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Browsing by Author "de Visser, Jaap"

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ANC proposals on local government
(Community Law Centre, University of the Western Cape, 2012) de Visser, Jaap; Chigwata, Tinashe
In the run up to the ANC Policy Conference in Mangaung, the party's Legislature and Governance Working Group has produced a policy discussion document that pays considerable attention to provincial and local government.
Are ward committees working? Insights from six case studies
(Community Law Centre, University of the Western Cape, 2009) Smith, Terence; de Visser, Jaap
The research presented in this book sets out to offer a deeper and more nuanced understanding of the functioning and value of ward committees. In-depth qualitative studies of six ward committees are described. They provide insights into how ward committees are functioning and the key reasons behind the dysfunctionality that appears to plague the majority of ward committees. They also provide lessons for the future to strengthen the role of ward committees. It is envisaged that this resource book will be useful for local government councillors and practitioners, ward committee members, policy makers and ordinary citizens interested in the structures of participatory local governance.
Book Review: Improving local government
(Commonwealth Journal of Local Governance, 2009) de Visser, Jaap
Academic literature that engages in a comparison of local government systems, policies and practices and their impact on democracy and development is hard to come by. Yet, these comparisons are critical as they shed light on challenges, failures and best practices in local government across jurisdictions. They also reveal an often-surprising similarity in challenges and choices experienced by countries that engage in decentralisation and are therefore critical resources for policy entrepreneurs and policy makers. This book is thus a very welcome addition to this small pool of academic publications that pursue such comparisons.
Bridging the gap between theory and practice: Reviewing the functions and powers of local government in South Africa
(Commonwealth Journal of Local Governance, 2009) Christmas, Annette; de Visser, Jaap
The purpose of this practice note to evaluate the current allocation of functions and powers in the Constitution, and furthermore to propose a set of criteria to guide decisions on where powers and functions are best situated. For local government in particular, the review process provides an opportunity to reflect on the experience of the new local government dispensation just eight years after it was first established. Importantly, this evaluation probes the extent to which the functions and powers delineated for local government have enabled it to meet its developmental mandate.
Career patterns of local politicians: The case of metropolitan mayors
(Community Law Centre, University of the Western Cape, 2006) de Visser, Jaap
Local government is emerging as a strong third sphere of government. Within local government, metropolitan cities are coming out as powerful institutions. Meanwhile, the discussion on the role of provincial governments is raging. Instead of looking at constitutional or managerial aspects of local and provincial governments, this article looks at the impact of the emergence of local government on the career patterns of politicians. How have political parties reacted to this new sphere of government in terms of their politicians’ career management? What does this say about the role, function and importance of the three levels of government in South Africa? An overview of the history of metropolitan mayors and their profiles, albeit very limited in timespan and scope, reveals some interesting career patterns
Chewing more than one can swallow: the creation of new districts in Uganda
(University of the Western Cape, 2011) Singiza, Douglas Karekona; de Visser, Jaap
This article analyses the process of creating districts. It briefly discusses the local government system in Uganda and introduces the phenomenon of the increase in the number of districts. It continues with an analysis of why, in principle, the creation of more districts may be beneficial to Uganda. However, it focuses also on the financial burden that these newly created districts place on the locality and the state in the context of the role of districts in facilitating the realisation of socio-economic rights in Uganda. The article examines the resources needed to sustain a new district and draws conclusions with regard to the impact on the decentralisation programme.
Community participation: The cornerstone of (local) participatory democracy
(Community Law Centre, University of the Western Cape, 2007) de Visser, Jaap
Community participation is key to the functioning of local government. One of the constitutional objects of local government is to encourage the involvement of communities and community organisations in local government. The landmark Doctors for Life and Matatiele judgments, passed by the Constitutional Court in August 2006, are critical for the interpretation of the law of community participation in local government. The judgments are fundamental, particularly in relation to the nature and scope of the duty to involve the community in decision making as well as the enforceability of the legal provisions on community participation.
Confronting the state of local government: the 2013 Constitutional Court decisions
(Juta, 2016) de Visser, Jaap; Steytler, Nico
In September 2014 the then Minister of Cooperative Governance and Traditional Affairs, Pravin Gordhan, divided municipalities into three groups: a third of the municipalities was carrying out their tasks adequately, a third was just managing, and the last third was ‘frankly dysfunctional’ because of poor governance, inadequate financial management, and poor accountability mechanisms.1 What this analysis starkly illustrates is that local government cannot be seen as a uniform institution, operating in the same manner, facing the same challenges. Most, but not all metropolitan municipalities are highly functional and the same applies to the so-called ‘secondary cities’. Then there are highly dysfunctional rural municipalities but also rural municipalities that perform well. Yet a uniform system of law applies to them all.
Constitution-Building in Africa
(Community Law Centre, University of the Western Cape, 2015) de Visser, Jaap; Steytler, Nico; Powell, Derek; Durojaye, Ebenezer
The process towards the adoption of a constitution is determined by the context in which the constitution is written. It navigates such issues as political engagement, keeping politically agreed timelines, ensuring the inclusion of a variety of constituencies and groups, the use of domestic and foreign technical expertise, and ensuring legitimacy and public awareness. This book examines examples of constitution-making processes around the continent and how they attempt(ed) to accommodate the many interests at play. As such, the chapters offer a range of different constitution-making narratives. In Zimbabwe, the Global Political Agreement (GPA) provided for a parliamentary select committee, co-chaired by the three main political parties, to lead the drafting of a constitutional text. The process included public hearings and a referendum. In the case of Malawi, all of its five constitutional review projects were initiated by the presidential appointment of a constitutional review commission or technical drafting committee. The drafting of the country’s 1966 Constitution took place primarily under the auspices of the ruling Malawi Congress Party; the 1995 constitutional review process was led by a National Consultative Council and consisted of various consultative processes. While this review was markedly more inclusive, it still lacked legitimacy. The making of Kenya’s 2010 Constitution was, by all accounts, impressive in its inclusivity. With the horrors of the 2007/2008 post-election violence engraved in collective memory, and the experience of the impressive consultation, led by the Ghai Commission, still fresh in mind, Kenya’s Constitution was drafted on the basis of extensive consultation.
Constitutional Court shows DFA the door
(Community Law Centre, University of the Western Cape, 2010) de Visser, Jaap
In October 2009, the Supreme Court of Appeal (SCA) declared parts of the Development Facilitation Act (DFA) unconstitutional. The Gauteng Development Tribunal was making land use management decisions and bypassing municipal land-use planning processes on the basis of the DFA. The SCA held that this violates municipalities' right to administer 'municipal planning', listed in Schedule 4B of the Constitution as a municipal power.
Court condemns political interference in municipal manager's appointment
(Community Law Centre, University of the Western Cape, 2009) de Visser, Jaap
Amathole District Municipality, a municipality controlled by the African National Congress (ANC), advertised the position of municipal manager. The recruitment process was subject to the municipality’s Recruitment Policy, in which the municipality binds itself to fair and transparent recruitment procedures. This judgment deals with the appointment of a municipal manager in a district municipality. It contains the strongest signal yet that the law condemns the practice of appointing municipal managers on the basis of political affiliation rather than suitability for the post.
A critical analysis of decentralization in Zimbabwe: focus on the position and role of a Provincial Governor
(University of the Western Cape, 2010) Chigwata, Tinashe; de Visser, Jaap; School of Government; Faculty of Arts
Provincial governors constituted an important part of the decentralization package unveiled in Zimbabwe in 1984 and 1985. The President appoints provincial governors among other duties, to coordinate development planning and implementation at the provincial level. This paper seeks to examine the appointment and role of a provincial governor and in that way establish the extent to which such appointment and role hinder or enhance representative and participatory democracy, accountability, devolution and empowerment, as ideals of decentralization. This contribution examines provincial governance in Zimbabwe as part of the local government system.
Demarcating provincial and local powers regarding liquor retail
(Unisa Press, 2004) de Visser, Jaap
Local government’s newly acquired status as a fully-fledged sphere of government with constitutionally protected powers is slowly gaining momentum. Now that the dust is slowly settling around the demarcation and establishment of local government institutions, the demarcation of local government powers visà- vis other spheres of government is fast becoming a critical area of academic research and intergovernmental dialogue. As they become aware of their constitutional scope, municipalities will start asserting their institutional integrity with powerful metropolitan municipalities taking the lead. In an earlier article in this journal, the approach to local government powers as set out in the Constitution was outlined.1 This article takes the matter further and presents a case study on the demarcation of local government powers in one specific area, namely the regulation of the liquor retail industry. In the Liquor Bill judgment of 2000 more clarity was provided about national versus provincial powers regarding the liquor retail industry.2 Another important issue is the division between provincial and local powers. Schedule 5A of the Constitution lists ‘Liquor licences’ as a provincial competency. Schedule 5B of the Constitution lists ‘Control of undertakings that sell liquor to the public’ as a local government competency. This apparent overlap in the constitutional regime on provincial and local legislative powers over liquor retail matters raises two demarcation issues. The first demarcation issue is: what is the difference between ‘Liquor licences’ (a provincial competency) and ‘Control of undertakings that sell liquor to the public’ (a local government competency)? This question will be dealt with in sections 2 and 3 of this article.
Developmental local government in South Africa: institutional fault lines
(UTS Centre for Local Government, 2009) de Visser, Jaap
This paper provides a brief introduction to the recent history of, as well as the legal and policy framework for, local government in South Africa. It discusses the transformation of local government from a racially configured, illegitimate arm of the apartheid government into a system designed to produce developmentally oriented municipalities. The progress made by South African municipalities towards realising the vision of developmental local government is remarkable and unprecedented. Over the last 13 years, municipalities have embarked on the extension of infrastructure and development, whilst absorbing fundamental changes to their internal governance and management arrangements, financial management systems and intergovernmental responsibilities. The new local government system offers great potential for the realisation of a better life for all citizens, facilitated by a new generation of municipalities. However, the challenges remain huge and some of these can be attributed to institutional fault lines. These include challenges that come with large, inclusive municipalities, new executive systems and the political appointment of senior officials. The paper also identifies the downside of overzealous institutionalisation of community participation. With regard to intergovernmental relations, the paper highlights the need for a clearer definition of local government mandates and a greater recognition of the role of big cities. The current insistence on comprehensive intergovernmental alignment of policies and budgets is questioned, and suggestions are made to substitute this with an approach of selective alignment around key national priorities.
Devolution by court injunction: The case of land use planning and management in South Africa
(Uganda Management Institute, 2016) de Visser, Jaap
In South Africa, the legal and policy framework for land use planning and control underwent a significant transformation in which power over land use planning and control was shifted from provinces to local governments. This shift has taken over fifteen years to materialize as national and provincial governments resisted the devolution of authority. It was ultimately made inevitable by five Constitutional Court judgments in which local government asserted its authority. This article discusses the importance of the reform of planning laws in Africa and outlines key tenets of the recent reform. It discusses the devolution of planning powers to local government and the role played by the judiciary in unlocking the impasse. The central question is whether the court-led transformation of the planning sector was the appropriate mechanism for ushering in change. It is argued that the consequences of devolution for the planning sector in South Africa have been very significant and not all unreservedly positive. It is furthermore argued that the developments in South Africa are relevant for other countries on the continent, particularly as more and more countries constitutionally entrench devolution or decentralization programmes.
DPLG's policy review process: Local government under the spotlight
(Community Law Centre, University of the Western Cape, 2007) de Visser, Jaap; Christmas, Annette; Baatjies, Reuben
On 31 July 2007, the Department of Provincial and Local Government (DPLG) initiated a policy review process of provincial and local government. It will ultimately result in a first White Paper on Provinces and a discussion document on local government. The process will be a national debate, comprising a public participation process, research and a review of experience. The Department has started the process by publishing 65 “Questions for public engagement”. Comments on these questions and on any other relevant topic can be submitted to DPLG until 31 October 2007.
Electing councillors: A guide to municipal elections
(University of the Western Cape, 2016) de Visser, Jaap; Steytler, Nico
The electoral system for local government combines ward elections with proportional representation. It is regulated in at least four different statutes, the Electoral Act 73 of 1998, the Local Government: Municipal Structures Act 117 of 1998, the Local Government: Municipal Electoral Act 27 of 2000 and the Local Government: Municipal Systems Act 32 of 2000. More rules can be found in various regulations under these Acts. The result is an advanced but complex electoral system. This manual outlines the main features of the system in an accessible manner. The objective is to assist anyone who participates in the election or assists in making it happen. This includes voting officials, government officials, councillors, candidates, political parties and members of civil society. The manual also addresses the rules for filling vacancies in between elections. While the manual is comprehensive. it does not address every detail of the electoral system or every conceivable interpretation of the electoral laws. Further detail can be found in the various acts and regulations or obtained from the Independent Electoral Commission.
The enforcement of socio-economic rights against local governments in South Africa
(International Development Law Organization (IDLO), 2015) de Visser, Jaap
Poverty and underdevelopment are South Africa’s greatest challenges. These are inextricably linked to uneven access to adequate public services. By all accounts, South Africa has made impressive progress in extending access to basic services to marginalised communities (see Table 1 below). However, the main challenge remains the severe inequality in access to basic services across different demographic segments of the population of 52 million inhabitants.
Facilitating public participation: A niche role for the speaker?
(Community Law Centre, University of the Western Cape, 2007) Baatjies, Reuben; de Visser, Jaap
Considerable attention has been drawn to local government’s ability to facilitate public participation and the role and effective administration of ward committees. Undoubtedly the most important aspect of the local government review is the need to improve the quality of local democracy, the degree of municipal responsiveness and accountability. The office of the speaker has increasingly come under the spotlight since its inception in local government in 2000. Their role has often been ill-defined. At times, overlapping roles with the (executive) mayor have caused political tension and misunderstanding. The emergence of the political office of a ‘chief whip’ has added another dimension to the definition of the role of the speaker. Some argue that there are now three seats of political power in each municipality.
Fact sheets on decentralisation in Africa
(UTS ePRESS, 2022) de Visser, Jaap; Chigwata, Tinashe
A growing number of African countries are considering or implementing reforms that include forms of decentralisation. At times, these reforms are underpinned by (recent) constitutional change, as in Mozambique (2018), Tunisia (2014), Zambia (2016), and Zimbabwe (2013), all of which amended their constitutions relatively recently, partly with the aim of strengthening decentralisation. In other cases, decentralisation reforms emanate from the adoption of a new national policy and changes to ordinary legislation, such as in Lesotho, which adopted a new decentralisation policy in 2014.

Browsing by Author "de Visser, Jaap"

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