Constitution of the Republic of South Africa, 1996/1998-10-30/Chapter 7

Establishment of municipalities

There are the following categories of municipality:

Category A: A municipality that has exclusive municipal executive and legislative authority in its area. Category B: A municipality that shares municipal executive and legislative authority in its area with a category C municipality within whose area it falls. Category C: A municipality that has municipal executive and legislative authority in an area that includes more than one municipality.

National legislation must define the different types of municipality that may be established within each category.

National legislation must —

establish the criteria for determining when an area should have a single category A municipality or when it should have municipalities of both category B and category C; establish criteria and procedures for the determination of municipal boundaries by an independent authority; and subject to section 229, make provision for an appropriate division of powers and functions between municipalities when an area has municipalities of both category B and category C. A division of powers and functions between a category B municipality and a category C municipality may differ from the division of powers and functions between another category B municipality and that category C municipality.

The legislation referred to in subsection (3) must take into account the need to provide municipal services in an equitable and sustainable manner.

Provincial legislation must determine the different types of municipality to be established in the province.

Each provincial government must establish municipalities in its province in a manner consistent with the legislation enacted in terms of subsections (2) and (3) and, by legislative or other measures, must —

provide for the monitoring and support of local government in the province; and promote the development of local government capacity to enable municipalities to perform their functions and manage their own affairs.

If the criteria envisaged in subsection (3)(b) cannot be fulfilled without a municipal boundary extending across a provincial boundary —

that municipal boundary may be determined across the provincial boundary, but only —

with the concurrence of the provinces concerned; and after the respective provincial executives have been authorised by national legislation to establish a municipality within that municipal area; and

national legislation may —

subject to subsection (5), provide for the establishment in that municipal area of a municipality of a type agreed to between the provinces concerned; provide a framework for the exercise of provincial executive authority in that municipal area and with regard to that municipality; and provide for the re-determination of municipal boundaries where one of the provinces concerned withdraws its support of a municipal boundary determined in terms of paragraph (a).

The national government, subject to section 44, and the provincial governments have the legislative and executive authority to see to the effective performance by municipalities of their functions in respect of matters listed in Schedules 4 and 5, by regulating the exercise by municipalities of their executive authority referred to in section 156(1).

Composition and election of Municipal Councils

A Municipal Council consists of —

members elected in accordance with subsections (2), (3), (4) and (5); or if provided for by national legislation —

members appointed by other Municipal Councils to represent those other Councils; or both members elected in accordance with paragraph (a) and members appointed in accordance with subparagraph (i) of this paragraph.

The election of members to a Municipal Council as anticipated in subsection (1)(a) must be in accordance with national legislation, which must prescribe a system —

of proportional representation based on that municipality’s segment of the national common voters roll, and which provides for the election of members from lists of party candidates drawn up in a party’s order of preference; or of proportional representation as described in paragraph (a) combined with a system of ward representation based on that municipality’s segment of the national common voters roll.

An electoral system in terms of subsection (2) must ensure that the total number of members elected from each party reflects the total proportion of the votes recorded for those parties.

If the electoral system includes ward representation, the delimitation of wards must be done by an independent authority appointed in terms of, and operating according to, procedures and criteria prescribed by national legislation. Where a municipal boundary has been determined in terms of section 155(6A), a ward delimited within that municipal boundary may not extend across the provincial boundary concerned.

A person may vote in a municipality only if that person is registered on that municipality’s segment of the national common voters roll.

The national legislation referred to in subsection (1)(b) must establish a system that allows for parties and interests reflected within the Municipal Council making the appointment, to be fairly represented in the Municipal Council to which the appointment is made.