Republic of South Africa

South Africa has an estimated population of over 57.7 million, composed of different races, the majority being black, of different ethnic composition

Amhara and the aims of the protesters also evolved to a demand for major political change in the country.

(statssa 2019). The country is divided into nine provinces, with nearly all of the ethnic groups having what may be called a ‘home' province. It is the economic hub of Africa, but faces many challenges, such as unemployment, with the unemployment rate sitting at 27.6 per cent in the first quarter of 2019 (statssa 2019). Unlike most of Africa, South Africa only attained major­ity rule as late as 1994 under an interim constitution, negotiated between the apartheid government and liberation movements, with the African National Congress (anc) playing a major role, which took the country out of the misery of apartheid rule (de Visser 2009, p. 269).

The first democratic parliament of South Africa adopted the final consti­tution of South Africa in 1996. Providing, inter alia, for an expansive Bill of Rights, a Constitutional Court and a bi-cameral parliament, it is one of the most progressive and transformative constitutions in the world. The consti­tution entrenches a multi-level system of government, which some scholars deem quasi-federal because of its federal features, even though the constitu­tion does not say so. The anc has dominated the political landscape since 1994, but its electoral support has slowly diminished over the years.

3.1. Decentralization in South Africa: Motives and Processes

Under colonialism and apartheid, the black majority in South Africa had been systematically disenfranchised and exploited.

Apartheid local governments delivered grossly uneven local government services and deliberately starved black communities of opportunities and resources (Cameron 2014, S81). Underdevelopment and unequal service deliv­ery were key drivers for the new local government system: municipalities were to be tasked with reversing the apartheid spatial logic and make a meaning­ful contribution to reducing inequality (Powell 2012, p. 12; Steytler 2005, pp 184,187).

The motivation to use local governments to build peace and promote integra­tion was visible in the early stages of the transformation. The first transitional local government institutions were mergers of existing (apartheid) institutions and representatives of civic organizations who were tasked to jointly manage transitional local authorities (Powell 2012, p. 12). The second transitional phase still mitigated the majoritarian effects of democracy. For example, it insisted on inclusive executive leadership structures at local level, emphasized consensus­seeking and demanded that budgets were adopted with a two-thirds majority. In a move to appease a powerful and potentially disruptive rural constituency, it also acknowledged the status of traditional authorities by including them as ex officio members of municipal councils.

3.2 Local Government Structures

Local government is constituted by 257 municipalities whose jurisdictions covers the whole of the country. There are three categories of municipal­ities: metropolitan (category A), local (category B) and district (category C). Metropolitan municipalities have exclusive municipal executive and legisla­tive authority in their areas of jurisdiction (Constitution of South Africa, sec­tion i55(i)(a)). There are currently eight metropolitan municipalities, with Johannesburg the biggest both wealth- and population-wise. Local municipal­ities, which total 205, share municipal executive and legislative authority in their respective areas with the district municipalities (44 in total) under whose jurisdiction they fall (Constitution of South Africa, section i55(i)(b)). The divi­sion of roles and responsibilities between local and district municipalities in practice is problematic, partly because it is not clear (Steytler 2005, pp. 192-3). While there is no dispute that local municipalities are the interface with com­munities and perform community services, the role of district municipalities remains contested (de Visser 2009, p. 273).

3.3 Local Autonomy at Constitutional or Statutory Level

Local government is recognized in the constitution as the third and lowest sphere of government, the other senior spheres being the national and the nine provincial governments. These three spheres of government are distinctive, interdependent and interrelated (Constitution of South Africa, section 40(1)). Unlike in many countries with multi-level forms of government, the institu­tion of local government in South Africa has the highest form of protection through the constitution.

The legislative and executive authority of each municipality are vested in its council (Constitution of South Africa, section 151(2)). Half of the members of the council in metropolitan and local municipal councils are elected under a ward-based majoritarian system, the other half under a system of proportional representation.^[80] District councils are constituted by some members (40 per cent) elected under a system of proportional representation, while others (60 per cent) are nominated by local councils in the relevant district area. This electoral system enables political parties to determine who becomes a council­lor, entailing the accountability of local leaders to ‘political leadership rather than to the community' (Cameron 2014, S88).

A council may delegate executive decision-making authority to an executive mayor or an executive committee chaired by a mayor. Both the executive mayor and executive committee are elected by the council from its membership. While the executive committee must be representative of the entire compo­sition of the council, this requirement does not apply to a mayoral committee which assists the executive mayor. The executive mayor can simply handpick any councillors to constitute this ‘cabinet'. In rural areas, traditional leaders are only ex officio members of the council, but they may not constitute more than 20 per cent of councillors.

Municipalities in South Africa have service-delivery duties, and also a devel­opment mandate. Section 151(3) of the constitution states that 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'. The national and provincial governments are prohib­ited from compromising or impeding a municipality's exercise of this right (Constitution of South Africa, section 151(4)). Each municipality is required to ‘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' (Constitution of South Africa, section 153(a)). Municipalities have an obligation not only to focus on their own development programs, but also to participate in those of the national and provincial governments (Constitution of South Africa, section 153(b)). The constitution equips municipalities with expansive powers and functions to enable them to fulfil their service-delivery obligations and devel­opment mandate. The power of each council to make and implement its own laws and policies detives directly from the constitution (Constitution of South Africa, section 156(2)).

The constitution further enumerates 39 functional areas which munici­palities have the right to govern, including water and electricity reticulation, land-use planning, municipal public transport, municipal roads, building reg­ulations, street trading, municipal health and refuse removal. The national and provincial governments may regulate the exercise of these functions (Constitution of South Africa, section 155(7)) and assume a local responsibility if a municipality fails to undertake it effectively (Constitution of South Africa, section 139 (1)).

While assigning to local government a variety of functions, the constitution does not give municipalities all the relevant functional areas for delivering major services, particularly in urban settings (Cameron 2014, S82). Housing, which is a national and provincial competence, is a good example. However, the constitution entrenches the principle of subsidiarity by requiring national and provincial governments to assign any of their functions if they can be effectively exercised by a municipality and if that municipality has the capac­ity to do so (Constitution of South Africa, section 156(4)). Moreover, munici­palities are empowered with incidental powers, that is, those powers that are necessary for the effective performance of their functions.

An expansive list of functional areas is matched by a variety of rev­enue streams for municipalities that are protected by the constitution. Municipalities, and only municipalities, can raise revenue by imposing prop­erty rates and surcharges on fees for services provided (Constitution of South

Africa, section 1). National legislation can also permit municipalities to impose other forms of taxes, levies and duties—excluding income tax, value-added tax, general sales tax and customs duty. Municipalities can also borrow money to finance their capital and current expenditure priorities (Constitution of South Africa, section 2goA(i)). The exercise of these revenue-raising powers is regulated by national legislation, but not at the expense of local autonomy.^[81]

The equitable division of revenue raised nationally among the three spheres of government is also provided for in the constitution to ensure the financial sustainability of municipalities. The division of revenue occurs through an annual enactment which can only take place after the provincial governments, local government and the ffc have been consulted and the recommenda­tions of the latter considered (Constitution of South Africa, section 214(2)). Importantly, any additional revenue raised by a municipality may not be deducted from its share of revenue raised nationally or any other allocations from the national government (Constitution of South Africa, section 227(2)). This is an encouragement for municipalities to exercise their fiscal powers fully. On the other hand, there is no obligation on the national government to provide financial support to municipalities that fail to fully exercise their fiscal powers or that overspend. Besides the equitable share, municipalities may receive other allocations from the national government which may be conditional or non-conditional (Constitution of South Africa, section 227(1) (b)). While there are concerns around the distribution of grants to local gov­ernment, metros and other larger municipalities are largely self-financing (Cameron 2014, S94).

3.4 Local Autonomy in Practice

It has been argued that the ‘legal and constitutional recognition of local gov­ernment is impressive and propels it to a status that at times equals or sur­passes that of provincial government' (de Visser 2009, p. 268). This is correct, considering that local autonomy is real, perhaps primarily because the consti­tution has made it so, unlike provincial autonomy. What is as important as the text of the constitution is the willingness of municipalities to assert their con­stitutional status and the willingness of the courts to protect it. Municipalities are increasingly asserting their autonomy in the political arena, but also in the courts. This has resulted, for example, in a firm jurisprudential trend in the Constitutional Court to disallow any national or provincial interference in the exercise of original municipal executive powers such as decisions on land-use management. This does not mean, however, that there are no strong central­izing tendencies.

While urban municipalities raise a significant portion of their own rev­enue, rural municipalities are largely grant-dependent. In any event, capital investments by local governments are mostly driven by grant funding (or, in some cases, borrowing). Thus, the impressive constitutional entrenchment of local resource-raising powers is ‘not matched by financial buoyancy in many municipal areas and is under pressure from centralising tendencies' (de Visser 2009, p. 281). The tight regulation of local government governance and finan­cial management is also considered to have a centralizing effect (Powell 2012, pp. 15, 17). However, party politics has by far the greatest impact. The anc con­trols the vast majority of municipalities and practises ‘democratic centralism', a political principle that significantly constrains the discretion of its local pol­iticians. The main opposition, the Democratic Alliance, controls a significant share of municipalities, primarily in the Western Cape and also subjects key decisions of local politicians to central approval. Almost all political parties which have representation in local councils play a significant role in determin­ing who occupies key local positions (Steytler 2005, p. 194). Thus, the consti­tutional entrenchment of local autonomy ‘co-exists with party centralisation' (Cameron 2014, S88).

The full realization of local autonomy in practice is also undermined by sev­eral other factors that are both within and outside of a municipality's control. For instance, legislation and policy interventions by national and provincial governments do not always respect the principle of local autonomy. The over­lap of functional areas among the three tiers of government complicates the scope for municipalities to fully exercise their autonomy. Skills shortages con­tinue to undermine effective administration, particularly in poor small towns and rural municipalities (Powell 2012, p. 11) (Steytler 2005, p. 194). The discus­sion cannot be complete without mentioning corruption, in all its manifesta­tions, which continues to hamper effective local administration and service delivery (Cameron 2014, S88; Powell 2012, p. 19).

3.5 The Impact of Local Autonomy in Realizing Decentralization

Objectives

Having established that in South Africa local autonomy is real, the critical question is how such autonomy affects local government's potential to realize the objectives usually associated with multi-level governance. Has it been suc­cessful in responding to the pressures that gave rise to its entrenchment? These questions are answered below. It should be noted that strong constitutional protection for local government does not automatically translate into strong municipalities in practice. In South Africa ‘many municipalities are incapable of asserting their financial and political autonomy for reasons both within and beyond their control' (de Visser 2009, p. 268).

Municipalities remain at the centre of state delivery of public services in South Africa. While significant strides have been made in extending access to basic services to the previously disadvantaged black population, pub­lic service delivery is failing to match people's expectations (Cameron 2014, S83). Both the quality and quantity of public services remain a key concern. Some citizens continue to receive better public services than others; some do not receive any services at all. Service-delivery protests are perhaps the best indicator of dissatisfaction levels. The fact that such protests have gradually increased over the years and are growing more violent indicates that the con­stitutional entrenchment of local autonomy has not translated into universal access to quality public services (Powell 2012, p. 22).

When it comes to counterbalancing the centre, local autonomy has acted as a brake on central power, perhaps more so than provincial autonomy. A num­ber of significant, centralizing reforms were stalled and ultimately abandoned as a result of local government invoking its autonomy in the political domain. Nevertheless, between 2000 and 2016, centralizing tendencies in finance and politics remained strong. With the anc controlling the vast majority of munic­ipalities, opposition to the central government played itself out mainly within the structures of the ruling party and in the intergovernmental arena. The scene was set for this to change in 2016 when the anc lost majorities in South Africa's largest cities. However, it has not yet led to a groundswell of opposition.

It is fair to say that local government has made a considerable contribu­tion to building peace in South Africa, particularly in the earliest years of the current dispensation (Powell 2012, p. 14). The process of designing the local government system and transitioning it played a key role in holding the nation together. The transitional phase was characterized by peace-building mecha­nisms that contributed to sustaining local pacts during those volatile first years of independence. As the systems settled, municipalities gained more powers and became more and more political. Furthermore, as budgets grew and finan­cial discretion increased, the elements of greed and corruption tore away at the integrative potential of municipalities.

The greatest faultline in the integrative and peace-building potential of local government is ever-widening income disparity (Powell 2012, p. 17). While municipalities cannot be blamed for economic stagnation and widespread unemployment, they carry considerable blame for not using their built envi­ronment functions to break the back of apartheid spatial segregation. The spatial injustice carried over from apartheid persists; black and white continue to live separate lives, kept apart by apartheid buffer zones, inadequate public transport systems and privatized security. There are other factors which inhibit integration: protests against failing municipalities are strictly along race/class lines (street protests versus rates withholding and court cases); simmering eth­nic tension sometimes spills over into outright ethnic territorial claims and an increase in political killings in local government (Powell 2012, pp. 22-23). However, the door for local government to continue to contribute to national integration remains open, given that it has some of the necessary instruments to do so.

Local government autonomy has been a game-changer in entrenching mul­tiparty democracy. The combination of an electoral system based on propor­tional representation and strong local autonomy offered avenues for oppo­sition parties to grow. This opposition grew firstly, and mostly, in the cities, which emerged as strong centres of power on the back of their autonomy. Intergovernmental relations, hitherto mostly conducted in centralized party structures, were increasingly being conducted across party lines. The fact that the intergovernmental (fiscal) system continues to survive (albeit perhaps with limited conviction) is testimony to the deepening of South Africa's multiparty democracy. There is no doubt that local autonomy played an important role in that. With respect to other indicators, such as voter turnout in local elections, the emergence of local parties and the role of independents, the impact of local autonomy has been muted. Turnout is relatively low, local parties have not emerged as a particularly strong force in local government, nor have inde­pendent councillors.

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