Name Sibongile Agnes Dube

Student number 69405212

Module LGL3702
Assignment 1

Introduction

Legislative authority in South Africa is divided among the national, provincial and local
spheres of government. Section 43 of the Constitution provides in this respect that the
legislative authority of the national sphere of government is vested in Parliament; that
the legislative authority of the provincial sphere of government is vested in the provincial
legislatures: and that the legislative authority of the local sphere of government is
vested in the municipal councils. The division of legislative authority among the different
spheres of government imposes important limits on each legislature’s power to pass
legislation. These “federalism limits” provide that a legislature (for example, Parliament
or a specific provincial legislature or municipal council) may not pass legislation that
falls outside its competence. An important consequence of these limits is that, if a
legislature does adopt legislation that falls outside its competence, the legislation in
question will be invalid. The allocation of legislative authority to municipal councils gives
rise to a number of complex questions. One of these is the extent to which municipal
councils are entitled to pass legislation that deals with the conservation and protection
of the “environment”. This issue was considered by the KwaZulu-Natal High Court:
Pietermaritzburg in Le Sueur v eThekwini Municipality: In this case the High Court found
that even though the functional area of “environment” has been explicitly allocated to
the national and provincial spheres of government and not to the local sphere by the
Constitution, municipal councils are entitled to pass legislation that deals with the
conservation and protection of the “environment”, at least in those circumstances where
it forms a part of “municipal planning”. Before turning to discuss this case, however, it
will be useful first to examine the manner in which the Constitution allocates legislative
authority to the municipal councils.

The local sphere of government

The legislative powers of the municipal councils are set out in section 156 of the
Constitution. Section 156(1) provides in this respect that a municipality has executive
authority in respect of, and has the right to administer:

(a) The local government matters listed in Part B of Schedule 4 and Part B of
Schedule 5; and
 (b) Any other matter assigned to it by national or provincial legislation.
In addition, section 156(2) of the Constitution also provides that a municipality may
make and administer by-laws for the effective administration of the matters which is has
the right to administer.
Apart from sections 156(1) and (2), section 156(5) also provides that a municipality has
the right to exercise any power concerning a matter reasonably necessary for, or
incidental to, the effective performance of its functions.
A careful examination of these sections shows that they distinguish between three types
of powers:
(a) First, those powers that are derived directly from the Constitution. These powers
may be referred to as “original powers”.
(b) Second, those that are assigned to municipalities in terms of national or
provincial legislation. These powers may be referred to as “assigned powers”.
(c) Third, those powers that are reasonably necessary for, or incidental to, the
effective performance of a municipality’s functions. These powers may be referred to as
“incidental powers”.

Original municipal powers

(I)The nature of a municipal council’s original powers
As we have seen, sections 156(1) and 156(2) of the Constitution provide that a
municipal council has the authority to pass laws in respect of the local government
matters listed in Part B of Schedule 4 and in Part B of Schedule 5 of the Constitution.
Given that these powers can be altered or withdrawn only if the Constitution itself is
amended, they form the most significant source of municipal powers and are a
fundamental feature of local government’s institutional integrity.
Although the Constitution confers the authority on municipalities to pass laws in respect
of the matters listed in Part B of Schedule 4 and Part B of Schedule 5, the same
authority has also been conferred upon the national and provincial governments.
Municipalities, therefore, share the power to pass legislation on the matters listed in
Schedules 4B and 5B with the national and provincial governments.
While municipalities share the power to pass legislation on the matters listed in
Schedules 4B and 5B with the national and provincial governments, it is important to
note that they do not share the power to administer and implement these laws. This is
because the power conferred upon the national and provincial governments to pass
laws on Schedule 4B and 5B matters is limited by sections 155(6)(a) and 155(7) of the
Constitution.
Section 155(6)(a) of the Constitution provides in this respect that
…[e]ach provincial government … by legislative and other measures, must provide for
the monitoring and support of local government in the province…And section 155(7)
that
..The national government, subject to section 44, and the provincial governments have
the legislative and executive authority to see to the effective performance by
municipalities of their functions in respect of matters listed in Schedule 4 and 5, by
regulating the exercise by municipalities of their executive authority referred to in
section 156(1).
In Johannesburg Metropolitan Municipality v Gauteng Development Tribunal, the
Constitutional Court held that an important consequence of section 155(7) of the
Constitution is that neither the national nor the provincial spheres of government can, by
legislation, give themselves the power to exercise executive municipal powers or the
right to administer municipal affairs.
This is because, the Constitutional Court held further, the mandate of these two spheres
is ordinarily limited to “regulating” the exercise of executive municipal powers, and the
administration of municipal affairs by municipalities and the authority to “regulate” does
not include the power to exercise municipal competencies and perform municipal
functions. Instead, it simply includes the power to establish a framework within which a
municipality must perform.
In other words, while the national and provincial spheres of government are entitled to
pass laws regulating the local government matters set out in Schedule 4B and Schedule
5B, they are not entitled to legislate on the “core" of Schedule 4B and Schedule 5B
matters. Instead, they are entitled to pass only framework legislation dealing with
national standards, minimum requirements, monitoring procedures and so on.
In addition, while the national and provincial spheres of government are entitled to pass
laws regulating the local government matters set out in Schedule 4B and Schedule 5B,
they are not entitled to give themselves the power to administer or implement those
laws. The power to administer or implement those laws must be exercised by
municipalities themselves.

(Ii) The scope and ambit of a municipal council’s original powers

The scope and ambit of the functional areas set out in Schedule 4 and Schedule 5 have
been considered by the Constitutional Court on a number of occasions.14 One of the
most important of these judgments is Ex parte President of the RSA: In re
Constitutionality of the Liquor Bill.
In this case the Constitutional Court held that that the scope and ambit of the matters
set out in Schedule 4 and Schedule 5 of the Constitution must be interpreted in the light
of the model of government adopted by the Constitution and the manner in which the
Constitution allocates power to the different spheres of government.
In relation to the model of government adopted by the Constitution, the Constitutional
Court has also held that the Constitution:
(a) Distributes authority amongst the national, provincial and local spheres of
government;
(b) Provides that each sphere has the autonomy to exercise its powers and perform
its functions within the parameters of its defined space;
(c) Imposes a duty on each sphere not to assume any power or function except
those conferred on it in terms of the Constitution; and
(d) Confers extensive powers on parliament including the power to pass legislation
on “any matter”, excluding only those matters that fall within the functional areas
of exclusive provincial competence set out in Schedule 5.
Two important consequences flow from this model:
First, although they may appear to overlap, the functional areas of concurrent national
and provincial competence listed in Schedule 4 must be interpreted as being distinct
from and excluding the functional areas of exclusive provincial competence set out in
Schedule 5. This is because even though section 44(2) confers the power on
Parliament to intervene and pass legislation on a matter set out in Schedule 5, the
requirements of section 44(2) are very strict and Parliament will be able to do so on very
rare occasions only. If the functional areas listed in Schedule 4 and 5 overlapped,
therefore, Parliament would be able to pass legislation that affected a Schedule 5
matter without first having to satisfy the requirements of section 44(2).
Second, the functional areas of exclusive provincial competence listed in Schedule 5
relate only to those matters which may appropriately be regulated within the boundaries
of a province (intra-provincially) and not to those matters which should be regulated
across the boundaries of a province (inter-provincially). This is because the grounds on
which parliament is entitled to intervene in Schedule 5 matters in terms of section 44(2)
of the Constitution and the grounds on which national legislation may override provincial
legislation in terms of section 146(2) of the Constitution clearly show that Parliament
has the authority to regulate those activities that take place across provincial
boundaries. If the functional areas listed in Schedule 5 include activities that take place
across provincial boundaries. Therefore, Parliament would not be able to regulate them
unless it intervened in terms of section 44(2) which, as we have seen, is difficult for
Parliament to do.
The principle that a province's exclusive powers relate only to those matters which may
appropriately be regulated within the boundaries of a province was extended to
municipalities by the Western Cape High Court: Cape Town in The Habitat Council v
Provincial Minister of Local Government, Environmental Affairs and Development
Planning Western Cape.
In this case the High Court held that a municipality’s exclusive powers should be
interpreted as applying primarily to matters which may appropriately be regulated intra-
municipally, as opposed to intra-provincially. This means that where a matter requires
regulation inter-municipally, rather than intra-municipally, the national and provincial
governments have been given the power to do so, either concurrently or exclusively.

In arriving at this conclusion, the High Court relied heavily on the judgment in the Liquor
Bill case even though that case dealt with the distribution of legislative powers between
the national and provincial spheres of government, rather than the distribution of
executive powers between the provincial and local spheres of government.
The second principle to which I wish to draw attention concerns the municipality’s
exclusive powers, which should be interpreted as applying primarily to matters which
may appropriately be regulated intra-municipally, as opposed to intra-provincially.
In Ex Parte President of the RSA: In re Constitutionality of the Liquor Bill 2000 1 SA 732
(CC), Cameron, AJ (as he then was) said the following in this connection:
The Constitution-makers’ allocation of powers to the national and provincial spheres
appears to have proceeded from a functional vision of what was appropriate to each
sphere and, accordingly, the competences itemised in Schedules 4 and 5 are referred
to as being in respect of ‘functional areas’. The ambit of the provinces’ exclusive powers
must, in my view, be determined in the light of that vision. It is significant that s
104(1)(b) confers power on each province to pass legislation ‘for its province’ within a
‘functional area’. It is thus clear from the outset that the Schedule 5 competences must
be interpreted as conferring power on each province to legislate in the exclusive domain
only ‘for its province’. From the powers of s 44(2) it is evident that the national
government is entrusted with overriding powers where necessary to maintain national
security, economic unity and essential national standards; to establish minimum
standards required for the rendering of services; and to prevent unreasonable action by
provinces which is prejudicial to the interests of another province or the country as a
whole. From s 146 it is evident that national legislation within the concurrent terrain of
Schedule 4 that applies uniformly to the country takes precedence over the provincial
powers and circumstances contemplated in s 44(2)…
From this dictum it is evident that, where a matter requires regulation inter-provincially
as opposed to intra-provincially, the Constitution ensures that national government is
accorded the necessary power, either exclusively or concurrently under Schedule 4 or
through the powers of intervention accorded to it by section 44(2). It appears that this
principle must likewise apply to the proposition that has been outlined with regard to
intra-municipal, as opposed to inter-municipal regulation.
Apart from the principles set out in the Liquor Bill case, the Constitutional Court has also
held that where two or more matters in the same Schedule appear to overlap with each
other they should be interpreted in a “bottom-up” manner. A bottom-up method of
interpretation is one in which the more specific matter is defined first and all residual
areas are left for the much broader matter.
When it comes to determining where apparently overlapping functional areas of
respective spheres commence and end, therefore, a court must determine, first, what
powers are vested in municipalities; second, what powers are vested in provincial
governments; and third, what powers are vested in the national government.
In the Gauteng Development Tribunal case, for example, one of the key questions the
Constitutional Court had to answer was whether the power to approve applications for
the rezoning of land and establishment of townships fell into the broad matter of “urban
and rural development”, which is listed in Schedule 4A, or into the specific matter of
“municipal planning”, which is listed in Schedule 4B. In accordance with the bottom-up
method of interpretation, the Constitutional Court began its analysis, not with an
examination of the scope and ambit of the broad matter of “urban and rural
development”, but rather with an examination of the scope and ambit of the specific
matter of “municipal planning”.
Insofar as the scope and ambit of “municipal planning” was concerned, the
Constitutional Court began by explaining that although the term is not defined in the
Constitution it has a particular and well-known meaning, which includes the zoning of
land and the establishment of townships.
In addition, the Constitutional Court explained further that there is nothing in the
Constitution which indicated that the term “municipal planning” should be given a
meaning which is different from its common meaning. The power to approve
applications for the rezoning of land and the establishment of a township did, therefore,
fall into the area of “municipal planning” listed in Schedule 4B.
After coming to this conclusion, the Constitutional Court turned to consider whether the
same powers also fell into the broad matter of “urban and rural development”. The Court
held that they did not. In arriving at this conclusion, the Constitutional Court began by
explaining that the term “urban and rural development” could not be interpreted in a way
that included the power to approve applications for the rezoning of land and the
establishment of townships. This is because, the Constitutional Court explained further,
such an interpretation would infringe the principles of co-operative governance which
provide that each sphere of government must respect the functions of the other spheres
and must not assume any functions or powers not conferred upon them by the
Constitution or encroach on the functional integrity of the other spheres.
An important consequence of this approach, the Court went on to hold, was that the
term “urban and rural development” should be interpreted narrowly so that each sphere
of government could exercise its powers without interference by another sphere of
government.
Having found that the term “urban and rural development” was not broad enough to
include the powers that form a part of “municipal planning”, the Constitutional Court then
concluded, it was not necessary to go any further and define exactly what the scope of
the functional area of “urban and rural development” was.
In the same case, the Constitutional Court also held that not only must the functional
areas listed in Schedule 4 be interpreted as being distinct from the functional areas
listed in Schedule 5, but the functional areas within each Schedule must also be
interpreted as being distinct from one another. “Urban and rural development”,
therefore, must be given a different content from “municipal planning”. In this respect,
the Constitutional Court stated that:
It Is, however, true that the functional areas allocated to the various spheres of
government are not contained in hermetically sealed compartments. But that
notwithstanding, they remain distinct from one another. This is the position, even in
respect of functional areas that share the same wording, like roads, planning, sport and
others. The distinctiveness lies in the level at which a particular power is exercised. For
example, the provinces exercise powers relating to ‘provincial roads’, whereas
municipalities have authority over ‘municipal roads’. The prefix attached to each
functional area identifies the sphere to which it belongs and distinguishes it from the
functional areas allocated to the other spheres. In the example just given, the functional
area of ‘provincial roads’ does not include ‘municipal roads’. In the same vein,
‘provincial planning’ and ‘regional planning and development’ do not include ‘municipal
planning’. The constitutional scheme propels one ineluctably to the conclusion that,
barring functional areas of concurrent competence, each sphere of government is
allocated separate and distinct powers which it alone is entitled to exercise.

Assigned municipal powers

Sections 156(1) and (2) of the Constitution provide that municipal councils have the
authority to pass laws with respect to the matters assigned to them by national or
provincial legislation. These sections must be read together with section 44(1)(a)(iii) of
the Constitution, which provides that the National Assembly may assign any of its
legislative powers, except the power to amend the Constitution, to any legislative body
in another sphere of government. In addition, they must also be read together with
section 104(1)(c) of the Constitution, which provides that a provincial legislature may
assign any of its legislative powers to a municipal council in that province.
The National Assembly's authority to assign any of its legislative powers to the
provincial sphere of government was considered by the Constitutional Court in its
judgment in Premier, Limpopo Province v Speaker of the Limpopo Provincial
Government. One of the issues the Constitutional Court had to decide in this case was
whether the National Assembly could assign a matter that falls outside of Schedules 4
and 5 to the provinces impliedly rather than expressly. The Constitutional Court held
that it could not; instead, it had to assign these matters expressly.
The Constitutional Court based its decision on the following grounds
First, that section 104(1)(b)(iii) of the Constitution states that a provincial legislature has
the authority to pass legislation on any matter outside Schedule 4 and 5 that has been
“expressly” assigned to it by national legislation.
Second, that the word “expressly” should not be interpreted broadly to include the word
“impliedly”. This is because the constitutional scheme shows that the legislative
authority of the provinces must be clearly identifiable and that the word "expressly" must
be given a meaning that is consistent with this scheme.
Third, that the principle of the rule of law provides that when Parliament assigns powers
to the provinces it must do so in a manner that creates certainty about the nature and
extent of the powers assigned. This means that the assignment of legislative powers
must leave no doubt about the act of assignment and the nature and scope of the
powers assigned.
Fourth, that this approach is consistent with Chapter Three of the Constitution, which
provides that
…all spheres of government and all organs of state within each sphere must not
assume any power or function except those conferred on them in terms of the
Constitution.
The public should be left with no doubt about which sphere of government has
legislative competence with regard to the matter concerned. This is to preclude
disputes.
Apart from the grounds set out above, the Constitutional Court also pointed out that the
use of the qualifier “expressly” in section 104(1)(b)(iii) stands in stark contrast to the
absence of such a qualifier in section 156(1), where the Constitution refers to matters
over which municipalities have executive and administrative and, therefore, legislative
authority.

The Constitution makes a deliberate choice in the formulation of section 104(1)(b)(iii).

Instead of merely requiring that powers be ‘assigned’, it qualifies the assignment by
specifying that it must be ‘expressly’ made. The deliberate use of the qualifier
‘expressly’ in section 104(1)(b)(iii), stands in stark contrast to the absence of such
qualifier, in section 156(1), where the Constitution refers to matters over which
municipalities have executive and administrative authority. Section 156(1)(a) provides
that municipalities have executive authority in respect of, and the right to administer,
‘the local government matters listed in Part B of Schedule 4 and Part B of Schedule 5’.
Section 156(1)(b) further confers an executive authority on municipalities to administer
‘any other matter assigned to [them] by national or provincial legislation’.
The Implication is that while the power to pass legislation on a matter that falls outside
Schedules 4 and 5 cannot be assigned by implication to the provincial legislatures, it
can be assigned by implication to the municipal councils.
Finally, it is important to note that when a matter has been assigned to a municipality by
national or provincial legislation, the matter will usually become an exclusive municipal
competence, at least until the national or provincial legislation is repealed. This is
because, unlike the concept of a delegation, the concept of an “assignment”
encompasses the full transfer of the authority to exercise power over the matter in
question. In Executive Council, Western Cape Legislature v President of the RSA, for
example, Kriegler J stated that it is important to distinguish between the concept of an
assignment and the concept of a delegation. A delegation, he stated further, postulates
a less complete transfer of authority than an assignment does.

Incidental municipal powers

Section 156(5) of the Constitution provides that a municipality has the right to exercise
any power concerning a matter that is reasonably necessary for, or incidental to, the
effective performance of its functions. This power is sometimes referred to as the
“incidental power”. “Incidental power” refers to those matters which, strictly speaking,
fall outside the functional areas over which a municipality has authority, but are so
closely connected to the “effective performance of its functions” that they are considered
to be a part of the functional areas over which a municipality has authority. As Steytler
and De Visser point out, what this means is that while section 156(5) does not confer
new functional areas on a municipality, it does confer on a municipality the power to
adopt measures that will enhance the effective administration of its existing functional
areas. This could, for example, include the power to create offences and impose
penalties for transgressing a bylaw, or, perhaps, the power to impose an environmental
authorisation procedure.
The incidental power was applied in Mazibuko v City of Johannesburg. The facts of this
case were as follows: prior to 2004 the residents of Phiri in Soweto were charged a flat
rate of R68,40 per month for using water supplied to them by the City. This amount was
based on a deemed monthly consumption of 20 kilolitres of water per household. The
actual monthly consumption per household, however, was much higher, although it was
not possible to tell how much of the excess was consumed by residents or lost through
leakage. Despite the fact that they were charged only R68,40 per month, most of the
residents of Phiri did not actually pay this amount.
In order to reduce the amount of water lost through leakage and to increase the rate of
payment, the City decided to abandon the system of deemed consumption flat rate
charges and replace it with a free basic supply of six kilolitres per household per month
and a pre-paid meter system. The applicants, who were residents of Phiri, then applied
for an order declaring the City’s decision to be unconstitutional and invalid. They based
their application on a number of grounds. One of these was that the decision to install
pre-paid meters was not authorised by the law.
In response the City argued that the installation of the pre-paid meters was authorised
by section 3 of the City’s Water Services By-laws, which provided for three different
levels of water service, namely Service Level 1, Service Level 2 and Service Level 3,
which was the level of service provided to the residents of Phiri. Insofar as this level was
concerned, section 3(2)© of the By-law expressly stated that it had to consist of: (a) a
metered full pressure water connection to each stand; and (b) a conventional water
borne drainage installation connected to the Council’s sewer.
Although section 3(2)© of the By-law did not expressly refer to pre-paid meters, the City
argued further, the phrase “a metered full pressure water connection” had to be
interpreted to include both credit meters and prepaid meters, and that the installation of
pre-paid meters was therefore authorised by the By-law. The Constitutional Court
accepted the City’s argument. In addition, it also held that section 95(i) of the Local
Government: Municipal Systems Act (“Municipal Systems Act”), which expressly
requires local government to provide accessible pay points for settling accounts or for
making pre-payments for services, conferred the authority on the City to install pre-paid
meters.
Apart from these two arguments, however, the Constitutional Court also held that the
power to install pre-paid meters was reasonably incidental to the effective performance
of the functions of a municipality. This was because, the Court held further, the power to
install pre-paid meters was one which was reasonably incidental to providing services to
citizens in a sustainable manner that permitted cost recovery. Given that the power to
install pre-paid meters was reasonably incidental to the effect performance of its
functions, the Court held further, section 3(2)© of the By-laws should be interpreted in a
manner that conferred this power on the City.
Although the issue in this case was not whether the municipal council had the power to
pass a law dealing with pre-paid meters, but rather whether the municipal council had in
fact passed such a law, the judgment can be interpreted as saying that while the
subject-matter of pre-paid water meters does not fall into any of the functional areas set
out in Part B of Schedule 4 and 5, and especially not into the functional area of “water
and sanitation services” listed in Part B of Schedule 4, a municipal council can still pass
a law on pre-paid water meters because they are so closely connected to “water and
sanitation services” that they are considered to be a part of that functional area.
Le Sueur v eThekwini Municipality
The facts
The facts of this case were as follows. In 2010, the eThekwini Municipal Council
adopted a resolution amending its town planning scheme to introduce the Durban Open
Space System (“D-MOSS”). This system is aimed at protecting areas that have a high
biodiversity value in Durban by creating a system of open spaces that are
interconnected. In order to achieve this goal, the system provides that land which falls
within a D-MOSS area may not be developed without first obtaining an environmental
authorization in terms of the municipality’s town planning schemes, and even then it
may be developed only subject to strict controls aimed at protecting the ecological
goods and services the land provides.
After the municipal council adopted this resolution, the applicant, who owned land
located in the eThekwini Municipality and whose land fell into a D-MOSS area, applied
for an order declaring the resolution to be unconstitutional and invalid. He based his
application, inter alia, on the grounds that the subject matter of the resolution was the
“protection of the environment”; that the “environment” is listed in Schedule 4A of the
Constitution as a functional area of national and provincial legislative competence; and,
consequently, that the resolution fell outside the legislative authority of the municipal
council and was therefore unconstitutional and invalid.

The judgment
The High Court (per Gyanda J) rejected the applicant’s argument. In arriving at this
decision, the High Court began by observing that the functional area of “municipal
planning”, which is set out in Schedule 4B, must be interpreted in the light of section 24
of the Constitution, which provides that “[e]veryone has a right to an environment that is
not harmful to their health or well-being”, and section 152(1)(d), which provides that one
of the objectives of local government is to “promote a safe and healthy environment”.
These sections clearly indicate that the functional area of “municipal planning” includes
responsibility over environmental affairs.
In addition, the High Court observed, the functional area of the “environment” is not
contained in a hermetically sealed compartment. Instead, it is an area over which all
three spheres of government enjoy overlapping authority. This is because municipalities
are in the best position to know, understand and deal with issues involving the
environment at a local level, and also because municipalities have historically always
exercised legislative responsibility over environmental affairs as a part of municipal
planning. Given that authority over the functional area of the “environment” had to
reside in all three spheres, it could not be inserted in Part B of Schedules 4 and 5.
Instead, it had to be inserted in Part A of Schedule 4.
Apart from finding that “municipal planning” includes responsibility over environmental
affairs, the High Court also held that it is clear that legislative and executive authority
over environmental matters as a part of municipal planning has been assigned to
municipalities by national and provincial legislation. In this respect the High Court
started by pointing out that section 23(1)© of the Municipal Systems Act, which deals
with integrated development planning at a municipal level, recognises that there is an
obligation on municipalities together with other organs of state to contribute to the
progressive realisation of the fundamental rights contained in section 24 of the
Constitution, and that this was clearly a legislative mandate from the national legislature
with regard to environmental matters.
In addition, the High Court pointed out further, sections 25 and 26 of the Municipal
Systems Act provide that not only must every municipality adopt an integrated
development plan (“IDP”), but also that every IDP must include a spatial development
framework and – in terms of the regulations issued under the Municipal Systems Act –
that every spatial development framework must “contain a strategic assessment of the
environmental impact of the spatial development framework”.
Besides the Municipal Systems Act, the High Court went on to point out, section 2 of the
National Environmental Management Act (“NEMA”) contains a set of national
environmental management principles that apply to the actions of all organs of state,
including municipalities, that may significantly affect the environment, and section 33 of
the same Act allows a person to institute a private prosecution in those cases in which
the accused has infringed a municipal by-law and the by-law is “concerned with the
protection of the environment”. Section 33 of NEMA thus envisages the enactment of
municipal by-laws that deal with the protection of the environment.
In addition, section 48 of the National Environmental Management: Biodiversity Act
provides, inter alia, that municipalities must not only align their IDPs with the national
biodiversity framework and any applicable bioregional plan, but must also incorporate
the provisions of the national biodiversity framework or bioregional plan that specifically
apply to them in their IDPs, and demonstrate in the IDP how the national biodiversity
framework and any applicable bioregional plan may be implemented in their areas of
jurisdiction.
After setting out these principles, the High Court turned to apply them to the facts. In
this respect it found that municipalities are authorised to legislate in respect of
environmental matters to protect the environment at the local level and, consequently,
that the resolution amending the town planning scheme to introduce the D-MOSS did
not fall outside the legislative competence of the eThekwini Municipality:
It is clear from the foregoing and the arguments advanced by the first respondent that
contrary to the submissions by and on behalf of the applicants, municipalities have
traditionally been involved in regulating environmental matters at the local level and that
their functions at this level have been recognised by the drafters of the Constitution.
Hence, although environmental matters stood as the apparently exclusive area for
national and provincial governance at those levels, it is clear that the authority of the
municipalities at local government level to manage the environment at that level has
always been and is still recognised. It is inconceivable that the drafters of the
Constitution intended by the manner in which the Constitution was framed to exclude
municipalities altogether from legislating in respect of environmental matters at the local
level. In any event, it is clear that national and provincial legislation in respect of
environmental issues recognises the part to be played by municipalities at the local
government level in managing and controlling the environment.
Accordingly, I am satisfied that Municipalities are in fact authorised to legislate in
respect of environmental matters to protect the environment at the local level and that
the D-MOSS Amendments in no way transgress or intrude upon the exclusive purview
of the national and provincial governance in respect of environmental legislation. I am,
therefore, satisfied that the D-MOSS Amendments introduced by the first respondent
are not unconstitutional and invalid on the basis contended for by the applicants,
namely, that the first respondent did not have the authority to legislate in this regard.

Critical comment
Out of the three categories of legislative powers that municipal councils may enjoy, the
High Court based its decision on the first two, namely the original legislative powers and
the assigned legislative powers. For this reason, it is not necessary to say anything
more about the third category of legislative power.
Insofar as the first and second categories are concerned, the High Court relied primarily
on the first category when it held that the functional area of “municipal planning”
encompasses “environmental matters”, and only as an alternative on the second
ground, when it held that legislative and executive authority over environmental matters
as a part of municipal planning has been assigned by national and provincial legislation
to municipalities.
Given that the Constitution allows Parliament to assign matters to the municipal councils
much more easily than it allows Parliament to assign matters to the provincial
legislatures, the judgment appears to be correct in holding that national and provincial
legislation has implicitly assigned legislative authority over environment matters as a
part of municipal planning to municipalities.

When it comes to the first category, however, it is not clear whether the functional area
of “municipal planning” can simply be interpreted to encompass “environmental matters
at the local level” or at least not “environmental matters at the local level” in the broad
sense the use of this phrase by the High Court suggests. In this respect the following
points can be made:
First, that including “environmental matters at the local level” in the functional area of
“municipal planning” potentially upsets the division of subject-matters envisaged by the
drafters of the Constitution. An examination of Schedules 4 and 5 indicates that while
the drafters allocated certain environmental matters to the local sphere of government,
such as air pollution, domestic waste water disposal, noise pollution and refuse
removal, they reserved all other environmental matters, for example the protection of
biodiversity, for the national and provincial spheres. Given these points, it may be
argued that the protection of biodiversity falls outside the original legislative competence
of the local sphere of government.
Second, that including “environmental matters at the local level” in the functional area of
“municipal planning” means that there will be an overlap between the functional area of
“municipal planning” in Part B of Schedule 4 and the functional area of “environment” in
Part A of Schedule B. In the Gauteng Development Tribunal case, however, the
Constitutional Court held that even though they are not contained in hermetically sealed
containers, the functional areas are distinct from one another and one functional area
should not include another.
Insofar as this point is concerned, it should also be noted that while there may be an
overlap between the functional area of “environment” and the functional area of
“municipal planning”, this does not give a municipal council the power to legislate in the
overlap. In other words, this does not give a municipal council the power to pass
legislation that deals predominantly with the “environment” rather than with “municipal
planning”. In the case at hand it is difficult to know whether the Resolution introducing
the D-MOSS system deals predominantly with the “environment” or with “municipal
planning”. As pointed out above, this is because the High Court did not clearly identify
the subject-matter of the Resolution.
Third, that including “environmental matters at the local level” in the functional area of
“municipal planning” could have unintended practical consequences. This is because in
the Gauteng Development Tribunal case the Constitutional Court also held that while
the national and provincial governments have the power to pass legislation with respect
to the matters listed in Part B of Schedules 4 and 5, they do not have the power to
implement that legislation. The power to implement national and provincial legislation
dealing with the matters listed in Part B of Schedules 4 and 5 vests exclusively in local
government.

While the functional area of “municipal planning” cannot simply encompass the broad
subject-matter of “environment matters at the local level” for the reasons set out above,
this does not mean that the functional area of “municipal planning” does not include
certain specific environmental matters at the local level. Unfortunately, it is difficult to
know which sorts of specific environmental matters at the local level should be included
in the functional area of “municipal planning”. This is because the High Court found that
the substance of the resolution amending the town planning scheme to introduce the D-
MOSS was simply the “environment”, without first examining the resolution in the light of
the factors that have been identified by the Constitutional Court on several occasions.
In the DVB Behuising case, for example, the Constitutional Court held that when it
comes to determining whether or not legislation falls into a particular legislature’s field of
competence, a court first has to determine “the subject-matter or the substance of the
legislation, its essence, or true purpose and effect, that is what the [legislation] is about”.
In other words, the court has to look beyond the legislation’s character or form and
identify its true purpose and effect.
The reason a court must look beyond the legislation’s character or form and identify its
true purpose and effect, the Constitutional Court held further, is because the purpose
and effect may show that although the legislation purports to deal with a matter that falls
within a legislature’s field of competence, its true purpose and effect may be to achieve
a different goal, one which falls outside the legislatures field of competence.
In addition, the Constitutional Court also held that, when a court seeks to determine the
subject-matter or substance of the legislation in question, it should take the preamble to
the legislation and its legislative history into account. This is because they serve to
illuminate the legislation’s substance. “They place [the legislation] in context, provide an
explanation for its provisions and articulate the policy behind them.”
In the same judgment, the Constitutional Court went on to warn that it may not be
possible to subject a particular piece of legislation to a uniform analysis directed at
yielding a single characterisation of what its purpose might be. A single statute might
have more than one purpose. Different parts of that statute may thus require different
assessments in regard to the disputed question of legislative competence.
If the High Court had followed the procedure set out above more closely, we would
undoubtedly have a much better sense of whether or not the specific environmental
matters dealt with by the D-MOSS Amendments fell into the functional area of
“municipal planning” and, consequently, of the sorts of specific environmental matters at
the local level that may or may not be included in “municipal planning”.

Conclusion
While the judgment in Le Sueur v eThekwini Municipality has correctly confirmed that
municipal councils have the original authority to pass legislation dealing with
environmental matters as a part of their power to pass legislation dealing with municipal
planning, it has not set out the scope and ambit of this power as clearly as it could have.
Given, however, that similar schemes will in all likelihood be implemented in other
municipalities in the future, it seems inevitable that the issues raised in Le Sueur will be
the subject of further litigation. This will contribute to the development of our nascent
jurisprudence in this complex area of the law.
2.2FUNCTIONAL AREAS OF CONCURRENT NATIONAL AND PROVINCIAL
LEGISLATIVE COMPETENCE PART B
The following local government matters to the extent set out in section 155(6)(a) and
(7):
Air pollution
Building regulations
Child care facilities
Electricity and gas reticulation.
Fire-fighting services
Local tourism Municipal
Municipaliyt airports
Municipality planning
Municipality health and services
Municipality of public transport
Municipal public works only in respect of the needs of municipalities in the discharge of
their responsibilities to administer functions specifically assigned to them under this
Constitution or any other law.
Pontoons, ferries, jetties, piers and harbours, excluding the regulation of international
and national shipping and matters related thereto Stormwater management systems in
built-up areas

FUNCTIONAL AREAS OF EXCLUSIVE PROVINCIAL LEGISLATIVE COMPETENCE

PART B
The following local government matters to the extent set out for provinces in section
155(6)(a) and (7):
Beaches and amusement facilities
Billboards and the display of advertisements in public places Cemeteries, funeral
parlours and crematoria
Cleansing
Control of public nuisances
Control of undertakings that sell liquor to the public.
Facilities for the accommodation, care and burial of animals
Fencing and fences.
Licensing of dogs Licensing and control of undertakings that sell food to the public
Local amenities
Local sport facilities
Markets
Municipal abattoirs.
Municipal parks and recreation
Municipal roads Noise pollution
Pounds
Public places
Refuse removal, refuse dumps and solid waste disposal
Street trading.
Street lighting.
Traffic and parking

Reference
Freedman DW “Constitutional Law: Structures of Government” in Joubert WA (ed)
LAWSA Vol 5 Part 32nd ed (LexisNexis Durban 2012) 1-348
Local Government Law: only study guide for LGL3702 University of South Africa,
Pretoria (2019)