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A brief introduction to local government in South Africa
With the introduction of a new constitutional order for South Africa on 27 April 19941 the former South African government had to undergo fundamental changes and reforms on all levels. Not only did the national and provincial governments have to be revised but, more specifically, the whole of the local sphere had to be transformed in compliance with the new constitutional mandate.
Both the interim Constitution and its successor, the final Constitution,2 replaced the former system of parliamentary sovereignty with a new system of constitutional supremacy. Both constitutions contained comprehensive bills of rights in which the rights of all people in the country were enshrined.3 All spheres of government were bound by the Bill of Rights, and the Bill of Rights also applied to all law.4 A newly restructured judiciary, with the inclusion of a specialised Constitutional Court, was given the power and duty to oversee and control full compliance with the new constitutional standards and requirements. The former centralised government was furthermore
replaced by a system of government with federal elements in which significant powers and functions were devolved to provincial and local authorities.
The final Constitution, which completed the negotiated framework of transformation, established a new governmental structure on three spheres, which are distinctive, interdependent and interrelated.5 The constitutional text further incorporated many basic principles and features which underlie the new order and with which all spheres of government and other organs of the state had to comply in future.6 The basic principles and values embodied in the Constitution have a broad effect and influence on many other provisions in the Constitution, which are thus important to all
government structures, including local governments. The Constitution thus forms the foundation for all law within the state.
It is generally accepted that the pre-1993 constitutional dispensation had seriously damaged the spatial, social and economic environments in which people have lived, worked and raised their families. This was specifically evident within all municipal jurisdictions where people’s lives and living standards were affected directly. Arguably the most critical functions of the new local government structure and reform process are to rebuild local communities and environments and, further, to establish a new foundation for a democratic, integrated, prosperous and non-racial society.
As was mentioned above, local government within the new constitutional order has been afforded specific status and is protected as a distinctive sphere of government. Local authorities are no longer a mere function of national or provincial governments. Apart from this entrenched status, the Constitution and other relevant legislation vest local government with specific functions and responsibilities in the process of building a new democracy and promoting socio-economic development and upliftment.
In light of the above, the importance of local government in the new structure is self evident. It serves as a counterweight to the concentration of powers on other levels, it brings the decision-making process closer to the local people, and it is thus better suited to ensuring public involvement. Local government has often been described as the cornerstone of ensuring an overall democratic government. It serves as the level of government that functions the closest to local residents and is involved in the rendering of essential services that are needed in all walks of life. One can truly regard a local government as an essential service provider “from the cradle to the
grave”.7
Within the abovementioned framework of the Constitution, local government had to be transformed into a service delivery-orientated sphere of government, committed to working with all interest groups and directed at achieving sustainable human settlements with enhanced quality of life. The framework of such transformation was set out in the White Paper on local government, which was published during March 1998. The White Paper, together with the constitutional requirements, provided the basis on which the new system of local government had to be established. Within
this framework new legislation was proposed and enacted in order to complete the overall structure and to achieve the constitutional requirements and objectives. In retrospect the White Paper was a unique document: it dealt with an entire sphere of government and served as a mini Constitution for the reform process.
The implementation and achievement of the goals and objectives of the reformed local sphere of government will require a supreme and constructive effort on the part of all people in our country. This responsibility is placed not only on the elected representatives and other political functionaries but also on the administrative personnel of local authorities and local residents themselves. Constructive participation on the part of all is of fundamental importance.
It is submitted that local government within the overall governmental structure of South Africa is of fundamental importance for stability and success of the state as a whole. Local government forms the backbone of the newly established democratic foundation and is also the part of government closest and most directly involved in people’s day-to-day lives. Every person living within the territory of the state will fall within the jurisdiction of a local authority and will be directly and indirectly influenced through the powers and functions of such local authority. A full understanding of the role, powers, functions, objectives, developmental duties and provisions of services are thus of great importance for the politicians and local administrators, but they are more so for the local electorate and inhabitants. The Constitution provides only the framework for understanding and studying the legal system of local government; the completion of the system is to be found in various national and provincial laws.
Chapter 1: Introduction
1.1 Introduction.
1.2 Research questions and research methodology.
1.3 Founding principles of the new South African constitutional order
1.4 Key principles underpinning the new local government legal dispensation
1.5 Conclusion.
Chapter 2: A brief introduction to local government in South Africa
Chapter 3: The origins of urban development and the early establishment of local authorities
3.1 Introduction.
3.2 The general development from farmland into urban settlements
3.3 The origin, creation and importance of local authorities
3.4 Conclusion.
Chapter 4: A brief history of local government in South Africa
4.1 Introduction
4.2 Financial constraints of former local government institutions
4.3 Mobilisation against the former local government system .
4.4 Conclusion.
Chapter 5: The process of transformation and restructuring of local government
5.1 Introduction
5.2 The restructuring of local government under the Local Government Transition Act
5.3 The role and impact of the interim Constitution on the transition process
5.4 The importance of the 34 constitutional principles included in the interim Constitution and the certification process of the final Constitution
5.5 The impact of the final Constitution and the commencement of the new local government legal dispensation
5.6 Conclusion
Chapter 6: The current state of local government and the general impact of the final Constitution
6.1 Introduction
6.2 Current financial constraints in local government
6.3 New administrative challenges
6.4 Legislative complexity of the new system
6.5 Global and national trends .
6.6 The influence of settlement patterns and trends
6.7 General impact of the Constitution
6.8 Conclusion
Chapter 7: The status, objects, challenges and developmental duties of local authorities
7.1 Introduction
7.2 The characteristics of local governments.
7.3 The importance of being a sphere of government
7.4 The status of municipalities.
7.5 The objects of local government
7.6 The new challenges and developmental duties facing municipalities
7.7 Developmental duties of municipalities
7.8 Conclusion.
Chapter 8: The legal nature and general rights and duties of local government institutions .
8.1 Introduction
8.2 The specific character of local government.
8.3 The legal nature of a municipality
8.4 Conclusion
Chapter 9: Local government within a system of co-operative governance
9.1 Introduction
9.2 Local government and intergovernmental relations
9.3 The constitutional foundation of co-operative government
9.4 The impact of co-operative government on local government structures
9.5 The recognition and protection of the obligations to support, strengthen, consult and promote local government matters
9.6 National legislative protection of the principles of co-operative government
9.7 Exploring the roles and responsibilities of national and provincial governments towards municipalities in a system of co-operative governance
9.8 National support and assistance to local government through national policies and programmes
9.9 Some comments on co-operative government in practice
9.10 Conclusion
Chapter 10: The new institutional models in local government and the formal establishment of municipalities
10.1 Introduction.
10.2 Important requirements regarding the functioning and roles of local governments..
10.3 Categories of municipal government
10.4 Systems and types of municipal government
10.5 Combining the different systems of municipal government to form municipal types
10.6 Application of municipal types to individual municipalities
10.7 Establishing new municipalities – procedures and requirements.
10.8 Conclusion
Chapter 11: Demarcation of new local government boundaries.
11.1 Introduction.
11.2 The importance of local government boundaries
11.3 Re-determination of the municipal boundaries of the transitional period.
11.4 The municipal demarcation board.
11.5 Requirements regarding municipal demarcation
11.6 General administrative and other matters regarding the Demarcation Board
11.7 Conclusion
Chapter 12: The composition, election and term of municipal councils
12.1 Introduction
12.2 The composition and election of municipal councils during the local government transitional phases
12.3 The composition and election of municipal councils under the final Constitution
12.4 Membership of municipal councils and the qualifications of councillors.
12.5 The terms of municipal councils and councillors
12.6 Municipal by-elections
12.7 General legislative provisions relevant to the local government electoral process and procedures
12.8 Conclusion
Chapter 13: The role and importance of the institution of traditional leadership in local government affairs.
13.1 Introduction.
13.2 A brief historical overview of traditional leadership in South Africa.
13.3 Important considerations relating to traditional leadership from a South African perspective
13.4 The new legislative framework and requirements regarding traditional leadership
13.5 Conclusion
Chapter 14: The powers and functions of municipal governments
14.1 Introduction
14.2 The constitutional basis of municipal powers and functions.
14.3 National legislation to enhance the constitutional foundation on the powers and functions of municipal councils
14.4 Executive and legislative functioning
14.5 Legislative procedures and requirements
14.6 Municipal financial powers
14.7 Municipal powers and functions regarding municipal law enforcement.
14.8 Conclusion
Chapter 15: Political structures and internal procedures of municipal councils
15.1 Introduction.
15.2 The basic constitutional framework regarding the internal procedur
15.3 The privileges and immunities of municipal councils and their members.
15.4 Internal municipal functionaries and procedures.
15.5 Code of conduct for councillors
15.6 The procedures regarding the election of municipal office bearers
15.7 Conclusion
Chapter 16: Municipal services and service delivery and the basic functional activities of municipal governments
16.1 Introduction
16.2 The new vision of local government service delivery
16.3 The new legislative requirements regarding municipal services
16.4 An overview of services that are generally provided by local governments
16.5 Conclusion.
Chapter 17: Municipal personnel, labour relations and staffing matters
17.1 Introduction
17.2 The broad organisational structure and overall personnel administration of local governments
17.3 New legislative provisions regarding municipal staff matters
17.4 Conclusion.
Chapter 18: Aspects relating to municipal finance and municipal fiscal management
18.1 Introduction.
18.2 The new legislative framework for municipal financial management.
18.3 Legislative control mechanisms over municipal finance matters.
18.4 General comments on the principles relating to municipal fiscal management
18.5 Important revenue sources of local governments
18.6 Conclusion
Chapter 19: The principles of municipal public administration and the requirements of performance management, capacity building, accountability and public participation
19.1 Introduction
19.2 Basic aspects concerning municipal public relations
19.3 The constitutional requirements affecting municipal public administration
19.4 Principles of municipal accountability and public participation
19.5 Aspects concerning municipal performance management and capacity building
19.6 Aspects regarding municipal capacity building
19.7 Conclusion.
Chapter 20: Municipal development planning
20.1 Introduction
20.2 National principles concerning local government developmental planning
20.3 Conclusion
Chapter 21: Basic legal matters relevant to local government structures.
21.1 Introduction
21.2 Sources of local government law.
21.3 Important fields of law relevant to local government law
21.4 Special legal matters pertaining to local government
21.5 Conclusion
Chapter 22: Concluding remarks.
Bibliography
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