Local government law workshop Higher Certificate in local government and development management 01 April 2017

Introduction Lecturer/Facilitator Andrew Tucker B Com LLB, Attorney of the High Court of South Africa Contact details: andrew.tucker46@gmail.com

Workshop programme 08:00 – 08:15 Introduction 08:15 – 10:00 Course Overview 10:00 – 10:20 Break 10:20 – 11:20 Assignment Questions 11:20 – 12:00 Your questions and problem areas

Resources www.letslearnmore.weebly.com

Course overview Let’s examine some key areas and concepts

South Africa is a unitary State Constitutional democracy Key concepts South Africa is a unitary State Constitutional democracy

INTRODUCTION TO LG Definition: Local governance describes the process of making decisions, allocating funds and delivering services at the local level. It involves actors (e.g. mayors, local councils, NGOs, business associations), formal and informal institutions (e.g. municipal administration, council, but also rules and regulations), and available means (e.g. human resources, money).

Local government Constitution reigns supreme Spheres of government Co-operative government

The constitution Modern and dynamic Constitutional democracy What does constitutional sovereignty mean?

Local government is Grassroots democracy Closest to the people Able to respond to the needs of a particular area

Nature of local government A local area and local community formed by common interests, whether rural, urban or regional; Participation by a local community in the government of its local affairs – grassroots democracy; A local political unit with executive and legislative powers of government as the third sphere of government, and powers of taxation to control, regulate and develop local affairs and render services by means of co –operative government.

Local government – a constitutional right Previously – delegated powers 1996 Constitution – sections 40, 43 and 156

Section 40 40.   Government of the Republic.—(1)  In the Republic, government is constituted as national, provincial and local spheres of government which are distinctive, inter-dependent and interrelated. (2)  All spheres of government must observe and adhere to the principles in this Chapter and must conduct their activities within the parameters that the Chapter provides.

Section 43 43.   Legislative authority of the Republic.—In the Republic, the legislative authority— (a) of the national sphere of government is vested in Parliament, as set out in section 44; (b) of the provincial sphere of government is vested in the provincial legislatures, as set out in section 104; and (c) of the local sphere of government is vested in the Municipal Councils, as set out in section 156.

Section 156 156.   Powers and functions of municipalities.—(1)  A municipality has executive authority in respect of, and has the right to administer— (a) the local government matters listed in Part B of Schedule 4 and Part B of Schedule 5; and (b) any other matter assigned to it by national or provincial legislation. (2)  A municipality may make and administer by-laws for the effective administration of the matters which it has the right to administer. (3)  Subject to section 151 (4), a by-law that conflicts with national or provincial legislation is invalid. If there is a conflict between a by-law and national or provincial legislation that is inoperative because of a conflict referred to in section 149, the by-law must be regarded as valid for as long as that legislation is inoperative. (4)  The national government and provincial governments must assign to a municipality, by agreement and subject to any conditions, the administration of a matter listed in Part A of Schedule 4 or Part A of Schedule 5 which necessarily relates to local government, if— (a) that matter would most effectively be administered locally; and (b)the municipality has the capacity to administer it. (5)  A municipality has the right to exercise any power concerning a matter reasonably necessary for, or incidental to, the effective performance of its functions.

The three categories of local govt Category A – Metropolitan Municipalities 8 of them – Jhb, Cpt, Dbn etc Category B – Local Municipalities Falls into a district & shares powers & functions Category C – District Municipalities Comprised of a number of local municipalities

The duties of local government The provision of democratic and accountable government for local communities. Ensure the provision of services in a sustainable manner. To promote social and economic development. A safe and healthy environment. The involvement of communities and community organizations within local government.

The separation of powers

Role and function of committees See pages 19 - 20

Fraud, corruption & unlawful acts The MEC’s powers to take action – see page 33

PROVINCIAL LEGISLATURE LEVEL OF GOVT LEGISLATIVE EXECUTIVE JUDICIARY NATIONAL PARLIAMENT PRESIDENT COURTS PROVINCIAL PROVINCIAL LEGISLATURE PREMIER LOCAL MUNICIPAL COUNCIL MAYOR

Supremacy of constitution & LG status Constitution is our supreme law – everything tested against the Constitution Constitution provides for local government status

National & provincial government powers National and Provincial Government have power to ensure municipalities perform their functions efficiently and effectively

S139 OF THE CONSTITUTION Limits the powers of Provincial government to interfere with LG Can intervene only when LG has not done what it is supposed to do.

Principles and goals of local administration 195. 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 of resources must be promoted. c. Public administration must be development-oriented. d. Services must be provided impartially, fairly, equitably 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. 

Law making provisions Section 156 (2) A municipality may make and administer by-laws for the effective administration of the matters which it has the right to administer

Pg 50 Local Government Law Study Guide, Mancosa

NO DELEGATION OF LEGISLATIVE POWER SEC 160 prohibits the delegation of law making powers The power to make law vests in the municipal council. The council cannot dispose of that power by delegating it to any committee, office-bearer or municipal official. This includes the approval of a budget

DEVELOPMENTAL DUTIES OF MUNICIPALITIES Structure and manage its Administration Budgeting Planning processes to give priority to the basic needs of the community,

Finances Duties of the accounting officer Audits Unsound finances Sources of income

FINANCIAL MANAGEMENT One of the most important duties of a municipal council is to manage its funds effectively. This means: Drawing up a budget - working out what income the municipality will receive and balancing this with what they think they will have to spend it on; Protecting the income, capital and assets such as money in the bank, motor vehicles, computer equipment, by putting in proper controls.

tenders Procurement policy Fairness and transparency PFMA

Assignment questions

Question 1 http://localgovernmentaction.org.dedi6.cpt3.host-h.net/activists-guide/structures https://www.salga.org.za/Documents/Municipalities/Guidelines%20for%20Municipalities/Guideline- Document--On-The-Roles-and-Responsibilities-of-Councillors-and-Officials-(2)-(1st-Draft)_.pdf

Question 2 https://www.salga.org.za/Documents/NMA%20Documents%202016/The%20process%20applicationof %20section%20139,%20105%20and%20106.pdf

Question 3 Resources The Role of Ward Committees in South Africa, T Smith, 2008 Ward Committee Resource Book, Dept Provincial & Local Government, 2005 Local Government law, Johan Meyer, 1998, Butterworths Municipal Administration – The handbook, DL Craythorne, 6th Ed, 2006, Juta at page 116

Question 4 http://www.polity.org.za/article/the-reasons-behind-service-delivery-protests-in-south-africa-2009-08- 05 https://www.municipaliq.co.za/publications/articles/sunday_indep.pdf https://www.dailymaverick.co.za/article/2015-03-17-the-civic-protest-barometer-episode-three-what- causes-residents-to-revolt/#.WN53toVOLug