Powers and functions of Kouga Municipality

5          What are the powers and functions of Kouga Municipality?

In general, all local governments are obliged to perform their functions and to exercise their powers in such a manner as to achieve their objectives and fulfil their developmental duties. According to sections152(2) and 153(a) of  the Constitution, all municipalities must strive to achieve the objectives laid down for local governments in general and must also structure and manage their administrations, budgeting and planning processes to give priority to the basic needs of their communities.

5.1       Direct constitutional directives regarding municipal powers and functions

Two sources of such authority are identified. The first source is the various local government matters that are listed in Part B of Schedule 4 and Part B of Schedule 5 of the Constitution.

The relevant functional areas of municipal executive and administrative authority as determined by Part B of Schedule 4 of the Constitution are, inter alia for purposes of this opinion, the following:

·                    Storm water management systems in built-up areas. As municipal jurisdictions are becoming more and more developed, the management, provision and maintenance of storm water management systems are becoming ever so troublesome. Urbanization with complaisant modern structure such as tarred roads and roofed buildings increasingly causes severe frustration in residential areas. Municipalities therefore need to plan and provide for sufficient infrastructure to handle and control such higher volumes of storm water; and

·                    Water and sanitation services limited to potable water supply system and domestic waste-water and sewage disposal systems. The provision of water to local residents is generally accepted as one of the most basic of services that municipalities render (see the Water Services Act 108 of 1997; Manqele v Durban TMC 2002 (6) SA 423 (D)).

It is evident from the services delivery track record of the Kouga Municipality concerning Oyster Bay specifically, that the above constitutional directives have been blatantly disregarded.

The relevant functional areas of municipal executive and administrative authority as determined by Part B of Schedule 5 of the Constitution (read with sections 155(6)(a) and (7) of the Constitution) are, inter alia for purposes of this opinion, the following:

·         Beaches and amusement facilities. Coastal municipalities have an additional service to communities, in that they must control and manage local beaches in their areas including beachfront management;

·         Local amenities;

·         Municipal roads. The control and maintenance of municipal roads cannot be done on an isolated basis and must interact with national and provincial initiatives and schemes. Maintenance of municipal roads also includes the provision and maintenance of storm-water systems.; and

·         Public places.

Again, it is evident from the services delivery track record of the Kouga Municipality concerning Oyster Bay specifically, that the above constitutional directives have been blatantly disregarded.

The matters listed in Part B of Schedule 5 are the functions typically associated with local governments. The provincial authorities have exclusive legislative competence over such matters, and national government may not exercise legislative authority over such matters unless constitutionally authorised to do so under its emergency powers in terms of section 44 (2) of the Constitution. One can thus conclude that the matters mentioned in Part B of Schedule 5 require mainly a strong cooperation and coordination between municipalities and their applicable provincial governments.

In so far as the Kouga Municipality, and for that matter the Eastern Cape provincial government, have failed to comply with the above constitutional directives, the Oyster Bay Ratepayers Association, its members, the ratepayers and residents of Oyster Bay should consider it to approached national government in terms of  section 44(2) of the Constitution.

5.2       Functions and powers of municipalities under the Local Government Municipal Structures Act, 117 of 1998

In general, the Municipal Structures Act provides that a municipality has the functional powers assigned to it in terms of sections 156 and 229 of the Constitution. As a result all district municipalities are in terms of section 84 (a) to (p) of the Municipal Structures Act accorded, inter alia, the following function and powers:

·         Municipal roads which form an integral part of a road transport system for the area of the district municipality as a whole; and

·         Promotion of local tourism for the area of the district municipality.

Taking the internal roads of Oyster Bay and the Kouga Municipality’s efforts to promote local tourism in Oyster Bay into account, it is clear that the latter do not comply with the provisions of section 84 (a) to (p) of the Municipal Structures Act

Compiled by Prof Dr DJ Lötz (BIur, LLB, LLM, LLD)

Brooklyn Court, Block A, 1^st floor, 361 Veale Street, Brooklyn

Borchardt & Hansen Inc