Research Articles - Dullah Omar Institute

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The scientific career of the zoologist Max Wilhelm Carl Weber (1852—1937)
(Bijdragen tot de Dierkunde, 1993) Pieter, Florence F.J.M.; de Visser, Jaap
It is shown that the pinnacle of Max Weber’s scientific career was the organization and leadership of the Siboga Expedition to the former Netherlands East Indies (now Indonesia)in the years 1899—1900. Before that time, as Professor of both General and Special Zoology at the University of Amsterdam, he had devoted his research mainly to the anatomy of mammals, which resulted in the fundamental reference work Die Säugetiere published in first edition in 1904. Just before his departure with the Siboga Expedition Weber was appointed Extraordinary Professor of Special Zoology in Amsterdam. This gave him more time to edit the results of the Siboga Expedition and for taxonomic studies, especially on the fishes of the Indo- Australian Archipelago. Nevertheless he kept a keen interest in generalzoology, which resulted in his extensive contribution to the modern textbook Lehrbuch der Biologiefür Hochschulen co-authored by Moritz Nussbaum and Georg Karsten, published in first edition in 1911. Weber retired in 1921 and by the time he died in 1937 about 95% of the scientific results of the Siboga Expedition had been published - an outstanding achievement.
Making law: A guide to municipal councils
(Community Law Centre, University of the Western Cape, 2000) Steytler, Nico; de Visser, Jaap; Mettler, Johann
The first fully democratic municipal elections held on 5 December 2000 saw local government take its rightful place as the third sphere of government. Chapter seven of the Constitution has now come into full operation. A municipality now enjoys protected status as a legislative body. This means that it has the authority to make laws on local government matters without undue interference by other spheres of government. However, a constitutionally protected legislative authority brings with it a responsibility. The onus is now on municipalities to use the legal space provided by the Constitution in a manner that is democratic, accountable and developmental. This is certainly not an easy task: the challenges of sustaining, improving and extending service delivery and local democracy are great. The legislation that will guide newly elected councillors in the final phase of transformation further enables municipalities to be development agents and builders of democracy. This manual provides a useful guide for councillors to familiarise themselves with: • the scope of the legislative authority that their councils enjoy; • procedural aspects around making law; and • the legal and constitutional requirements relating to the content of by-laws. It will be a significant aid to councillors in their pivotal role as policyand lawmakers.
The emerging role of metropolitan cities in federations
(Forum of Federations, 2001) Steytler, Nico
City-regions or large metropolitan cities are a rapidly growing phenomenon in developing countries. They are also seen as a key mechanism to the development and growth trajectories of those countries, particularly in the age of globalisation. However, metropolitan governments are often not geared towards and enabled to perform this function due to political and structural constraints. These issues are also germane to metropolitan cities located in federations. The challenge facing federations is to adapt their legal/constitutional architecture and practice of intergovernmental relations to ensure that metropolitan cities can play their developmental role. The principles and practices of federalism are uniquely suited to accommodate the emerging role of metropolitan cities.
Roles and responsibilities of the municipal manager
(Community Law Centre, University of the Western Cape, 2001) de Visser, Jaap
renaming and transformation of local government structures. Coping with the new designation is probably the least important of the changes for the municipal manager. One of the key challenges in this respect is defining the roles of the municipal manager in relation to the executive committee or executive mayor of the municipality. It is important to note, that against the backdrop a municipality’s constitutionally protected right to regulate its internal affairs (s 160(1) and (6) of the Constitution), the most critical player in shaping the role and responsibility of the municipal manager is the council itself. As the employer, the council determines what it expects of a municipal manager. However new legislation, such as the Local Government: Municipal Structures Act 117 of 1998 (the Structures Act) and, more importantly, the Local Government: Municipal Systems Act 32 of 2000 (the Systems Act) contains important provisions with legal powers, duties and obligations. This article explores the legal provisions in the new legislation that have a bearing on the functioning of the municipal manager. A variety of Acts will be referred to in this paper. However, most of the provisions referred to are in the Systems Act. Therefore, references to the Act are references to the Systems Act. After dealing with some introductory issues, this paper will discuss the contracts and terms of reference, the municipal manager’s duties towards the council, his or her duties towards the public and the duties towards the administration.
Federal arrangements as a peacemaking device during South Africa's transition to democracy
(Publius: The Journal of Federalism, 2001-01-01) Steytler, Nico; Mettler, Johann
This article examines how federal arrangements were used during South Africa's transition to democracy to deal with the conflict posed by two important ethnic-based groupings: right-wing Afrikaners and Zulu nationalists. It will be argued that while limited federal arrangements were successful in containing the conflict, this aspect of South Africa's federal enterprise quickly faltered when the underlying conflicts and federal impetus dissipated. This case study, then, provides an interesting illustration of the dynamic quality of federalism; it can be a flexible political process that responds to the exigencies of the moment.
District municipalities : giving effect to shared authority in local government
(Law, Democracy & Development, 2003-01) Steytler, Nico
A new feature of local government outside metropolitan areas is the establishment of 47 district municipalities in December 2000. They share legislative and administrative powers with local municipalities in their area. Overlapping local government structures is not unknown in South Africa or elsewhere in the world. During South Africa's interim phase of local government transformation between 1995 and 2000, a two tier metropolitan system was established where both the metropolitan councils and a number of metropolitan sub-councils enjoyed jurisdiction in the same metropolitan area. Two-tier local government is also a feature in countries such as the United States, India, Germany and Spain.
Federal homogeneity from the bottom up: Provincial shaping of national HIV/AIDS policy in South Africa
(Publius: The Journal of Federalism, 2003-01-01) Steytler, Nico
The focus of uniform policy making in federal systems is usually on enforcing homogeneity on units within a federation, based often on the implicit premise that the center is "right," enlightened, or modern and that one or more of the constituent units are "wrong." Sub national units are perceived as pandering to local interests that may be backward, out of step with the national normative framework, or not sympathetic to national interests. The question is then the extent of the units' right to be "wrong" or out of line. Questions of democracy, autonomy, and the overall normative framework of a federal system are thus pertinent.
Socio-economic rights and the process of privatizing basic municipal services
(Law, Democracy & Development, University of the Western Cape, 2004) Steytler, Nico
The socio-economic righ ts in the Bill of Rights bind all organs of state, including municipalities. These rights may also impose posicive obligations. Through the delivery of basic services. municipalities fu lfi l some of these obligations; indeed. the ve ry purpose of municipalities is to be 'developmencal '. Municipa lities usually provide these services themselves but they may also use external se rvice providers, including the private secwr. National government policy also encourages municipali· ties rn privatise their services and municipalities are increasingly doing so. Serious concerns have been raised about the success of privatised service delivery in providing basic municipal services on an equitable and affordable basis. Where the provision of basic services gives expression to certain socio-economic rights, it may be asked whether the process of privacising these services undercuts the rea lisation of these rights. This is a legitimate queslion that focuses on empirical evidence. The issue of privatisation should also be approached from a normative perspective. By placing the provision of basic municipal services in a human rights paradigm. the question is how the application of socio-economic rights - constituting a binding and j usticiable normative framework - can influence and direct the mechanisms of service delivery. including the privatisation or services. In the first section of the paper. che socio-economic r ights obl igations of local government are outlined. It is argued that these obligations intersect with local governmem·s conscitutional mandate to provide basic munici· pal services; through the provision of such services municipalities can give effect to these righcs. In the second section, the legislative framework in cerms of which privatisation may occur is set out While privatisation is not in or of itself inconsistent with the Constitution. the process and the outcome of p rivatisation may have significanc effects on the realisation of socio-economic rights. le is thus argued in the fin a I section chat che process and product of privatising a basic municipal service musr comply wich the normative framework of socio-economic rights.
The place and role of local government in federal systems
(Konrad-Adenauer-Stiftung, 2005) Steytler, Nico
South Africa has embarked on an important experiment of creating a decentralised system of government comprising three spheres of government – national, provincial and local. In comparison with international practice, local government has been given considerable constitutional recognition. In many respects South Africa is a leader in the emerging role that local government is expected to play in entrenching democracy and promoting development. South Africa is not, however, the only decentralised country in the world that has embarked on this route of strengthening local government as a full sphere of government. In the more recent constitutions of Spain, Brazil, India, Nigeria and Switzerland, local government has been entrenched. But having three spheres of government operating each with a degree of autonomy makes for complex relationships. It may also impact on the effectiveness and efficiency of government. These problems are shared by most decentralised countries. The place and role of local government in federal systems were examined at the annual conference of the International Association of Centers for Federal Studies (IACFS). From 29 September to 3 October 2004, the Local Government Project of the Community Law Centre, University of the Western Cape, hosted the annual meeting of the IACFS. The conference, sponsored by the Democracy Development Programme (DDP) and the Konrad-Adenauer-Stiftung (KAS), was held at Mont Fleur, Stellenbosch. The conference was attended by 20 international delegates representing 14 IACFS member organisations from 11 different countries. Delegates were also in attendance from South African organisations, including the Municipal Demarcation Board, the DDP and KAS, the Palmer Development Group, and the Drakenstein Municipality.
District-local municipal relations: The challenges to cooperative government
(Community Law Centre, University of the Western Cape, 2005) Steytler, Nico; Jordan, Janis
Outside of metropolitan areas, local government is shared by district and local municipalities; the 47 district municipalities and 231 local municipalities share legislative and administrative powers over the same geographical area. This overlapping jurisdiction was bound to raise questions regarding its functionality. The system of local government is premised on cooperation and a productive atmosphere between district and local municipalities. It has been noted by the National Assembly Portfolio Committee on Local Government that the relationship between district and local municipalities varies from “cordial and cooperative to conflictual and unproductive”.1 The Western Cape branch of the South African Association for Local Government (SALGA) noted in their minutes2 that there is “an unwillingness to interact in a cooperative way” among district and local councils. A member of the Free State Provincial Department of Local Government3 noted that relations between the district and local municipalities counted among the reasons for the bad state of local government in the province. These examples illustrate the urgent need to address the state of relationships between district and local institutions. This question is what causes conflict and ultimate unproductiveness? Having identified key areas of conflict, the next question to be addressed is: how are these conflicts managed? This question is pertinent in light of the Intergovernmental Relations Framework Act4 (IRFA) which requires the establishment of District Intergovernmental Forums (DIFs) aimed at managing such relations. The object of this study is thus the identification of the challenges that DIFs must meet. This paper must be read with the “Status quo report on intergovernmental relations regarding local government”, prepared by the Local Government Project, which focuses on the incidence and functioning of intergovernmental forums at district level prior to the IRPA coming into operation
District-local municipal relations: The challenges to cooperative government
(Community Law Centre, University of the Western Cape, 2005) Steytler, Nico; Jordan, Janis
Outside of metropolitan areas, local government is shared by district and local municipalities; the 47 district municipalities and 231 local municipalities share legislative and administrative powers over the same geographical area. This overlapping jurisdiction was bound to raise questions regarding its functionality. The system of local government is premised on cooperation and a productive atmosphere between district and local municipalities. It has been noted by the National Assembly Portfolio Committee on Local Government that the relationship between district and local municipalities varies from “cordial and cooperative to conflictual and unproductive”.1 The Western Cape branch of the South African Association for Local Government (SALGA) noted in their minutes2 that there is “an unwillingness to interact in a cooperative way” among district and local councils. A member of the Free State Provincial Department of Local Government3 noted that relations between the district and local municipalities counted among the reasons for the bad state of local government in the province. These examples illustrate the urgent need to address the state of relationships between district and local institutions. This question is what causes conflict and ultimate unproductiveness? Having identified key areas of conflict, the next question to be addressed is: how are these conflicts managed? This question is pertinent in light of the Intergovernmental Relations Framework Act4 (IRFA) which requires the establishment of District Intergovernmental Forums (DIFs) aimed at managing such relations. The object of this study is thus the identification of the challenges that DIFs must meet. This paper must be read with the “Status quo report on intergovernmental relations regarding local government”, prepared by the Local Government Project, which focuses on the incidence and functioning of intergovernmental forums at district level prior to the IRPA coming into operation
The powers of local government in decentralized systems of government: Managing the 'curse of common competencies'
(Institute of Foreign and Comparative Law, 2005) Steytler, Nico
The issues and problems flowing from common competencies are shared by many, if not all, decentralised and federal systems; they are a feature arising from the division of powers between two levels of government. The problem is particularly pronounced when a third level of government is added - local government. Common competencies are mainly a function of the way local government powers are defined in constitutions. Because of the position of local government in the hierarchy of governments, local government is seldom given clearly demarcated exclusive powers. Moreover, the supervisory role of the 'senior' levels of government over local government, inevitably means that concurrency of powers occurs. Common competencies create a number of problems for the effective and efficient functioning of government. They include the following: duplication of services; ineffective service delivery; unfunded mandates for the lowest level of government; the domination of local government by 'senior' levels of government; and the lack of transparency and accountability. There are basically two approaches in dealing with these problems: first, seek greater division and certainty in the division of powers; and second, develop constructive ways of managing the tension through cooperation between levels of government.
Water delivery: public or private?
(Community Law Centre, University of the Western Cape, 2006) Mbazira, Christopher; de Visser, Jaap
The landscape within which human rights are protected and realised has changed dramatically in the last few decades. One of the main driving forces for this change is economic globalisation and the weakening of the traditional state. In many parts of the world, the private sector is becoming increasingly involved in performing functions that have traditionally been reserved for the state. Even the provision of basic services, such as water, is not exempt from this development. Private sector involvement varies from the outright sale of public assets to the outsourcing of essential service delivery functions. Moreover, the public sector is pressurised to ‘downscale’ and make efficiency gains by placing certain trading functions at arms length in semi-private entities. The result of all of this is the increasing commodification of the provision of basis services, such as water. However, such basic services are guaranteed within a human rights framework as part of international law. In principle, it is only states that are the bearers of human rights obligations in international law. The extent to which private entities can bear human rights obligations remains controversial and human rights law is not concerned with whether the ultimate provider of socio-economic goods and services is either the state or the individual. This book contains a compilation of papers dealing with access to water. In South Africa, many cities and municipalities have delegated bulk water purification and management to private water services providers. Some view this as abdication from state responsibility and a violation of the constitutionally protected right of access to sufficient water. Others, including the state, argue that private sector involvement is indispensable for realising access to water.
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
Local accountability: Enforcing the Code of Conduct for councillors
(Dullah Omar Institute, 2006) de Visser, Jaap
This paper focuses on the role of the council of a municipality towards ensuring accountable governance. First, it discusses the Code of Conduct for councillors, which is the key instrument at the hands of the municipal council to ensure accountability of the council and councillors. Second, it analyses the way in which the Code of Conduct can be enforced. Third, it presents a case study of an instance in which these instruments to enforce ethical conduct were invoked. Fourth, it provides an analysis of a key area where improvements can be made and proposes a way forward to making those improvements.
Status quo report on intergovernmental relations regarding local government
(Community Law Centre, University of the Western Cape, 2006) Steytler, Nicolas; Fessha, Yonatan; Kirkby, Coel
Local government in South Africa is a unique experiment in intergovernmental relations. Guided by the constitutional principle of co-operative government, the provinces, and district and local municipalities must work together to achieve their, often overlapping, goals. Key for local government is the delivery of basic services, such as water and housing, enshrined in the Bill of Rights. These government actors must coordinate common policies, programmes and delivery with each other. Since municipalities were created in 2000, a myriad of informal channels and forums have developed to align and inform each actor of the others’ desires and needs. Five years later, the current state of intergovernmental relations is fraught with confusion and misunderstanding. The Intergovernmental Relation Framework Act (IRFA) came into effect on 15 August 2005. This Act formalizes the relations between (and within) the three spheres of government. Many of the proposed forums already exist in name or practice, or both. The IRFA’s ultimate goal is to enhance intergovernmental co-operation, which is a necessary precondition of realizing the goals of the Constitution: especially the effective delivery of basic human rights. The object of this study is to canvas the evolution of intergovernmental structures, both provincial-local and intra-local, up to the date the IRFA was enacted. By analyzing the powers and function of these forums and how they have worked in practice, we will create a comprehensive picture of intergovernmental relations in South Africa. This study will serve as a benchmark against which to measure the success of the IRFA, in particular its nascent forums and their legislated activities. The report further establishes a set of criteria to evaluate the success (or failure) of IRFA forums in achieving the goals of cooperative governance.
Enforcing the economic, social and cultural rights in the African Charter on Human and Peoples' Rights : twenty years of redundancy, progression and significant strides
(African Human Rights Law Journal, 2006) Mbazira, Christopher
The fight against poverty and underdevelopment in Africa is amongst others dependent on how successfully the socio-economic rights protected in both the regional and universal instruments are concretised. The last 20 years since the adoption of the African Charter show a slow but steady move towards such concretisation. The African Commission has moved from a stage of redundancy, when not much was done to give normative content to the rights, to a stage of progression, in which the African Commission has started giving content to the rights. In spite of this, the recommendations of the African Commission are yet to be taken seriously not only by state parties, but by the African Union. There is no reliable mechanism to enforce the recommendations of the African Commission and, as the African Court on Human and People’s Rights begins operation, its success is likely to be hampered by the same problem. This is in spite of the fact that the African Court has a wide remedial mandate in comparison to the African Commission. As the African Court propels the African human rights system into a stage of significant strides, this is the biggest obstacle in its way. The African Union is central in sanctioning states that fail to implement the judgments of the African Court. However, history shows that the Assembly of Heads of State and Government has always been reluctant to sanction its members. Unless there is a change of heart and more commitment to human rights, this practice is likely to persist and thereby negatively impact on the rights protected by the African Charter.
Local accountability: Enforcing the Code of Conduct for councillors
(Community Law Centre, University of the Western Cape, 2006) de Visser, Jaap
A perceived lack of responsiveness on the part of councillors towards their citizens as well as perceived, alleged and proven cases of corruption and maladministration involving councillors all contribute to the perception that municipal councils are not accountable to their local communities. While it is generally accepted and often reiterated that the necessary legislation to ensure accountable local government is in place, the lack of enforcement of this legislation is often cited as the problem.
Defining local government powers and functions
(Sabinet, 2007) Steytler, Nico; Fessha, Yonatan Tesfaye
The functional areas of provincial and local government competency are listed in Schedules 4 and 5 of the Constitution, with those appearing in part A of each schedule confined to provincial government and those in part B of each schedule to local government.1 The schedules list functional areas without providing any detailed definitions of them. Considerable overlap between the functional areas assigned to these two spheres of government leads, in practice, to an overlap of powers and functions. Overlap is distinct from ‘concurrency’. Within the meaning of the Constitution, concurrency of powers refers to the existence of the same powers over the same functional areas, as is the case for example with national and provincial competencies over Schedule 4 functional areas. Overlap of functions, on the other hand, occurs where more than one level of government has authority (be it legislative, executive, or both) over the same functional area. The constitutional allocation of ‘original powers’ to local government produces at least two areas of overlap.2 The first type of overlap can be referred to as supervisory overlap. A provincial government has regulatory and monitoring powers over Schedules 4B and 5B matters in terms of ss 155(6)(a) and 155(7) of the Constitution. Thus, in respect of every Schedule 4B and 5B functional area, provincial government has power, albeit limited, of supervision. The question then arises as to the extent and ambit of such supervisory powers. The other type of overlap arises from an overlap between matters listed in Schedules 4A and 5A and those in Schedules 4B and 5B. In this case, there is no clear definition of the functional areas belonging to each sphere of government, resulting in a lack of clarity about the cut-off points between functional areas. For example, both provincial and local government have authority over health care services, with the only definitional distinction being made through the use of the qualifying term ‘municipal’. Due to this overlap there is a degree of confusion about who does what. This article is confined to the issues of overlap flowing from the latter type of case. The focus is on the overlap between provincial and local government powers that, unlike the intended concurrent jurisdiction that the national and provincial governments have over Schedule 4 matters, is unintended although not unforeseen. The aim of this contribution is threefold: (a) to determine the nature and extent of overlap between provincial and local government powers and functions as well as problems flowing from such overlap; (b) to examine how the overlap is being dealt with by stakeholders; and (c) to develop a systematic approach to defining provincial and local government powers.
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.

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