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The Legal Framework
It is important for activists to understand how laws are made and enforced in South Africa.
The information contained here will help you understand your rights in dealing with local government.
Throughout this website, legislation is italicised and links to the legislation are provided in the ‘RELEVANT LEGISLATION’ side bars.
WHAT IS THE RULE OF LAW
In South Africa, no government or individual is above the law. All of government, including local government, must act according to the Constitution and laws passed by government. This is known as the rule of law (s. 1(c) and s. 2 of the Constitution) and means that government, politicians and officials at any level can be ordered to obey the law.
When challenging a local government action or refusal to act, there are two questions you need to ask:
The three spheres of government – local, provincial and national – and each receive their power from the Constitution. Each sphere must pass its own laws in the areas under its control.
DIFFERENT KINDS OF LAWS
The Constitution: this is the supreme law in South Africa and overrides all other laws that are not in agreement with it. It includes the Bill of Rights which guarantees human rights for everyone in South Africa.
Statutes or Acts: these are laws voted on by an elected body including a municipal council, provincial legislature or national Parliament and are also referred to as legislation. One of the most important Acts governing local government is the Municipal Systems Act.
Municipal by-laws: these are laws made by local government. They must be passed by a majority vote of a municipal council. Under the Constitution, the public must be given an opportunity to review and comment on by-laws before they are voted on by a municipal council. Each municipality publishes its by-laws in what is called a Municipal Code.
Resolutions: these are decisions of municipal council decided on through a majority vote. Some decisions, such as to dissolve a municipal council, require a two-thirds majority to pass.
Standing orders and rules: these deal with how a municipal council conducts a meeting, when meetings may be closed to the public, the role of the speaker and how petitions are handled.
Municipal policy: a municipal policy, adopted by resolution of the municipal council and a by-law, is legally binding. Examples of this are the indigent policy, credit and collections policy, tariff policy, etc. Policies that are not approved by a resolution or by-law of municipal council are not necessarily legally binding which means they are not enforceable as law.
Regulations, frameworks and guidelines: these are subordinate laws approved by the executive. In the case of local government, this means the municipal council, mayor and/or the executive committee. To be valid as law, regulations must be authorised or approved by legislation or by-laws.
According to s. 32 and s. 162(3) of the Constitution and s. 15(3), s. 25(4)(a), s. 46(4)(a) and s. 84(3)(b) of the Municipal Systems Act, by-laws, policies, rules and standing orders must be accessible to the public. Ask your municipal office to give you a copy of the municipal by-law, policy, rule or standing order you are looking for.
The courts: Sometimes the courts decide how these laws should be applied. This is called judicial or legal interpretation and that is what makes the Constitution a living document. There are several levels of courts in South Africa, from magistrates' courts, through High Courts to the Supreme Court of Appeal and the Constitutional Court. The Constitutional Court is the final court for all constitutional matters – it makes the final decisions about the meaning of the Constitution and the Bill of Rights. Cases from the Constitutional Court interpret and develop the law and define our rights. There are different ways to find the laws you are looking for. You can approach your local government municipal office and ask for complete copies of by-laws, regulations and policies. All of these should be on your municipality’s website.