Provincial and Local Government Legislation

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Provincial and Local Government Legislation
Lydia Craemer Moodie Robertson July 2004
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Purpose of the Presentation

• To illustrate where National, Provincial and
  Local Government overlap with each other
• To give an overview of the activities of
  Provincial and Local Government as distinct
  entities.

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How the Three Tiers of Government Interact
National Government
Provincial Government
Local Government
The National Council of Provinces aims to
represent the interests of provinces in the
National sphere of government. It is the second
arm of Parliament alongside the National
Assembly.
Local Government also has representation in the
National Council of Provinces.
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Constitutional Framework of Provincial Government

• 1996 Constitution, Chapter 6, sections 104 and
  125, Schedule 4 and Schedule 5 determine
• The powers and functions of the Provinces
• How the Provinces are run
• The independent powers of Provinces include
• ambulance services,
• liquor licenses
• provincial planning,
• cultural and recreational activities
• provincial roads
• and others

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Relationship between National and Provincial
Government

• Delegation of certain National Acts to Provinces
• Provinces may exercise legislative and executive
  powers concurrently with National Government.
• Provinces have the administrative means to carry
  out these powers.

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Sources of Legislation delegated to the Provinces

• Printed/Electronic
• Burmans Assignment of laws to the Provinces
  done for each of the nine provinces. Also
  includes ordinances for each province, if the
  delegation of ordinances decided upon by National
  Government.
• Jutastat Statutes of the Republic of South Africa
  has a useful table of assigned legislation for
  each Province

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Provincial Legislation and Regulations

• Provinces are allowed to initiate or prepare
  proposed legislation in the form of Bills, and
  pass, amend or reject proposed legislation.
• Bills, Acts and regulations are published in the
  Provincial Gazette of each Province

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Process of Provincial Legislation
Bills, Acts and regulations are published in the
Provincial Gazette
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Sources of Provincial Legislation

• Freely Accessible to the Public
• Provincial Gazettes
• Websites developed by the Provinces can contain a
  section on legislation, but are not necessarily
  inclusive of all legislation passed, or current
  legislation.

• Subscription Resources Printed / Electronic
• Current law LexisNexis Butterworths
• Current Provincial Legislation Burmans Legal
  Reference Service
• Jutastat Provincial Legislation Library Juta
  Law
• Jutastat Statutes (Table of Provincial Laws /Acts
  Index to Provincial Regulations) Juta Law
• Regional Legislation Service - Acts, Regulations
  LexisNexis Butterworths
• SA Gazettes Sabinet Online

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Local Government Legislation passed at National
Level (pre-1994)

• Local Government Transition Act 209/1993
• Promulgated to pave the way for local government
  legislation that has been passed since 1998, and
  for legislation that is still to come.
• Revoked by Schedule 6 of the Constitution it
  was due to fall away after the first Municipal
  elections which were held in December 2000.
• The Systems Act and Structures Act have to a
  large extent replaced the content of the Local
  Government Transition Act.
• Section 10G which regulates municipal finance is
  the only section still in force, its life
  having been extended by section 11 ( c) of the
  Local Government Municipal Structures Amendment
  Act 33/2000. It will remain in effect until 1
  July 2005 when section 179 of the Local
  Government Municipal Finance Management Act
  comes into force.

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Local Government Legislation passed at National
Level (1994-)

• Important Acts that determine the extent, powers
  and functions of Local Government
• Local Government Municipal Demarcation Act
  27/1998
• Local Government Municipal Structures Act
  117/1998
• Cross Boundary Municipalities Act 29/2000
• Local Government Municipal Systems Act 32/2000
• Local Government Laws Amendment Act 51/2002
• Local Government Municipal Finance Management
  Act 56/2003
• Local Government Municipal Property Rates Act
  6/2004

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Sources of Local Government Legislation Passed at
National Level

• Publicly accessible sources
• Martin Creamers Polity.org website these Acts
  are included with all the national legislation
• Government Information Services website
• Some Acts can be found on the Department of
  Provincial and Local Government website, but the
  website is not that current

• Subscription Resources Printed/Electronic
• Government gazettes containing Acts
• Statutes of the Republic of South Africa - Juta
  Law, Jutastat, LexisNexis Butterworths
• SA Gazettes -Sabinet Online
• Selected Legislation - Lex Patria

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Relationship Between Provincial and Local
Government in General

• Local Government is now considered an independent
  sphere of Government. Municipalities enjoy an
  independent status as vehicles for delivery of
  services, which previously was not the case

A member of the Executive Council of a Province
may assign any power or function stemming from
National or Provincial legislation to a municipal
council
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Constitutional Framework of Local Government

• 1996 Constitution, Chapter 7, sections 152 and
  156, Schedules 4B and 5B determine
• Powers and functions of Local Government
• Confers executive authority and the right of
  administration on a municipality, with regard to
  matters listed in part B of Schedules 4 and 5
• Section 156 confers executive authority and the
  right of administration on a municipality, with
  regard to matters listed in Schedule 4, part B
• building regulations
• electricity and gas reticulation
• water and sanitation services
• and others

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Municipal legislation Ordinances

• Prior to 1994, Provinces passed Ordinances to
  assign powers and functions to municipalities and
  were originally published in the Provincial
  gazettes
• Ordinances were, and still are, enforced by
  Municipal Councils. Some of the Ordinances are
  gradually being phased out by the implementation
  of the Local Government Acts above, but most are
  still applicable.
• Provincial legislation may also repeal parts of
  ordinances/whole ordinances. It is a question of
  reading the new legislation closely to see to
  what extent ordinances are being repealed.

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Municipal legislation By-laws

• By-laws are legislation passed by individual
  municipal councils.
• These pertain to the matters listed in Schedule
  4, Part B of the Constitution.
• Municipal by-laws must be published in the
  Provincial gazettes for comment and in their
  finalised form, upon the request of the
  municipality concerned.
• They must also be accessible to the public, so
  one can obtain them from a municipal council on
  request.
• Currently, new by-laws are being made by the
  Metropolitan Municipalities, and sometimes can be
  found on their websites

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Sources of Local Government Legislation

• Publicly accessible sources
• Provincial gazettes for by-laws unless one
  personally indexes the gazettes, this information
  is difficult to track down because of the lack of
  useful indexing in the gazettes themselves, and
  because cumulative indexes have not been
  published since circa 1999 !!
• Some Metropolitan Municipalities may have
  municipal legislation on their websites. For
  example, the City of Johannesburg and the City of
  Cape Town have their final and some of their
  draft by-laws available on their websites for
  public scrutiny

• Subscription Resources Printed / Electronic
• Current Provincial Legislation Burmans Legal
  Reference Service
• Local Government Law Digest D. L. Craythorne
  (Juta Law)
• Regional Legislation Service - Ordinances
  LexisNexis Butterworths
• SA Gazettes Sabinet Online
• Local Government Law Bulletin Community Law
  Centre, University of the Western Cape (available
  both in print and on the UWC website)

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Useful Website Addresses
SA Government Internet Sites http//www.polity.
org.za/html/lits/govtsites/html   Department of
Provincial and Local Government
http//www.dplg.gov.za/   GOVZA Local
Government websites http//www.gov.za/structure
/loclinks.htm   SA Cities Network
http//www.sacities.net/   Municipal
Demarcation Board http//www.demarcation.org.za
/   Local Government Law Bulletin
http//www.uwc.ac.za/academic/default.htm
(Look for Community Law Centre Link and follow
links from there)
Lydia Craemer, Moodie Robertson
library2_at_moodierobertson.co.za