The enforceability of the by-laws of district municipalities on local municipalities: The case of solid waste disposal

• Jurisdiction: South Africa
• Published date: 12 October 2020
• Citation: (2020) 31 Stell LR 315
• Pages: 315-343
• Date: 12 October 2020
• Author: De Villiers, N.F.

315

THE ENFORCEABILITY OF THE BY-LAWS

OF DISTRICT MUNICIPALITIES ON LOCAL

MUNICIPALITIES: THE CASE OF SOLID WASTE

DISPOSAL

NF de Villiers

BIuris Dipl Juris LLB LLM

Attorney, Port Elizabeth*

HJ van As

BIuris LLB LLD NDip (Pol)

Professor, Nelson Mandela University, Port Elizabeth*

JC Botha

BA LLB LLD

Associate Professor, Nelson Mandela University, Port Elizabeth*

Abstract

When waste disposal services are regionalised, the result is that waste

disposal services are not the principal responsibility of local municipalities.

Instead, they are shared between local and district municipalities. The

regionalisation and regulation of solid waste disposal is a contentious issue

and raises numerous questions. These include the issue of whether a district

municipality may adopt by-laws to regulate regional waste disposal services,

and also whether a local municipality beneting from the service is bound

thereby. A signicant challenge for the regionalisation process is the lack of

constitutional and legislative guidance on the implementation procedures

needed and the overarching nature of the functions and powers of the

impacted local and district municipalities. This article claims that district

municipal by-laws may standardise the regional waste disposal function and

that these by-laws, although not without limitations, should be enforceable on

local municipalities, provided that the principles of cooperative governance

and public participation are promoted.

* This article is based on research undertaken by NF de Villiers for his LLM dissertation The Enforceability

of By-laws of District Municipalities on Local Municipalities with Specic Reference to Solid Waste

Disposal Nelson Mandela University (2019) supervised by professors HJ van As and JC Botha.

All three authors contributed to the drafting of this article which summarises the ndings of the research.

The authors thank the anonymous referees for their comments and valuable input.

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(2020) 31 Stell LR 315

© Juta and Company (Pty) Ltd

316 STELL LR 2020 2

Keywords:

Municipal waste management, regionalisation, district munici palities, local

munici palities, municipal by-laws, environment

1 Introduction

Municipalities in South Africa are facing massive waste management

predicaments.1 According to the Institute of Waste Management of Southern

Africa (“IWMSA”),2 no new landll site has been licensed by metropolitan

municipalities in Gauteng for twenty-four years. The few remaining landll

sites are lling up and are not being replaced. According to IWMSA, there is

also a serious decline in the standard of landll operation and management,

particularly at municipal level. In the Southern Cape, for example, the

predicament is conrmed by the Garden Route District Municipality’s

Integrated Waste Management Plan (“IWMP”) of 2006.3 In 2013, a

feasibility study4 conducted on behalf of the district municipality endorsed

the IWMP.5 The feasibility study showed that the local municipalities in the

district lack the independent nancial, technical or administrative capacities

to create and operate a landll site that complies with the requirements set by

the Department of Environmental Affairs. Bearing in mind that these local

municipalities are amongst the better performing municipalities in South

Africa,6 the situation elsewhere can only be worse. In many districts, the

best solution would be to establish, operate and manage a regional disposal

facility for the use of local municipalities.

The regionalisation of the waste disposal function, from local munici-

palities to a district municipality is, largely, unchartered territory in South

Africa. Regionalisation implies that the waste disposal function performed

by the local municipality tier is terminated and migrated to the district

municipal tier. Such migration would give effect to the division of waste

management functions and powers between district and local municipalities

1 Y Stander “Garden Route Faces Domestic Waste Crisis as Landll Deadline Looms”

The Herald 2 (02-05-2016)

20160502/281539405155174> (accessed 21-08-2020).

2 IWMSA “South Arica is Drowning in Its Own Waste” (01-02-2019) Award

index.php/2019/02/01/south-africa-is-drowning-in-its-own-waste-are-our-regulators-taking-this-

crisis-seriously/> (accessed 21-08-2020).

3 Kwezi V3 Engineers Integrated Waste Management Plan for the Eden District Municipality

Western Cape (2006).

4 See s 78 of the Systems Act 32 of 2000.

5 WorleyParsons RSA (Pty) Ltd Mossel Bay Regional Landll & AWT PPP Feasibility Report

(2014). Eden District Municipality’s name changed to Garden Route District Municipality

(“GRDM”) in 2018.

6 BusinessTech “These are the Best and Worst Run Municipalities in South Africa” (18-04-2019)

Business Tech

run-municipalities-in-south-africa/> (accessed 21-08-2020).

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