It sets out the dilemma of the one-size-fits-all approach: municipalities vary considerably in terms of capacity and local circumstances, yet Schedules 4B and 5B of the Constitution give every municipality the same powers. The only differentiation is the "flexible" distribution of power between district and local municipalities. But that system does not work as discussed elsewhere in this Special Issue. 

Furthermore, the Constitution envisages that municipalities that can do more (than what is in Schedules 4B and 5B), will do more. That is why it contains several provisions for the assignment of additional powers to municipalities, and even makes that compulsory under certain circumstances. The Municipal Systems Act complements the Constitution with guarantees against unfunded mandates. However, that entire system is a dead letter. National and provincial governments ignore those provisions, and use other mechanisms to transfer powers to municipalities, such as agency agreements. Some line departments have developed their own specific mechanisms (such as "accreditation" of housing in human settlements). In any event, the allocation of additional powers to municipalities (such as commuter rail, aspects of policing, housing etc.) has been hopelessly politicised. The result is that, despite the government’s repeated commitment to “no more one-size-fits-all”, the system is pretty much stuck and that “devolved” functions (such as libraries and primary health care) are often underfunded. This has been convincingly argued in Dr Thabile Chonco-Spambo’s doctoral thesis on differentiation. 

On the other end of the spectrum, many municipalities persistently fail to do the basics, i.e. deliver potable water, decent sanitation, and reliable electricity. The Draft White Paper suggests that the hard question must be asked: “Should each municipality have all the Schedule 4B and 5B powers?” These failures are no longer localised problems; they are a national crisis. Do these municipalities deserve to have their “autonomy” protected? This was argued by Prof De Visser in the recently published Conversations on Constitutionalism. If interventions in terms of section 139 of the Constitution don’t work, should we not consider a mechanism for municipalities to “earn” their authority over these functions by showing performance and delivery?

To address this, the Draft White Paper suggests reimagining the way the Constitution allocates powers to municipalities. It suggests that, instead of the current three municipal categories (metropolitan, district and local), there will be a broader menu of constitutional categories. Each category will be a (single tier) municipality with a specific set of functions, drawn from the current constitutional functions (i.e. Schedules 4B and 5B of the Constitution) and national and provincial functions. The decision on what category will apply to a particular municipality will be made by an independent organ of state on the basis of objective criteria, determined by law. Because currently the Constitution itself allocates powers directly to municipalities, this proposal cannot be implemented without a constitutional amendment.

In this scenario, there will be municipalities with a reduced mandate, for example municipalities with no water service function, no electricity reticulation function, but responsibilities for refuse removal, municipal roads and other municipal functions. There will also be municipalities with an expanded mandate that goes further than the current constitutional functions, and includes functions as commuter rail, aspects of policing, housing etc. The result is something akin to a “graduation system”, in terms of which municipalities will be regularly reviewed and their powers adjusted to their level of performance and local circumstances.

This proposal can be critiqued on a number of grounds. The first, and probably most important concern is: will it help to shift a (water, sanitation or electricity) power “upwards” to the national or provincial government? Will this result in better service delivery? Or will this result in “centralising failure”, because our national and provincial governments will do no better a job? Furthermore, this proposal will unsettle municipalities, especially those that perform well, because their powers will no longer be guaranteed by the Constitution but assessed by a yet to be named and established national body. 

The Draft White Paper is correct in wanting to disrupt the current decline in local government. Communities in failing municipalities are exhausted. They can’t be expected to care about notions such as “local democracy” when there is no water. However, the question is whether its proposals will improve the situation surrounding basic service delivery. Alternative ideas should also be considered. For example, instead of tinkering with the fundamentals, namely the original powers of local government, should the Draft White Paper not reimagine the way in which national and provincial governments intervene in failing municipalities? The current section 139 of the Constitution is fraught with difficulty both in terms of design and implementation. If a constitutional amendment is on the cards, why not rewrite section 139 of the Constitution so that “delinquent” municipalities can be targeted, instead of removing constitutional protection for all municipalities?

By Tinashe C Chigwata