Local government and the conundrum of constitutional competencies in South Africa: The tussle between City of Tshwane Municipality and the Gauteng Health Department over ambulance services

• Author: Fuo, O.
• DOI: https://doi.org/10.47348/SLR/2022/i3a7
• Published date: 27 October 2022
• Date: 27 October 2022
• Citation: (2022) 33 Stell LR 484
• Pages: 484-500

484

https://doi.org /10.47348/ SLR/2 022/i3 a7

LOCAL GOVERNMENT AND THE CONUNDRUM

OF CONSTITUTIONAL COMPETENCIES IN

SOUTH AFRICA: THE TUSSLE BETWEEN

CITY OF TSHWANE MUNICIPALITY AND THE

GAUTENG HEALTH DEPARTMENT OVER

AMBULANCE SERVICES

Oliver Fuo

LLB LLM LLD

Associate Professor, Faculty of Law, Nor th-West University, South Africa*

Abstract

Local government’s autonomy in post-apartheid South Africa is

constitutionally guaranteed. A reading of the Constitution of the Republic of

South Africa, 1996 shows that local government, made up of 257 municipalities,

has a wide range of powers and functions. However, confusion over the scope

of constitutional distribution of powers and functions vis-à-vis other spheres of

government often constrains the ability of municipalities to take action over a

function not expressly assigned to local government in Schedules 4B and 5B of

the Constitution. The squabbles between the City of Tshwane and the Gauteng

Health Department over the power to provide ambulance services in March

2021 show how some municipalities may be hamstrung from taking action that

seeks to operationalise and deliver a function that is not expressly conferred

on local government in terms of Schedules 4 and 5 of the Constitution. This

article discusses why and how municipalities with the requisite capacity should

be able to provide ambulance services, although this is listed in Schedule 5A

of the Constitution as a functional area of exclusive provincial legislative

competence. I argue that three features in the Constitution give the power to

provide ambulance services to municipalities that have the requisite capacity:

the framing of health rights and concomitant obligations; the incidental

powers of municipalities; and the principle of allocative subsidiarity. It is

argued that, given the mandatory wording of the principle of allocative

subsidiarity in sections 156(4) of the Constitution and 32(2) of the National

Health Act 61 of 2003, where a provincial health department is averse to

assigning the provision of ambulance services to a municipality that has the

requisite capacity, such a municipality can approach the High Court for an

order compelling the department to assign this function.

* This work is bas ed on research suppor ted in part by the Nation al Research Foundation of Sou th Africa

(Grant Number 115242) This a rticle was wr itten duri ng a research v isit to Tumaini Univer sity Makum ira,

Tanzania fro m 7-28 May 2021 Al l views, conclusions an d errors are min e

(2022) 33 Stell LR 484

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https://doi.org /10.47348/ SLR/2 022/i3 a7

Keywords: Local government; competences; ambulance services; health

rights; South Africa

1 Introduction

The Constitution of the Republic of South Africa, 1996 (the “Constitution”)

in the Preamble and Chapter 2 afrms the commitment of the country to

correct the injustices of the past and to establish a society based on social

justice, equality and freedom. One of the fundamental changes introduced by

the Constitution to guide the country towards advancing these ideals is a Bill

of Rights (Chapter 2) which guarantees a variety of justiciable civil, political,

and socio-economic rights. The socio-economic rights guaranteed include, for

example, the right of everyone to a healthy environment; the right of access

to adequate housing and the right not to be evicted from one’s home without

a court order; the right of access to appropriate social assistance; the right

of access to health care services; and the right not to be refused emergency

medical treatment.1 The Constitution, in sections 24(b), 26(2) and 27(2),

imposes a duty on the state to adopt and implement reasonable legislative

and other measures to realise these rights. In addition, the state must respect,

protect, promote and full these rights.2

Apart from the rights described above, the Constitution also heralded

profound institutional transformation by establishing a unique constitutional

federal state.3 In terms of the new institutional arrangement, government in

South Africa is made up of three spheres (national, provincial and local spheres)

which are distinctive, interdependent and interrelated.4 The use of “sphere”

rather than “level” of government in the Constitution signalled the need to

break away from the previous hierarchical, top-down system of government to

one where all spheres of government operate as equals, at least in theory.5 All

spheres of government have legislative and executive powers and functions6

and must work together to realise the objectives of the Constitution through a

system of cooperative government.7

Generally, Schedules 4 and 5 of the Constitution indicate areas of

competences for the three spheres of government. National and provincial

government exercise concurrent legislative powers over the wide range of

1 See ss 24, 26 and 27 of the Con stitution of th e Republic of South Af rica, 1996 (the “Cons titution”)

See also ss 28(1)(c) and 35(2)(e) which respectively gua rantee basic so cio-economic r ights to child ren and

to arrest ed, detained an d accused person s

2 S 7(2)

3 J Erk “Federalis m and Decentralizatio n in Sub-Saharan Afr ica: Five Patterns of Evolution” (2014) 24

Reg Fed 535 537; Mashavha v President of t he Republic of Sou th Africa 2004 12 BC LR 1243 (CC) para 49;

T Hueglin & A Fenna C omparative Federa lism: A Systematic In quiry (20 15) 11-1 2

4 S 40 of the Constit ution; O Fuo “The Court s and Local Governments i n South Africa” in Y Fessha &

K Kössler (eds) Federalism a nd the Courts in Africa: D esign and Impact in Compa rative Perspectives

(2020) 105; J Hattingh Gove rnmental Relati ons: A South African Per spective (199 8) 3

5 T Madlingozi & S Woolm an “Provincia l Legislative Autho rity” in S Woolma n & M Bishop (eds)

Constitut ional Law of South Af rica 2 ed (RS 6 2014) 19–11

6 S 43 of the Constitut ion Generally, Chs 4 and 5 of the C onstitution set out th e structure, le gislative and

executive powers of na tional governme nt; Ch 6 sets out the str ucture, legi slative and executive powe rs of

provinces; an d Ch 7 sets out the str ucture, legislat ive and executive powers of loc al government

7 Ch 3

LOCAL GOVERNMENT AND THE CONUNDRUM OF

CONSTITUTIONAL COMPETENCIES IN SOUTH AFRICA 485

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