee. I do not
agree.
[29]
The council’s power
to designate constrains, rather than enhances, the executive mayor’s power
to allocate responsibilities
and to delegate the executive mayor’s powers
to members of the mayoral committee. Although the municipal council delegates
its executive powers and functions to an executive mayor, the municipal council
has the ultimate responsibility for “efficient,
effective and
transparent”
[20]
governance at
municipal level. The municipal council’s power to designate is entirely
consistent with the principle that the
executive authority of the municipality
vests in the municipal council
[21]
and that it “makes decisions concerning the exercise of all the powers and
the performance of all the functions of the
municipality”.
[22]
The
executive mayor is directly responsible and accountable to the municipal council
and is required to report to it on all decisions
taken by the executive
mayor.
[23]
[30]
What the Structures Act
does is to permit the municipal council to insist that the executive mayor may
not exercise certain specific
powers or perform certain functions alone, but
must do so jointly with members of the mayoral committee. The effect of this is
to
limit the executive mayor’s freedom to delegate powers or functions to
members of the mayoral committee. It also means that
the municipal council
decides on the allocation of certain of the executive mayor’s powers or
functions to particular members
of the mayoral committee to be exercised or
performed in conjunction with the executive mayor. To that extent, the
municipal council
exerts a measure of influence on members of the mayoral
committee with regard to the scope of their work. There is, however, no
provision for members of the mayoral committee to report or account directly to
the municipal council. They report and remain accountable
to the executive
mayor. Nowhere is the municipal council given direct control over members of
the mayoral committee. Section 80(3),
however, empowers the municipal council
to regulate the exercise and performance of the executive mayor’s powers
and functions.
[31]
The Structures Act makes
provision for minority parties to participate both in the executive committee
system and in the executive
mayoral system. In the executive committee system,
this is achieved by requiring that the members of the executive committee be
representative of minority parties and interests. In the executive mayoral
system this is achieved by providing that the municipal
council may establish
committees, in which minority parties are represented, to assist the executive
mayor. The executive mayor,
however, has the added facility of another
committee, appointed not by the council but by the executive mayor personally,
to assist
in the performance of the important executive duties delegated to him
or her. The municipal council moreover has the option of choosing
which
executive powers or functions the executive mayor may not delegate but must
perform jointly with the mayoral committee.
[32]
Apart from section 56(3)(f)
of the Structures Act, the executive mayor is responsible for oversight and
policy formulation and all
decisions taken by her or him must be reported to the
municipal council. Minority parties have adequate protection under the
Constitution
to make their views known when the Council deals with such
matters.
[33]
I am satisfied that the
mayoral committee is not a committee of the municipal council as contemplated in
section 160(8) of the Constitution.
It follows that the provisions of section
160(8) are not applicable to the composition of the mayoral
committee.
The Constitutionality of section
60(1)(a) of the Structures Act
[34]
The appellants contend that
if section 60(1)(a) is found by this Court not to require minority party
representation on a mayoral committee,
it is unconstitutional to the extent that
it is in conflict with section 160(8) of the Constitution. I have found that
the mayoral
committee does not fall within the scope of section 160(8). The
provisions of the section therefore have no relevance to the appointment
by the
executive mayor of a mayoral committee. It follows that neither the Structures
Act nor the Constitution require the mayoral
committee to have minority party
representation. In the circumstances, I also find that section 60(1)(a) of the
Structures Act does
not conflict with the Constitution. The appeal must
accordingly fail.
Costs
[35]
In the High Court, the
appellants were ordered to pay costs. The respondents have asked for costs in
this Court in the event of their
being successful. The issues at stake are
important matters of public interest affecting local government structures
throughout
the Republic. I consider that an appropriate order in this Court is
for each party to pay its own
costs.
Order
[36]
The following order is
made:
The appeal is dismissed. Each party is to pay
its own costs.
Chaskalson CJ, Goldstone J, Kriegler J, Mokgoro J,
Ngcobo J and Yacoob J concur in the judgment of Langa DCJ.
SACHS J:
[37]
I agree with O’Regan
J that the mere fact that the mayoral committee is appointed by and answerable
to the mayor and not the
council, does not exempt it from being considered
“a committee of the council” subject to the fair representation
requirements
of section 160(8)(a) of the Constitution. I believe, however, that
the converse also holds true: the mere fact that people function
as a committee
engaged in work for the council, does not automatically constitute them into
“a committee of the council”.
[38]
The issue is not whether in
literal terms the phrase “committee of the council” is broad enough
to include the mayoral
committee – clearly it is – but whether
constitutionally speaking it must be so regarded. In this respect, I agree with
much of the eloquent and forceful reasoning in the judgment of O’Regan J,
particularly in relation to the importance of the
principle of inclusivity at
the local government level. In South African conditions much of the work of
overcoming the divisive
effects on public life of apartheid has to be done at
this level. The healing and transformation of our cities and villages will
be
enhanced if, to use current terminology, all role-players or stakeholders as
represented on the council, take part in the work
of the committees of the
council. Further, the development of a shared spirit of civic responsibility is
promoted by mechanisms
that encourage civility and mutual accommodation in the
conduct of council business. At the same time, the requirement that diverse
participation in committee activity should be “consistent with
democracy”,
[24]
emphasises
that however desirable consensus-seeking might be, it is a procedurally
encouraged objective, and not a substantively
required obligation. In the end,
after participatory processes have been followed, decisions in the council and
its committees are
taken democratically by majority vote. Nevertheless, while
accepting these broad principles and agreeing with much of O’Regan
J’s characterisation of local government, and not without some hesitation,
I have come to conclusions that differ from hers
and coincide with those of
Langa DCJ. I give my reasons briefly below. Since the relevant constitutional
and statutory texts are
set out comprehensively in the majority and minority
judgments, I will not repeat them here.
[39]
The starting off point of
the analysis must be to construe the Structures Act in the light of the
Constitution, and not the Constitution
in the light of the Structures Act.
Thus, the problem of deciding whether the mayoral committee is covered by the
provisions of
section 160(8)(a) cannot be resolved simply by the descriptive and
question-begging statement that it is “a committee of the
mayor”,
and not “a committee of the council”. Indeed, there is no reason,
in principle, why a committee of the
mayor should not be regarded as a committee
of the council: the two terms are not mutually exclusive. Up to this point I
agree with
the approach adopted by O’Regan J. I do not, however, accept
her conclusion that the Structures Act is reasonably capable
of being read so as
to require proportionate multiparty representation on the mayoral executive
committee. To my mind the language
used and the purposes made manifest in the
Act point incontrovertibly in the opposite
direction.
[40]
The very purpose of
providing for a distinct mayoral executive committee system is to create an
alternative to the executive committee
system (where proportionality has to be
observed). The mayoral committee not only has a different composition from an
executive
committee, it has a different nature. It is manifestly designed to be
appointed by and answerable directly to the mayor, and to
serve as a mayoral
team similar to the way the national and provincial executives work with the
President and Premiers respectively.
The power given to the mayor unilaterally
to appoint members of the committee is incompatible with the purposes underlying
fair
representation as delineated by O’Regan J. If the mayor, rather than
the parties concerned, could choose who should be on
the mayoral committee, as
well as who could be sacked from it, the spirit of inclusive multiparty
democracy contended for would be
compromised rather that enhanced. Thus I
cannot see how minority representation could be considered fair if the mayor is
at large
to choose his or her favourites from the parties concerned, and
disregard the nominees of the parties themselves. Yet this, I believe,
would be
the consequence of adopting the interpretation advanced by O’Regan J. To
my mind, the mayoral executive committee
and section 160(8)(a) cannot be
married. The text and spirit of the Act prevent such a
union.
[41]
The real and difficult
question for me is whether the objective of having a strong mayor with a strong
and unified mayoral executive
team directly answerable to him- or herself, and
not reflecting the broad political diversity on the Council, is compatible with
section 160(8)(a). In the absence of clear textual pointers going either way it
is necessary to look at section 160(8)(a) and determine
its reach in the context
of Chapter 7 as a whole and to examine the basic features of democracy at the
local government level as
envisaged by the
Constitution.
[42]
The requirement of fair
representation emphasises that the Constitution does not envisage a mathematical
form of democracy, where
the winner-takes-all until the next vote-counting
exercise occurs. Rather, it contemplates a pluralistic democracy where
continuous
respect is given to the rights of all to be heard and have their
views considered. The dialogic nature of deliberative democracy
has its roots
both in international democratic practice and indigenous African tradition. It
was through dialogue and sensible accommodation
on an inclusive and principled
basis that the Constitution itself emerged. It would accordingly be perverse to
construe its terms
in a way that belied or minimised the importance of the very
inclusive process that led to its adoption, and sustains its
legitimacy.
[43]
The open and deliberative
nature of the process goes further than providing a dignified and meaningful
role for all participants.
It is calculated to produce better outcomes through
subjecting laws and governmental action to the test of critical debate, rather
than basing them on unilateral decision-making. It should be underlined that
the responsibility for serious and meaningful deliberation
and decision-making
rests not only on the majority, but on minority groups as well. In the end, the
endeavours of both majority
and minority parties should be directed not to
exercising (or blocking the exercise) of power for its own sake, but at
achieving
a just society where, in the words of the Preamble, “South
Africa belongs to all who live in it . . .”. At the same
time, the
Constitution does not envisage endless debate with a view to satisfying the
needs and interests of all. Majority rule,
within the framework of fundamental
rights, presupposes that after proper deliberative procedures have been
followed, decisions are
taken and become binding. Accordingly, an appropriate
balance has to be established between deliberation and
decision.
[44]
A third basic feature of
the manner in which local government is to function relates to the need of
government to devise and implement
policies which respond to the pressing
requirements of the people of South
Africa.
[25]
At the level of local
government these responsibilities expressly include ensuring the provision of
services in a sustainable manner,
and promoting social and economic
development.
[26]
The effective
delivery of services is therefore at the heart of local
government.
[45]
In my view, therefore, in
the absence of clear textual signifiers to indicate its meaning, the
determination of what is covered by
the phrase “committees of the
council” has to be made in the light of the three mutually reinforcing
values of inclusivity,
democracy and efficacy. All are central to local
government and have to be reconciled and balanced in an appropriate
manner.
[46]
With these considerations
in mind, I turn to a consideration of the place of mayoral executive committees
in the scheme of local government.
The objective is to determine whether they
fall within the ambit of the term “committees of the council” as
used in
section 160(8)(a).
[47]
A striking feature of
Chapter 7 dealing with local government, is the absence of detailed provisions
concerning executive and legislative
structures, such as are to be found in the
national and provincial spheres of government. Thus, no provision is made for
the institution
of a governmental leader equivalent to the President or Premier,
who act together with Cabinet and the provincial executive respectively.
Section 160 simply provides that the council must elect a chairperson, and may
elect an executive committee or other committees.
Coupled with this notable
absence of particularity regarding council leadership is an express requirement
that national legislation
be used to fill in gaps or provide a regulatory
framework. Section 164, for which there is no equivalent provision in relation
to
national and provincial government, has a particularly wide sweep. It
states:
“Any matter concerning local government not dealt with in the Constitution
may be prescribed by national legislation or by
provincial legislation within
the framework of national legislation.”
[48]
Because the Constitution is
silent on the question of the kind of executive leadership that councils may
have, I regard it as one
of the areas not dealt with in the Constitution and
accordingly left for legislative determination. The Structures Act fills the
lacuna by providing for three forms of municipal executives. I see no reason in
principle why one of the forms, namely, a team clustered
around the mayor with
strong policy-making powers, intended to drive the process of delivery in a
coherent way, should not in structural
terms coexist with committees elected by
the council as contemplated by section 160. Nor do I see anything in section
160 which
either prevents members of the mayoral team from heading the elected
committees of the council, or else requires these teams to function
in a
multiparty way. The legislation presupposes that the very purpose of knitting
together our divided communities, as persuasively
outlined by O’Regan J,
could better be served by a strong, cohesive mayoral team, agreed on basic
philosophy, than by a divided
one in which different “portfolios”
were headed by people of different persuasions pulling in different
directions.
[49]
Section 160 does not
purport to cover the field as far as committees are concerned. It leaves space
for the mayor to act with a mayoral
team which need not be diversely
representative in the way that the council committees contemplated by the
section must be. The
purpose of such a team working closely with and
accountable to the mayor would be to strengthen the capacity of the mayor to
give
effective leadership to the council in dealing with its many heavy
responsibilities. There is no evidence before us that the mayoral
teams are
designed to undermine the deliberative functions of the ordinary committees of
the council. At the end of the day, all
are answerable to the council, where
appropriate space must be given for minority voices to be heard and diverse
interests acknowledged.
[50]
Thus I do not find that the
mayoral committees as envisaged in the Act in themselves deprive section
160(8)(a) of efficacy. Should
it turn out in practice that these mayoral
committees are used in such a way as to circumvent, negate, or suppress the
proper functioning
of committees of the council rather than to activate and
guide them, then appropriate constitutional remedies could be sought on
a case
by case basis. Such remedies would, however, be based on the manner of
implementation of the Act rather than on constitutional
defects in the Act
itself. Accordingly, I do not find anything in the Structures Act that prevents
it from being applied in a manner
consistent with achieving a constitutionally
mandated and functionally appropriate balance between the principles of
inclusivity,
democracy and efficacy. I concur in the judgment of Langa
DCJ.
O’REGAN J:
[51]
I
have had the opportunity of reading the judgment written by my colleague, Langa
DCJ, with which I am unable to agree for the reasons
I set out in this judgment.
As Langa DCJ states, the issue before us is whether mayoral committees as
contemplated by section 60
of the Local Government: Municipal Structures Act 117
of 1998
[27]
(the Structures Act) are
“committees of municipal councils” as contemplated by section 160(8)
of the
Constitution.
[28]
[52]
To answer this question, we
need to understand first what section 160(8) of the Constitution means. It is
important to emphasise
that in deciding whether mayoral committees are councils
contemplated by the Constitution or not, the answer must lie primarily in
the
meaning of the Constitution, not in the Structures Act. The Structures Act must
be interpreted in the light of the Constitution
and not the other way round.
The Structures Act can shed no light on the meaning of section 160(8), and to
the extent Langa DCJ’s
judgment relies on the Structures Act for that
purpose, I am in respectful disagreement.
[53]
The question needs to be
approached first by a consideration of section 160(8) of the Constitution in its
constitutional and historical
context. Chapter 7 of the Constitution regulates
local government, which is the third sphere of government after the national
sphere
and the provincial sphere. It is, however, quite different in conception
and function to those other two spheres of government.
Unlike the structures of
national and provincial government, section 151 of the Constitution provides
that the executive and legislative
authority of municipalities is vested in its
municipal council. The objects of local government, too, are different to those
of
national and provincial government and are narrowly focussed on local
communities, their development, environment and the quality
of life of their
inhabitants. As section 152(1) stipulates, the objects of local government
are:
“(a) to provide democratic and accountable government for local
communities;
(b) to ensure the provision of services to communities in a sustainable
manner;
(c) to promote social and economic development;
(d) to promote a safe and healthy environment; and
(e) to encourage the involvement of communities and community organisations in
the matters of local government.”
[54]
These objects need to be
understood in the context of the functions of local government which are
provided for in Part B of Schedule
4 and Part B of Schedule 5 to the
Constitution. The functional areas listed in Schedule 4, Part B include 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,
stormwater management systems, trading regulations and water supply.
The
functional areas listed in Schedule 5, Part B include beaches and amusement
facilities, billboards, cemeteries and crematoria,
cleansing, control of public
nuisances, control of undertakings that sell liquor and food to the public,
fencing and fences, dog
licensing, local sports facilities, markets, abattoirs,
municipal parks and roads, pounds, refuse removal, street trading and lighting
and traffic regulation. Other functional areas may be assigned to local
government by national and provincial
legislation.
[29]
Local government
is thus concerned with the provision of services to members of its community,
perhaps most obviously power, water
and refuse removal as well as important
community facilities.
[55]
The Constitution envisages
that local government is the primary tier of government and that closest to the
people. In a variety of
ways, it seeks to ensure that the citizens affected by
the decisions of the local council will be those who make the decisions.
So it
provides that municipal councillors must be drawn from the communities which
they seek to represent
[30]
and
emphasises the importance of involving communities and community organisations
in matters of local
government.
[31]
The
historical context
[56]
These provisions of the
Constitution need to be understood against the history of local government in
our country. As this Court
has observed
before,
[32]
perhaps nowhere is the
legacy of apartheid regulation more visible than in the spatial ordering of our
towns. The combined effect
of the Group Areas
Act,
[33]
the Natives (Urban Areas)
Consolidation Act,
[34]
the
Reservation of Separate Amenities
Act
[35]
and other similar
legislation was to ensure that residential areas were divided along racial lines
and that high-quality facilities,
including sports grounds, libraries, community
centres and municipal parks were reserved for the white community. The
provision
of basic services including water, power and the removal of refuse
were often provided only to the white suburbs and not to the black
townships;
and paved roads and water reticulated sewerage were often to be found in white
areas but not in the adjacent black areas.
[57]
The legacy of the apartheid
era therefore is that our towns are deeply divided. Eight years after the dawn
of the democratic era,
this remains so. There is much to be done to achieve the
constitutional vision of a society in which “the divisions of the
past”
[36]
have been healed.
The unjust and unequal allocation of resources over decades, indeed centuries,
means that those who live in formerly
white suburbs generally have better
services and conditions of life than those who live in the townships formerly
reserved for black
people, and still, as a matter of fact, largely occupied by
black people. These disparities were graphically captured by Kriegler
J in his
judgment in
Fedsure Life Assurance Ltd v Greater Johannesburg Transitional
Metropolitan Council
[37]
as follows:
“The apartheid city, although fragmented along racial lines, integrated an
urban economic logic that systematically favoured
white urban areas at the cost
of black urban and peri-urban areas. The results are tragic and absurd:
sprawling black townships
with hardly a tree in sight, flanked by vanguards of
informal settlements and guarded by towering floodlights, out of stonethrow
reach. Even if only a short distance away, nestled amid trees and water and
birds and tarred roads and paved sidewalks and streetlit
suburbs and parks, and
running water, and convenient electrical amenities . . . we find white
suburbia.”
[58]
It is also important to
recall that until the beginning of the last decade, there were different systems
of local government based
on race. White towns were governed by municipal
councils which were directly elected by the ratepayers. Black townships were
governed
differently: initially by township managers under the Black
Administration Act,
[38]
and then
subsequently by local councils whose jurisdiction was limited to the black
townships only. This racially fragmented system
of local government meant that
the transition in the sphere of local government presented particularly complex
challenges.
[39]
From 1993 until the
local government elections were held in 1999, this process was managed in terms
of the
Local Government Transition Act 209 of 1993
. It was essentially a
three-phase process in terms of which local negotiating forums were first
established in each town on which
all existing local government authorities were
represented, as well as political parties and organisations previously excluded
from
local government. The establishment of these forums was followed by the
first set of local government elections in 1995, when members
of interim local
councils were elected, the final phase consisted of and finally to the election
of municipal councils in 1999.
[59]
Throughout the process of
local government transition, there was considerable autonomy for local
resolution of local problems –
so that local negotiating forums and then
interim councils were forced to co-operate and jointly address the inequitable
legacy of
the past. The institutional transition in local government is now
complete, though the transformation of the towns themselves remains
a work in
progress. Local government is governed by Chapter 7 of the Constitution
together with three key statutes: the
Local Government: Municipal Demarcation
Act 27 of 1998
, the
Local Government: Municipal Systems Act 32 of 2000
and the
Local Government: Municipal Structures Act 117 of 1998 (the Structures Act)
– which is the legislation with which we
are concerned in this
case.
The constitutional provisions
[60]
Having sketched this
historical context, I turn now to consider the provisions of section 160. The
title of the section is “Internal
Procedures” and section 160(1)(a)
provides that a municipal council makes “decisions concerning the exercise
of all the
powers and the performance of all the functions of the
municipality”. This needs to be read with section 151(2) which states
that the executive and legislative authority is vested in the municipal council.
Unlike the other spheres of government, therefore,
there is no institutional
split between the arms of government entrusted with legislative authority on the
one hand and executive
authority on the other. Both are vested in the municipal
council. This difference is understandable in the light of the nature
of the
functions of local government. They are not the high affairs of state –
defence, foreign affairs, justice and security,
but matters concerning delivery
of services and facilities to local communities: power, water, waste management,
parks and recreation
and decisions concerning the development and planning of
the municipal area. Thus executive decisions of municipal councils will
ordinarily be decisions which have direct effect on the lives and opportunities
of those living in the area.
[61]
Section 160 of the
Constitution also provides that the municipal council must elect its
chairperson
[40]
and, subject to
national legislation, may elect an executive committee and other
committees.
[41]
Its scope to
delegate its powers is limited by section 160(2) which provides that it may not
delegate the passing of by-laws, the
approval of budgets, the imposition of
rates, levies and other taxes and the raising of loans. The section also
provides that national
legislation may provide criteria for determining the size
of a council, whether councils may elect executive committees or other
committees and the size of such
committees.
[42]
Section 160(7)
provides that the council must conduct its business in an “open
manner” and may only close sittings or
those of its committees when it is
“reasonable” to do so. Section 160(8) then provides that members of
a council are
entitled to participate in “its committees” in a
manner that—
“(a) allows parties and interests reflected within the Council to be
fairly represented;
(b) is consistent with democracy; and
(c) may be regulated by national legislation.”
This
provision has two aspects worth emphasising: it entitles councillors (elected
representatives of local communities) to participate
in the proceedings of the
council and its committees. This entitlement contains an important affirmation
of representative government.
Secondly, that entitlement is subject to three
conditions – first a principle of fair representation – that parties
and interests be fairly represented in the committees and at council; second,
that the that principle of fair representation remains
subject to democracy
(which implies that the majority must always be able to determine decisions),
and finally, that the manner in
which the principle of fair representation is
achieved may be regulated by national legislation.
[62]
The provisions of section
160(8) must be read in the context of a history of separation and inequality
which it is the task of local
government to overcome. The section requires the
involvement of councillors representing different parties and interests from the
same town in a process of collegial decision-making. Councillors from different
parties and communities will have to debate with
one another the challenges
facing local government. The process of reasoned debate and engagement ensures
that interest groups and
parties are fairly represented and can contribute to
the shared resolution of problems in a manner antithetical to our past but
consistent
with the process of transformation of local government over the last
ten years.
[63]
The involvement of
councillors representing a range of parties and interests in the council and its
committees is, in accordance with
section 160(8)(b), always subject to the
overarching dictates of democracy which require that majority parties determine
decisions.
But the obligation of fair representation means that those decisions
are made only once the interests of non-majority parties have
been aired.
Moreover section 160(8)(c) makes it plain that the precise manner in which fair
representation of interests and parties
is achieved may be regulated by national
legislation.
[43]
The purpose of
section 160(8) in the context of the need to transform our racially divided and
deeply unequal towns and cities is
an important one. It recognises the value of
involving different parties and interests within each town and city in the
process.
It avoids recreating the separation of the past in order to facilitate
a shared future.
[64]
The appellants argue that
section 160(8) governs all committees of the council including the mayoral
committee. The respondents assert
that the mayoral committee is not a committee
contemplated by section 160(8) and point to the fact that the mayoral committee
is
appointed by the mayor and that members of it hold office at the pleasure of
the mayor.
[44]
This submission
needs to be understood in the light of the fact that Chapter 7 contains no
express provisions concerning the executive
institutions of local government.
It states that the executive authority of local government resides in the
municipal council and
requires a council to elect a chairperson. The provisions
of Chapter 7, therefore, constitute only the framework for local
government
[45]
and not comprehensive
regulation of it. That regulation is to be completed by national legislation,
and in some respects, by provincial
legislation.
[65]
The Constitution provides
for three different categories of
municipality
[46]
and requires
national legislation to determine the types of municipality that may be
established within each
category.
[47]
The Structures Act
provides for different types of municipality and in particular provides for
different types of executive systems
– one of which is an executive system
based on an executive mayor. It is this system which is in issue in this
case.
The Structures Act
[66]
The powers of an executive
mayor are set out in section 56 of the Structures Act. It is a hands-on job.
The executive mayor must
evaluate the needs of the municipality in order of
priority and recommend strategies, programmes and services to the council to
meet
those needs.
[48]
In addition
to strategy and review, however, the mayor is also required to perform all
duties and functions delegated by the municipal
council
[49]
and oversee the
provision of services to the
community.
[50]
The mayor may also
be required to perform a ceremonial role if required to do so by the
council.
[51]
[67]
If the municipal council
has more than nine members, the Structures Act requires the mayor to appoint a
mayoral committee from amongst
the members of the
council.
[52]
The mayor may also
dismiss the members of the
council
[53]
but otherwise the
mayoral committee members remain in office for the term of the executive
mayor.
[54]
The mayor has the power
to delegate specific responsibilities and powers to each member of the mayoral
committee.
[55]
Moreover, the
municipal council may designate certain powers of the executive mayor to be
exercised and performed by the executive
mayor together with the members of the
mayoral
committee.
[56]
[68]
It is clear from this
account that where the system of municipality adopted is that involving an
executive mayor, the executive authority
of the municipal council will often be
concentrated in the executive mayor and the mayoral committee. The mayor is
appointed by
the municipal council for a maximum of two consecutive
terms
[57]
and may be removed by the
municipal council during his or her period of
office.
[58]
The mayoral committee
assists the mayor in the performance of his or her duties. But it is more than
a committee of advisors for
the mayor may delegate powers and functions to
members of the committee and the municipality may designate certain tasks to the
mayor
which may only be exercised in concert with the members of the mayoral
committee.
[69]
The Structures Act also
provides in section 80 for the appointment of committees of councillors to
assist the executive mayor. It
provides that the number of such committees may
not exceed the number of members of the mayoral committee and that the executive
mayor may appoint a chairperson for each of these committees from amongst the
members of the mayoral committee. Furthermore, the
mayor may delegate powers
and duties to this committee.
Is the mayoral
committee a committee of the council?
[70]
The respondents argued that
because the mayoral committee is appointed by the mayor and holds office at his
or her pleasure, it is
a committee of the mayor and not of the council. The
fact that the committee is appointed by the mayor cannot answer the question
of
whether the committee is one within the contemplation of section 160(8) or not.
The Constitution does not contemplate in express
terms executive mayors at all.
Were the respondents’ argument to be adopted, the important constitutional
requirement entrenched
in section 160(8) could be evaded by simply permitting
the executive mayor to appoint all committees of the council. The answer
to the
question whether the mayoral committee is a committee within the contemplation
of section 160(8) or not, cannot lie simply
in the fact that it is not appointed
by the council itself.
[71]
Langa DCJ places reliance
section 160(1)(c) of the Constitution which states that a municipal council
“may elect an executive
committee and others committees, subject to
national legislation” and section 160(5) which refers to the election of
committees
by the council to conclude that when section 160(8) speaks of
committees it is only speaking of those committees elected by the council.
Once
again, in my respectful view, this approach cannot be correct. The method of
appointment of committees cannot be used to evade
the constitutional purpose
performed by section 160(8).
[72]
As indicated above, section
160(8) serves the constitutional purpose of ensuring that where deliberative
decisions are made by committees
of councillors to exercise the executive and
legislative authority of the council, the deliberation preceding the
decision-making
involves the fair representation of different parties and
interests. Such a deliberative process in the sphere of local government
will
involve different groups resident within the same town or city all embarking on
the process of transformation of their town.
Ensuring the consideration of a
wider range of interests may well serve to deepen and legitimise democracy and
may facilitate agreement
about the manner in which transformation should take
place. The fundamental constitutional purpose is to undo the separation,
exclusion
and inequality of the past by ensuring that there is shared
involvement in deliberation subject, of course, to the right of the majority
to
make decisions.
[73]
If this is the
constitutional purpose at the heart of section 160(8), the method of appointment
of the mayoral committee cannot be
determinative of whether section 160(8) is of
application or not. More important for answering that question will be the
powers
and functions of the mayoral committee. Is the mayoral committee
involved in deliberative decision-making which involves the exercise
of the
powers of the municipal council? The mayoral committee and its members do
exercise executive powers and functions on behalf
of the municipal council.
Those powers are conferred upon the mayoral committee by delegation, both by the
mayor,
[59]
and by the municipal
council
itself.
[60]
[74]
It could be argued that
because the mayoral committee is involved primarily with strategy and executive
authority, section 160(8)
should not apply to it because it is inappropriate
that committees exercising executive authority be required to be fairly
representative.
In this regard, it should be noted that similar constitutional
provisions govern the legislative committees of the national legislature
and
provincial legislatures,
[61]
but not
provincial and national executive authority, as Langa DCJ
observes.
[75]
However, it does not follow
that because such provisions apply to the national and provincial legislatures
only and not to the executive
authority in those spheres, a similar meaning
should be given to section 160(8). Indeed the converse is true. As I have
described,
there are significant functional differences between the national and
provincial spheres of government on the one hand, and the local
sphere on the
other. These differences have resulted in different constitutional structures
and provisions for the different spheres.
The Constitution contemplates
expressly that executive and legislative authority should both vest in the same
institution at local
level, and there seems to be no reason why section 160(8)
should not therefore apply to all the committees comprising municipal
councillors
who are engaged in the exercise of the powers of municipal councils,
whether the powers being exercised are legislative or
executive.
[76]
Langa DCJ suggests that
requiring mayoral committees to be fairly representative will undermine the
constitutional goal of efficient
delivery of services. Efficient delivery of
services is of key importance, but I am not persuaded that the approach I take
will
impair that goal. The Structures Act makes it clear that members of the
mayoral committee hold office at the pleasure of the mayor
and should efficiency
be threatened by the attitude of one or more of the members of the mayoral
committee, the mayor would be entitled
to dismiss them. This permits the mayor
to ensure that efficiency is not impaired.
[77]
Furthermore, in determining
whether the Constitution intended the provisions of section 160(8) to apply to
committees concerned with
exercising executive authority in the local sphere of
government, it is important to bear in mind the nature of the tasks local
government
performs. Those tasks involve primarily municipal planning as well
as the provision of services such as power, water, waste removal,
municipal
clinics and fire-fighting services and the provision of amenities such as sports
grounds, parks, libraries, markets and
municipal transport. Without doubt,
these are important services and facilities relied upon by all members of the
community. They
are not areas of executive authority which require the
confidentiality and political cohesion of an exclusive executive team modelled
on the cabinet for national government.
[78]
This conclusion constrains
the choice available to the executive mayor in composing his or her mayoral
committee, but it does not
deprive the mayor of the power to dismiss members of
the committee. Moreover, section 160(8)(b) is clear that the principle of fair
representation is always subject to democracy and the will of the majority.
Members of the mayoral committee must therefore submit
to that principle, as
must all councillors. The principle established by section 160(8) is a
principle which requires inclusive
deliberation prior to decision-making to
enrich the quality of our democracy. It does not subvert the principle of
democracy itself.
[79]
I conclude then that the
function of a committee is determinative at the end of the day as to whether
section 160(8) applies or not.
There is no reason to limit the ordinary meaning
of the words of section 160(8) either to committees appointed by the municipal
council itself, or to those committees engaged only with legislative matters.
Accordingly, because the mayoral committee is a committee
composed of
councillors engaged upon exercising the executive authority of the municipal
council, it is a committee of the council
as contemplated by section 160(8). It
would follow that if the members of the committee were limited to advising the
mayor and had
no executive authority of their own, the committee would not
constitute a committee of the council but would be an advisory body
holding
office at the pleasure of the mayor solely to assist him or
her.
[80]
For these reasons, I cannot
agree with Langa DCJ that the mayoral committees required by section 60 of the
Structures Act are not
committees within the contemplation of section 160(8) of
the Constitution. The question that then arises is whether section 60 of
the
Structures Act is reasonably capable of being read in a manner consistent with
the Constitution. There is no textual bar to
reading section 60 subject to
section 160(8), for it is silent on the composition of the committees. The only
interpretive difficulty
that arises is therefore
contextual.
[81]
I agree with Langa DCJ that
there are indications in other provisions of the Structures Act which suggest
that mayoral committees
do not have to be composed according to a principle of
fair representation. Perhaps the strongest such indication is the distinction
drawn in the Act between the executive committee system and the executive mayor
system. The former must be composed so as to ensure
fair
representation,
[62]
whereas the Act
is silent in the case of the latter. Reading the mayoral committee provisions
subject to a principle of fair representation
therefore does run foul of
ordinary principles of interpretation which would suggest that the specific
inclusion of the principle
of fair representation in relation to the one would
mean the Act’s silence on the other indicated an intention that such a
principle is not applicable to it. It does seem to me, however, that this
contextual difficulty is not insuperable, particularly
in order to avoid a
reading which would render the provision inconsistent with the
Constitution.
[82]
In the circumstances, I
conclude that the proper interpretation of section 60 requires that mayoral
committees be composed to ensure
fair representation as required by section
160(8) of the Constitution. This can be done in the manner proposed by section
43(2)
of the Structures Act in relation to executive committees. Section 60
should therefore be read to require that groups and interests
represented in the
council be represented proportionally on the mayoral committee. Of course,
should the legislature wish to regulate
the requirement of fair representation
in a different, but constitutionally acceptable, manner, it is clear from
section 160(1)(c)
of the Constitution that it is entitled to do
so.
[83]
For these reasons I would
uphold the appeal.
Counsel for the Appellants: E Dunn SC and S Barua instructed by Horwitz
Incorporated, Johannesburg.
Counsel for the Respondents: GJ Marcus SC and A Cockrell instructed by Moodie
& Robertson, Johannesburg and the State Attorney,
Johannesburg.
[1]
See
Certification of the
Amended Text of the Constitution of the Republic of South Africa
[1996] ZACC 24
; ,
1996
1997
(1) BCLR 1(CC)
;
1997 (2) SA 97
(CC) paras 72 - 82.
[2]
Section 151(1) of the
Constitution.
[3]
Section 156 of the
Constitution.
[4]
Section 151(2) of the
Constitution states—
“The executive and legislative authority of a municipality is vested in
its Municipal
Council.”
[5]
Section 160(1)(c) of the Constitution.
[6]
Section 160(5)(b) and (c) of
the Constitution.
[7]
Section 164 of the Constitution
states:
“Any matter concerning local government not dealt with in the Constitution
may be prescribed by national legislation or by
provincial legislation within
the framework of national legislation.”
See also section
155(3), 155(4), section 157, section 158(1)(b) and section 160(5) which also
provide for the elaboration of constitutional
principles through national
legislation.
[8]
Section 155(2) of the
Constitution states that—
“National legislation must define the different types of municipality that
may be established within each
category.”
[9]
Part 2 of Chapter I of the Structures Act sets out the different types of
municipalities.
[10]
Section 160(2) of the
constitution says:
“The following functions may not be delegated by a Municipal
Council:
(a) The passing of by-laws;
(b) the approval of budgets;
(c) the imposition of rates and other taxes, levies and duties; and
(d) the raising of
loans.”
[11]
Section 7(c) of the Structures Act. See also sections 9(e), 9(f) and 10(c) of
the Structures Act.
[12]
Section 7(a) of the
Structures Act. Part 1 of Chapter 4 of the Structures Act governs
municipalities where there is an executive
committee system.
[13]
Section 43(2) of the
Structures Act.
[14]
Section 7(b) of the
Structures Act. Part 2 of Chapter 4 of the Structures Act governs
municipalities which have an executive mayoral
system.
[15]
Section 60(3) of the
Structures Act.
[16]
Section 56 of the Structures
Act states:
“56. Functions and powers of executive
mayors.—
(1) An executive mayor is entitled to receive reports from committees of the
municipal council and to forward these reports together
with a recommendation to
the council when the matter cannot be disposed of by the executive mayor in
terms of the executive mayor’s
delegated
powers.
(2) The executive mayor must—
(a) identify the needs of the municipality;
(b) review and evaluate those needs in order of
priority;
(c) recommend to the municipal council strategies, programmes and services to
address priority needs through the integrated development
plan, and the
estimates of revenue and expenditure, taking into account any applicable
national and provincial development plans;
and
(d) recommend or determine the best way, including partnership and other
approaches, to deliver those strategies, programmes and
services to the maximum
benefit of the community.
(3) The executive mayor in performing the duties of office,
must—
(a) identify and develop criteria in terms of which progress in the
implementation of the strategies, programmes and services referred
to in
subsection (2)(c) can be evaluated, including key performance indicators which
are specific to the municipality and common
to local government in
general;
(b) evaluate progress against the key performance indicators;
(c) review the performance of the municipality in order to
improve—
(i) the economy, efficiency and effectiveness of
the municipality;
(ii) the efficiency of credit control and revenue and debt collection
services; and
(iii) the implementation of the municipality’s
by-laws;
(d) monitor the management of the municipality’s administration in
accordance with the directions of the municipal council;
(e) oversee the provision of services to communities in the municipality in a
sustainable manner;
(f) perform such duties and exercise such powers as the council may delegate to
the executive mayor in terms of section 32;
(g) annually report on the involvement of communities and community
organisations in the affairs of the municipality; and
(h) ensure that regard is given to public views and report on the effect of
consultation on the decisions of the
council.
(4) An executive mayor must perform a ceremonial role as the municipal council
may determine.
(5) An executive mayor must report to the municipal council on all decisions
taken by the executive mayor.
(6) The deputy executive mayor of a municipality exercises the powers and
performs the duties of the executive mayor if the executive
mayor is absent or
not available or if the office of the executive mayor is vacant.”
[17]
Section 238(a) of the Constitution states:
“An executive organ of state in any sphere of government
may—
(a) delegate any power or function that is to be exercised or performed in terms
of legislation to any other executive organ of state,
provided the delegation is
consistent with the legislation in terms of which the power is exercised or the
function is
performed”.
[18]
Section 59 of the Systems Act is substantially similar to section 32 of the
Structures Act which has been repealed.
[19]
Section 43(2) of the
Structures Act.
[20]
See the preamble to the
Systems Act.
[21]
Section 151(2) of the
Constitution.
[22]
Section 160(1)(a) of the
Constitution.
[23]
Section 56(5) of the
Structures Act.
[24]
Section 160(8)(b) of the
Constitution.
[25]
See the Preamble and the
tasks and responsibilities allocated to the different spheres of government.
[26]
Sections 152(1)(b) and (c)
of the Constitution.
[27]
Section 60 provides
that:
“(1) If a municipal council has more than nine members, its executive
mayor—
(a) must appoint a mayoral committee from among the councillors to assist the
executive mayor;
(b) may delegate specific responsibilities to each member of the
committee;
(c) may delegate any of the executive mayor’s powers to the respective
members; and
(d) may dismiss a member of the mayoral
committee.
(2) The mayoral committee must consist of the deputy executive mayor (if any)
and as many councillors as may be necessary for effective
and efficient
government, provided that no more than 20 per cent of the councillors or 10
councillors, whichever is the least, are
appointed.”
[28]
Section 160(8) provides that:
“Members of a Municipal Council are entitled to participate in its
proceedings and those of its committees in a manner that—
(a) allows parties and interests reflected within the Council to be fairly
represented;
(b) is consistent with democracy; and
(c) may be regulated by national legislation.”
[29]
Section
156(1)(b) of the Constitution provides that:
“A municipality has executive authority in respect of, and has the right
to administer—
. . . .
(b) any other matter assigned to it by national or provincial
legislation.”
[30]
Sections 158(1) read with section 157(5) of the Constitution. Section 158(1)
provides as follows:
“(1) Every citizen who is qualified to vote for a Municipal Council is
eligible to be a member of that Council,
except—
(a) anyone who is appointed by, or is in the service of, the municipality and
receives remuneration for that appointment or service,
and who has not been
exempted from this disqualification in terms of national legislation;
(b) anyone who is appointed by, or is in the service of, the state in another
sphere, and receives remuneration for that appointment
or service, and who has
been disqualified from membership of a Municipal Council in terms of national
legislation;
(c) anyone who is disqualified from voting for the National Assembly or is
disqualified in terms of section 47(1)(c), (d) or (e)
from being a member of the
Assembly;
(d) a member of the National Assembly, a delegate to the National Council of
Provinces or a member of a provincial legislature; but
this disqualification
does not apply to a member of a Municipal Council representing local government
in the National Council; or
(e) a member of another Municipal Council; but this disqualification does not
apply to a member of a Municipal Council representing
that Council in another
Municipal Council in a different
category.”
Section 157(5)
provides that “A person may vote in a municipality only if that person is
registered on that municipality’s
segment of the national common voters
roll.”
[31]
Section 152(1)(e).
[32]
See
Western Cape
Provincial Government and Others: In re DVB Behuising (Pty) Ltd v North West
Provincial Government and Another
[2000] ZACC 2
;
2001 (1) SA 500
(CC);
2000 (4) BCLR 347
(CC) at paras 41-7 and
Fedsure Life Assurance Ltd and Others v Greater
Johannesburg Transitional Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC);
1998 (12) BCLR 1458
(CC) at para 2.
[33]
Act 41 of 1950.
[34]
Act 25 of 1945.
[35]
Act 49 of 1953.
[36]
Preamble to the
Constitution.
[37]
Above n 6 at para 122.
[38]
Act 38 of 1927.
[39]
This process has been
described in judgments of this Court. See
Executive Council, Western Cape
Legislature and Others v President of the Republic of South Africa and
Others
[1995] ZACC 8
;
1995 (4) SA 877
(CC);
1995 (10) BCLR 1289
(CC) at paras 177–82
(per Kriegler J);
Fedsure Life Assurance
above n 6 at paras 3-7 (per
Chaskalson P, Goldstone and O’Regan JJ) and at paras 121-30 (per Kriegler
J). See also the discussion
in
Pretoria City Council v Walker
[1998] ZACC 1
;
1998 (2)
SA 363
(CC);
1998 (3) BCLR 257
(CC) at paras 17-20 (per Langa DP).
[40]
Section 160(1)(b).
[41]
Section 160(1)(c).
[42]
Section 160(5).
[43]
An example of such
regulation is to be found in section 43(2) of the Structures Act which provides
that an executive committee must
be composed in proportion to the members of the
council.
[44]
See section 60(1) of the
Structures Act.
[45]
See Constitutional Principle
XXIV, Schedule 4 to the Constitution of the Republic of South Africa Act 200 of
1993 which provided
that:
“A framework for local government powers, functions and structures shall
be set out in the Constitution. The comprehensive
powers, functions and other
features of local government shall be set out in parliamentary statutes or in
provincial legislation
or in both.”
See also the first
certification judgment
Ex parte Chairperson of the Constitutional Assembly:
In re Certification of the Constitution of the Republic of South Africa,
[1996] ZACC 26
;
1996
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC) at paras 299-302; and
the certification of the amended text judgment
Ex Parte Chairperson of the
Constitutional Assembly: In re Certification of the Amended Text of the
Constitution of the Republic of
South Africa,
[1996] ZACC 24
;
1996
1997 (2) SA 97
(CC);
1997
(1) BCLR 1
(CC) at paras 72-81.
[46]
Section 155(1) provides for
category A municipalities which have exclusive municipal executive and
legislative authority within their
areas; category B municipalities which share
municipal executive and legislative authority with a category C municipality in
their
areas; and category C municipalities which have municipal executive and
legislative authority within an area which has more than
one municipality.
[47]
See section 155(2) of the
Constitution.
[48]
Section 56(2) of the
Structures Act.
[49]
Section 56(3)(f).
[50]
Section 56(3)(e).
[51]
Section 56(4).
[52]
Section 60(1)(a).
[53]
Section 60(1)(d).
[54]
Section 60(4). If the mayor
vacates office, the committee is dissolved (section 60(5)).
[55]
Subsections 60(1)(b) and
(c).
[56]
Section 60(3).
[57]
Section 57(1)(b).
[58]
Section 58.
[59]
See subsections 60(1)(b) and
(c).
[60]
See section 60(3).
[61]
See section 57(2):
“The rules and orders of the National Assembly must provide for—
. . . .
(b) the participation in the proceedings of the Assembly and its committees of
minority parties represented in the Assembly, in a
manner consistent with
democracy;”.
See also section 70(2)(b) in
respect of the National Council of Provinces and section 116(2)(b) in respect of
provincial legislatures.
[62]
See section 43(2) of the
Structures Act.