One size does not fit all: an examination of the legal and policy framework for differentiated powers and functions of municipalities in South Africa

Abstract

The allocation and exercise of local government responsibilities is central to the effective delivery of basic services, promotion of participatory governance, and the realisation of socio-economic rights. The division of powers and functions between levels of government is not meant to be static, as seen by the entrenchment of assignment provisions in the Constitution of the Republic of South Africa, 1996. Shifts occur in response to changing circumstances. However, the changes are often uniformly applied to local government. A uniform transfer of powers and functions is either under-inclusive or over-inclusive for municipalities because they are different in size, geographical location, societal needs, and capacity. Yet, consideration of these factors has often been undermined by tensions between the three spheres of government, inconsistent or nonimplementation of assignment procedures, and persistent unfunded or underfunded mandates. The study explores whether there are principles for differentiation and how the constitutional and legislative frameworks for differentiated powers and functions should be interpreted and applied. The thesis examines the policy, constitutional and legislative frameworks for differentiated powers and functions, and assignment of powers and functions to municipalities. It identifies gaps between the formal requirements of assignments in sections 99, 126 and 156(4) of the Constitution – which mandates capacity-based assignments – and the realities of governance, where the national and provincial governments bypass the prescribed constitutional framework for assignments. It establishes that the policy and legislative frameworks for assignments cannot be applied correctly if there is no clear appreciation of their constitutional basis. Although the Constitution makes the assignment of a Schedule 4A or 5A function compulsory, it is unclear how section 156(4) of the Constitution should be interpreted.