Constitutional status, objects and Developmental duties of Kouga Municipality

Prof Dr DJ Lötz (BIur, LLB, LLM, LLD) of Borchardt & Hansen Inc has been instructed to research, review and consider the legal position of the Oyster Bay Ratepayers Association, its members, the ratepayers and residents of Oyster Bay, vis-à-vis the constitutional and statutory obligations of the Kouga Municipality towards the aforementioned entities. Questions posed are:

(1)        What is the constitutional status of Kouga Municipality?

(2)        What are the objects of local government?

            (3)       What are the developmental duties of Kouga Municipality?

In particular -

·         Local government’s constitutional obligations

·         Sustainable household infrastructure and services

·         Integrated development planning, budgeting and performance monitoring

·         Municipal performance management.

(4)       What are the legal nature and general rights and duties of Kouga Municipality?

(5)       What are the powers and functions of Kouga Municipality?

(6)       What constitute municipal services and service delivery, including the basic function and activities of Kouga Municipality?

(7)       Issues relating to municipal finance and municipal fiscal management.

(8)       What are Kouga Municipality’s environmental and disaster management duties and obligations?

In compiling this opinion, liberal use is made of B Bekink Principles of South African Local Government Law (2006).

B         OPINION

1          What is the constitutional status of Kouga Municipality?

In terms of sections 40, 41, 43, 151, 205(1), 214(1), 215(2)(c), 238 and 239 of the Constitution of the Republic of South Africa, 1996 (‘the Constitution’) the status of municipalities is clearly entrenched as a distinctive and interdependent sphere of government. Certainly, the most applicable right protected in the Bill of Rights for local governments in terms of sections 32 and 33 of the Constitution, is the right to just administrative actions and access to information. It follows that through the exercise of their powers and functions local governments, such as the Kouga Municipality, have to bring the decision-making processes closer to the local residents and ensure access to the process.

2          What are the objects of local government?

Apart from establishing local government as a specific sphere of government, section 152 of the Constitution also directly sets specific objects for local governments (including the Kouga Municipality) that should be achieved. These objects are:

·         to provide democratic and accountable government for local communities;

·         to ensure the provision of services to communities in a sustainable manner;

·         to promote social and economic development;

·         to promote a safe and healthy environment and;

·         to encourage the involvement of communities and community organisations in matters of local government.

3          What are the developmental duties of Kouga Municipality?

Apart from the above constitutionally founded objects of local government, all municipalities are also constitutionally obligated, inter alia in terms of section 153 of the Constitution, to fulfil certain developmental duties. It is the task of all local government institutions to work individually and in co-operation with their local communities to ensure sustainable ways to meet the needs and to improve the quality of life for all people of South Africa.

3.1       Local government’s constitutional obligations

The Constitution specifically entrenches the developmental duties of municipalities. In this regard section 153 of the Constitution states that a municipality must:

·         Structure and manage its administration and budgeting and planning processes to give priority to the basic needs of the community and to promote the social and economic development of the community; and

·         Participate in national and provincial development programmes.

It is therefore important for municipalities to adopt inclusive approaches to community participation in all respects.

3.2       Sustainable household infrastructure and services

In terms of section 214 of the Constitution and the Equitable Share of National Revenue Act, the Kouga Municipality is constitutionally entitled to an equitable share of national revenue to provide for sustainable household infrastructure and services. Generally, the allocations from national revenue sources should enable most municipalities to help in subsidising the operating costs of basic services.

3.3       Integrated development planning, budgeting and performance monitoring

Integrated Development Planning (IDP) has been initiated, through which municipalities must establish local development plans for the short, medium and long term. Within the local government dispensation, the Kouga Municipality is in terms of the Development Facilitation Act, 67 of 1995 compelled to produce Land Development Objectives (LDOs). LDOs should provide the basis for further strategic development in a specific area. LDOs fulfil a critical role and should be submitted to the provincial government of a province for approval. The Oyster Bay Ratepayers Association is entitled to establish whether the Kouga Municipality has complied with this statutory obligation and if so, to what extent.

3.4       Municipal performance management

The Oyster Bay Ratepayers Association is entitled to establish whether the Kouga Municipality has a system to measures the standard of their performance management in terms of the purported Key Performance Indicators (KPI). It follows that the Oyster Bay Ratepayers Association also has the constitutional right to scrutinize such performance management system.