Coalition politics in local government, particularly in some of the country’s metropolitan municipalities continues to dominate the news for all the wrong reasons. This article offers reflections on coalition politics, and ideas for law reform to further the debate on what role, if any, the law can play in ensuring that governance in so-called “hung councils” improves.
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South Africa is an industrial hub in sub-Saharan Africa and its transport industry is a 333 790 billion-rand industry that significantly contributes to taxes and employment. Many goods crisscross roads that fall under the responsibility of national, provincial, district, and local spheres of government, more specific to this discussion, are municipal roads.
After the 2021 local government elections, politicians have been fighting to control city councils where there is no outright majority. Mayors and speakers have been elected, and removed, on a regular basis. In this turmoil, municipal managers risk become entangled in politics
Increasing 4.4% to R34.9 billion in 2023/24, the budget of the National Department of Human Settlements serves as the primary means for government to achieve its goal of integrated, sustainable human settlements. The new budget allocates R14.9 billion for the Human Settlements Development Grant (HSDG), while the Urban Settlements Development Grant (USDG) increases to R8.15 billion and the ISUPG to R8.6 billion.
Section 106 of the Municipal Systems Act of 2000 empowers the MEC for local government to request information or to appoint an investigator(s) if he or she has reason to believe that “maladministration fraud, corruption or any other serious malpractice has occurred or is occurring in a municipality”.
The law provides that senior managers in municipalities must have the requisite skills to perform. It further prescribes the procedure for appointing senior managers, including the appointment of selection panels to recruit and select candidates. Appointments made outside these rules are invalid.
In the space of one week in September, the country’s load shedding status sent any sniff of foreign investors scurrying for cover, and the City of Tshwane narrowly averted being plunged into complete darkness after settling its outstanding debt to Eskom of over R1,6bn. It joined the City of Johannesburg, Ekurhuleni, and a long list of smaller municipalities which continually roll over debt, and default on payment settlement plans until the threat of Doomsday. Pay up, or we throw the big switch.
Land-grabbing is a term that captures the story of land dispossession in South Africa. The term has its roots in our apartheid history in which the authoritarian government initially deprived the Black majority (broadly defined) of their property. In democratic South Africa, land grabbing is often used to describe the process in which South Africans (black and white, men, women and children) are dispossessing the state and private businesses of land.
Since the pre-colonial era, traditional leaders have allocated land to residents in terms of indigenous law. In the democratic era, traditional leaders continue to allocate land to residents and issue permissions to occupy (PTO). These PTOs are sometimes issued by traditional leaders to a resident that is willing to pay to occupy land that is owned by the municipality. This can give rise to illegal occupation of municipal land and municipalities having to incur enormous expenditure in trying to service these developments.
Small businesses play a pivotal role in contributing to the nation’s gross domestic product (GDP) and employment creation. According to the International Finance Corporation, small businesses contribute about 34 percent of the GDP in South Africa and employ between 50 and 60 percent of the country’s workforce.
It has been close to ten years since the local government elections were held in Ethiopia. The elections have been indefinitely postponed since 2018 because the political and security situation in the country did not permit conducting the elections.
Migration and population expansion have accelerated the rise of urban population in cities across the world, including Southern Africa. Africa has experienced substantial urbanisation over the past few decades, and this trend is anticipated to continue.
More than half of Kannaland Local Municipality’s population lives in poverty. Improved access to water and sanitation, well-maintained roads, adequate parks and recreation facilities, etc. can go a long way to ensure a dignified living in all its communities. However, Kannaland has struggled to deliver services since December 2018, when it was placed under provincial administration, a situation that still persists. Political instability, maladministration and poor oversight are among the root causes of poor service delivery. As political parties continue their political scheming to gain access to political office, service delivery in the Municipality continues to decline.
On the 20th of October 2022, the Dullah Omar Institute (DOI) in partnership with the Hanns Seidel Foundation South Africa held a webinar under the theme “traditional leaders, municipalities and land use management”.
The case of Imvusa Trading 1581 BK v Oudtshoorn Municipality is about a monetary claim arising from a contract between the Oudtshoorn Local Municipality and Imvusa Trading 1581 (Imvusa). The Municipality contracted Imvusa to repair potholes on its behalf without following the requirements set out in the Constitution and the Municipal Finance Management Act of 2003 (MFMA). The Court held that concluding procurement contracts by deviating from legislated procurement requirements renders such contracts unlawful and therefore invalid.
A simple google search of South Africa’s railway leads one to pictures and videos of dilapidated railway networks, in sharp contrast of what one would imagine when told ‘South Africa has the best railway system on the continent [of Africa]’. The dilapidated Goerge Goch station has even become a popular meme on [South African] twitter, often used to express shock at anything but the horrifying state of one of many railway stations in South Africa. Behind the ‘thixo wase Goerge Goch’ phrase, lies the sad reality that the once mighty railway lines of South Africa are quickly becoming no more.
In Nelson Mandela Bay Metropolitan Municipality v Erastyle (Pty) Ltd, the Court had to decide whether Erastyle (Pty) Ltd (Erastyle, the first defendant of eight defendants) was lawfully appointed to provide a service to Nelson Mandela Bay Metropolitan Municipality (the Metro). Secondly, whether the payments received by Erastyle from the Metro amount to irregular expenditure in terms of section 32 of the Local Government: Municipal Finance Management Act (MFMA).
The National Prosecuting Authority (NPA) must prosecute corruption at all levels of government. While much of the focus has been on the capture of national government and national state-owned enterprises (SOEs), there has also been widespread corruption in municipalities.
In Govan Mbeki Local Municipality and Another v Glencore Operations South Africa (Pty) Ltd and Others, the Supreme Court of Appeal (SCA) had to determine the constitutionality of section 76 of the Govan Mbeki Spatial Planning and Land Use Management By-law of 2016, and section 86 of the Emalahleni Municipal By-law on Spatial Planning and Land Use Management of 2016 (SPLUMA) which imposed restrictions on the transfer of property in these municipalities. The constitutionality of these provisions was challenged in Court on the basis that they exceeded local government powers in terms of section 156 of the Constitution read with Schedule 4B. The SCA agreed with the High Court's decision that the provisions were unconstitutional and therefore invalid.
A reflection of the impact of disasters in the local government sector provides a good platform for a discussion on the need to implement business continuity plans for municipalities. A business continuity plan refers to the processes and procedures a municipality must implement to ensure that mission-critical functions can continue during and after a disaster or crisis.
Coastal and marine management is a potential area of focus for municipalities in their local economic development initiatives. However, the local government sphere currently has limited capacity to carry out this mandate. In addition, the lack of general capacity in government, from the national to the local sphere, is a major threat to sustainable coastal management.
The right to protest is essential to South Africa’s constitutional order. Protests played an important role in South Africa’s transition from apartheid to the current democratic dispensation. Protests continue to play a vital role in enabling citizens to hold the government accountable. It then goes without saying that the right to protest, as provided for in section 17 of the Constitution, should not be limited unjustifiably. In Right2Know Campaign v City Manager of Johannesburg Metropolitan Municipality, the Court confirmed the importance of the right to protest in South Africa.
In June 2020, the Constitutonal Court handed down an important judgment for local government. In Telkom SA SOC Limited v City of Cape Town and Another, the question was whether Telkom, as a holder of rights under the Electronic Communications Act (ECA), must comply with municipal planning and building regulation bylaws before exercising those rights.
On 12 April 2022, the Dullah Omar Insitute (DOI) convened a webinar on 'Safeguarding the integrity of councillors and senior managers in local government'. The webinar, which was supported by the Hanns Seidel Foundation, had a panel consisting of Prof Jaap de Visser (Director: DOI), Dr Phindile Ntliziywana (State Law Advisor: Eastern Cape Provincial Government) and Ms Phatima Rawat (Associate: Ethics Institute).
In May 2022, Parliament passed the Municipal Systems Amendment Bill which regulates many aspects of municipal administration. The Bill is not new. It was initially passed in 2011, but the Constitutional Court struck down the relevant Amendment Act in 2017.
The issue of municipal debt to Eskom is an ongoing concern as noted earlier in the Bulletin. The MEC: Northern Cape Provincial Government: Department of Cooperative Governance and Traditional Affairs v The Renosterberg Local Municipality forms part of a series of cases that attempts to navigate the issue. While Eskom is permitted to collect its dues from municipalities, it may not do so in a way that significantly impairs a municipality’s ability to operate and deliver services to its citizens.
In Choisy-Le-Roi Owners v The Municipality of Stellenbosch the Court addressed the question of how a Municipality’s Spatial Development Framework (‘MSDF’) should be interpreted. The judgment confirms that a municipality may not rely on a draft MSDF in making spatial planning decisions and if it does, it runs the risk of having its decision struck down by a court of law. Thus, only the approved MSDF may be utilised when making spatial planning-related decisions.
In our previous article on women’s representation in local government, we reported that the numbers of women elected into office for proportional representation (PR) seats was significantly higher than that for ward seats due to a large part because of the policies of political parties such as the African National Congress (ANC) and the Economic Freedom Front (EFF) which facilitate women’s inclusion in party lists through the ANC’s use of a zebra list – one man, one woman and the EFFs gender equality policy. Looking at the 2021 elections, it is unfortunate that we have taken one step forward, and two steps back.