He cited the example of library services, which is a provincial function in terms of the Constitution but that the City actually runs across the metro at a cost of R550 million a year. The provincial government is said to provide roughly R34 million for the provision of this service, leaving a large unfunded portion to the City. Could the enactment of the Western Cape Public Library Services Act 1 of 2025 and the endorsement of the assignment of library services to municipalities provide a solution to this challenge?

Background to the Western Cape Public Library Services Act 1 of 2025

Historically, the library function was and still is performed by municipalities, although it is allocated to provinces in terms of Schedule 5A of the Constitution. Local authorities in the Western Cape ran libraries under the Provincial Library Service Ordinance 16 of 1981, where municipalities were tasked with duties such as erecting and maintaining library facilities, employing staff, and managing the daily operations. Provinces, on the other hand, were responsible for setting minimum standards and providing support such as infrastructure, books, and training of staff.

On 12 June 2025, the Western Cape Public Library Services Act, 2025 was promulgated. The legislation was drafted as a response to the fiscal risks caused by the South African Revenue Service’s (SARS) interpretation of intergovernmental transfers, which could potentially reduce the funding available for library services unless the legal relationship is clarified. Organs of state carry a Value Added Tax (VAT) status determined by SARS. Furthermore, there are VAT implications for different transactions concluded between organs of state, including the payment of intergovernmental grants. This interpretation could result in the financial support of the province to municipal libraries being taxed, thereby deflecting needed funds away from libraries. The Act, therefore, aims to safeguard the funding structures that are important to the sustainability of public library services in the province.

Legal framework enabling the WC province to assign the libraries function to municipalities

According to section 126 of the Constitution, a MEC of a province has the discretion to assign any executive power or function that is to be exercised or performed in terms of an Act of Parliament or a provincial Act to a municipality, by agreement. The assignment must be consistent with the law regulating the exercise of said power or function to be assigned. The discretionary nature of section 126 is  changed by section 156(4) of the Constitution, which makes it mandatory for a MEC to assign, to a municipality, the administration of a Schedule 5A function that necessarily relates to local government if the identified municipality has the capacity to administer the function and the function would most effectively be administered locally. This must also be by agreement. The library function falls within the ambit of the functions that may be assigned according to section 156(4), subject to the prerequisites set out in the section. There is also a detailed process governing the fiscal, capacity-building, support and planning requirements in the Municipal Systems Act 2000 and the Financial and Fiscal Commission Act 1997 (read together with the Municipal Systems Act: Guidelines on the allocation of additional powers and functions to municipalities). This framework requires the involvement of multiple stakeholders in the spirit of cooperative governance, capacity assessments, and assessments of the financial implications of the assignment. This is to mitigate against unfunded mandates.

With regards to the Western Cape Public Library Services Act, in general, the Act seeks to reinforce intergovernmental cooperation between the province and municipalities regarding the performance of the library services function. It also aims to define the roles and responsibilities of the MEC responsible for public libraries, head of department (HoD), and municipalities, who are the primary public library administrators. With specific reference to assignment, the Act aims to establish a legal framework for assignment of the MEC’s library service functions, such as establishing, controlling and conducting public libraries, as well as promoting equitable access to public library services (section 5(1) read together with section 2(1) and (2) of the Act).

Two provisions stand out for purposes of assignment:

• Section 3(2)(b) which provides that the HoD ‘must, subject to available funds, and as agreed upon with a Municipal Council to which a function has been assigned in terms of section 5, provide financial assistance to the municipality concerned for the performance of that function’.
• Section 5(2), which states that an assignment agreement between a MEC and municipality, as per section 126 of the Constitution, must at least include the roles and responsibilities of the municipality; the roles and responsibilities of the MEC or HoD as the case may be; and the funding arrangements for the municipality in respect of the assigned functions.

Commentary

With regards to section 3(2)(b) of the Act, the caveat ‘subject to available funds’ suggests that a municipality assigned the library function acknowledges that it might end up with an unfunded or underfunded mandate and that it would have agreed to this. The phrase is a shield for the province should it decide not to make funding available for library services. The caveat leads to two situations. Firstly, if left this way or left in, nothing protects a municipality that agreed to an assignment should the assignment become unfunded or underfunded, or secondly, this dissuades municipalities from requesting an assignment of the library function or accepting an assignment because they were already ‘warned’ that funding may or may not be available for performance of the function.

Funds follow function. Therefore, if there is a budget for the function when it is performed by the province, that budget should follow the assigned function. What exactly does ‘subject to available funds’ mean? If the Municipal Systems Act requires the financial implications, possible financial liabilities and risks, and any additional expenditure stemming from a proposed assignment to be accounted for, this arguably is to prevent the use of or reliance on caveats such as ‘subject to available funds’. Whilst regulations may be issued to give further details on this phrase, regulations cannot change the intention or (unintended) consequences of this provision, which is to shield the province should a municipality become burdened by an unfunded or underfunded assignment of the library services function. To address this potential challenge, it is thus submitted that municipalities can use non-litigious methods to influence or respond to the above-identified shortcoming, such as engaging in dialogue with the provincial department responsible for public libraries or using legislative procedures to propose amendments to the Act. A recently promulgated law can be amended to address practical issues, adapt to new circumstances, or correct any unintended consequences that become apparent after the initial promulgation.

With regards to section 5(2) of the Act, firstly, will the provision of capacity building and support be included in the ‘roles and responsibilities’? It is submitted that the provision of capacity building and support should rather be included in the list under section 5(2), so that it is clear that support should be provided as and when required for the effective performance of the assigned library function.

Secondly, will the decision-making authority and financial authority over the library function also form part of ‘roles and responsibilities’? And does this phrasing make it clear that these matters shift to a municipality receiving an assignment in its favour? It is submitted that the location of the decision-making authority and financial authority over the assigned function/s should be clearly set out either in the Act itself or added to the regulations issuable in terms of the said Act, to ensure that these shift to the municipality. Allocating the decision-making authority and financial authority to a municipality will remove administrative and fiscal red tape, and facilitate delivery to meet the demands for library services. If section 5 is left this way, it may work against the constitutional obligation for assignments as it fails to guarantee adequate financial support and decision-making authority to municipalities assigned the library function.

Thirdly, the section suggests that an assignment is only invoked by the MEC. This is also the case when the provision is read together with sections 126 and 156(4) of the Constitution. It is submitted that there should be space for a municipality to invoke an assignment and that this could be included as a sub-section under section 5 or added to the regulations issuable in terms of the said Act. This is because assignment involves two phases, which are the initiation phase and the institution phase. The power to initiate pertains to the ability to take the first step in the process and raise the possibilities of an assignment of the library function, create dialogue amongst the parties mentioned in sections 126 and 156(4) of the Constitution, and request the institution of an executive assignment where the conditions in section 156(4) are met. The power to institute pertains to the power to set an executive assignment in motion and bring it to effect through the process provided in sections 10 and 10A of the Municipal Systems Act.

It is thus submitted that, in the case of library services, section 126 of the Constitution literally means a MEC has been given the authority to both initiate and institute an assignment of the library services function to a municipality. However, the introduction of section 156(4), which makes the executive assignment compulsory, alters the default position of section 126. Consequently, whilst a MEC retains the power to institute a section 129 and 156(4) assignment, the power to initiate may be exercised by either a MEC or a municipality that seeks assignment of the library services function. The risk of keeping to the literal approach set out above is that the MEC may abuse their power by denying executive assignments to municipalities where a prima facie case for an executive assignment has been made. In the spirit of co-operative governance, any of the spheres involved should be free to invoke sections 129 and 156(4) of the Constitution and create dialogue around the possibility of an assignment to a municipality that shows initiative.  After all, the notion of ‘spheres of government’, rather than ‘tiers’, suggests that there is no hierarchy.

In ending, the introduction of the Act has pushed for the formalisation of the assignment of library services as a matter of practical necessity to avoid the collapse of local library services. It is, thus, imperative that the MEC responsible for library services acts speedily and drafts the regulations necessary to provide clarity on the issue of funding, with the intention to address the unfunded or underfunded nature of the library function in its present form. Furthermore, the MEC should ensure that the provincial Act does not fall into the pipeline of legislation endorsing assignment, for example the National Land Transport Act of 2009, yet with little to no implementation of the constitutional and legislative framework for assignment in practice.

By Thabile Chonco-Spambo