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By granting municipalities much more power and responsibilities than was the case before 1994 with the former “local authorities”, the Constitution has done much to bring local government closer to the people of South Africa.
This document with its 14 chapters addressing various aspects of governance and society is agruably the most important legal document in our democracy. the constitution, in section 2, declares itself to be the “supreme law” of the republic of south africa. law or conduct which is inconsistent with the constitution is further deemed to be invalid.
So what does the supreme law of the Republic have to say about local government?
Firstly, the Constitution recognises three spheres of government, the national, provincial and local government.
Chapter 3 of the Constitution presents the principles of co-operative government. The three spheres of government may not compete. Instead they must co-operate. While the Constitution describes the three levels as “distinctive”, they are nevertheless also dependent on each other.
In section 151(1), the Constitution provides for the establishment of municipalities throughout the “territory of the Republic.” A municipality is granted autonomy. However, it must govern its local government affairs subject to the Constitution and national and provincial legislation (s 151(3)).
The objects of local government (s 152) include providing accountable government and delivering services to the communities in a sustainable manner. Local government must also promote economic development and a safe and healthy environment. Importantly, a local government must also encourage the local community to be involved in local government affairs.
The municipality also has a duty to develop the local economy and to give priority to the basic needs of the community (s 153). The Constitution also deals with the powers and functions of municipalities (s 156) and the publication of municipal by-laws (s 162).
By-laws may, for example, not be enforced unless they have been published in the official provincial gazette (s 162(1)). Furthermore, municipal by-laws must be accessible to the public (s 162(3)).