One size does not fit all: an examination of the legal and policy framework for differentiated powers and functions of municipalities in South Africa.
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Date
2025
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University of the Western Cape
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 non-implementation 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. The study adopts a doctrinal legal methodology, analysing constitutional provisions, legislation, relevant regulations, policy documents, and key judicial decisions. The approach is interpretive and analytical. The study finds that the government acknowledges the need for differentiation. Yet, the constitutional and legislative frameworks do not provide conceptual clarity as to when to assign functions to municipalities. There is, overall, an absence of a coherent set of principles for differentiation. The study also finds that there have been manifestations of the transfer of additional responsibilities to municipalities through sectoral instruments in housing, electricity, and public transport. These transfers do not follow the procedure required for executive assignments as per the Constitution. Safeguards for this are provided in the constitutional and legislative frameworks, but these same safeguards are not emphasised and guaranteed in sectoral instruments. Without a coherent set of principles to guide differentiation and clarify when assignments should take place, functions would be shifted to municipalities without the necessary safeguards being in place. This thesis contributes to scholarly and policy debates by proposing ten normative principles to guide the differentiation of responsibilities to municipalities, an interpretation of the ‘capacity’ requirement, an interpretation of ‘section 156(4) of the Constitution’, and advancing targeted recommendations. These include the development of a coherent government-wide devolution and iv https://uwcscholar.uwc.ac.za/homecapacity-building framework, rooted in the constitutional framework for assignment; amendments to relevant assignment legislation; and proposals for increased involvement of key stakeholders. Ultimately, the study argues that the constitutional and legislative framework for differentiation is currently not utilised because the government is not activating it. Multiple institutions, such as the Presidency, NT, DCoGTA, FFC, Parliament, the AG, the courts, ministers, MECs, and municipalities, need to be part of the solution. The system itself does not need to change: the government just needs to start using it.
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Keywords
Differentiation, Local government powers, Developmental local government, Asymmetry, Municipal public transport