Municipalities are governments on their own, with the power to adopt and implement their own laws and policies. Their by-laws and policies may not be subjected to approval by the national or provincial government. This was confirmed by the Constitutional Court (CC) in City of Cape Town v Independent Outdoor Media (Pty) Ltd and Others.

The CC confirmed a High Court order that declared section 29(8) of the National Building Regulations and Building Standards Act of 1997 (the Building Regulations Act) unconstitutional and invalid. This provision requires municipalities to obtain the approval of the national government, through the Minister of Trade, Industry and Competition (the Minister), before promulgating by-laws regulating the erection of a building. The provision also invalidates any by-laws that were promulgated without this ministerial approval.

The High Court Challenge

In March 2016, the City of Cape Town approached the High Court in a bid to force the Body Corporate of the Overbeek Building (Overbeek) and Independent Outdoor Media (IOM) to comply with its Outdoor Advertising and Signage By-Law of 2001 (Advertising By-Law). This followed repeated unauthorised displays of advertisements by IOM on one of the buildings in the Cape Town central business district. IOM brought a counter application challenging the validity of the Advertising By-Law citing section 29(8) of the Building Regulations Act which required the Minister’s approval. In response, the City challenged the constitutionality of this provision. The High Court ruled that section 29(8) is unconstitutional and invalid because it requires the Minister to encroach on the legislative terrain only reserved for local government. The Court dismissed, with costs, IOM’s counter-application and ordered the removal of the unauthorised advertisements. 

Arguments in the Constitutional Court

Any High Court order invalidating a provision of an Act of Parliament must be confirmed by the CC (s 172(2)(d) read with s 167(5) of the Constitution).  The City of Cape Town sought this confirmation in the CC proceedings and challenged the constitutionality of section 29(8). The City argued that the provision infringes on the legislative autonomy of municipalities. The City further submitted that Parliament no longer has the power to regulate the passing of municipal legislation as was the case under the old constitutional order. The City contended that the provision allows the Minister, a member of the executive at another sphere of government, to replace the legislature at local level and this, so the City argued, contradicts the doctrine of separation of powers. The City also attacked the validity of section 29(8) on the basis that the provision usurps the powers of the courts to determine the validity of by-laws, and the consequences thereof.

IOM’s counterargument was that the High Court failed to make the correct call regarding the declaration of invalidity. IOM submitted that the declaration should not be retrospective. It would then follow that the Advertising By-Law was invalid as it lacked the ministerial approval that was applicable at the time the by-law was passed.

As was the case in the High Court proceedings, the Minister did not oppose the constitutional challenge to section 29(8) of the Building Regulations Act. Instead, the Minister attempted to read section 29(8) of the Building Regulations Act and the Advertising By-Law together in a way that avoids conflict.  The Minister argued that the Building Regulations Act regulates buildings, and not billboards and advertisements in public places, as regulated by the Advertising By-Law. Thus, there is no need to declare the Building Regulations Act inconsistent with an exclusive municipal competence, so the Minister argued. The Minister also submitted that, given that Parliament is in the process of adopting new building regulations legislation, there was no need for a retrospective order.

Court’s decision

The CC had to determine three issues/questions, namely: (a) confirm the order of invalidity; (b) the correctness of the Minister’s interpretation of section 29(8) and the consequences thereof; (c) the appropriate remedy in the event that the order of invalidity is confirmed. After assessing the relevant constitutional provisions (s 43(c) s 151(2), s 156(2)) and caselaw (Fedsure; Premier, Western Cape) the Court established that section 29(8) of the Building Regulations Act is unconstitutional because it exceeds the supervisory powers of the national government as provided for in the Constitution. This is because the provision empowers the Minister to veto or block the passing of municipal by-laws, and therefore enables the Minister to unlawfully encroach on a municipality’s legislative powers. The Court emphasised that under the new constitutional order national and provincial governments

“are not authorised to legislate for the minutiae of Part B of Schedule 4 and 5 competencies but are instead limited to enacting minimum standards and frameworks for municipal legislating and enabling the monitoring of municipal functions (that is, a hands-off or indirect governing role)”.

Since municipal councils are no longer exercising delegated legislative authority, Parliament has no power to enter the legislative terrain constitutionally reserved for municipalities except in certain exceptional circumstances (see section 44(2) Constitution). The Court also agreed with the City’s submission that the legislative process envisaged in section 29(8) of the Building Regulations Act infringes the doctrine of separation of powers by requiring the Minister to approve a by-Law. In the words of the Court: “[i]t is impermissible for one arm of government to exercise the powers of another sphere of government”.

The Court dismissed the Minister’s argument because it fails “to appreciate that section 29(8) deprives municipalities of their legislative autonomy in respect of all by-laws that relate to the erection of a building”. It is not just a matter of interpretation but about the unconstitutionality of section 29(8) altogether. The Court concluded that section 29(8) was unconstitutional from the date the Constitution came into effect. It thus confirmed the High Court order declaring section 29(8) of the Building Regulations Act unconstitutional and invalid.

The next question was whether the order of constitutional invalidity of section 29(8) should apply retrospectively, and if it should, whether a limitation to that was necessary. The Court found that the order in retrospective effect is necessary so that relevant by-laws, passed after the coming into effect of the Constitution, could be valid. The Court had this to say on this:

“The effect of a wholesale limitation on retrospectivity is that section 29(8) would have been valid in the period between the Constitution coming into effect and the order of invalidity and, therefore, would have the effect of voiding a raft of by-laws across the country that relate to ‘the erection of a building’ for want of ministerial approval”. 

Commentary

Since the Fedsure case, the Courts have consistently protected the autonomy of local government against overzealous national and provincial governments. An earlier article in this Bulletin lists the key judgments that establish that trend.

The judgment in City of Cape Town v Independent Outdoor Media (Pty) Ltd and Others adds an important dimension to this trend. The previous judgments protected the autonomy of municipalities to make administrative and executive decisions. They protected municipal powers to make land use management and building regulations decisions. None of the previous judgments dealt with the municipal power to make law.

City of Cape Town v Independent Outdoor Media (Pty) Ltd and Others deals with the municipal power to adopt by-laws. The CC’s message is clear: national government must respect municipal autonomy. Only the municipal council has the power to adopt legislation on matters reserved for municipalities in Schedule 4B and 5B of the Constitution, except in limited circumstances defined by the Constitution. National and provincial legislation (such as the Building Regulations Act) which infringe on this legislative competence of local government, must be brought in line with the Constitution urgently.

National and provincial governments may regulate what municipalities put in their by-laws. However, they may only do so by enacting minimum standards and frameworks and by enabling the monitoring of municipal functions. They may not dictate the detail of municipal by-laws and certainly not subject them to a national veto.

Besides confirming that Parliament does not have concurrency competence with local government over functional areas listed under Schedule 4B, in this case, “building regulations”, Schedule 5B matters are also a no-go area for Parliament except in exceptional circumstances. Section 29(8) of the Building Regulations Act not only impacted the municipal competence of “building regulations” but also many other Schedule 5B matters which relate to the erection of a building such as “billboards and the display of advertisements in public places”; “amusement facilities”; “local amenities”; “municipal abattoirs”; “facilities for the accommodation, care and burial of animals”; and “fencing”. Thus, the provision undermined municipal legislative autonomy significantly because it impacted a number of municipal functional areas. The courts should be commended for standing firm with local government and providing a clear direction in relation to the legislative competence of the national and provincial governments in relation to local government.

By Tinashe C Chigwata & Jaap de Visser