The Constitution of South Africa

The Constitution is the supreme law the country. All other laws must comply with the Constitution: Below are extracts directly relevant to local government.

Section 1.  Republic of South Africa
The Republic of South Africa is one, sovereign, democratic state founded on the following values:

a) Human dignity, the achievement of equality and the advancement of human rights and freedoms.
b) Non-racialism and non-sexism.
c) Supremacy of the Constitution and the rule of law. 
d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.

Section 2.  Supremacy of Constitution
This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.

 

Rights to engage in political activity:

Section 16. Freedom of expression

1.  Everyone has the right to freedom of expression, which includes –

a) freedom of the press and other media;
b) freedom to receive or impart information or ideas; 
c) freedom of artistic creativity; and
d) academic freedom and freedom of scientific research. 

2.    The right in subsection (1) does not extend to –

a) propaganda for war;
b) incitement of imminent violence; or
c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. 

Section 17.  Assembly, demonstration, picket and petition
Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.

Section 18.  Freedom of association
Everyone has the right to freedom of association.

Section 19.  Political rights

1. Every citizen is free to make political choices, which includes the right -

a) to form a political party;
b) to participate in the activities of, or recruit members for, a political party; and
c) to campaign for a political party or cause.

2.    Every citizen has the right to free, fair and regular elections for any legislative body established in terms of the Constitution.

3.    Every adult citizen has the right –

a) to vote in elections for any legislative body established in terms of the Constitution, and to do so in secret; and
b) to stand for public office and, if elected, to hold office. 

 

Socio-economic rights:

Section 26.  Housing

1. Everyone has the right to have access to adequate housing. 
2. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.
3. No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances.   No legislation may permit arbitrary evictions. 

Section 27.     Health care, food, water and social security
1. Everyone has the right to have access to –

a) health care services, including reproductive health care; 
b) sufficient food and water; and
c) social security, including, if they are unable to support themselves and their dependants, appropriate social assistance. 

2. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. 

3. No one may be refused emergency medical treatment. 

Section 29.  Education

1. Everyone has the right –

a) to a basic education, including adult basic education; and
b) to further education, which the state, through reasonable measures, must make progressively available and accessible. 

2. Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account –

a) equity;
b) practicability; and
c) the need to redress the results of past racially discriminatory laws and practices.

 

Rights to information and fair administrative action: 

Section 32.  Access to information
1. Everyone has the right of access to –

a) any information held by the state; and
b) any information that is held by another person and that is required for the exercise or protection of any rights. 

2. National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.

Section 33.  Just administrative action

1. Everyone has the right to administrative action that is lawful, reasonable and procedurally fair. 
2. Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.
3. National legislation must be enacted to give effect to these rights, and must –

a) provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal;
b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and promote an efficient administration. 

Section 34.  Access to courts

Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.

 

Rights to an accountable and effective local government:

Section 151.   Status of municipalities

1. The local sphere of government consists of municipalities, which must be established for the whole of the territory of the Republic.
2. The executive and legislative authority of a municipality is vested in its Municipal Council.
3. A municipality has the right to govern, on its own initiative, the local government affairs of its community, subject to national and provincial legislation, as provided for in the Constitution.
4. The national or a provincial government may not compromise or impede a municipality’s ability or right to exercise its powers or perform its functions.

Section 152.   Objects of local government

1. The objects of local government are –

a) to provide democratic and accountable government for local communities;
b) to ensure the provision of services to communities in a sustainable manner;
c) to promote social and economic development;
d) to promote a safe and healthy environment; and
e) to encourage the involvement of communities and community organisations in the matters of local government.

2.    A municipality must strive, within its financial and administrative capacity, to achieve the objects set out in subsection (1).

Section 153.   Developmental duties of municipalities

A municipality must -

a) structure and manage its administration and budgeting and planning processes to give priority to the basic needs of the community, and to promote the social and economic development of the community; and
b) participate in national and provincial development programmes.

Section 154.   Municipalities in co-operative government

1. The national government and provincial governments, by legislative and other measures, must support and strengthen the capacity of municipalities to manage their own affairs, to exercise their powers and to perform their functions. 

 

Requirements for the open and democratic functioning of municipal councils:

Section 160.   Internal procedures

2. The following functions may not be delegated by a Municipal Council:

a) The passing of by-laws;
b) the approval of budgets; 
c) the imposition of rates and other taxes, levies and duties; and
d) the raising of loans. 

3.    

a) A majority of the members of a Municipal Council must be present before a vote may be taken on any matter.
b) All questions concerning matters mentioned in subsection (2) are determined by a decision taken by a Municipal Council with a supporting vote of a majority of its members.
c) All other questions before a Municipal Council are decided by a majority of the votes cast.

4. No by-law may be passed by a Municipal Council unless –

a) all the members of the Council have been given reasonable notice; and
b) the proposed by-law has been published for public comment.

6.  A Municipal Council may make by-laws which prescribe rules and orders for –

a) its internal arrangements;
b) its business and proceedings; and
c) the establishment, composition, procedures, powers and functions of its committees. 

7.    A Municipal Council must conduct its business in an open manner, and may close its sittings, or those of its committees, only when it is reasonable to do so having regard to the nature of the business being transacted.
8.    Members of a Municipal Council are entitled to participate in its proceedings and those of its committees in a manner that -

a) allows parties and interests reflected within the Council to be fairly represented; 
b) is consistent with democracy; and
c) may be regulated by national legislation.

Section 162.   Publication of municipal by-laws
1. A municipal by-law may be enforced only after it has been published in the official gazette of the relevant province.
2. A provincial official gazette must publish a municipal by-law upon request by the municipality.
3. Municipal by-laws must be accessible to the public.

 

Rights to an accountable and responsive public administration:

Section 195.     Basic values and principles governing public administration    

1. Public administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles:

a) A high standard of professional ethics must be promoted and maintained.
b) Efficient, economic and effective use of resources must be promoted.
c) Public administration must be development-oriented.
d) Services must be provided impartially, fairly, equitably and without bias.
e) People’s needs must be responded to, and the public must be encouraged to participate in policy-making.
f) Public administration must be accountable.
g) Transparency must be fostered by providing the public with timely, accessible and accurate information.
h) Good human-resource management and career-development practices, to maximise human potential, must be cultivated.
i) Public administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness, and the need to redress the imbalances of the past to achieve broad representation.