African National Congress and Another v Minister of Local Government and Housing, KwaZulu-Natal and Others

• Jurisdiction: South Africa
• Judge: Chaskalson P, Langa DP, Ackermann J, Didcott J, Goldstone J, Kriegler J, Madala J, Mokgoro J, O'Regan J, Sachs J
• Judgment Date: 24 March 1998
• Citation: 1998 (3) SA 1 (CC)
• Docket Number: CCT 19/97
• Hearing Date: 07 November 1997
• Counsel: GJ Marcus (with him PJ Blomkamp) for the appellants AJ Dickson for the respondents
• Court: Constitutional Court

O'Regan J:

[1] This appeal against a judgment of Combrinck J sitting in the Natal J

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High Court [*] raises the question of the proper interpretation and application of s 182 of the Constitution of the A Republic of South Africa Act 200 of 1993 (the interim Constitution). That section provides as follows:

'The traditional leader of a community observing a system of indigenous law and residing on land within the area of B jurisdiction of an elected local government referred to in chap 10, shall ex officio be entitled to be a member of that local government, provided that he or she has been identified in a manner and according to guidelines prescribed by the President by proclamation in the Gazette after consultation with the Council of Traditional Leaders, if then in existence, or if not, with the Houses of Traditional Leaders which have then been established, and shall be eligible to be elected to C any office of such local government.' [*1]

The appellants are aggrieved by Proc 54 of 1996 (the proclamation) issued by the first respondent, the Minister of Local Government and Housing for the province of KwaZulu-Natal. It establishes seven regional councils for D the province and provides that traditional leaders, who in terms of s 182 of the interim Constitution are entitled to be ex officio members of regional councils, shall be members of such councils.

[2] Paragraph 10(2) of the proclamation, which is the focus of the appellants' complaint, provides as follows: E

'The members of each regional council shall until the first elections are held in terms of a law of a competent authority as contemplated by ss 174 and 245 of the Constitution comprise -

. . .

(c)

traditional leaders who ex officio are entitled to membership of the regional council in terms of s 182 of the F Constitution and have been identified in accordance with the provisions of Presidential Proclamation R109, 1995 dated 15 December 1995.'

The appellants argue that traditional leaders are not entitled to be members of regional councils for two reasons. First, they argue that the regional councils established by the proclamation are not 'local government referred to G in chap 10' as contemplated by s 182 of the interim Constitution; and secondly, that regional councils are not elected local government as contemplated by s 182.

[3] In the appellants' view, therefore, the traditional leaders are not entitled ex officio to be members of regional H councils in terms of s 182 of

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the interim Constitution. They accordingly seek, in addition to an order for costs, an order in the following terms: A

(i)

that Proc 54 of 1996, promulgated by the first respondent in the Provincial Gazette of KwaZulu-Natal 5116 of 1 April 1996 is declared to be invalid and of no force and effect in law;

(ii)

that a declaratory order be issued that: B

(a)

the regional councils established in terms of Proc 54 of 1996, promulgated by the first respondent in the Provincial Gazette of KwaZulu-Natal 5116 of 1 April 1996, are not an elected local government for the purposes of s 182 of the Constitution of the Republic of South Africa Act 200 of 1993; and C

(b)

a traditional leader of any community observing a system of indigenous law and residing on land within the area of jurisdiction of any such regional council is not ex officio entitled to be a member of that regional council.

[4] It is necessary to set the provisions of s 182 in their historical context. The transition to constitutional D democracy in South Africa required major changes not only to national government, but also to other spheres of government, including local government. The interim Constitution provided that all legislative and executive structures, other than local government bodies, existing when the interim Constitution came into force on 27 April E 1994 were to be dissolved. [*2] They were replaced by new structures established in terms of the interim Constitution itself. By contrast, the interim Constitution provided that local government structures were to persist beyond 27 April 1994 and were to be restructured in terms of the Local Government Transition Act 209 of F 1993 (the Transition Act). This Act was drafted and adopted at about the same time as the interim Constitution [*3] and its sole purpose was to provide for the necessary transformation of local government.

[5] Historically, elected local government in South Africa has generally been confined to urban areas and divided along racial lines. Outside urban areas, the functions of local government have been performed by a range of G different institutions. In those rural areas where traditional authorities existed, chiefs and headmen performed some of the functions of local government in terms of the Black Administration Act 38 of 1927.

[6] The transition from racially determined local government to democratic local government was therefore an H extremely complex matter. The Transition Act provides for three phases for the transition. [*4] The first

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phase, the pre-interim phase as it was called, ran from the commencement of the Transition Act on 2 February A 1994 (ie before the interim Constitution came into force) until the date of the first democratic local government elections, which were held for most areas in November 1995 and for all areas by June 1996. During this phase, the Transition Act provided for the establishment of negotiating forums to negotiate the appointment of temporary B councils which were to govern until democratic elections could be held. The second and current phase, called the interim phase, commenced with the first democratic elections which resulted in the establishment of transitional local government. These duly elected transitional local government bodies now exercise the powers of C local government provided for them in the Transition Act. The Transition Act expressly recognises that during the interim phase, elected local government 'may include the area of jurisdiction of a traditional authority'. [*5]

[7] The first two phases are transitional in the sense that they make provision for the transition from racially-based D local government to non-racial local government. The Act contemplates a third phase which will take place at some time in the future. That phase will not be regulated by the Transition Act itself, however, but will be initiated by new legislation to be enacted by a competent authority which will regulate local government in the future. E

[8] The interim Constitution recognised the special role of the Transition Act in regulating the transition of local government by providing in s 245(1) (in its original formulation) that:

'Until elections have been held in terms of the Local Government Transition Act, 1993, local government shall not be restructured otherwise than in accordance with that Act.' [*6] F

As Kriegler J commented in /Executive Council, Western Cape Legislature, and Others v President of the Republic of South Africa and Others1995 (4) SA 877 (CC) (1995 (10) BCLR 1289) at para [182]:

'(T)he restructuring of local government was to be governed exclusively by the G

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Transition Act until elections had been held under its provisions. It is obviously significant that the negotiating parties A thought it necessary to elevate the restructuring of local government to a constitutionally protected topic. That does not mean that the Transition Act, as it then read, was cast in stone. The Constitution does not say the Act cannot be amended. . . . But what it does mean is that only the Transition Act, amended or not, would govern the restructuring.' B

The effect, therefore, of s 245(1) was to make it clear that initially the national Legislature alone was competent to manage the process of the restructuring of local government. The Legislature could amend the Transition Act, C but provincial governments which under the interim Constitution had legislative competence in respect of local government [*7] would not gain that competence until the initial period of restructuring was complete.

[9] The Transition Act was repeatedly amended. [*8] When it was first enacted, it contained no specific provisions D relating to local government in rural areas, although as I have noted it did contemplate that during the interim stage the jurisdiction of a local government council might include the area of jurisdiction of a traditional authority. [*9] But one of the pieces of amending legislation, the Local Government Transition Act Second Amendment Act E 89 of 1995 (the Amendment Act) supplemented the Transition Act by the addition of a new chapter, Part VA, which dealt specifically with the issue of rural local government. [*10] The Amendment Act required that local government structures would exist throughout South Africa, 'wall-to-wall' local government as it was called by respondents' counsel in argument. [*11]

[10] The entire area of a province had to fall within either a transitional metropolitan council or a district council. F In the case of transitional metropolitan councils, their entire area of jurisdiction is divided into areas in which transitional metropolitan substructures exercise the powers and functions of primary level local government. In the case of district councils, their entire area of jurisdiction may be, but is not G

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necessarily, divided into the areas of jurisdiction of forms of primary local government, such as transitional local A councils, transitional representative councils and transitional rural councils. Therefore, metropolitan councils are purely second-tier or umbrella forms of local government, but district councils are not necessarily so. B

[11] The Transition Act specifically contemplates that first-tier local government need not be...