Constitutional court of south africa

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Does the Constitution allocate the same powers to the provincial sphere?

  1. The question that arises is whether the same powers are also part of “urban and rural development” under Part A of Schedule 4, as contended for by the respondents. construe any of the functional areas allocated to provinces as encompassing the contested powers will not only be inconsistent with the constitutional scheme as revealed in the schedules, but also with sections 41,41 15142 and 15543 of the Constitution. Section 41(1)(e)-(g) establishes the principles of co-operative government and intergovernmental relations. As mentioned above, it specifically requires the spheres of government to respect the functions of other spheres, not to assume any functions or powers not conferred on them by the Constitution and not to encroach upon the functional integrity of other spheres. This is amplified by section 151(4) which precludes the other spheres from impeding or compromising a municipality’s ability or right to exercise its powers or perform its functions.

  1. The legislative authority in respect of matters listed in Part B of Schedule 4 vests in the national and provincial spheres concurrently, while the legislative authority over matters listed in Part B of Schedule 5 vests in the provincial sphere exclusively . But the national and provincial spheres cannot, by legislation, give themselves the power to exercise executive municipal powers or the right to administer municipal affairs. 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.

  1. The respondents argued that provincial development tribunals cannot be taken to be impeding or compromising municipalities when they exercise the contested powers simply because they would be exercising powers falling within the functional area of “urban and rural development”. This functional area is conferred on both the national and provincial spheres. It was then submitted that there can be no breach of section 151(4) when the provinces exercise powers rightly allocated to them by the Constitution. This submission is based on the assumption that the term “urban and rural development” ought to be given its ordinary, wide meaning.

  1. I have already defined the context in which all functional areas must be construed. The wide import of “urban and rural development” stands at odds with the approach outlined above. It is the duty of this Court, and indeed the other courts as well, to construe the sections of the Constitution in a manner that strikes harmony between them and gives effect to each and every section. In United Democratic Movement v President of the Republic of South Africa and Others (No 2),44 this Court stated:

A court must endeavour to give effect to all the provisions of the Constitution. It would be extraordinary to conclude that a provision of the Constitution cannot be enforced because of an irreconcilable tension with another provision. When there is tension, the courts must do their best to harmonise the relevant provisions, and give effect to all of them.”

  1. The purposive construction of the schedules requires, in the present context, that a restrictive meaning be ascribed to “development” so as to enable each sphere to exercise its powers without interference by the other spheres. This restrictive approach coheres with the functional scheme of the chedules which vests specific powers in municipalities.

  2. For present purposes it is not necessary, in my view, to define exactly the scope of the functional area of “urban and rural development”. It is sufficient to say simply that it is not broad enough to include powers forming part of “municipal planning”. It follows that the expansive interpretation contended for by the respondents must be rejected.

  3. The amici argued that since the national and provincial spheres have legislative power to regulate the exercise by municipalities of their executive powers, the provinces have executive powers in relation to municipal matters. For this proposition reliance was placed on the First Certification45 judgment where this Court said:

To the extent that provincial legislative powers may have been diminished or at least circumscribed in the manner described above, it follows that there would be a concomitant diminution or circumscription of provincial executive powers in relation to [ local government]. In terms of [section] 144(2) [of the interim Constitution], a province has executive authority over all matters in respect of which such province has exercised its legislative competence. Thus, to the extent that provinces currently enjoy broad and undefined legislative powers under . . . chap 10 [of the interim Constitution], they are vested with broad and undefined executive powers. In the [1996 Constitution], the legislative and executive frameworks also coincide. [Sections] 154(1) and 155 [of the 1996 Constitution] indicate that where national or provincial legislative powers can be exercised in relation to [local government], executive powers follow. Thus, to the extent that provincial legislative powers have been diminished or increased in respect of [local government], there would be a corresponding diminution or increase in respect of executive powers.”

  1. The dictum quoted above does not support the proposition contended for, and the meaning sought to be ascribed to the passage is incorrect. The principle that can be distilled from the dictum is that where there is a diminution of provincial legislative powers in relation to local government, there would be a corresponding diminution of executive powers too. This does not mean that the provinces have the power to exercise the executive powers of municipalities outside the purview of section 139 of the Constitution.46

  1. Section 139 empowers the provinces to intervene where a municipality cannot or does not fulfil an executive obligation in terms of the Constitution. If it intervenes, the provincial government may take appropriate steps to ensure that the obligation in question is fulfilled. The steps taken may include the provincial government itself assuming the responsibility for the obligation or even dissolving a municipal council and replacing it with an administrator. The intervention is, however, subject to various conditions tabulated in the section.

  1. It was also argued that the other spheres of government have concurrent authority to exercise powers similar to those of municipalities. The amici submitted that in Wary Holdings47 this Court recognised concurrency of powers between the national and local governments. In that case Kroon AJ, writing for the majority, said:

I am not persuaded, however, that the enhanced status of municipalities and the fact that they have such powers is a ground for ascribing to the legislature the intention that national control over ‘agricultural land’ through the Agricultural Land Act, effectively be a thing of the past. There is no reason why the two spheres of control cannot co-exist even if they overlap and even if, in respect of the approval of subdivision of ‘agricultural land’, the one may in effect veto the decision of the other .” (Footnote omitted.)

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