Local Government Indigent Policies in the Pursuit of Social Justice in South Africa through the lenses of Fraser

• Jurisdiction: South Africa
• Pages: 187-208
• Author: Oliver Fuo
• Published date: 16 August 2019
• Date: 16 August 2019

187

LOCAL GOVERNMENT INDIGENT POLICIES IN

THE PURSUIT OF SOCIAL JUSTICE IN SOUTH

AFRICA THROUGH THE LENSES OF FRASER

Oliver Fuo

LLB (Hons) LLM LLD

Postdoctoral student, NWU (Potchefstroom Campus)*

1 Introduction

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

is committed to cor recting the i njustices of the past and to the establi shment

of a society based on social justice.1 This commitment is rmly root ed both in

the vision of transformative constit utionalism2 and the constitutional obligation

on government to promote susta inable development.3 The constitutional

commitment to est ablishing a society based on socia l justice translates i nto a

mandate which must be pur sued by the government of South Afr ica. Mindful

of the fact that government in Sout h Africa is constit uted by three disti nct,

interrelated and i ndependent spheres (national, provincial a nd local),4 this

mandate by default becomes a shar ed mandate which must be executed wit hin

the constitutional f ramework of co-operative government.5 As a co-resp onsible

* Although the c ore of this arti cle constitutes p art of my LLD resear ch, it was rewrit ten during a res earch visit to

the Ce ntre for Inte rnat iona l Develo pment and Envi ronm enta l Resea rch (“Z EU”) at the Jus tus- Liebi g Univer sity,

Giessen I wish to t hank DAAD for spon soring my research v isit Special thank s to Professor Anél du Ples sis,

for her valuable com ments I am grat eful for the valua ble comments of the t wo anonymous reviewe rs

1 See Preamble to t he Constitution

2 Elsewhere, I have give n a detailed acc ount of the concept of t ransform ative constit utionalism This

includes its or igin, the exte nt to which it is unde rstood by some Sou th African s cholars and jur ists

and my unders tanding of the concept See O Fuo “The Tra nsformative Potential of the Con stitutional

Environme ntal Right Overlooke d in Grootboom” (2013) 34 Obiter 77 77-82

3 S 24 of the Constit ution provides:

“Everyone has t he right – (a) to an environ ment that is not ha rmful t o their health or wel l-being;

and (b) to have the envi ronment protected , for the benefit of present a nd future genera tions, through

reasonable leg islative and other m easures th at – (i) prevent pollutio n and ecological deg radation;

(ii) promote cons ervation; and (iii) secu re ecologically sustaina ble development and use of na tural

resources wh ile promoting just ifiable economi c and social develo pment ” (Emphasis add ed)

Although the c oncept of sustai nable development oft en has conf licting defi nitions, it is a sha red view that

it seeks to inte r alia promote the achie vement of social justic e See P Urquhart & D At kinson A Pathway

to Sustaina bility: Local Agenda 21 in Sou th Africa (2002) 20-21; M Burns & J H attingh “Loc ating Policy

within the Taxonom y of Sustai nable Development” (2007) 14 SAJELP 1 3-5; J de Visser Inst itutional

Framework for D evelopmental Lo cal Government: Mak ing Good on the Promi se of Development ( 2001)

2-3; World Commission on Envi ronment and Development (“ WCED”) Report of the World Commis sion

on Environment and Development (WCED): Our Common Future (1987) paras 27-30

4 See s 40(1) of the Constitu tion

5 For details on the pr inciples of co- operative gover nment and int ergovernmen tal relations, s ee ss 40(2)

and 41 of the Constit ution; W du Plessis “Legal Mec hanism for Cooperat ive Governance in Sout h Africa:

Successes an d Failures” (20 08) 23 SAPL 87 90-92; T Layman Intergovernmental Relations and Service

Delivery in S outh Africa: A Ten Year Review (200 3) 8; Community Law Centre Inst itutional Subsidiarity

in the Constit ution: Slapstick As ymmetry or a “Rights-b ased” Approach to Powers? (200 8) 2-3, 11-12; B

de Villiers & J Sin dane Cooperat ive Government: Th e Oil in the Engine (2011); J de Visser Developmental

Local Govern ment: A Case Stu dy of South Africa (20 05) 209-254; C Kirkby, N Stey tler & J Jordan “Toward s

a More Cooperat ive Local Government: T he Challenge of Distric t Intergovernmenta l Forums” (2007) 22

(2014) 25 Stell LR 187

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sphere of government,6 lo cal go ver nm ent is eq ua lly ob lig ed to co ntr ib ute to wa rds

the pursuit of social justice in Sout h Africa.7 Despite the above-mentioned

constitutional mand ate, the Constitution doe s not expressly articulate what

social justice entails. Alt hough the concept of social justice and the me ans of

realising it remain a content ious issue for modern juris prudence,8 schola rs and

jurists agre e that, in basic term s, social justice is prima rily concerned w ith the

eradication of povert y and extreme inequalities in access to material resources

in order to ensure that all citizens comma nd the resou rces needed to equally

partici pate in socio -political l ife.9 In this regard, Cha skalson explains that a

society in which “ther e will be social justice” is one in which “the basic nee ds of

all our people will be met, i n which we will live together in har mony, showing

respect and concer n for one another”.10

It should be noted that, in line wit h the obligation to contribute towards the

realisation of constitutiona l objectives, municipalities have powers to adopt

and implement by-laws, plans and policies in respect of the mat ters listed in

Schedules 4B and 5B of the Constitution.11 The L ocal Government: Municipal

System s Act12 (“Systems Act”) provides that, i n governing a municipalit y,

a municipal council could exercise its executive and legislat ive authority by

developing and implementing policies and by-laws.13 In this regard, policy is

arguably one of the legally prescrib ed governance instr uments which should

be used by municipalities to rea lise their developmental mandate.14 In orde r

to assist local government to bet ter respond to the basic needs of ind igent

households such as water, electricity and sa nitation, the national govern ment

adopted the National Framework for Municipal Ind igent Policies (“NIP”) in

2006.15 The NIP gu arantees a basic level of water, electricity and sa nitation

SAPL 143 144; B Bekink Prin ciples of South Afr ican Local Gover nment Law (2006) 89-94

6 See A du Plessis “Loc al Environme ntal Governa nce and the Role of Loca l Government i n Realising

Section 24 of the Sou th African C onstitutio n” (2010) 21 Stell LR 265 265-267; A Christmas & J de

Visser “Bridg ing the Gap between Th eory and Practice: Rev iewing the Functions a nd Powers of Local

Government i n South Africa” (2009) CJLG 107 107; J de Visser “Develop mental Local Govern ment in

South Afri ca: Institution al Fault Lines” (2009) CJLG 712 -714

7 See P Langa “Trans formative Const itutionalism” (20 06) 17 Stell LR 351 358; K Klare “Legal Cult ure and

Transformat ive Constitutionalism” (1998) 14 SAJHR 146 150; M Pieterse “Wh at do we mean when we

Talk about Transfor mative Constitutional ism” (2005) 20 SAPL 155 164-165; A Chaskalson “The Th ird

Bram Fisher Memor ial Lecture: Huma n Dignity as a Foundat ional Value of our Constitut ion” (2000) 16

SAJHR 193 204-205

8 A van Blerk Jurisprudence: An Introduction (1998) 127; Y Sooka “Transforming our S ociety” in J

Handmaker & R B erkout (eds) Mobilising Socia l Justice in South Af rica: Perspectiv es from Research ers

and Practitioners (2010) 193 193

9 See Pieterse (200 5) SAPL 164-165; Chaskalson (2000) SAJHR 204-205; N Fraser “ Social Justice in the

Age of Identity Polit ics: Redistribution , Recognition, and Par ticipation” in N Frase r & A Honneth (eds)

Redistribution or Recognition (2003) 7 36

10 Chaskals on (2000) SAJHR 205

11 See s 156(1) of the Constitution r ead with Schedu les 4B and 5B By v irtue of the se provisions,

municipalit ies have legislative and executive au thority in the areas of: elec tricity and gas reticu lation,

municipal hea lth services, mun icipal public transpo rt, stormwater man agement in built-up are as, water

and sanitat ion services limite d to potable water supply syste ms and domestic waste-wat er and sewage

disposal sys tems, refuse re moval, refuse dump s and solid waste dispo sal and cemeter ies, among others

12 Local Govern ment: Municipal Sys tems Act 32 of 2000

13 See s 11(3)(a)

14 See s 11(3)(a)

15 See DPLG (now CoGTA) National Framework for Municipal Indigent Policies (2006) (“National In digent

Policy”)

188 STELL LR 2014 1

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