Constitution of the Republic of South Africa, 1993/1996-04-24/Chapter 10

by ratified by the Multiparty Negotiating Forum and adopted and amended by the Parliament of South Africa

Chapter 10

Local Government

Establishment and status of local government

174. (1) Local government shall be established for the residents of areas demarcated by law of a competent authority.

(2) A law referred to in subsection (1) may make provision for categories of metropolitan, urban and rural local governments with differentiated powers, functions and structures according to considerations of demography, economy, physical and environmental conditions and other factors which justify or necessitate such categories.

(3) A local government shall be autonomous and, within the limits prescribed by or under law, shall be entitled to regulate its affairs.

(4) Parliament or a provincial legislature shall not encroach on the powers, functions and structure of a local government to such an extent as to compromise the fundamental status, purpose and character of local government.

(5) Proposed legislation which materially affects the status, powers or functions of local governments or the boundaries of their jurisdictional areas, shall not be introduced in Parliament or a provincial legislature unless it has been published for comment in the Gazette or the Provincial Gazette, as the case may be, and local governments and interested persons, including organised local government, have been given a reasonable opportunity to make written representations in regard thereto.

Powers and functions of local government

175. (1) The powers, functions and structures of local government shall be determined by law of a competent authority.

(2) A local government shall be assigned such powers and functions as may be necessary to provide services for the maintenance and promotion of the well-being of all persons within its area of jurisdiction.

(3) A local government shall, to the extent determined in any applicable law, make provision for access by all persons residing within its area of jurisdiction to water, sanitation, transportation facilities, electricity, primary health services, education, housing and security within a safe and healthy environment, provided that such services and amenities can be rendered in a sustainable manner and are financially and physically practicable.

(4) A local government shall have the power to make by-laws not inconsistent with this Constitution or an Act of Parliament or an applicable provincial law.

(5) A local government shall have such executive powers as to allow it to function effectively.

(6) A local government may, in its discretion, by means of a resolution of its council provide for the assignment of specified functions to local bodies or submunicipal entities within its area of jurisdiction as prescribed and regulated by or under law where, in the opinion of the council, such assignment of functions will facilitate or enhance the provision or administration of services, the adherence to municipal bylaws or, more generally, good governance in the public interest: Provided that such assignment of functions—

(a)

shall not be inconsistent with an Act of Parliament or an applicable provincial law; and

(b)

shall not diminish the accountability of such local government.

Council resolutions

176. Matters before the council of a local government pertaining to—

(a)

the budget of the local government, shall be decided by a resolution of the council adopted by a majority of at least two-thirds of all its members; and

(b)

town planning, shall be decided by a resolution of the council adopted by at least a majority of all its members: Provided that a council may delegate the power to make decisions on matters pertaining to town planning to the executive committee or to a committee appointed for this purpose or to a person in its employ: Provided further that section 177 shall apply mutatis mutandis to the appointment and functioning of a committee appointed for this purpose.

[Para. (b) amended by s. 6 of Act No. 44 of 1995.]

Executive committees

177. A council of a local government may elect an executive committee according to a system of proportional representation as may be prescribed by a law from among its members to exercise such powers and perform such functions as may be determined by such council: Provided that—

(a)

the council shall determine the number of members of and the quorum for the executive committee;

(b)

the executive committee shall endeavour to exercise its powers and perform its functions on the basis of consensus among its members; and

(c)

if consensus on any matter cannot be achieved, such matter may be decided by the committee by resolution of a majority of at least two-thirds of all its members, or the committee may, if a majority of the committee so decides, submit a report and recommendation (if any) on the matter to the council for a decision.

[S. 177 amended by s. 1 of Act No. 7 of 1996.]

Administration and finance

178. (1) A local government shall ensure that its administration is based on sound principles of public administration, good government and public accountability so as to render efficient services to the persons within its area of jurisdiction and effective administration of its affairs.

(2) A local government shall, subject to such conditions as may be prescribed by law of a competent legislature after taking into consideration any recommendations of the Financial and Fiscal Commission, be competent to levy and recover such property rates, levies, fees, taxes and tariffs as may be necessary to exercise its powers and perform its functions: Provided that within each local government such rates, levies, fees, taxes and tariffs shall be based on a uniform structure for its area of jurisdiction.

(3) A local government shall be entitled to an equitable allocation by the provincial government of funds, and the Financial and Fiscal Commission shall make recommendations regarding criteria for such allocations, taking into account the different categories of local government referred to in section 174(2).

Elections

179. (1) A local government shall be elected democratically, and such election shall take place in terms of an applicable law and at intervals of not less than three and not more than five years.

[Sub-s. (1) amended by s. 7(a) of Act No. 44 of 1995.]

(2) The electoral system for a local government shall include both proportional and ward representation and shall be regulated by a law referred to in subsection (1).

(3) Subject to section 6, every natural person shall be entitled to vote in an election of a local government if he or she—

(a)

is ordinarily resident within the area of jurisdiction of that local government or is under law liable for the payment of property rates, rent, service charges or levies to that local government; and

(b)

is registered as a voter on the voters’ role of that local government.

(4) A voter shall not have more than one vote per local government.

(5) No person shall be qualified to become or remain a member of a local government if he or she—

(a)

is not eligible to vote in terms of subsection (3);

(b)

is a member of the National Assembly or the Senate;

(c)

is disqualified from becoming a member of the National Assembly in terms of section 42(1)(a), (b), (c) or (d).

[Para. (c) substituted by s. 7(b) of Act No. 44 of 1995.]

(d)

is an employee of a local government (unless, with due regard to the public interest, exemption of this disqualification is given by the Executive Council of the province in which the local government is situated and proof of such exemption accompanies the nomination of such person); or

(e)

is disqualified in terms of any other law.

Code of conduct

180. An enforceable code of conduct for members and officials of local governments shall be provided for by law.