The basis upon which municipalities are entitled to legislate on environmental matters and the importance of this role

The case of Le Sueur v Ethekwini Municipality [2013] ZAKZPHC 6 is a significant and ground breaking case that provides a good illustration of how the South African courts interpret and enforce the need for cooperative environmental governance. The case, by making reference to various sections of The Constitution of the Republic of South Africa and by linking these sections with the idea of co-operative governance, explains the basis upon which municipalities are entitled to legislate despite the environment being designated in The Constitution as a functional area of National and Provincial competence. The idea of co-operative governance, recognising the different and distinct functions of each level of governance, is also used to explain why it is important for the municipality, having distinct and different knowledge with regards to their local environment, to be entitled to legislate on environmental matters.

In this case, the Ethekwini Municipality in KwaZulu Natal introduced amendments to the Ethekwini Town Planning Schemes known as Durban Municipality Open Space System (D-MOSS) by resolution of the Town Council and the Municipality. In the case:

The applicant questioned whether, in as much as the amendments deal with the environmental functional area, the Municipality does have authority in terms of the Constitution or any law of general application to legislate on environmental issues.

The applicants argued that the D-MOSS amendments were not legally valid and were unconstitutional as the municipality lacks authority, in terms of the Constitution and any law of general application, to legislate on environmental matters as these are matters reserved for the National and Provincial sphere of government. The court in this case decided that the municipalities do have the power to legislate on matters regarding the environment and laid out the basis on which municipalities are entitled to perform such a function.

Co-operative governance is an ideal that is embodied in Chapter 3 of The Constitution.

The Le Sueur case referred to the Maccsand v City of Cape Town 2010(6) SA 182 (CC) case which in paragraph 47 said the following about co-operative governance;

The Constitution allocates powers to three spheres of Government in accordance with the functional vision of what is appropriate to each sphere. But because these powers are not contained hermetically sealed components, sometimes the exercise of powers by two spheres may result in an overlap. When this happens, neither sphere is intruding into the functional area of another. Each sphere would be exercising power within its own competence. It is in this context that the Constitution obliges these spheres of Government to co-operate with one another in mutual trust and good faith, and to co-ordinate the actions taken with one another.

Thus co-operative governance is an idea that recognises that while each level of government (National, Provincial and Local) has its own distinct powers and functions, these powers and functions are closely related to and sometimes overlap with the powers and functions of another level of government. It is due to this close relationship and overlap that each level of government needs to communicate and co-operate with the other levels of government when exercising their functions so as to ensure that one level does not exercise their powers or perform their functions to the detriment of another level of government.

Another question which the court answered is why it is important for municipalities to have the power to legislate on environmental matters. The court in the case submits the following;

Although matters relating to the environment may be said, in terms of the Constitution, to be the primary concern or sphere of the National and Provincial responsibility, that Local Governments in the form of Municipalities are in the best position to know, understand, and deal with issues involving the environment at the local level.

Thus it can be concluded that Municipalities have a more intricate and in depth knowledge of their particular municipal area and of the particular environment in their municipal area and thus will be more aware of what will be beneficial and detrimental to their particular district. This puts them in a better position than National and Provincial levels of government to administer an environmental matter in the best and most efficient way in their municipal area and thus it is important that they be given the opportunity to ensure the best for their municipal area and in this way with each Municipality ensuring the best for their district, the best interests of the country as a whole are ensured.

The main question in the case was whether the Municipality has the authority to legislate and if it does, on what basis does it have such authority. The case recognised that according to the Constitution, the environment falls into Schedule 4, Part A of the Constitution and that these matters are functional areas of current National and Provincial competence. This suggests that Municipalities at Local Government level are excluded from being able to legislate on matters of the environment as the Municipality may only perform activities in terms of their specific powers which are provided for in Parts B of Schedule 4 and 5 of the Constitution of the Republic of South Africa 1996. Section 24. According to the case, this view is too narrow and is thus incorrect. What is suggested in the case is that Schedule 4 and 5 must be read together with Section 24 of the Constitution and the Bill of Rights. Section 7(2) of the Bill of Rights provides: ‘the state must protect, promote and fulfil the rights in the Bill of Rights.’ The use of the word ‘State’ in this section would be interpreted according to section 40(1) of the Constitution to include National, Provincial and Local levels of government. Thus it can be said that Municipalities are obliged to protect, promote and fulfil the rights in the Bill of Rights when they exercise their delegated powers. Section 24 of the Bill of Rights encompasses the environmental right and places an obligation in terms of section 7(2) on all levels of government including local levels and thus including Municipalities to protect and enforce the environmental right ‘through reasonable legislative and other measures’. This thus suggests that the local level of government included in the ‘state’ in section 7(2) is entitled on the basis of s24 to legislate on environmental matters in order to protect and enforce the environmental right contained therein when exercising any of its powers or performing any of its duties.

Thus what is clear is that the municipalities may legislate on matters of the environment when performing their duties in order to fulfil their obligation of environmental protection in the Bill of Rights. Thus what must be asked is which particular duty of the Municipalities would require legislation on the environment. In the Le Sueur case, the court determined that Municipalities have a role to play in administration and enforcement of environmental law by virtue of their function of municipal planning. It is submitted in the case;

Municipalities under the banner of ‘municipal planning’ have historically always exercised executive legislative responsibility over environmental affairs within a municipal area. The drafters of the Constitution were aware of this fact and recognized this fact in the manner in which the newer Constitutional dispensation was formulated.

Therefore, what can be concluded from the case is that the court has accepted that the Municipalities power to implement municipal planning encompasses the power to legislate on matters regarding the environment.

The problem that this power of the municipality poses is that ‘there will be an overlap between the functional area of “municipal planning” in Part B of Schedule 4 and the functional area of “environment” in Part A of Schedule B.’[1] This problem can be easily addressed with reference to co-operative governance. The case makes reference to the Warey Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another 2009 (1) SA 399 which states;

There is no reason why the two spheres of control cannot co-exist even if they overlap and even if, in respect of the approval of sub-division of ‘Agricultural Land’ the one may in effect veto the decision of the other. It should be borne in mind that the one sphere of control operates from a municipal perspective and the other from a national perspective. Each having its own constitutional and policy considerations.

Thus each sphere is responsible for the matter in relation to their particular sphere of government and no sphere is performing the powers of another sphere. Co-operative governance requires that where there is an overlap which clearly exist with regards to the environment, each sphere must communicate with one another to ensure that the power is effectively carried out in each sphere of government ie to ensure that one sphere does not exercise their powers to the detriment of another sphere.

The court in the Le Sueur case granted the municipality the power to legislate on matters of the environment within their municipal areas. The court stated that when municipalities exercise their power in terms of municipal planning a holistic approach must be followed. Such an approach means that the function of municipal planning will be carried out in accordance with the duty placed on the municipalities in terms of the Bill of Rights and more specifically in terms of the environmental right embodied in the Bill of Rights. Therefore, what can be concluded is that when the municipalities perform their function of municipal planning, they are obliged, in terms of the Bills of Rights and section 152 of the Constitution to take the environmental right into consideration and ensure that it performs its duties in accordance with such right and in accordance with the principle of co-operative governance. The court also confirmed that municipalities are better equipped, due to their intricate knowledge of their municipal area’s environment, to legislate on matters of the municipal area’s environment, and that it is important for them to do so as they will be better able to ensure the safety of their environment in their municipal area.

By Kristy Pierce

[1] W Freedman ‘The Legislative Authority of the Local Sphere of Government to conserve and protect the environment: A Critical analysis of Le Sueur V Ethekwini Municipality [2013] Zakzphc 6’ (30 January 2013) Potchefstroom Electronic Law Journal 589.