ANCL-RADC ANNUAL CONFERENCE – ‘The Internationalisation of Constitutional
Law’ Rabat, Morocco, 2011-01-20
WORKING PAPER
Please do not use this paper without contacting the author on: njuhfuo@yahoo.com;
The role of local government in the realisation of the
right to social protection in South Africa
Oliver Njuh Fuo, LLD Student, North-West University (Potchefstroom Campus) South Africa
Paper presented to Sub theme III of the ANCL Annual Conference: Rabat, Morocco 2–5 Feb 2011
“International influences on constitutions and constitutional law in Africa”
email: njuhfuo@yahoo.com; Cell: 0027 733 903 893; Fax: 0027 182 991 23
1
Introduction
The democratic dispensation that was born in South Africa in 1994 inherited a
myriad of intertwined socio-economic challenges including poverty, social
inequality and inadequate provision of basic social services. To meet its social
transformation agenda and ultimately improve the quality of life of all, the new
constitutional state adopted social protection measures, giving effect to the right
to social protection entrenched in section 27(1)(c) of the Constitution of the
Republic of South Africa, 19961, as one of its major interventions. Section 27(2)
read with section 7(2) of the Constitution impose a positive obligation on
government to respect, promote, protect and fulfil the right to social protection,
progressively, through reasonable legislative and other measures, within
available resources. The latter is a
shared mandate of all three spheres of
government and all relevant organs of state. This mandate should be executed
1
Hereafter Constitution.
1
within the broad framework of cooperative government and intergovernmental
relations outlined in, inter alia, chapter 3 of the Constitution.
The purpose of the proposed paper is to critically evaluate the constitutional,
legislative and policy framework that informs the role of specifically local
government in the realisation of the section 27 right of access to social protection
in South Africa. To achieve the above objective, this paper will critically unpack
the concept of social protection; discuss the constitutional, legislative and policy
framework that informs the right to social protection; contextualise the role of
local government in realising the right to social protection through discussing the
developmental mandate of local government within the constitutional parameters
of cooperative government; highlight the potential of integrated development
planning
in extending social protection to the indigent; and investigate the
meaning of public participation in the formulation and implementation of
integrated development plans (IDP)s.
2
The Right to Social Protection: Constitutional and Conceptual
Framework
In South Africa, section 27(1)(c) of the Constitution guarantees everyone the right
to have access to social security, including appropriate social assistance if they
are unable to support themselves and their dependants. Although the role of
social security measures in redressing inequalities and improving the lives of the
poor is acknowledged at the international, regional and national levels 2, there is
no universally accepted definition of the concept of social security. 3 Social
security, narrowly and traditionally conceived, embodies social insurance
2
3
Scheinin, “The Right to Social Security” in Eide et al (eds) Economic, Social and Cultural
Rights 1995 159; Goldblatt and Liebenberg 2004 SAHRJ 157; Scheinin 1995 “The Right to
Social Security” 160; Chenwi 2008 ESR Review 23; Liebenberg 2001 “The Protection of
Economic and Social Rights in Domestic Legal Systems” 55-84; Brand “Introduction to socioeconomic rights in the South African Constitution” in Brand and Heyns (eds) Socio-Economic
Rights in South Africa 2005 6.
Olivier, Smit and Kalula 2003 Social Security 23-27; Olivier “Acceptance of Social Security in
Africa”12.
2
(employer-employee contributory schemes) and social assistance (means tested
state benefits).4
However, the traditional and restrictive conceptualisation of social security has
been criticised by many scholars.5 They argue inter alia that, it fails to meet the
basic needs of poor people such as shelter, nutrition, safe water for domestic
purposes and adequate health care including basic sanitation. The implication of
the above is that, a large portion of the population (especially the poor) remains
excluded from the traditional social security system which serves as the main
safety net in, for example, South Africa. To remedy this situation in the South
African context, a comprehensive system of social protection was proposed by
the Taylor Commission in 2002.6 The Taylor Commission defined comprehensive
social protection as a blend of developmental strategies and programmes,
crafted to ensure collectively, improvement in the quality of life of its citizens and
attainment of social justice.7 Social protection in this context include social
services and other developmental initiatives and policies undertaken by the state
to meet the basic needs of the indigent.8 The nationally prescribed indigent
policies of local government that provide free basic social services such as water,
sanitation and electricity to the poor should be viewed in this context. 9 Social
services can be defined as a set of “developmental, preventative and remedial”
services provided by the state to persons without adequate resources to enable
them to afford the basic necessities required for a dignified life.10
4
5
6
7
8
9
10
Van der Berg 1997 Development Southern Africa 484; Horsten, Jansen van Rensburg,
Olivier and Mpedi, “Socio-Economic Rights” in Introduction to Human Rights Law 2009 172174.
Horsten, Van Rensburg, Olivier and Mpedi, “Socio-Economic Rights” in Govindjee and
Vrancken (eds) 2009 173; Jansen van Rensburg “A Human Rights Based Approach to
Poverty” 2007 167-168; Transforming the Present-Protecting the Future 2002 35-43.
Transforming the Present-Protecting the Future 2002 61.
Transforming the Present-Protecting the Future 2002 40-41.
Transforming the Present-Protecting the Future 2002 41; Horsten, Jansen van Rensburg,
Olivier and Mpedi, “Socio-economic rights” in Govindjee and Vrancken (eds) 2009 173-174.
See for example, the Preamble, ss 2, 3 and 11 of the Water Services Act No 108 of 1997.
Stewart 2008 SAJHR 484.
3
The Constitutional Court has interpreted the scope of the right of access to social
protection guaranteed in section 27(1)(c) of the Constitution. It should be noted
that the Constitution guarantees “the right of access to” as opposed to “the right
to” social protection. It has been indicated in Government of the Republic of
South Africa v Grootboom11 that the difference in “the right of access to” as
opposed to “the right to” is very significant. The former emphasizes the need for
the existence of certain preconditions for the fulfilment of the right of access to
social protection. The Constitutional Court has in detail analysed the ambit of the
right of access to social protection contained in section 27(1)(c) of the
Constitution.12 The Court and constitutional lawyers have interpreted the right of
“access to” social protection be broader than “the right to” social protection as the
former transcends just social protection programmes/provisions to include other
imperatives such as financing of some of these programmes and other
appropriate services. A right of access to social protection further suggests that it
is not only the state that is responsible for the provision of social protection but
that other agents within society, including individuals themselves, must be
enabled by legislative and other measures to provide their own social protection.
The state, however, must create the conditions for access to social protection for
people of all economic levels in society.13 The Court reiterated that, given that the
socio-economic rights in the Bill of Rights are interrelated and interdependent,
the fulfilment of one of the socio-economic rights is relevant to the state’s
obligation in respect of other socio-economic rights.14 However, it should be
noted that the right of access to social protection is not absolute as it is subject to
general and internal limitation clauses.15
11
Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) paras 35-36
hereafter Grootboom case.
12
Khosa and Others v Minister of Social Development and Another 2004 (6) BCLR 569 (CC),
paras 46-53.
The Grootboom case, para 35.
The Grootboom case paras 29-31, 39-46
See respectively ss 36 and 27(2) of the Constitution. See further the Khosa judgment, paras
83 and 84; the Grootboom judgment para 40-46; Iles 2004 SAJHR 448-465
13
14
15
4
There are a number of statutes and policy documents that further give effect to
the section 27 right to social protection. However, given the fact that this paper is
more concerned with the social services component of this right, it may not be
necessary to venture into all statutes and policy documents. The most important
statute that regulates issues relating to access to water and sanitation services is
the Water Services Act.16 In addition to this legislation, there are nationally
prescribed indigent policies to meet the basic needs of the poor.17 The indigent
policies of government provide free basic water, sanitation and electricity to the
poor. It is worth noting that in 2005, the government embarked on the process of
adopting a coherent indigent policy to replace current fragmented policies.18
However, the draft indigent policy has been in the process of finalisation for the
past five years.
From the basic analysis above, it emerges that
social assistance, social
insurance and social services are elements of South Africa’s social protection
system and are all seen “as different means of promoting the ultimate goal” of the
latter - addressing issues of poverty and deprivation.19 Social protection therefore
transcends the narrow traditional confines of social security and social assistance
to include social services that give effect to other socio-economic rights such as
the right of access to sufficient food, water and the right to basic health care
services.20 Therefore, social protection will be used in this paper to cover
elements that do not fall under the traditional, restrictive conceptualisation of
16
17
18
19
20
In the area of social assistance for example, the Social Assistance Act 13 of 2004 and the
South African Social Security Agency (SASSA) Act 9 of 2004 are worth noting.
White Paper on Basic Household Sanitation 2001; Department of Minerals and Energy, Free
Basic Electricity Policy for the Republic of South Africa, 2003; Horsten, Jansen van
Rensburg, Olivier and Mpedi, “Socio-economic rights” in Govindjee and Vrancken (eds)
2009 173-174.
Department of Provincial and Local Government (DPLG) (now referred to as the Department
of Cooperative Government and Traditional Affairs (COGTA)), Draft Framework for a
Municipal Indigent Policy 2005.
Jansen van Rensburg, “Rights to Social Security and Social Assistance” (Unpublished) 3, 79; Stewart 2008 SAJHR 483.
S 27(1)(b) and (c) of the Constitution
5
social security. However, it should be noted that emphasis will be laid on the
social services’ component of the right to social protection.
3
The Role of Local Government in Realising the Right to Social
Protection
3.1
A brief background of local government in South Africa
Before the current constitutional dispensation, local government in South Africa
was constituted by over 1000 fragmented municipalities, organized along racial
lines and strongly controlled by the central government.21 Describing the nature
of local government during this period, Steytler notes that, as creatures of
statute, local government “was the lowest tier of government in a strict
hierarchical structure”, which derived its powers from national and provincial
governments and served to a large extent as the administrative arm of the
latter.22 The overall effect of the previous system of local government is that, it
bequeathed a legacy of massive poverty, gross inequalities in municipal services,
and disrupted the spatial, social and economic environments in the country. 23
Deeply rooted in the Constitution is the commitment to restructure and transform
the previous system of local government24 to an all inclusive, democratic and
autonomous but interdependent sphere of government, capable of improving the
life of all through inter alia, the realisation of certain fundamental rights.25
Although arguably restructuring has been partly achieved with the creation of 283
21
22
23
24
25
Steytler N, “Local government in South Africa: Entrenching decentralized government” in
Steytler N (ed) The Place and role of local government in Federal Systems (2005) KonradAdenauer-Stiftung, Johannesburg, 183-220 at 183 and 187.
Steytler N, “Local government in South Africa: Entrenching decentralized government” in
Steytler N (ed) (2005), 184.
Preamble to Municipal Structures Act.
For an account on the nature and characteristics of local government before the new
dispensation as well as the process of transformation, see Stytler N and De Visser J (eds),
Local Government Law of South Africa (2009), Issue 2, LexisNexis, Durban, 1-14; Fedsure
Life Assurance v Greater Johannesburg Transitional Metropolitan Council and Others [1998]
ZACC 17, paras 3-9. Hereafter referred to as Fedsure Life Assurance.
There is consensus that the functions of post apartheid local government transcend service
provision to the furthering of a variety constitutional rights. See Du Plessis A, Fulfilment of
South Africa’s Constitutional Environmental Right in the Local Government Sphere (2008)
Wolf Legal Publishers, Netherlands, 101-102.
6
wall-to-wall municipalities, the ultimate vision of transforming local government
into a veritable mechanism capable of improving the life of all remain a major
challenge.26
A salient feature of the new constitutional dispensation is the acceptance of local
government27 as a sphere on its own right.28 Three considerations point to this
independence: Firstly, section 151(1) of the Constitution accords every
municipality29, legislative and executive powers, to govern at their own initiatives,
local government affairs in their communities.30 Secondly, their leaders are
democratically elected for a period of five years.31 Thirdly, they have powers to
generate their own finances by charging rates on property and imposing
surcharges on services provided.32 As an independent constitutional sphere of
government, its powers cannot be curtailed by statute.33 However, despite this
autonomy, local government is interrelated and interdependent on other spheres
of government and should function within the legal framework for cooperative
governance. Interdependence connotes supervision and support from national
and
26
27
28
29
30
31
32
33
provincial
governments
within
a
defined
legal
framework
while
Fedsure Life Assurance, para 2.
According to s 2(b) of the Municipal Systems Act, a municipality consists of the political
structures, the administration and the community of the municipality.
Thornhill C, “Local Government After 15 Years: Issues and Challenges” in De Villiers B (ed)
2008, 59-82 at 64; see Fedsure Life Assurance Ltd and Others v Greater Johannesburg
Transitional Metropolitan Council and Others 1998 (12) BCLR 1458, paras 35-38 for a
discussion on the status of local government in post apartheid South Africa.
In terms of s 2 of the Municipal Systems Act, a municipality is defined as an organ of state
within the local sphere of government exercising executive and legislative powers within a
defined area. It is constituted by the community of the municipality, the political structures
and administration of the municipality. The heart of a municipality is the municipal council.
See s 151(1), (2) and (3) of the Constitution; s 2 of the Municipal Systems Act. This feature
emerges prominently in para 36 of Fedsure Life Assurance Ltd and Others where the Court
drew from relevant provisions of the Interim Constitution to emphasize the independence of
the sphere of local government. Schedule 4B and 5B of the Constitution outlines the areas of
competence of local government.
See s 229(1) of the Constitution; ss 22-24 of the Municipal Structures Act; Fedsure Life
Assurance Ltd and Others, para 41
See ss 277 and 299 of the Constitution. See further, ss 4(1)(c)(i)(ii) and 74 of the Municipal
Systems Act; De Visser J 2009 CJLG 12-13 and Fedsure Life Assurance Ltd and Others,
para 38.
Fedsure Life Assurance Ltd and Others, para 38.
7
“interrelatedness” talks to the need to inter alia cooperate and coordinate policies
and programmes across all spheres.34
3.2
The notion of developmental local government
The new constitutional order moved away from the previous conception of local
government as a conduit for service delivery, to one which is specifically tasked
to play a pivotal role in development and the advancement of human rights.35
The developmental mandate of local government is espoused in section 153 of
the Constitution. This section prescribes that municipalities must structure and
manage their administration, budgeting and planning processes to give priority to
the basic needs of their communities and to promote social development and
economic growth. From this constitutional mandate, emerged the phrase
“developmental local government”. Developmental local government is “local
government committed to working with citizens and groups within the community
to find sustainable ways to meet their social, economic and material needs and
improve the quality of their lives”.36 It puts emphasis on community
involvement/public participation in formulating and implementing plans and
strategies that provide sustainable solutions to their needs.37 It seeks to ensure
that there is visible, meaningful and sustainable improvement in the quality of life
of everyone in South Africa.38
34
35
36
37
38
De Visser J 2009 CJLG 13-14.
Steytler N and De Visser J, Local Government Law of South Africa (2009), 15; Josephs and
Others v City of Johannesburg and Others 2009 (3) BCLR 212 (CC), para 36
See White Paper on Local Government 1998, Introduction and S B; Thornhill C, “Local
Government After 15 Years: Issues and Challenges” in De Villiers B (ed) Review of
Provinces and Local Governments in South Africa: Constitutional Foundations and Practice
(2008) Konrad Adenauer Stiftung, Johannesburg 59-82 at 64.
See the White Paper on Local Government, S B, 1.1 to 1.4; Steytler N and De Visser J,
Local Government Law of South Africa (2009), 19-20; Local Government Report 2009, 12.
Mokale T and Scheepers T An Introduction to Developmental Local Government in South
Africa: A Handbook for Councillors and Officials 15; Christmas A and De Visser J, “Bridging
the Gap between Theory and Practice: Reviewing the Functions and Powers of Local
Government in South Africa 2009 CJLG 107-119 at 108; De Visser J, “Developmental Local
Government in South Africa: Institutional Fault Lines” 2009 CJLG 7-25 at 9.
8
The White Paper on Local Government articulates in clear terms the
developmental role that local government is expected to play in the context of the
constitutional objective of improving the quality of life of all. It provides that:
…local government must play a central role in representing our communities, protecting
our human rights and meeting our basic needs. It must focus its efforts and resources on
improving the quality of life of our communities, especially those members and groups
within communities that are most often marginalized, such as…very poor people.39
In this regard, local government is expected to be innovative, strategic and
visionary in sustainably dealing with rapid changes and challenges confronting
government at the grass root level.40
This approach arguably creates a
framework which allows municipalities to develop their own strategies for meeting
local needs and promoting development.
3.3
Local government in cooperative governance
As part of its government and institutional transformation, the Constitution
created three spheres of government which are the national, provincial and local
spheres. All these spheres are “distinctive, interdependent and interrelated”41 and
share the common responsibility of improving the quality of life of all through inter
alia the fulfilment of fundamental rights. In order to ensure harmony and
coordination in governance, section 40(2) of the Constitution urges all three
spheres of government and organs of state within each sphere to observe and
adhere to the principles of cooperative government and intergovernmental
relations outlined in section 41 of the Constitution.42 Section 41(1) of the
Constitution prescribes that all spheres of government and organs of state within
each sphere must be loyal to the Constitution, respect the constitutional status,
39
40
41
42
White Paper on Local Government, “SECTION B: DEVELOPMENTAL LOCAL
GOVERNMENT”, para 7.
White Paper on Local Government, S B, 1.1 to 1.4; Stytler N and De Visser J, Local
Government Law of South Africa (2009), 19-20.
S 40(1) of the Constitution; Du Plessis W “Legal Mechanisms for Cooperative Governance in
South Africa: Successes and Failures" 2008 23 SAPR/PL 90-92.
See The White Paper on Local Government, S C, 1.1.
9
institutions, powers and functions of government in the other spheres43; and
refrain from assuming powers or functions not expressly conferred on them by
the Constitution.44 Furthermore, section 41(h) of the Constitution requires all
spheres of government to cooperate with one another in mutual trust and good
faith by: fostering friendly relations; assisting and supporting one another;
informing one another of, and consulting one another on, matters of common
interest; coordinating their actions and legislations with one another; adhering to
agreed procedures; and avoiding legal proceedings against one another. This
approach is premised on the understanding that, effective government can only
operate as a cohesive functional unit in line with the systems theory.45
In National Gambling Board v Premier of KwaZulu-Natal46 the Court reiterated
that cooperative governance is foundational to the realization of the country’s
constitutional objectives. The Court stressed that organs of state are obliged to
avoid litigation against one another and that the obligation to settle disputes is at
the heart of cooperative government. The Court said the obligation to avoid
litigation entails much more than an effort to settle a pending court case. It
requires each organ of state to re-evaluate its position fundamentally and to
consider alternative possibilities and compromises using any expert advice that is
available. It concluded that failure to comply with the obligations of Chapter 3 is
sufficient ground for refusing direct court access to warring organs of state.47
The constitutional prescription of cooperative governance is further given
legislative effect by the Systems Act.48 Intergovernmental relations are supposed
to be promoted and facilitated through the channels, structures and mechanisms
43
44
45
46
47
48
S 41(d) and (e) of the Constitution. In this regard, s 3(2) of the Municipal Systems Act urges
the national and provincial spheres of government to exercise their powers in a manner that
does not compromise the legislative and executive authority of local government.
S 41(f) of the Constitution.
Edwards T 2008 Politeia Vol 27 No 1 2008, 67-68.
2002 2 BCLR 156 (CC)
National Gambling Board, para 32, 36 and 37.
See s 3(1)-(3) of the Systems Act; Kirkby C et al “Towards a more cooperative local
government: The challenge of District Intergovernmental Forums” 2007 22 SAPR/PL 144148.
10
established by the Intergovernmental Relations Framework Act (IGRFA).49
Where an organ of state or sphere of government fails to exhaust the dispute
resolution mechanisms created by the IGRFA, a court will not entertain such a
dispute.50 However, it has been suggested that the potential of cooperative
governance
and
intergovernmental
cooperation
in
developmental
local
government is inhibited by the system of voluntarism inherent in the IGRFA, the
lack of clarity on the roles of intergovernmental structures and the undefined
responsibilities of the various spheres coordinating development planning.51 The
constitutional mandate to realise the right to fundamental rights, including the
right of access to social protection cannot be effectively realised without efficient
cooperation and coordination between all spheres of government.52
3.4
Local government and the right to social protection
The Constitution and enabling legislation assign local government a significant
role in the promotion and protection of the right to social protection.53 To achieve
its
developmental mandate, local government is imbued with executive and
legislative authority in respect of, and has the right to administer the local
government matters listed in Part B of Schedule 4 and Part B of Schedule 5 of
the Constitution.54 The matters listed in Part B of Schedule 4 and Part B of
Schedule 5 of the Constitution include water, sanitation services and electricity. It
is important to note that these matters fall within the ambit of the right to social
protection defined in section 2 above. It has been indicated that section 151and
49
50
51
52
53
54
The Intergovernmental Relations Framework Act (IGRFA) 13 of 2005. Woolman S “L’etat
C’est Moi: Why provincial Intra-governmental disputes in South Africa remain ungoverned by
the final constitution and the Intergovernmental Relations Framework Act – and how we can
best resolve them” 2009 Law, Democracy and Development 62-75.
S 41(3) of the Constitution; National Gambling Board, para 32, 36 and 37; Woolman S 2009
Law, Democracy and Development, 63-65.
National Local Government Report 2009, 52. See the conclusion on p 52-53 which
recommend a new policy for the practice of cooperative governance.
Grootboom case paras 39-40. Edward T 2008 Politeia 72.
Naudé and Jansen van Rensburg 2007 Public Administration and Development 393-412; De
Visser 2009 CJLG 11-12
See s 156(1)(a) of the Constitution
11
156 together with Schedules 4B and 5B of the Constitution constitute the
foundation of local government’s original powers.55
The above constitutional mandate resonates in relevant local government
legislations and the White Paper on Local Government. Sections 4(2)(i) and
23(1)(c) of the Municipal Systems Act, for example, require municipalities to
contribute, together with the other organs of state to the progressive realisation of
inter alia the right to social protection guaranteed in section 27 of the
Constitution. Section 73(1) of the Municipal Systems Act provides that, a
municipality must give effect to the provisions of the Constitution. It must give
priority to the basic needs of the local community and “ensure that all members
of the local community have access to at least the minimum level of basic
municipal services”.56 The White Paper on Local Government also articulates
that, under the current constitutional dispensation, the local sphere of
government (like any other sphere), must equally respect, protect, promote and
fulfil the fundamental human rights guaranteed in the Constitution.57
The realisation of the right to social protection entails a positive obligation on
local government to respect, promote, protect and fulfil this right, progressively,
through reasonable legislative and other measures, within the ambit of available
resources.58 According to section 156(2), a municipality may make and
administer by-laws for the effective administration of the matters that fall within its
competence. This implies that in addition to national and provincial legislations,
local government can adopt and implement by-laws on aspects related to the
right to social protection. However, by-laws must be consistent with national or
55
56
57
58
De Visser J 2009 CJLG 12; Christmas and de Visser 2009, CJLG 111.
Josephs and Others v City of Johannesburg, para 38; s 19 of the Municipal Structures Act.
The Minister of Local government has powers pursuant to s 108 of the Systems Act to
establish essential national standards and minimum standards for any municipal service in
accordance with the prescriptions set out in s 108.
“S B1: Characteristics of developmental government”; De Visser 2009 CJLG 9-10
See ss 7(2) and 27(2) of the Constitution. For details on the nature of state’s obligations to
realize social-economic rights, see Brand “Introduction to socio-economic rights in the South
African Constitution” 2005 9-12; Du Plessis Fulfilment of South Africa’s Constitutional
Environmental Right (2008) 98-100.
12
provincial legislation.59
Municipalities are also at liberty to “do anything
reasonably necessary for, or incidental to, the effective performance” of its
functions.60 National and provincial governments and other organs of state are
required not interfere with the powers, and functions of local government to such
an extent as to compromise the fundamental status, purpose and character of
local government.61 In other words, they must not act in such a way as to impede
the ability of a municipality to achieve its mandate.
A municipality exercises its legislative and executive authority by amongst others,
developing and adopting policies, plans, strategies and programmes to give
effect to its developmental mandate and by implementing applicable national and
provincial legislation and its by-laws.62 The common approach adopted by
municipalities in fulfilment of the section 27 right to social protection is the
infusion of nationally prescribed indigent policies into their context specific
indigent policies and/or IDPs. In Lindiwe Mazibuko and Others v City of
Johannesburg and Others63 the Court indicated unequivocally that responsible
role players such as local government will be held to be in violation of the socioeconomic rights (including the right to social protection) guaranteed in the
Constitution if they fail to progressively realise the objectives set by their indigent
policies.64
The Court has been very progressive when interpreting the obligations of
municipalities flowing from the above constitutional and legislative provisions. In
Josephs and Others v City of Johannesburg and Others,65 the Court used
59
60
61
62
63
64
65
See s 156(3) of the Constitution.
See s 8(2) of the Systems Act
Fedsure Life Assurance Ltd and Others para 36.
See s 11(3) of the Systems Act.
Lindiwe Mazibuko and Others v City of Johannesburg and Others [2009] ZACC 28 (In this
paper, the Constitutional Court judgment shall simply be referred to as the Mazibuko Case ).
See Stewart and Horsten 2009 SA Public Law 486-505; Jansen van Ransburg 2008
Stellenbosch Law Review 415-435.
Josephs and Others v City of Johannesburg and Others 2010 (3) BCLR 212 (CC). Hereafter
Josephs and Others v City of Johannesburg,
13
the constitutional and legislative duties imposed on municipalities as a
basis to establish a right to electricity. The Court held that:
Taken together, these provisions impose constitutional and statutory obligations on local
government to provide basic municipal services, which include electricity. The applicants
are entitled to receive these services. These rights and obligations have their basis in
public law. Although, in contrast to water, 66 there is no specific provision in respect of
electricity in the Constitution, electricity is an important basic municipal service which local
government is ordinarily obliged to provide. The respondents are certainly subject to the
duty to provide it.67
However, it should be noted that section 73(2) of the Systems Act contains what
clearly can be argued as limitations on the duties imposed on municipalities. It
stipulates inter alia that, provision of basic municipal services should take into
consideration the desire for the prudent, efficient and effective use of available
resources and the need for financial and environmental sustainability. In addition
to the above, the Constitution68 and the Systems Act69 acknowledge that the
ability of local government to discharge its core functions can only be achieved
subject to financial, institutional and human resource constraints at the level of
local government.70
Generally, it has been argued that local government struggles to progressively
contribute to the realisation of socio-economic rights, including the right to social
protection.71
Mokale and Scheepers have argued that an innovative way of
ensuring that a municipality progressively contributes to the realisation of socioeconomic rights is to establish a “human rights office”/human rights desk which
will entertain socio-economic rights related complaints and provide solutions to
them when possible. They further argue that this approach may help to develop
and instil a human rights culture in municipal governance as well as promote
66
67
68
69
70
71
S 27(1)(b) of the Constitution provides that everyone has the right to have access to
sufficient food and water.
Josephs and Others v City of Johannesburg, para 40.
See s 152(2) of the Constitution
See ss 4(2) and 51 of the Systems Act
S 4(2)(f) of the Systems Act; Josephs and Others v City of Johannesburg, para 37.
Mokale T and Scheepers T An Introduction to Developmental Local Government in SA: A
Handbook for Councillors and Officials (2006) Montfort Press, Malawi 25.
14
respect for other democratic values such as human dignity and respect for the
rule of law which are crucial to the realisation of the right to social protection.72
3.5
The potential of integrated development planning in social protection
In practice, each municipality must within a prescribed period, after the start of its
elected term adopt a single, inclusive and strategic IDP.73 The ultimate objective
of the IDP is to give effect to the objects of developmental local government 74
and contribute to the progressive realisation of the variety of fundamental
constitutional rights.75 IDPs are supposed to be aligned with and complement
the development plans and strategies of other affected municipalities 76 and other
organs of state so as to give effect to the constitutional principles of cooperative
government.77 The core focus of municipal IDPs is “basic services such as water,
electricity and sanitation”.78 Given this core focus of IDPs, they can serve as a
veritable mechanism in realising the right to social protection at the local
government level especially if well conceived, formulated and effectively
implemented. This may explain why each municipality must assess its level of
development, identify communities that do not have access to basic municipal
services, outline a workable strategy and align the resources and capacity of the
municipality with the implementation of its IDP.79
The process to be followed by municipalities in the drafting, consideration and
adoption of IDPs is outlined in section 29 of the Systems Act.80 An interesting
feature to note in the process of IDP formulation and implementation is the
72
73
74
75
76
77
78
79
80
Mokale T and Scheepers T 28.
See s 25(1) of the Systems Act.
See ss 152 and 153 of the Constitution.
See s 4(2)(j) and 23(1)(c) which list the rights contained in ss 24, 25. 26, 27 and 29 as those
that local government is tasked with contributing to their progressive realisation.
In the case of district municipalities which share legislative and administrative functions.
District municipalities are required to assist local municipalities in the formulation of their
IDPS. See ss 27 and 29(2) of the Systems Act; The White Paper on Local Government, S D,
3.2.1;
See s 24(1) of the Municipal Systems Act.
See National Local Government Report 2009, 36.
See s 26 of the Systems Act.
See further, White Paper on Local Government, S B, and 3.1.1.
15
emphasis placed on public participation.81 In fact, the entire chapter 4 of the
Municipal Systems Act is dedicated to community participation82. Since local
government is the sphere that is closest to the people at the grass root level,
municipalities are obliged to develop, encourage and nurture a culture of
community participation in their affairs83 as well as develop mechanisms to
ensure consultation with communities in the exercise and discharge of municipal
powers and functions.84 This promotes a spirit of community belonging and
participatory democracy.
Furthermore, it may enable municipalities to ascertain
the needs and priorities of community members. If this is achieved, it may be
possible for a municipality to develop context specific solutions to local needs in
accordance with available resources. However, it has been suggested that focus
should not be limited on the prescribed IDP processes but also on its potential to
achieve the constitutional mandate of developmental local government.85
It may be argued that the raison d’être for entrenching the right to public
participation in governance is to promote a responsive and accountable
government which gives the public an opportunity to participate in policy
formulation. The right to public participation in governance reinforces the right to
procedural and substantive fairness in the discharge of administrative functions.86
In Joseph and Others v City of JHB, the Court reaffirmed the constitutional
commitment to a responsive, transparent and accountable governance system
which
seeks to meet people’s needs and encourage public participation in
policy-making.87 Commenting further, the Court said:
Taken together, the values and principles described above require government to act in a
manner that is responsive, respectful and fair when fulfilling its constitutional and statutory
81
82
83
84
85
86
87
Mokale T and Scheepers T 12.
It should be noted that since the institutional of traditional leadership operates at the level of
local government, they become vital elements in the public consultation processes. See ss
211(1) and 212(1) of the Constitution; s 17(2)(d) of the Systems Act; The White Paper on
Local Government, S D, 4.1; S81 of the Municipal Structures Act.
See s 16 of the Systems Act.
See Ss 19(3) of the Municipal Structures Act and ss 17 to 21 of the Systems Act.
The Strangulation of Local Government (2008), 29.
This is referred to as the right to just administrative action.
Joseph and Others v City of Johannesburg para 44
16
obligations. This is of particular importance in the delivery of public services at the level of
local government. Municipalities are, after all, at the forefront of government interaction
with citizens. Compliance by local government with its procedural fairness obligations is
crucial therefore, not only for the protection of citizens’ rights, but also to facilitate trust in
the public administration and in our participatory democracy88
The basic mechanism for community participation in municipal governance is
through the Ward Committee system.89 In these structures, community members
are suppose to deliberate on issues relating to the improvement of their
livelihoods and well being. However, it has been suggested that the functionality
and effectiveness of ward committees remains a major challenge.90 It has been
argued that although the ward councillor is supposed to serve as a bridge
between the ward community and government in the design and implementation
of national and provincial programmes, they are rarely consulted or involved in
such programmes. In addition to the above, ward committee issues hardly find
their way into IDPs.91 Although general public participation is important, it is
submitted that, meaningful participation by experts, CBOs and NGOs can enrich
the formulation and implementation of IDPs. Furthermore, traditional leadership
can play a role in the IDP processes especially in very remote rural areas given
the general reliance of people in such areas on traditional authorities for their
general welfare.92
Another useful mechanism for public participation is through the exercise of
administrative justice rights such as the right to just administrative action
enshrined in section 33 of the Constitution and given effect to through the
Promotion of Administration of Justice Act (PAJA).93 It is cautioned that, while
there is value in public participation, there are limits to ill-minded participation.
Since public participation does not usually overcome all community opposition,
there is reason to the effect that public participation must not overcome planning
88
89
90
91
92
93
Joseph and Others v City of Johannesburg para 46
See s 74 of the Municipal Structures Act giving effect to s 152(1)(e) of the Constitution; see
Local Government Report 2009, 13; Mokale T and Scheepers T 23.
Local Government Report 2009, 13.
Local Government Report 2009, 15; De Visser J 2009 CJLG 18-19.
See s 29(1)(iii) of the Systems Act; Mokale T and Scheepers T 27-28.
Promotion of Administration of Justice Act 3 of 2000. See Liebenberg S The Value of
Freedom in Interpreting Socio-Economic Rights 2008 1 Acta Juridica 149-170 at 168.
17
and regulatory processes that cater for specialised aspects of integrated
development planning.94
Despite the potential of integrated development planning in realising the right to
social protection and other social rights generally, financial and human capacity
constraints of some municipalities remain the main challenge to their true
potential.95
3.6
National and Provincial Supervision of Local Government
The roles and responsibilities of national and provincial government vis-à-vis
local government are defined by the Constitution. Section 154 of the Constitution
provides that national and provincial governments must support and strengthen
the capacity of municipalities to manage their own affairs, exercise their powers
and functions through legislative and other measures.96 This is very important
since government operates as a functional unit and shares the overall
constitutional mandate to improve the life of all.
3.6.1 The role and responsibilities of national government
The roles and responsibilities of national government in respect to developmental
local government are diverse. Firstly, national government is expected to play a
strategic role by setting out inter alia, the social transformation framework for all
spheres of government. National government must provide the legislative
framework within which local government can achieve its developmental
mandate and ensure that local government operates in an enabling environment
by providing the appropriate structures and capacity. Moreover, national
government must in partnership with provincial government coordinate, monitor
and oversee local government efforts aimed at giving practical effect to its
developmental mandate. Lastly, national government must provide local
94
95
96
Mokale T and Scheepers T, 32.
De Visser 2009 CJLG 22-23.
White Paper on Local Government 1998, S C, 1.3.1.
18
government with an equitable share of nationally raised revenue.97 Where
provincial government fails to effectively oversee and support local government,
the national sphere of government can invoke the provisions of section 100 of the
Constitution and exercise this role.98 However, national government will generally
be slow to invoke this provision.99
3.6.2 The role and responsibilities of provincial government
In terms of sections 154(1) and 155(6) and (7) of the Constitution provincial
governments must supervise, monitor and support local government to ensure
that the latter executes it’s constitutional obligations. According to section 105 of
the Municipal Systems Act, the MEC for local government in a province must
establish mechanisms, processes and procedures to monitor the manner, in
which municipalities in the province manage their own affairs, exercise their
legislative and executive powers and execute their functions. Furthermore, the
mechanisms put in place must monitor the development of local government
capacity in the province and assess the support needed by municipalities to
strengthen their capacity to fulfil their developmental mandate.
Provincial governments are expected to monitor compliance by municipalities
with the prescribed IDP process; ensure and coordinate alignment of specific
municipal IDPs with the plans, strategies and programmes of the provincial and
national organs of state; and to resolve IDP formulation related problems that
arise between local and district municipalities and between communities and
municipalities.100 In addition, provincial governments must promote horizontal
cooperation between municipalities in the province and ensure that structures
and processes are put in place for conflict resolution and to enable local
97
White Paper on Local Government, S C, 1.3.1.
Section 100 of the Constitution reads as follows: National intervention in provincial
administration –(1) When a province cannot or does not fulfil an executive obligation, in terms of
the Constitution or legislation, the national executive may intervene by taking any appropriate
steps to ensure fulfillment of that obligation, including…”
99
See State of Local Government in South Africa 2009, 17-19
100
See ss 31 to 37 of the Municipal Systems Act.
98
19
government participate in decision making processes affecting it. However, it can
be argued that too much insistence on the need for municipal IDPs to comply
with provincial and national standards may deprive IDPs of their context
specificity. At the provincial level, the MEC for local government has the power to
order a municipality to adjust an IDP if it is not in accordance with the
prescriptions of the Systems Act or is not sufficiently aligned with the
development objectives of the Constitution, relevant legislations and policies as
well as developmental plans and strategies of other affected municipalities.101
By virtue of section 155(7) of the Constitution, provincial governments must
ensure that municipalities effectively execute their developmental mandate in
relation to the areas specifically assigned to them. Where a municipality cannot
execute its mandate, the provincial government through the MEC may after due
process dissolve the said municipality and assign to another municipality such
powers and functions necessary to discharge such a mandate.102 Kirkby et al are
of the view that when the MEC exercises this power, conflicts may develop
between the relevant municipalities which can lead inter alia to duplication in the
provision of some services and a waste of scarce resources.103 The provincial
sphere of government applies section 139 with caution and often as a last
resort.104 It has been suggested that, in view of the recent provincial interventions
in terms of section 139(1)(c) of the Constitution, the intergovernmental checks
and balances put in place to ensure support and oversight of municipalities failed
to effectively do so, either because they were not well supported by national
government or were not sufficiently institutionalised.105 The 2009 Local
Government Report argues that there is the lack of a common vision and
coordinated approach between the national and provincial departments in
101
102
103
104
105
See s 32(2) of the Systems Act.
See s 139 of the Constitution and s106 of the Systems Act; ss 34(3)(b),(4) and 87 of the
Municipal Structures Act; Mokale T and Scheepers T 11-12; State of Local Government in
South Africa 2009, 6-7
Kirkby C et al (2007) 22 SAPR/PL 150-151.
State of Local Government in South Africa 2009, 17. Between 2007-2009, there were only
13 section 139 interventions. See State of Local Government in South Africa 2009, 18-19.
State of Local Government in South Africa 2009, 17-18.
20
supervising and supporting municipalities.106 The 2009 Local Government Report
noted the limited financial and human capacity of national and provincial
governments to effectively resolve problems of bad governance at the level of
municipalities and argued for the need to improve and strengthen oversight and
support measures in order to be able to detect early signs of poor municipal
functionality.107
4
Potential Challenges
Despite the achievements that have been recorded by local government towards
social transformation and the realisation of the right to social protection, it
continues to face serious challenges.108 The 2009 National Local Government
Report acknowledged that there is a break-down of local democracy and trust in
local government and that much of local government is in deeply rooted
distress.109 This deep seated distress manifests itself in the huge service delivery
backlogs in the areas of inter alia water and sanitation and through violent
service delivery protests.110 The current challenges facing local government
include firstly, financial constraints.111 Most municipalities across the country
suffer from huge financial constraints. Although all municipalities receive
redistributive financial transfer injections, many municipalities cannot raise the
funds needed for even moderate municipal functionality.112 The lack of financial
capacity is also felt in the provincial departments of local government which
receive on average, only 3.5% of the annual budgetary allocations. This
consequently leads to the department being under resourced, poorly structured
and often lacking focus on their oversight and governance mandates.113 This
106
State of Local Government in South Africa 2009, 21.
107
State of Local Government in South Africa 2009, 19-20.
De Visser 2009 CJLG 11; State of Local Government in South Africa 2009, 43-48.
State of Local Government in South Africa 2009, 4-5 and 72.
State of Local Government in South Africa 2009, 4, 11-12.
Kirkby C et al (2007) 22 SAPR/PL 161-162; Christmas A and De Visser J 2009 CJLG 110
National Local Government Report 2009, 54. 57 municipalities receive more than 75% of
their revenue from national transfers, see 59.
State of Local Government in South Africa 2009, 19-21.
108
109
110
111
112
113
21
problem is exacerbated by poor financial management and poor control systems
that leaves room for fraud and corruption.
Secondly, insufficient human capacity restricts the ability of municipalities to fulfil
their obligations.114 Huge variables in spatial location, skills and socio-economic
legacies exacerbate this problem in depressed municipalities.115 It has been
submitted that the non regulation of competency levels for vital middle and senior
municipal managers has in some instances led to the appointment of grossly
incompetent senior and middle municipal managers.116
These systemic
weaknesses and incapacity vitiates structural viability and leads to ineffective
responses to local needs.117
Furthermore, there is the view that the current legal regime impedes the ability of
local government to determine community needs and respond to them
innovatively through the formulation of local solutions to meet context specific
needs.118 This view is based on the perception that the myriad of national
legislation on local government have negative repercussions on some
municipalities because it is usually costly to ensure compliance with such an
elaborate legal framework.119 Moreover, overregulation strangles innovation and
local initiative which negatively affects responsiveness to specific community
challenges.120 In addition, it can lead to an obsession to comply with legal rules
rather than the important mandate of achieving the objectives of those rules.121
This problem is aggravated by non application of the concept of spatial
differentiation in guiding the allocation of functions to municipalities. 122 The legal
114
115
116
117
118
119
120
121
122
Kirkby C et al (2007) 22 SAPR/PL 161-162; Christmas A and De Visser J 2009 CJLG 110.
State of Local Government in South Africa 2009, 22; The Strangulation of Local Government
(2008), 11.
State of Local Government in South Africa 2009, 31.
State of Local Government in South Africa 2009, 19-21.
The Strangulation of Local Government (2008), Paper No V, Community Law Centre, UWC,
1-32.
The Strangulation of Local Government (2008), 20-21.
The Strangulation of Local Government (2008), 22-23.
The Strangulation of Local Government (2008), 23-24.
State of Local Government in South Africa 2009, 71; De Visser 2009 CJLG 20-22.
22
regime adopts a “one-size-fits-all approach to the governance framework for local
government. It is suggested that, local government should continue its process of
reviewing local government legislations so as to ascertain and repeal provisions
that inhibit the effective realisation of its mandate.123
In addition to the above, it has been suggested that inter and intra political party
issues negatively impact on governance and delivery.124 Political and
administrative tensions over access to and control of state resources rather than
on ideology or policy differences has led to increased factionalism and exposed
the self aggrandizing motives of public servants. The lack of political leadership
and political patronage has also been identified as one of the major challenges.
The widespread culture of patronage, nepotism, cronyism, poor values and poor
ethics in many municipalities has rendered the formal municipal accountability
system
ineffective
and
inaccessible
to
local
community
members.125
Furthermore, it has been suggested that weak oversight, supervision, support
and intervention mechanisms across government make it difficult for provincial
and national governments to notice early warning signals of stress or impending
failure. In addition, council leadership is at times weak and ineffective in its
oversight role over municipal administration126.
5
Conclusion
The purpose of this paper was to critically evaluate the constitutional, legislative
and policy framework that informs the role of local government in the realisation
of the section 27 right of access to social protection in South Africa. This paper
argued that although there exist an elaborate constitutional, legislative and policy
framework which should enable local government play a substantial role towards
the realisation of the right to social protection especially in the context of IDPs
See “Legislative Review Programme Key to unblocking service delivery impediments”.
Accessed on 14 January 2011 at http://www.dplg.gov.za/index.php/news/1-latest-news/140legislative-review-programme-key-to-unlocking-service-delivery-impediments-.html
124
Kirkby C et al (2007) 22 SAPR/PL 154-155; State of Local Government 2009, 4.
125
The Strangulation of Local Government (2008), 20-29.
126
State of Local Government in South Africa 2009, 71.
123
23
and indigent policies, there exist severally challenges which impede this
potential. These relate especially to financial, institutional and human resource
constraints. It is further noted that the elaborate legal framework may to some
extent strangulate local initiative since it appears to provide a one size-fit-all
allocation of functions to all municipalities without regard to spatial differentiation.
To curb the above challenges, it is suggested inter alia that, local government
should continue the process of reviewing local government legislations so as to
ascertain and repeal provisions that inhibit the effective realisation of its
mandate. Furthermore, all spheres of government should continuously explore
possibilities of strengthening
the human and financial capacity of local
government and ensure through thorough assessment that municipalities are
assigned functions according to their spatial challenges. Unless these problems
are resolved, it will be very difficult for local government to fully achieve its
potential.
24