324

Intrusion into the autonomy of South African local government: Advancing the minority judgment in the Merafong City case
Oliver Fuo
LLM LLD
Associate Professor: Faculty of Law, North West  University

OPSOMMING
Ingrype in die autonomie van Suid-Afrikaanse plaaslike regerings: Die aanvoer van die minderheidsbeslissing in die Merafong City-saak
Teen die agtergrond van die aard en wese van die Suid-Afrikaanse plaaslike regering wat na 1996 tot stand gekom het, is die saak van Merafong City Local Municipality v AngloGold Ashanti Ltd [2016] ZACC 35 een van die mees onlangse sake betreffende die inbreukmakende geaardheid van nasionale regulering van munisipale bevoegdhede. Een van die belangrikste aangeleenthede in hierdie saak was die vraag tot watter mate appèl na ’n Minister moontlik is wanneer ’n munisipaliteit ’n besluit neem rondom heffings vir die verskaffing van waterdienste (vir huishoudelike en industriële gebruik). Hierdie artikel handel met die minderheidsuitspraak van Regter Jafta in die Grondwetlike Hof en ondersteun die regter se  interpretasie wat stel dat dit ongrondwetlik is vir die nasionale regering om as appèlliggaam in te tree in soverre dit ’n munisipaliteit se uitoefening van ’n oorspronklike bevoegdheid aangaan. Die artikel maak spesifiek melding van die moontlike wysiging van artikel 8 van die Wet op Waterdienste 108 van 1997 ten einde die genoemde ongrondwetlikheid aan te spreek.

1 Introduction
The post-apartheid constitutional dispensation heralded fundamental institutional reforms that transformed the structures of government in South Africa. The Constitution of the Republic of South Africa, 1996 established three spheres of government – national, provincial and    local
spheres1 – with far-reaching changes at the local government level.2 The changes  at  the  local  sphere  are  clearly  evident  from  inter  alia      the

See s 40(1) of the Constitution of the Republic of South Africa, 1996 outlining the government’s setup.

How to cite: Fuo ‘Intrusion into the autonomy of South African local government: Advancing the minority judgment in the Merafong City case’   2017 De Jure 324-345
http://dx.doi.org/10.17159/2225-7160/2017/v50n2a7

For details on the nature of local government reform  in  post-apartheid  South Africa, see City of Cape Town v Robertson 2005 2 SA 323 (CC) pars 58- 60; Fuo Local Government’s Role in the Pursuit of the Transformative Constitutional Mandate of Social Justice in South Africa (LLD thesis NWU 2014) 78-177; Steytler & De Visser Local Government Law of South Africa (2014) 1-3 to 1-31 and 5-5 to  5-14.

enhanced status and autonomy of local government as well as its expanded developmental mandate.3
Unlike in the past, local government now has a developmental mandate that transcends service delivery.4 Local government must: provide  democratic  and  accountable  government;  promote    public
consultation in local government matters; promote socio-economic development; promote a safe and healthy environment; provide services to communities in a sustainable manner; and contribute, together  with
the other spheres of government, towards realising a variety of rights entrenched in the Bill of Rights.5 Nevertheless, the provision of municipal services  such  as   water,  electricity  and  sanitation  remains  the     most
important function of local government and the central mandate of municipalities is to develop service delivery capacity in order to meet the basic needs of all inhabitants of South Africa.6
Apart from its general constitutional protection, the status and autonomy of local government is enhanced by a number of fundamental characteristics etched in the Constitution. Firstly, the local sphere of
government, constituted by about 257 municipalities of different categories7 that cover the entire geographic space of the country is recognised  as  a  distinct  sphere  of  government  and  its  leaders       are
democratically elected for a specified period.8 Secondly, municipalities now  have  self-governing  legislative  and  executive  authority  vested in
democratically elected municipal councils.9 Municipalities have the right to govern, on their own initiative, the local government affairs of their

See ss 40, 41 and ch 7 of the Constitution; Fedsure Life Assurance v Greater Johannesburg Transitional Metropolitan Council 1998 12 BCLR 1458 pars 35- 38; Cape Town v Robertson supra n 2 at Cape Town v Robertson supra n 2 at pars 58-60; Steytler & De Visser supra n 3 at 1-26 to 1-27; Fuo (LLD thesis) supra n 3 at 109-117.
Fuo (LLD thesis) supra n 3 at 82-84; Steytler & De Visser supra n 3 at 1-26 to 1-27.
This flows  from a joint reading of ss 152 and 153 of the Constitution and the obligations emanating from the Bill of Rights. See Fuo (LLD thesis) supra n 3 at 109-117.
Joseph v City of Johannesburg 2010 3 BCLR 212 (CC) par  34.
The Local Government: Municipal Structures Act 117 of 1998 creates three categories of municipalities – Category A (metropolitan municipalities), Category B (local municipalities) and Category C (district municipalities). District and local municipalities share powers and functions and s 84 of the Structures Act outlines the division of powers and functions between them. On the contrary, metropolitan municipalities have exclusive executive and legislative powers and functions over local government matters. See Du Plessis & Nel ‘An Introduction’ in Du Plessis (ed) Environmental Law and Local Government Law in South Africa (2015) 25.
See s 40(1) of the Constitution; ss 22-24 of the Local Government: Municipal Structures Act 117 of 1998; De Visser Developmental Local Government: A Case Study (2005) 87; Du Plessis & Nel supra n 8 at 24-25.
See ss 151(2)-(3) of the Constitution; Du Plessis & Nel supra n 8 at 24; Cape Town v Robertson supra n 2 at pars 55-60

communities.10 Their original powers and functions outlined in the Constitution include the powers to administer the local government
matters listed in Schedules 4B and 5B as well as the powers to impose property rates  and surcharges for municipal  services.11
The elevated status and autonomy of post-apartheid local government has been strongly asserted by the Constitutional Court in several cases.
In Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council,12 the Court held that the constitutional status of local government is materially different to what it was when parliament
was supreme and that municipalities are constitutionally entitled to  certain powers, including the powers to make by-laws and impose  rates.13 In the City of Cape Town  v  Robertson, the Court castigated    the
view that in the absence of empowering legislation, a municipality has no power to act.14 It held that such an approach to the powers, duties and status of local government was a relic of the pre-1994 order and was no
longer permissible in the new democratic constitutional order. The Court indicated that the Constitution has moved away from the past where municipalities were creatures of statute and enjoyed only delegated or subordinate legislative powers derived exclusively from ordinances or  acts of parliament – where municipal regulations or by-laws that went beyond powers conferred expressly or impliedly by superior legislation
were ultra vires and invalid.15 In the new constitutional dispensation, local government can no longer be considered as ‘mere local    authorities
entrusted to provincial councils to administer’.16
Despite its elevated status, local government’s autonomy is not absolute. All three spheres of government are interrelated and interdependent. Their ‘interdependence’ signifies the supervision of municipalities by other spheres of government. National and provincial

See s 151(3) of the Constitution; s 4(1)(a)-(b) of the Local Government: Municipal Systems Act 32 of 2000.
See ss 229(1)(a), 156(1)(a) and (2) of the Constitution, together with Schedules 4B and 5B. See Du Plessis & Nel supra n 8 at 24. The above provisions are not the only source of local government’s powers and functions. See City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2012 2 BCLR 150 (CC) pars 21-29; Fuo ‘Role of Courts in Interpreting Local Government’s Environmental Powers  in South Africa’ 2015 Commonwealth Journal of Local Governance (CJLG) 20- 26.
Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1998 12 BCLR  1458.
Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council  at par 38.
Cape Town v Robertson supra n 2 at para 53.
See Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council at pars 35-38; Cape Town v Robertson supra n 2 at pars 54-60.
See Cape Town  v Robertson supra n 2 at pars   53-54.

governments are authorised to supervise the extent to which municipalities execute their powers and functions.17 On the other hand,
their ‘interrelated’ nature talks to the duty imposed on all spheres of government to co-operate with one another in order to promote the welfare  objectives  of  the  entire  country.18  The  exercise  of municipal
powers and functions is subject to the Constitution and generally to national and provincial legislation that are constitutionally     compliant.19
However, national and provincial government are barred from compromising or impeding the ability or right of municipalities to exercise their powers or perform their functions20 and the three spheres
of government must work together in equal partnership within the parameters of the principles of cooperative government.21
Notwithstanding the constitutional protection, the exact reach of local government’s newly established self-governing powers is often misconceived, doubted and contested by functionaries in other spheres    of  government,  business  and  members  of  the  public,  for      example.
Merafong  City  Local  Municipality  v  AngloGold  Ashanti  Ltd22 is the most
recent case illustrating this trend. This case revolved on two issues: whether it was constitutionally permissible for a municipal council decision setting surcharges for water services provision (for domestic   and industrial use) to be subjected to appeal to a Minister; and secondly, whether the remedy of a collateral challenge was available to an organ of state seeking to challenge an administrative decision adopted by a public authority. This article discusses the minority judgment of the Constitutional Court written by justice Jafta, in relation to the first issue above. In line with the minority judgment, this article argues that it is unconstitutional to subject the powers of a municipality to impose surcharges on water services to the executive in another sphere of government because this unreasonably intrudes on and usurps the right and ability of the local sphere of government to fully exercise its original (and assigned legislative) powers and functions. The overall intention is  to further advance the thinking in the minority judgment with a view to developing suggestions to cure the legal defect in section 8 of the  WSA.

See ss 100 and 139 of the Constitution; City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal 2010 9 BCLR CC par 56; Steytler & De Visser supra n 3 at 15-5 to 15-57.
De Visser ‘Developmental Local Government in South Africa: Institutional Fault Lines’ 2009 Commonwealth Journal of Local Governance (CJLG) 13-14; Fuo (LLD thesis) supra n 3 at 88-89.
See s 151(3) of the Constitution; Cape Town v Robertson supra n 2 at par 60; Fuo 2015 CJLG 20-23.
See 151(4) of the Constitution; Steytler & De Visser supra n 3 at 1-26 to 1-27.
See s 41 of the Constitution; Du Plessis Fulfilment of South Africa’s Constitutional Environmental Right in the Local Government Sphere (LLD thesis NWU 2008) 431; Du Plessis ‘Legal Mechanism for Cooperative Governance in South Africa: Successes and Failures’ 2008 SAPL  87-110.
22    2016 ZACC 35.

In order to achieve the above objective, the discussion that follows is structured into three main parts. To provide a contextual background for discussing the minority judgment, the first part elaborates on the nature   of the mandate of municipalities to provide water services with more emphasis on industrial water and the concomitant power to impose surcharges for the provision of water services. The second part provides an overview of the facts, decision and ratio decidendi of the minority judgment in the Merafong City case. The last part analyses the minority judgment and offers some suggestions on the way    forward.

2 Water Services Mandate and Power to Impose Surcharges
2 1 The Mandate of Municipalities to Provide Potable and Industrial Water
Municipalities have original constitutional powers and are directly responsible for the provision of water services, limited to potable water
supply.23 In terms of section 156(1)(a) of the Constitution, a municipality has executive authority in respect of, and has the right to administer,    the
local government matters listed in Schedules 4B and 5B. The provision of water services, limited to potable water supply systems appears in Schedule 4B. In terms of section 156(2) of the Constitution, a municipality may make and administer by-laws for the effective administration of the matters which it has the right to administer. A joint reading of the above subsections shows that municipalities have executive and legislative authority over the provision of water services, limited to potable water supply systems. They can adopt and implement by-laws to the extent that it is necessary for the effective administration of  water  services  provision.  This  is  consistent  with  the  right     of
municipalities to self-govern the local government affairs of their communities.24
However, national and provincial government have powers to regulate local government’s provision of water services. This flows from the provisions of section 155(6)(a) and (7) of the Constitution. Section 155(6)(a) of the Constitution compels provincial governments to monitor and support municipalities through legislative and other measures. On

S 156(1)(a) read with Schedule 4B of the Constitution. See Steytler & De Visser supra n 3 at 5-5. For details on the substantive obligation of municipalities to provide access to water to communities, see regs 3, 4 and
5 of the Regulations Relating to Compulsory National Standards and Measures to Conserve Water in GN R509 of GG 22355 of 2001-06-08; Mazibuko v City of Johannesburg 2010 3 BCLR 239 (CC). The obligation of municipalities stems from s 27(1)(b) and 27(2) of the Constitution read together with ss 3 and 11  of the Water Services Act 108 of 1997  (WSA).
See s 151(2) and (3) of the Constitution; Steytler & De Visser ‘Local Government’ in Woolman & Bishop (eds) Constitutional Law of South Africa (2014) 22-49.

the other hand, section 155(7) of the Constitution gives national and provincial governments legislative and executive authority to regulate the exercise of the executive powers of municipalities in order to ensure that municipalities effectively perform their functions in respect of matters listed in Schedules 4B and 5B of the Constitution. In addition, section 151(3) of the Constitution makes the exercise of municipal executive and legislative powers regarding local government matters subject to national and provincial legislation. However, section 151(4) of the Constitution dictates that the powers of national and provincial governments must be exercised in a manner that does not ‘compromise or impede a municipality’s ability or right to exercise its powers or perform its functions’.
There are several implications that flow from the constitutional protection of local government’s original powers over water services provision as defined in Schedule 4B and the authority accorded to  national and provincial governments to regulate the powers of municipalities. The most profound implication of the original constitutional   powers   of   local   government   is   that   they   cannot be
removed by legislation except through an amendment of the Constitution.25 Bronstein points out that the powers of municipalities vis- à-vis matters listed in Schedules 4B and 5B means that neither national
nor provincial government entities ‘may exercise executive authority  over, or administer these local government matters, since  this  will  intrude  on  the  executive  authority  reserved  to  the  municipalities’  by
section 156(1)(a) of the Constitution.26 This means that, everything being equal, the national or provincial executive cannot exercise the   executive/
administrative powers of municipalities to provide potable water services, for example. Any national or provincial legislation which purports to confer executive authority for the administration of water services, limited to potable water supply systems, to a national or provincial organ of state would be beyond the legislative competence of
the enacting legislature and therefore invalid.27 Such action can also be
considered a violation of section 41(1)(g) of the Constitution which in this context will seek to ensure that the regulation powers of national and provincial governments are not used in a manner that undermines   the
local sphere of government and preventing it from effectively performing its function.28 In City of Johannesburg v Gauteng Development Tribunal, the Constitutional   Court   observed   that   national   and   provincial spheres
cannot use their regulating powers in order to give themselves, by way

See Steytler & De Visser supra n 3 at 12-19; Fuo 2015 CJLG  20-26; Fedsure  Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council at  par 37.
See  Bronstein  ‘Legislative  Competence’  in  Woolman   &  Bishop     (eds)
Constitutional Law of South Africa (2014)  15-6.
See Woolman & Roux ‘Cooperative Government’  in  Woolman  &  Bishop  (eds) Constitutional Law of South Africa (2014)   14-17.
See Bronstein supra n 26 at 15-6.

of legislation, the power to exercise executive municipal functions or the right to administer municipal affairs.29 The regulating powers of  national
and provincial government should be used to ensure that municipalities effectively perform their water services function. Regulation in the context of the Constitution implies a general managing and controlling
role rather than a direct authorising function.30 The jurisprudence of the
Constitutional Court makes it clear that regulate under section 155(7) of the  Constitution means:
… creating norms and guidelines for the exercise of a power or the performance of a function. It does not mean the usurpation of the power or the performance of the function itself. This is because the power of regulation
is afforded to national and provincial government in order ‘to see to the effective performance by municipalities of their  functions’.31
It follows from the above that the power to regulate municipalities should be used to set minimum requirements, essential standards  and  monitoring procedures applicable across the   country.32
While the provision of potable water is a municipal mandate  emanating directly from the Constitution, the discussion below shows  that the provision of industrial water is an assigned municipal function. Although the Constitution makes it possible for national and provincial legislative competences to be assigned to local government generally or  to specific municipalities, it is beyond the scope of this article to   discuss
the relevant provisions in detail.33 However, it is worth noting that in terms of section 156(1)(b) of the Constitution, a municipality has executive authority and has the right to administer any matter assigned
to it by national and provincial legislation. This gives the relevant municipalities the right to legislate over that function within their jurisdictions. The extent to which a municipality can legislate over an assigned function will largely depend on the nature of the assignment    as
spelt out in the assigning legislation.34 Furthermore, national  or provincial  legislation can  also  transfer an executive power/obligation to
municipalities.35 Although this type of assignment does not transfer general legislative authority over the functional area, a municipality can adopt   and   implement   by-laws   that   seek   to   ensure   the    effective
administration of the assigned area.36 In both cases where legislative and

City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties at pars  59  and 68.
See Steytler & De Visser supra n 24 at 22-52.
Minister of Local Government, Environmental Affairs and Development Planning, Western Cape v The Habitat Council and Others; Minister of Local Government, Environmental Affairs and Development Planning, Western Cape v City of Cape Town  and Others  2014 (5) BCLR 591 (CC), par 22, Steytler &  De Visser supra  n 24 at  22-52.
See Steytler & De Visser supra n 24 at 22-52.
For a detailed discussion, see: Steytler & De Visser supra n 3 at 5-41 to 5-50; Steytler & De Visser supra n 24 at 22-58 to 22-63; Fuo 2015 CJLG 24-26.
See Steytler & De Visser supra n 24 at 22-49 to 22-50.
See Steytler & De Visser supra n 3 at 5-43.
Ibid.

executive powers are assigned, relevant municipalities are empowered    to exercise assigned powers for as long as the assigning Act is still in force.37
Steytler and De Visser argue that the requirement that national and provincial governments should not compromise or impede the right or ability of a municipality to exercise its powers or perform its functions
also applies to assigned powers.38 Therefore, the authority of national and provincial government to set parameters on assigned powers is not
without limits. For example, they argue that the assignment of power that is made subject to unnecessarily restrictive or burdensome criteria, conditions or monitoring requirements would fall short of the standard
demanded by section 151(4) of the Constitution.39 In the context of assignment, they argue that imposing conditions such as prior approval   of municipal  decisions or power  to override  municipal  decisions  by an
assigning agent will contravene section 151(4) of the Constitution.40 According to the authors, assignment is supposed to lead to a complete transfer of the function by national or provincial government, including
the final decision-making powers in individual   matters.41
Water management, including the bulk supply of water from dams and  rivers,   and  the   management   of  the  resource,   is  a   national
competency, as a matter not allocated under either Schedule 4 or  Schedule 5 of the Constitution.42 This competency provides the National Department of Water with oversight over all role-players in the water-
sector, including bulk water supply providers, municipal water service providers, and all the users of water, including industrial users.43 Therefore,  in  accordance  with  its  powers  to  look  after  water  in   the
national interests, the national government has given municipalities the authority to oversee industrial water supply, in terms of section 7 of the WSA, primarily for practical reasons. Due to the wall-to-wall nature of municipalities, this implies that the function of municipalities over industrial water use now extends to all industrial   users.
The WSA makes it compulsory for all water users within the jurisdiction of a municipality to only use water services from a water services  provider  nominated  by  that  municipality.44  The  Act provides
that a person who, at its commencement, was using water services from a source other than one nominated by the relevant water services authority (municipality), may continue to do so – (a) for a period of 60 days after the relevant water services authority has requested the person

Ibid.
See Steytler & De Visser supra n 24 at 22-50.
Ibid.
Idem at 22-59.
Ibid.
See generally s 3 of the National Water Act 36 of 1998 (NWA). See also See Bronstein supra n 26 at 15-1 and 15-9.
See s 3(1)-(3) of the NWA.
See s 6(1) of the WSA.

to apply for approval; and (b) if the person complies with the request within the 60 days period, until (i) the application for approval is granted, after which the conditions for the approval will apply; or (ii) the expiry of
a reasonable period determined by the water services authority, if the application for approval is  refused.45
Section 7 of the WSA prohibits any person from obtaining water for industrial use from any source other than the distribution system of a water services provider nominated by the water  services  authority  having  jurisdiction  in  the  area  in  question,  and  this  must  also       be
approved by that water services authority.46 In terms of the WSA, a water services authority is defined as any municipality responsible  for
ensuring access to water services. It is important to note that, a person who, at the coming into effect of the WSA, obtained water for industrial use from a source requiring the approval of a municipality may continue to do so – for a period of 60 days after the relevant municipality has requested the person to apply for approval; if the person complies with  the request for application from the municipality within a 60 day period, continue to do so until the application is granted, after which the conditions of the approval will apply; or at the expiry of a reasonable period determined by  the municipality, if the application  for renewal    is
refused.47
The WSA provides that where the approval of a municipality is required in terms of sections 6 and 7 outlined above, that municipality
should not unreasonably withhold the approval and that, it may grant approval subject to reasonable conditions.48 Section 8(3) outlines a number of factors which should be taken into account by municipal
authorities in arriving at reasonable decisions following applications for industrial water use or other uses.49 Furthermore, the WSA makes it possible   for   dissatisfied   applicants   to   appeal   against  unfavourable
municipal decisions or inaction to the Minister of Water and Sanitation who has the powers to ‘confirm, vary or overturn’ any decision of a municipality.50 The validity of the Minister’s appellate jurisdiction    runs
contrary to the requirements for assignment discussed in the paragraphs above. However, this is discussed below in detail.

See s 6(2)(a)-(b) of the WSA.
See s 7(1) of the WSA.
See s 7(3)(a)-(b) of the WSA.
See s 8(1)(a)-(b) of the WSA.
These include: the cost of providing; the practicability of providing; the quality of provision; the reliability of providing; the financial, technological and managerial advisability of providing; the economic and financial efficiency of providing; and the socio-economic and conservation benefits that may be achieved by providing, the water services in question; and any other relevant factor. See s 8(3)(a)-(b) of the WSA.
Section 8 of the WSA on approvals and appeal provides that: ‘… (4) A person who has made an application in terms of section 6 or 7 may appeal   to the Minister against any decision, including any condition imposed, by  the water services authority in respect of the application. (5) An appellant under subsection (4) must note an appeal by lodging a written notice of

Municipalities are obliged to make by-laws which contain conditions for  the  provision  of  water  services and  these  must  provide  for the
determination and structure of tariffs.51 Such by-laws must be consistent with norms and standards in respect of tariffs for water services which
the Minister of Water and Sanitation, in agreement with the Minister of Finance, must prescribe, from time to time.52 The Minister of Water and Sanitation also has powers to prescribe from time to time, compulsory
national standards for the provision of water services.53
2 2 Municipal Powers to Impose Surcharges on Services Provided
The power of local government to impose surcharges for municipal services54 emanates directly from the Constitution. According to section 229(1) of the Constitution, a municipality may impose surcharges on fees
for services provided by or on behalf of the municipality.55 This means that municipalities have original powers to impose surcharges on fees  for
municipal services provided either by themselves or duly nominated  water services providers.56 These powers are ‘original’ because they are entrenched in the Constitution.57 The direct implication of such powers
is that, just like the local government powers entrenched in section 156(1)(a) of the Constitution, they cannot be removed or amended by national legislation – they can only be removed or amended through an

appeal with – (a) the Minister and (b) the person against whose decision the appeal is made, within 21 days of the appellant becoming aware of the decision. (6) A person who has made an application in terms of section 6 or  7 may appeal to the Minister if the water services authority in question fails to take a decision on the application within a reasonable time.  (7)  An  appeal under subsection (6) – (a) must be conducted as if the application  had been refused; and (b) must be noted by lodging a written notice of appeal to the Minister and the water services authority in question. (8) A relevant province may intervene as a party in an appeal under subsection

50

(4) or (6). (9) The Minister may on appeal confirm, vary or overturn any decision of the water services authority concerned. (10) The Minister may prescribe the procedure for conducting an appeal under this section.’
See s 21(1)(d) of the  WSA.
See s 10 of the WSA. To this effect, see Norms and Standards in respect of Tariffs for Water Services in GN R652 in GG 22472 of 2001-07-20.
See Regulations Relating to Compulsory National Standards and Measures to Conserve Water in GN R509 in GG 22355 of 2001-06-08.
In terms of s 1 of the Municipal Fiscal Powers and Functions Act 12 of 2007 (MFPF), a municipal service means any of the local government matters listed in Part B of Schedule 4 and Part B of Schedule 5 of the Constitution; and any function assigned to a municipality in accordance with sections 9 and 10 of the Local Government: Municipal Systems Act 32 of 2000, identified by the Minister by notice in the Gazette. This definition is wider than that used in the Systems Act. See s 1 of the Systems   Act.
See s 229(1) dealing with the fiscal powers of  municipalities.
See Mkontwana v Nelson Mandela Metropolitan Municipality 2005 2 BCLR 150 (CC) pars 61, 64 and 73; Rates Action  Group v City of Cape Town  2007 1  All SA 233 (SCA) pars 1-20; Joseph v City of Johannesburg at pars 51 and 55; Cape Town  v Robertson supra n 2 at pars   61-71.
See Steytler & De Visser supra n 3 at 5-6; Steytler & De Visser supra n 24 at 22-85.

amendment of the Constitution. However, it is important to note that the right of municipalities to impose surcharges on fees for services provided
by or on behalf of a municipality can be limited in terms of national economic policies,58 for example, and can be regulated by national legislation.59
Although there are several laws confirming the fiscal powers of municipalities,60 the Municipal Fiscal Powers and Functions (MFPF) Act 12 of 2007 regulates the power of municipalities to impose surcharges
on fees for services provided under section 229(1)(a) of the Constitution. The objects of the Act are to: promote predictability, certainty and transparency in respect of municipal fiscal powers and functions; ensure that municipal fiscal powers and functions are exercised in a manner that will not materially and unreasonably prejudice national economic  policies, economic activities across municipal boundaries or the national mobility of goods, services, capital or labour; effectively oversee the exercise of municipal fiscal powers and functions; and provide for an appropriate   division   of   fiscal   powers   and   functions   where      two
municipalities have the same fiscal powers and functions.61
The above objects of the MFPF Act are applicable to municipal surcharges.62 According to the MFPF Act, a ‘municipal surcharge’  in
terms of section 229(1)(a) of the Constitution is a charge in excess of the municipal base tariff that a municipality may impose on fees for a municipal service provided by or on behalf of a municipality.63 On the
other hand, the MFPF Act defines a base tariff as the fees necessary to cover the actual cost associated with rendering a municipal service and this includes: bulk purchasing costs in respect of water and electricity reticulation services, and other municipal services; overhead, operation and maintenance costs; capital costs; and a reasonable rate of return, if authorised by a regulator of or the Minister responsible for that municipal
service.64
Chapter 3 of the MFPF Act deals exclusively with municipal surcharges. The Act accords the Minister of Finance the power to prescribe compulsory national norms and standards for imposing municipal  surcharges,   which  may   include,   inter   alia,  maximum

S 229 (2) of the Constitution. For a discussion of this provision, see Rates Action Group v City of Cape Town 2007 1 All SA 233 (SCA) par 10; Cape Town v Robertson supra n 2 at par 62.
See s 229(2)(b) of the Constitution.
These include: Local Government: Municipal Finance Management Act 53 of 2003; the Local Government: Municipal Property Rates Act No 6 of 2004; and the Systems Act.
See s 2(a)-(d) of the MFPF Act.
See s 3 of the MFPF Act.
See ‘Definitions and interpretation’ in s 1(1) of the MFPF Act.
See ‘Definitions and interpretation’ in s 1(1) of the MFPF Act. For a discussion of the difference between a surcharge and a ‘reasonable rate of return’ and the significance of the latter, see Steytler & De Visser supra n 3 at 12-20.

municipal surcharges that may be imposed by municipalities.65 Such norms and standards may express the maximum surcharge that may be imposed as a ratio of the municipal base tariff, a percentage of the municipal base tariff or a Rand value of the municipal base tariff;  and
provide bands or ranges within which municipal surcharges may be imposed.66 In addition, the compulsory norms and standards may differentiate   between   different   kinds   of   municipalities;   types of
municipal services; levels of municipal services; categories of users, debtors  and  customers;  consumption  levels;  and  geographical areas.67
Compulsory norms and standards may also determine the basis upon and intervals at which municipalities may increase surcharges; and determine   matters   that   must   be   assessed   and   considered      by
municipalities in imposing municipal surcharges.68 Each municipality is obliged, when imposing a surcharge on fees for services provided by it or on its behalf, to comply with any norms and standards prescribed by the
Minister.69 This means that, in the absence of nationally prescribed  norms and standards, municipalities have significant discretion in determining   municipal   surcharges.   In   addition   to   this    discretion,
municipalities can be exempted by the Minister from strictly complying with prescribed norms and standards where it is practically impossible to ensure  strict  compliance.70  A  ministerial  exemption  can  apply   to
municipalities generally or be limited in its application to a particular municipality or kind of municipality, which may be defined in relation to several criteria.71
Details relating to the manner in which municipal surcharges are levied and how a resolution to that effect must be made known are outlined in section 75A of the Systems Act.72 Municipal surcharges are
supposed to be levied by resolution passed by the municipal council with a supporting vote by the majority of its members73 and this function cannot be delegated by a municipal council.74 The exercise of this power
is akin to the powers generally reserved for legislative bodies to raise taxes75 and constitutes a legislative act which is only subject to the principle of legality.76 In order words, a resolution of a municipal council
to levy surcharges for a municipal service should only be reviewable in a court of law on the basis of the principle of legality or directly by the

S 8(1) of the MFPF Act.
See s 8(2)(a)(i)-(ii) of the MFPF Act.
See s 8(2)(b)(i)-(vi) of the MFPF Act.
See s 8(2)(c)-(d) of the MFPF Act.
See s 9(1)(a) of the MFPF  Act.
See s 9(1)(b) of the MFPF  Act.
See s 9(1)(c)(i)-(ii) of the MFPF Act.
S 9(2) of the MFPF Act read with s 75A of the Systems Act.
See s 75A(2) of the Systems Act.
See s 160(2)(c) of the Constitution. See Steytler & De Visser supra n 24 at 22-86.
Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council  at par 44.
Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council at pars 41-46;  Steytler & De Visser supra  n 24 at    22-86.

electorate through the ballot box during local government elections. Municipalities must annually, as part of their budget preparation process, review any municipal surcharges.77
The constitutional and legislative framework discussed above shows that the original constitutional power of municipalities to impose surcharges for municipal services can be regulated by national legislation and by ministerial norms and standards. However, regulation should not exceed the bounds of section 151(4) of the Constitution. The regulating role of national government means that it should, through legislation and ministerial regulations, create norms and standards, minimum requirements and guidelines for the exercise of municipal fiscal powers   or the performance of the municipal function of levying surcharges for
municipal services.78 Steytler and De Visser observe that the MFPF Act does not provide a regulatory framework for municipalities but instead
provides a framework which can be used by the Minister of Finance to prescribe compulsory norms and standards for imposing surcharges which  can  include  maximum  charges  but  not  determine  the actual
amount.79 Ministerial norms and standards can also prescribe the matters that a municipality must consider when imposing surcharges.80 In brief, the need for limited/minimal national regulation in relation to
how municipalities exercise their legislative powers to levy surcharges is underscored. The legal validity of by-laws when they collide with national norms  that  seek  to  regulate  the  powers  of  municipalities  to    impose
surcharges for municipal services should be assessed taking into consideration the nature of regulation discussed above.81
3 Merafong City Local Municipality Case: Facts, Decision and Ratio Decidendi
3 1   Facts
AngloGold operates mines within the jurisdiction of Merafong City Local Municipality. It uses water for its mining operations and also supplies same for household use to its employees living on the mines. Until 2004, the water used by AngloGold was supplied directly by Rand Water which

See s 9(3) of the MFPF Act.
Steytler & De Visser supra n 3 at 5-24(12); Steytler & De Visser supra n 24 at 22-89.
Steytler & De Visser supra n 3 at 12-21 to 12-22; Steytler & De Visser supra
n 24 at 22-100.
Steytler & De Visser supra n 3 at 12-22.
S 156(3) of the Constitution provides that: ‘Subject to section 151(4), a by- law that conflicts with national or provincial legislation is invalid …’. See Steytler & De Visser supra n 3 at 5-27.

was responsible for maintenance of the water delivery infrastructure. AngloGold and Rand Water had written water supply agreements.82
In view of the changes heralded by the WSA – designating municipalities as water services authorities,83 Merafong City sent a written notice to mining companies operating within its area jurisdiction
on 11 February 2004 to indicate that it had been accorded the powers and functions of a water services authority. The City requested the mining companies to apply for approval for the supply of water for industrial use as required by section 7 of the WSA. On 31 May 2004, the City informed the mining companies in writing that new water   tariffs
would come into operation on 1 July 2004.84 In response to the call by
the City, AngloGold sought their approval in terms of section 7 of the WSA to ‘continue obtaining water from Rand Water for its mining operations and associated domestic applications at the tariffs set by,    and
under the conditions imposed by Rand Water’.85
Merafong City announced new tariffs in May 2004 that were far higher than those of Rand Water. However, because the City could not provide water services on its own, it appointed Rand Water to continue to provide these services and collect payment from consumers. After deducting its share, Rand Water paid the balance/surcharge added by the City into the latter’s coffers. The surcharge was imposed as a new source of income that will enable the Municipality meet its service delivery
obligations to the community and contribute towards its financial sustainability.86
AngloGold appealed to the Minister of Water Affairs and Forestry (as it then was) against the new tariffs. It complained that the new tariff imposed by the Municipality was much higher than those under Rand Water and that this cost it an extra half a million rand per month even though the City did not assume any responsibility in relation to water
services provision.87 AngloGold argued inter alia that the City did not add
any value to water services provision and failed to take into consideration its role as a water services provider – for its employees.
Purporting to act under her powers in terms of section 8(9) of the WSA, the Minister upheld AngloGold’s appeal on July 18 2005 when she made her ruling. She overturned the Municipality’s decision to levy surcharges on water for industrial use for a number of reasons. The Minister found that the tariff increase of 62% was unreasonable because

Merafong City Local Municipality v AngloGold Ashanti Ltd supra n 22 at par  3.
Idem at par 4.
Idem at pars 4-5.
Idem at par 6.
Idem at par 7.
For details, see Merafong City Local Municipality v AngloGold Ashanti Ltd supra  n 22 at par  8.

Merafong City did not add value to the services provided by Rand Water to AngloGold.88 She held the view that since water used for industrial
purposes was not defined in the WSA as a municipal service, the City could only levy surcharges on the portion of water that AngloGold was using for domestic purposes.89 She expressed doubts as to whether the
mines were given reasonable opportunities for engagement before the tariffs were imposed. Based on her findings, she directed Merafong City,
AngloGold and Rand Water to negotiate a reasonable tariff on the portion of water used for domestic applications.90
In 2005, the City obtained a legal opinion to the effect that the Minister’s decision was ‘void in law’. Emboldened by the legal opinion, the City continued to collect the tariff and surcharges from AngloGold although under the threat of discontinuing water supply. Attempts to negotiate a mutually acceptable agreement were unsuccessful largely because the Municipality remained adamant that the Minister’s    decision
was unlawful.91 The City tried unsuccessfully over a five year period to get the Minister’s response to the legal opinion – she remained    elusive.
In view of the above, AngloGold launched proceedings in the High Court in 2011 to force Merafong City to comply with the Minister’s ruling. Merafong City counter-applied for a declaratory order to the effect that:   it had exclusive executive authority to set, adopt and implement tariffs, including surcharges, on the provision of water services in its jurisdiction; section 8 of the WSA did not give the Minister authority to interfere with tariffs set and implemented by it for water services provided in its jurisdiction.  In  the  alternative,  the  City  of  Merafong  sought  an order
striking down section 8(9) of the WSA upon which the Minister’s appeal decision was made as unconstitutional and   invalid.92
AngloGold was successful in the High Court which dismissed the counter-application of Merafong City. The Court found that AngloGold had validly applied to the City under the WSA and that the Act conferred the Minister with appellate powers which she had exercised. In addition, the High Court found that even if the decision of the Minister was impugnable, it was binding on the Municipality until set aside through
judicial review. On this basis, the Court ordered the City to comply with the Minister’s ruling.93
On appeal, the Supreme Court of Appeal (SCA) endorsed the findings of the High Court.94 It held that without setting aside the Minister’s ruling through the courts, the City breached the principle of legality by choosing
to disregard it. The SCA held that the approach adopted by the City to

Merafong City Local Municipality v AngloGold Ashanti Ltd supra n 22 at par  9.
Idem at par 9.
Idem at par 9.
Idem at pars 10-12.
Idem at par 13.
Idem at pars 13-15.
Idem at pars 14-15.

disregard the Minister’s ruling on the basis that it was unlawful amounted to a collateral challenge to the validity of an administrative action, a
remedy which was not available to an organ of state against another organ of state.95 The SCA held that, in accordance with established jurisprudence, the remedy of collateral challenge to the validity of
administrative action is only available to an individual threatened by a public authority with coercive action.96
In the Constitutional Court, the main question was whether SCA and the  High  Court  were  right  to   enforce  the  Minister’s  ruling.97      The
Constitutional Court had to decide on two issues: whether the High Court and SCA correctly applied the jurisprudence relating to the remedy of collateral challenge;98 and whether the Minister’s ruling of 18 July   2005
was lawful/constitutionally compliant.99 In relation to the second issue, Merafong City was of the view that the Minister’s decision was  unlawful
because it intruded on an area of exclusive constitutional competence bestowed on municipalities by section 156(1) of the Constitution.100 In other words, the City argued that the provision in terms of which the
Minister claims to have taken the decision is inconsistent with the Constitution and therefore invalid.
3 2 Decision and Ratio Decidendi
The important issue for purposes of this article relates to the lawfulness   of the Minister’s ruling of 18 July 2005.101 This issue was largely ignored by the majority judgment on the pretext that the City did not persist  with
the argument. While the majority judgment remitted this issue to the High Court for a decision, it was addressed in the minority judgment.102 What follows is an outline of the finding in the minority judgment on this
issue as well as the ratio decidendi for the position adopted.

Idem at par 15.
Idem at par 15.
Idem at par 22.
This is the main issue addressed in the majority judgment written by Justice Cameroon. However, this is not the focus of this case note.
This issue was largely ignored by the majority judgment on the pretext that the City did not persist with the argument. The majority judgment remitted this issue to the High Court for a decision. See Merafong City Local Municipality v AngloGold Ashanti Ltd supra n 22 at pars 16 and 84. However, it was addressed in the dissenting judgment because this issue was at the heart of the dispute between relevant parties. See Merafong City Local Municipality v AngloGold Ashanti Ltd supra n 22 at pars 86-87.
Merafong City Local Municipality v AngloGold Ashanti Ltd supra n 22 at par  2.
In relation to the first issue, which is not relevant for this article, the majority judgment upheld the view of the High Court and SCA to the effect that an invalid administrative act that exist is binding and enforceable until it has been set aside by way of judicial review. For a detailed exposition of the Court’s position and rationale, see pars 26-83. Justice Jafta disagreed with the approach adopted by the majority. See Merafong City Local Municipality v AngloGold Ashanti Ltd supra n 22 at pars 88-152.
See Merafong City Local Municipality v AngloGold Ashanti Ltd supra n 22 at pars  16,  84, 86-87.

Justice Jafta held that section 8(9) of the WSA impermissibly empowers the Minister to exercise an exclusive municipal power which
was inconsistent with the Constitution.103 The learned Justice held that the reasoning of the Minister was based on a flawed understanding of the
law and that the conclusion reached by the High Court overlooked the principle of separation of powers that applies among the spheres of government.104 Justice Jafta established that although the Constitution
limits municipal competence on water services to potable water supply systems, the WSA empowers municipalities to supply water for industrial use by making it compulsory for industries to procure water only from    a
municipality duly designated under the Act as a water services authority  or its nominee.105 He observed that the WSA also regulates the power of municipalities  to  approve  the  supply  of  water  for  both  domestic  and
industrial purposes by requiring inter alia that a water services authority may not unreasonably withhold applications for approval and may grant approval subject to reasonable conditions.106
In relation to the Minister’s findings and ruling, Justice Jafta expressed the view that they were based on a complete misconception of the law under which she considered the appeal from AngloGold. Justice Jafta held that the Minister completely overlooked the fiscal powers conferred on municipalities by section 229(1) of the Constitution which expressly declares that a municipality is entitled to levy a surcharge on services provided by it and also those that are provided by a third party on its behalf. In addition, Justice Jafta established that section 7 of the  WSA
equally authorises the Municipality to nominate a water services provider where the supply of water for industrial use cannot be done by itself.107 Based on these provisions, he established that the Minister therefore
misunderstood the law by holding the view that even where water for industrial use is supplied by the Municipality, it may not levy a surcharge for the service because that service is not defined as a municipal service  in the WSA. He held that section 229 authorises municipalities to levy a surcharge  on  services  provided  by  it  or  on  its  behalf,  regardless    of
whether there is value added or not.108 He observed that section 229 of the Constitution prescribes conditions that apply to the exercise of municipal  fiscal  powers  and  functions  and  empowers  Parliament    to
enact legislation that regulates how municipalities exercise their fiscal powers.109 He reiterated that municipal fiscal powers fall within the exclusive domain of municipalities and may only be exercised by them
subject to conditions listed in section 229 of the   Constitution.110

Idem at pars 177-178.
Idem at pars 162 and 171.
Idem at par 157.
Idem at par 157.
Idem at par 162.
Idem at pars 155 and 163.
Idem at par 156. 110    Idem at par 173.

After the above clarification, the learned Justice proceeded  to dismantle the finding of the High Court that the Minister had exercised power duly conferred on her by legislation when she reached  her  decision and ruling – legislation which purports to confer the Minister the
power to regulate the exercise of the executive power of municipalities  for water provision for domestic use.111 Justice Jafta held that the fundamental weakness of the Court’s conclusion lies in the fact that it
overlooked the principle of separation of powers that applies amongst the three spheres of government and the jurisprudence established by the Constitutional Court to the effect that municipalities enjoy exclusive
powers in relation to competences allocated by the Constitution.112 He re-echoed the view that national and provincial spheres of government
are barred from arrogating to themselves the power to exercise municipal competences by simply passing legislation authorising the exercise  of  municipal  powers.113  The  learned  justice  held  that the
impugned provision empowering the minister to intrude into the area of competence of the City and overturn a decision taken pursuant to the exercise of the City’s municipal fiscal powers was unconstitutional.114
Based on the above findings, he declared section 8 of the WSA invalid to the extent of the inconsistency and expressed the view that the High Court should have upheld the City’s constitutional  challenge.115
4 A Discussion of the Minority Judgment and Proposals on the Way Forward
The findings of the minority judgment can be summarised as follows: the Minister’s appellate powers in terms of section 8 of the WSA fall foul of section 151(4) of the Constitution in that they are unnecessarily intrusive and impede on: the right and ability of municipalities to exercise their original water services function; the right of municipalities to exercise their original powers to levy surcharges for water services; and the ability of municipalities to perform their assigned legislative function to provide water for industrial use and the concomitant powers to levy surcharges   for providing that assigned service. It is submitted that although Justice Jafta neither referred to important legislation such as the MFPF Act nor any secondary source of law addressing the issue they grappled with, the above findings are tenable. They are consistent with both the applicable legal framework and the jurisprudence emanating from a string of Constitutional Court cases.

For details, see Merafong City Local Municipality v AngloGold Ashanti Ltd supra  n  22 at  pars 167-171.
Merafong City Local Municipality v AngloGold Ashanti Ltd supra n 22 at par 171.
Idem at par 171.
Idem at par 172.
115  Idem at pars 172, 177-178.

It has been established that the right of municipalities to impose surcharges for municipal services stems from their original fiscal powers entrenched in section 229(1) of the Constitution and that these powers   are akin to taxation powers in that, a municipality needs not provide the
service itself – it can outsource the provision of the service to an external party but still collect the surcharge.116 The Constitution does not prescribe that a surcharge can only be levied when a municipality  has
added value to the service delivered. In addition, although the provision  of industrial water is an assigned legislative function, municipalities generally have powers to impose a surcharge on this service because the broad definition of a municipal service in section 1 of the MFPF Act shows that municipalities have powers to impose surcharges for services that are listed in Schedule 4B and 5B as well as those assigned to them    in terms of legislation. Justice Jafta was correct in finding that a municipality cannot be expected to provide a service and then be prevented from imposing surcharges for the same service. In addition, it  is important to note that the assigning legislation does not forbid municipalities from imposing surcharges for the provision of industrial water. Municipalities can only be prevented from levying a surcharge on an assigned function if the legislation assigning the function excludes  the
levying of the surcharge.117 Where the assigning legislation is silent on
this matter, a municipality has the discretion to use its broad fiscal powers. The assignment of a power without ensuring that resources are available to perform the function effectively is contrary to section  151(4)
of the Constitution.118 The same applies to any assignment which requires that municipal decisions should receive prior approval from other spheres of government or which gives national and provincial
government authority to override decisions taken by municipal councils.119
Furthermore, it has been established that the constitutional powers of local government to provide potable water and impose surcharges on municipal services are original powers that cannot be removed by legislation except through an amendment of the Constitution. Justice Jafta was correct to point out that the Constitution forbids national and provincial spheres of government from appropriating to themselves the
power to exercise municipal competences by merely enacting legislation that authorises them to exercise municipal powers.120 Such an approach is  contrary  to  the  prescriptions  of sections 41(g) and  151(4)  of the
Constitution.121 The power of the Minister in terms of section 8(9) of the WSA to vary or overturn the decisions of elected municipal councils – decisions   that   are   not   administrative   in   character   –   pertaining to

116 See Steytler & De Visser supra n 3 at 12-20. 117  Idem at 12-21.
See discussion in 2.1 and 2.2 above.
See discussion in 2.2 above.
Merafong City Local Municipality v AngloGold Ashanti Ltd supra n 22 at par 171.
See discussion in 2.1 and 2.2 above.

municipal surcharges and the provision of potable water constitute an overt intrusion into their constitutionally defined areas of competence. It is important to note that the appellate powers of the Minister  under section 8(9) of the WSA relate to approvals for general use of water and approvals for industrial use of water. Even in relation to the provision of water for industrial use, it has been indicated above that assignments   are
supposed to be a complete transfer of a specific function, and this  includes the final decision-making power in individual matters.122 In this regard, even though industrial water provision is an assigned function,   it
is a violation of section 151(4) of the Constitution for the Minister to be able to override a municipal decision on this matter.123  Decisions  adopted by deliberative bodies such as municipal councils can only be
reviewed on the basis of legality or reasonableness.124
However, it is acknowledged that the original powers of municipalities to impose surcharges on municipal services and the powers to provide water services are not absolute in the sense that they can be regulated by legislation  and  ministerial  directives  to  the  extent  permissible  by  the
Constitution.125 It has been argued that regulation means creating norms and standards, minimum and maximum requirements and guidelines on how municipalities can effectively exercise their original powers in   their
executive and legislative decision-making processes.126 Such norms and standards, guidelines and minimum requirements should be generally applicable in order to ensure predictability, certainty and consistency in
governance. National (and provincial) regulation should not seek to produce predetermined outcomes but provide frameworks that can be objectively used by municipalities.127 While this approach is reflected   in
the MFPF Act which leaves municipalities with sufficient discretion in imposing municipal surcharges,128 the same cannot be said of the WSA  in terms of the powers of municipalities to grant authorisation for  general
water use or industrial use. Despite the criteria provided in section 8(3)   of the WSA to enable municipalities to arrive reasonable decisions when applications for the use of industrial water are considered, the Act goes further to subject those decisions to the approval of the Minister of Water and Sanitation through appeals. It is argued that the Minister’s appeal powers go beyond regulation and amounts to an arrogation of both the original and assigned legislative powers of municipalities regarding the provision of water services. Regulation can only take place within limits permissible  under  the  Constitution.  National  legislation  or  ministerial

See discussion in 2.1 above.
See Steytler & De Visser supra n 24 at 22-59.
Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council  at  pars 45-46.
See 2.1 and 2.2 above and s 229(1)(b) of the Constitution.
See 2.1 and 2.2 above.
See 2.1 and 2.2 above.
See Steytler & De Visser supra n 3 at 12-12; Steytler & De Visser supra n 24 at 22-100

regulations that run contrary to sections 151(4) and 41(1)(g) of the Constitution are invalid.129
Finding section 8(9) of the WSA unconstitutional in the minority judgment is in line with the jurisprudence of the Constitutional Court in the area of planning law – where the Court has consistently declared unlawful attempts to subject municipal planning decisions to appeal at   the provincial level on the ground that this intrudes into an original area  of competence of local government listed in Schedule 4B. In Minister   of
Local Government, Environmental Affairs and Development Planning Western Cape v Habitat Council,130 the Court for example declared section 44 of Land Use Planning Ordinance 15 of 1985 (LUPO) which allowed
persons aggrieved by municipal land-use decisions to appeal to the Western Cape provincial government, with powers to overturn and replace such decisions, unconstitutional and invalid because provincial appellate capability impermissibly usurped the power of local authorities to manage ‘municipal planning’; intrudes on the autonomous sphere of authority   the   Constitution   accords   to   municipalities;   and   fails   to
recognise the distinctiveness of the municipal sphere.131 In Tronox Sands (Pty) Ltd v KwaZulu-Natal Planning and Development Appeal Tribunal,132 the  Court  considered  the  constitutional  validity  of  section  45  of   the
KwaZulu-Natal Planning and Development Act 6 of 2008 (PDA) which provided for aggrieved persons to appeal municipal planning decisions to the  provincial  Planning  and  Development  Appeal  Tribunal.     Despite
attempts in the PDA to ensure the independence and impartiality of the Planning and Development Appeal Tribunal,133 the Court held that section  45  impermissibly  interferes  with  local  government’s exclusive
constitutional power over municipal planning.134 The Court rejected the argument that the establishment of the Appeal Tribunal and the provision  of  an  internal  appeal  does  not  involve  the  exercise  of a
provincial function or power. The Court held that the Appeal Tribunal was established by provincial legislation and that the legislation subjects municipalities to an appeal process without their  consent  and  irrespective   of   whether   municipalities   considered   it   appropriate or
not.135 The Court held that irrespective of the independence of  the  Appeal Tribunal – staffed by experts and not provincial officials, the  fact
that municipalities are subjected to an appeal process by the Province intrudes on their autonomous power. The Court held that the province’s involvement in the appointment of persons to the Appeal Tribunal and
its administrative influence exacerbates the intrusion.136 The Court    also

See Steytler & De Visser supra n 3 at 5-28; Bronstein supra n 26 at 15-16.
Minister of Local Government, Environmental Affairs and Development Planning Western Cape v Habitat Council 2014 4 SA 437 (CC).
Idem at pars 13-15.
Tronox Sands (Pty) Ltd v KwaZulu-Natal Planning and Development Appeal Tribunal 2016 ZACC 1.
Idem at par 17.
Idem at par 27.
Ibid.
Idem at par 28.

held that the provincial appeal mechanism dilutes and erodes the  exclusive competence and original power of municipalities.137 Section   45 of the PDA was declared unconstitutional and  invalid.
A cogent principle distilled from the jurisprudence of the Court emanating from the cases in the area of planning law is that a decision taken by a municipality pursuant to powers protected in its exclusive   area of constitutional competence cannot be subjected to appeal to a functionary or entity operating within the national or provincial sphere of government. This also means that legislation, executive policies or regulations cannot subject such decisions to appeal at the national or provincial level. Doing so would violate the constitutional vision of autonomous spheres of government which dictates that national and provincial spheres of government not be entitled to usurp the exclusive constitutional    powers    and    functions    of    municipalities,     barring
exceptional circumstances.138
In view of the above, it is argued that it is not only section 8(9) of the WSA which must be repealed, but the other subsections that are dependent on or directly linked to that provision. These include: the right of dissatisfied applicants to appeal to the Minister in section 8(4); the procedure to be followed in case of an appeal in section 8(5); the ground of appeal based on unreasonable delays in the processing of an  application in section 8(6); the presumption and process to be followed where an appeal is based on the ground of unreasonable delays in processing an application in section 8(8); and the powers of the Minister to prescribe the procedure for conducting an appeal in section 8(10). If these sub-sections are repealed, it will be more tenable  for  an amendment to section 8 to make provision for a dissatisfied applicant to approach courts to review municipal decisions where they believe there was non-compliance with the requirements for reasonableness in section 8(3)(a) of the WSA. Where some of the factors listed in section 8(3) are vague, for example, the regulating role of the Minister could be utilised   to develop guidelines to supplement conditions imposed by section 8(3)  of the Act that must be taken into consideration by municipalities. While appeal against arbitrary local government action should lie with the courts, the importance of cooperative governance in ensuring that municipalities effectively exercise their powers and perform their functions cannot be underestimated. After all, the three spheres of government are interrelated and interdependent and must all work together to improve the welfare of all South  Africans.

Idem at par 29.
Minister of Local Government, Western Cape v Lagoonbay Lifestyle Estate (Pty) Ltd 2014 1 SA 521 (CC) par   46.