Rights and Duties of Kouga Municipality

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

The legal nature and general rights and duties of the Kouga Municipality are directed by the Local Government: Municipal Systems Act, 32 of 2000 (‘the Municipal Systems Act’). The purpose of the Municipal Systems Act is multi-fold and can be summarised as follows:

• · to provide for community participation in the different processes of municipalities; and
• · to establish a simple and enabling framework for the core processes of 
• Ø planning 
• Ø performance management 
• Ø resource mobilization 
• Ø organisational change 

which underpin the notion of developmental local government.

From the purpose and preamble to the Municipal Systems Act, read within the context of the Constitution, it becomes clear that, apart from the provision of services, all local governments are actively to promote and engage their community’s involvement in the affairs concerning their local area. These affairs particularly refer to aspects of planning, service delivery and performance management. The constitutional foundation requires an efficient, effective and transparent local public administration that conforms to the entrenched principles of openness, transparency and effectiveness.

Sections 4, 5 and 6 of Municipal Systems Act primarily govern the rights and duties of the Kouga Municipality. In contrast, section 156 of the Constitution regulates the powers and functions of local governments but provides no direct reference to the rights and duties of municipalities.

4.1 Section 4 rights and duties of Kouga Municipality

Section 4(2) of the Municipal Systems Act confers the following duties on the Kouga Municipality:
· Exercise the municipality’s executive and legislative authority and use the resources of the municipality in the best interests of the local community;
· Provide, without favour of prejudice, democratic and accountable government;
· Encourage the involvement of the local community;
· Strive to ensure that municipal services are provided to the local community in a financially and environmentally sustainable manner;
· Consult the local community about the level, range and impact of municipal services provided by the municipality, either directly or through another service provider;
· Give members of the local community equitable access to the municipal services to which they are entitled;
· Promote and undertake developments in the municipality;
· Promote gender equity in the exercise of the municipality’s executive and legislative authority;
· Promote a safe and healthy environment in the municipality; and
· Contribute, together with other organs of state, to the progressive realisation of the fundamental rights contained in sections 24, 25, 26, 27 and 29 of the Constitution.

These duties are in compliance with the broad constitutional obligations and requirements.

Section 4(3) also confirms a municipality’s responsibility in the exercise of its executive or legislative authority to respect the rights of citizens and those of other persons that are protected by the Bill of Rights. With reference to the duties of municipalities in relation to their local residents, our courts have already confirmed this. In Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC) the Constitutional Court held that there was an important element of trust in the relationship between municipalities and their ratepayers. The ratepayers therefore had a sufficient interest in seeking to impugn those decisions of a municipality impacting on the utilization of ratepayers’ funds which they contended to be unlawful. Consequently ratepayers have locus standi to seek an order against the municipalities to set aside their resolutions.

A similar view was expressed in Kempton Park/Tembisa Metropolitan Substructure v Kelder 2000 (2) SA 980 (SCA) where the Supreme Court of Appeal endorsed the principle that in a broad sense there is a fiduciary relationship between a local authority and its ratepayers. Municipalities should be representative of the inhabitants of its area of jurisdiction and its actions should be open and transparent.

4.2 Section 5 rights and duties of Kouga Municipality

In terms of section 5 of the Municipal Systems Act, Oyster Bay Ratepayers Association, its members, the ratepayers and residents of Oyster Bay have the following rights vis-à-vis the Kouga Municipality:
· To contribute to the decision-making processes of the municipality and to submit written or oral recommendations, representations and complaints to the municipal council, political office bearer(s) and the administration of the municipality though mechanisms and in accordance with processes and procedures as provided for in the Municipal Systems Act or other applicable legislation. This not only confirms public participation in both legislative and executive functions of a municipality but it also indirectly requires a municipality to apply its attention to such recommendations or public comment (own emphasis) .
· To prompt responses written or oral communications, including complaints to the Municipal Council, political office bearer(s) and the administration of the municipality. Through this protection the local community is ensured of accountable and responsive government and the municipal council is not only committed to comply to public request or complaints but more specifically municipal councillors as political office bearers are required to respond to the requests from their local constituencies (own emphasis).
· To be informed of the decisions of the Municipal Council or another political structure or any political office bearer of the municipality that has an effect on their rights, property and reasonable expectations. This right is of particular importance to all local residents, as many decisions of municipalities, impact on their rights in one way or another.  It is further also a drastic departure of the draconic exclusion of information by the previous local government system and if implemented it will foster strong, acceptable, open and accountable local government institutions (own emphasis).
· To regulate disclosure of the state of affairs of the municipality, with inclusion of financial affairs and status. Local community members and ratepayers to a local authority must make use of these rights to ensure a measure of control over the internal political and administrative functions and final management of their local governments (own emphasis).
· To demand that the proceedings of the municipal council and those of its committee must be open to the public, conducted impartially and without prejudice and untainted by personal self-interest.
· To the use and enjoyment of public facilities, including facilities such as parks and interaction facilities.
· To have access to municipal services which the municipality provides.

4.3 Section 6 rights and duties of Kouga Municipality

In terms of section 6(1) and (2) of the Municipal Systems Act, Oyster Bay Ratepayers Association, its members, the ratepayers and residents of Oyster Bay have the following rights vis-à-vis the Kouga Municipal Administration:
· A municipality’s administration is governed by the democratic values and principles embodied in section 195(1) of the Constitution. Section 195 is part of Chapter 10 of the Constitution, and it provides the basic values and principles that have to govern the public administration. Section 195 should also be read in conjunction with the section 1(d) of the Constitution which requires a democratic government founded on inter alia the values of accountability, responsiveness and openness. In section 195(1)(a) - (i) of the Constitution (which has been enacted as the Public Service Act, 103 of 1994 (as amended by Act 86 of 1998)), the following values and principles relevant to the overall public administration are captured as follows -
Ø A high standard of professional ethics must be promoted and maintained;
Ø Efficient, economic and effective use of resources must be promoted;
Ø Public administration must be development-orientated;
Ø Services must be provided impartially, fairly, equitably and without bias;
Ø People’s needs must be responded to and the public must be encouraged to participate in policy-making;
Ø Public administration must be accountable;
Ø Transparency must be fostered by providing the public with timely, accessible and a rate information; and
Ø Good human-resource management and career-development practices must be created to maximise human potential;
· The Kouga Municipal Administration is further obligated to ensure and adhere to the following principles:
Ø to be responsive to the needs of the local community;
Ø to facilitate a culture of public service and accountability amongst staff;
Ø to take measures to prevent corruption;
Ø to establish clear relationships, and facilitate co-operation and communication, between it and the local community;
Ø to give members of the local community full and accurate information about the level and standard of municipal services they are entitled to receive;
Ø to inform the local community of how the municipality is managed, of the costs involved and the persons in charge.

4.4 Section 51(a) - (m) duties of Kouga Municipality

In furtherance of the developmental duties of Kouga Municipality, the Municipal Systems Act determines that all municipalities must establish and organise their administration in a manner that would enable municipalities to comply with various administrative and financial requirements. These requirements are the following, namely to:

· Be responsive to the needs of the local community;
· Facilitate a culture of public service and accountability amongst its staff;
· Be performance orientated and focused on the objects and developmental duties of the local government;
· Ensure that its political structures, political office bearers and managers and other members align their roles and responsibilities with the priorities and objectives of the municipality’s integrated developmental plan;
· Establish clear relationships and to facilitate cooperation, coordination and communication between its political structures and political office bearers and its administration; and between its political structures, political office bearers and administration of the local community;
· Organise its political structures, political office bearers and administration in a flexible way in order to respond to the changing priorities and circumstances of the municipality;
· Perform its functions through operationally effective and appropriate administrative units and mechanism, including departments and other functional or business entities and also, when necessary, to perform such functions on a decentralized basis;
· Assign clear responsibilities for the management and coordination of the administration;
· Hold the municipal manager accountable for the overall performance of the administration;
· Maximise efficiency of communication and decision-making within the administration;
· Delegate responsibility to the most effective level within the administration;
· Involve staff in management decisions as far as is practicable;
· Provide an equitable, fair, open and non-discriminatory working environment.

4.5 Section 95(1)(a) - (i) duties of Kouga Municipality re customer care and management

The Kouga Municipality is obligated in relation to the levying of rates and taxes to:

· Establish a sound customer management system that aims to create a positive and reciprocal relationship between persons liable for these payments and the municipality;
· Establish mechanisms for users of services and ratepayers to give feedback to the municipality or other service provider regarding the quality of the services and the performance of the service provider;
· Take reasonable steps to ensure that users of services are informed of the costs involved in service provision, the reasons for the payment of service fees, and the manner in which monies raised from the service are utilized;
· Where the consumption of services has to be measured, take reasonable steps to ensure that the consumption by individual users of services is measured through accurate and verifiable metering systems;
· Ensure that persons liable for payments, receive regular and accurate accounts that indicate the basis for calculating the amounts due;
· Provide accessible mechanisms for those persons to query or verify accounts and metered consumption, and appeal procedures which allow such persons to receive prompt redress for inaccurate accounts;
· Provide accessible mechanisms for dealing with complaints from such persons, together with prompt replies and corrective action by the municipality, including mechanisms to monitor the response time and efficiency of this duty; and
· Provide accessible pay points and other mechanisms for settling accounts or for making pre-payments for services.

4.6 Chapter 4 duties of Kouga Municipality

Chapter 4 of the Municipal Systems Act determines that municipalities must develop a culture of municipal governance that complements formal representative government with a system of participatory governance. In an effort to achieve and develop such a culture, municipalities must encourage and create conditions for the local community to participate in the affairs of the municipality. Chapter 4 features the following legal obligations to which the Kouga Municipality should comply (see section 16(1)(a)(i)-(v) of the Municipal Systems Act):

· The preparation, implementation and review of the municipal integrated development plan;
· The establishment, implementation and review of the performance management system;
· The monitoring and review of performance in general, including outcomes and impact of performance;
· The preparation of the municipal budget; and
· Strategic decisions relating to the provision of municipal services.

Municipal resources and funds that are allocated annually from the municipal budget should be provided in order to achieve the mentioned participatory objectives.  Specific mechanisms, processes and procedures for community participation have also been provided for. of the Municipal Systems Act determines that participation by the local community in the affairs of the municipality must take place through various mechanisms.  All municipalities must establish appropriate mechanisms, processes or procedures to enable the local community to participate in the affairs of the municipality. In this respect, municipalities must provide for (see the section 17(1)(a)-(e) of the Municipal Systems Act):

· The receipt, processing and consideration of petitions and complaints lodged by members of the local community;
· Notification and public comment procedures;
· Public meetings and hearings by the municipal council, other political structures and Political office bearers, when appropriate;
· Consultative sessions with locally recognised community organisations and where appropriate, traditional authorities;
· Report-back mechanisms to the local community.

It is now required by law that the municipal manager of a municipality sends a notice to the public of the time, date and venue of every ordinary meeting of the council, also special or urgent meetings, except when time constraints make such notice implacable (see section 19(a)-(b) Municipal Systems Act). The public or media, may not be excluded, from a council or committee meeting when any of the following matters are being considered or being voted on (see section 20(2)(a)-(f) Municipal Systems Act):

· A draft by-law tabled in council;
· A budget tabled in council;
· The municipality’s draft IDP or amendments thereto, tabled in council;
· The municipality’s draft performance management systems or amendments, tabled in council;
· The decision to enter into a service delivery agreement in terms of section 76.

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

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