The role of the principle of legality in preserving municipal constitutional integrity : journal

• Author: Mbuzeni Johnson Mathenjwa
• DOI: 10.10520/EJC-7978c8b11
• Published date: 01 January 2014
• Date: 01 January 2014
• Record Number: sapr1_v29_n2_a16
• Pages: 534-547

I wish to thank my colleague Prof Stephan Terblanche and my promoter Emeritus Prof EFJ

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Malherbe for their insightful comments on the draft of this note.

Section 40(1) of the Constitution of the Republic of South Africa, 1996 (hereinafter ‘the

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Constitution’).

Section 151(1) of the Constitution provides that the local sphere of government consists of

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municipalities which must be established for the whole of the territory of the Republic.

Section 151(1) of the Constitution provides that municipalities which constitute the local sphere of

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government must be established for the whole territory of the Republic.

See s 156(1) of the Constitution.

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There are other constitutional grounds for reviewing government action such as the right to

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equality. For example, the Constitutional Court in City of Pretoria v Walker 1998 3 BCLR 257 (CC),

reviewed the conduct of the City of Pretoria Council based on the constitutional ground of the right

The role of the principle of legality in

preserving municipal constitutional

integrity*

1 Introduction

The exercise of supervisory powers by provincial government over local

government has seen municipalities resorting to court action to prevent provincial

government from violating their municipal constitutional status. The status of

municipalities is determined by the Constitution of the Republic of South Africa,

1996, in terms of which government comprises three spheres, namely the

national, provincial and local spheres. The local sphere of government comprises

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the various municipalities. It is against this background t hat the main focus of this

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note is the discussion of the role of the principle of legality – as applied by courts

– in protecting municipal integrity. The Constitution confirms the status and value

of local government in the new constitutional order. It reinforces this sphere of

government by making provision for the establishment of local government

throughout the entire territory of the Re public. T he status of local government is

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further enhanced by the conferral of certain constitutional powers and functions

on local government, and by reference to it as a ‘sphere of government’.

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Provincial government’s supervisory powers over local government and the

grounds for judicial review of provincial government’s actions in this regard are

discussed in order to set the scene for the discussion of the role of the principle

of legality in protecting municipal integrity. Finally, relevant case law is discussed

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