6. ANALYSIS OF FUNCTIONAL AREAS
6.1. Contribution by Judicial Interpretation
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local government cannot be the correct forum in which provincial government exercises its supervisory powers. Thus, although the court correctly determined that section 44 was unconstitutional, it is submitted that the reasoning adopted by it is fundamentally flawed. If nothing else, this decision serves to highlight the potential for judicial interpretation to negatively impact of the clarity of the functional areas and highlights the importance of adopting alternative means of interpretation.
6. ANALYSIS OF FUNCTIONAL AREAS
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arise.284 These definitional problems fall into two categories. First, where the same functional areas are allocated to the national, provincial or local sphere of government, with the only distinction being the addition of either the 'provincial' or 'municipal' qualification (i.e. provincial planning/municipal planning).285 Second, where 'a provincial functional area includes or covers a local functional area.'286 Steytler et al notes that most aspects of local functional areas fall within one of the provincial functional areas.287
In considering the implications of the national-provincial division of legislative powers, Bray notes that the term 'environment' has 'no fixed content' and suggests that its parameters will fall to be determined by the legislature and/or the Constitutional Court.
Bray goes on to note that one of the sources of fragmentation that arise due to this is that provincial legislatures may take 'different views on what 'environment' means in the context of their province'. Bray goes on further to suggest that because functional areas such as, inter alia, soil conservation and nature conservation are recognized as separated areas from 'environment', that there is an implication that 'environment will be seen only in the context of the individual's basic right to the environment … a homocentric approach which centers around human health and well-being.'288
The functional approach to interpretation adopted in the Liquor Bill case289 gives rise to the territorial principle and the need to determine what is appropriate for each sphere of government. How then does one go about determining what is appropriate to a sphere of government? De Visser argues that local government functions should be interpreted to reflect the constitutional principle of developmental local government.290 Therefore, so the argument goes, 'the competencies must enable local government to discharge its development-driven functions fully and effectively.'291 A general problem that arises where courts are required to determine issues relating to the scope of functional areas is that the dispute is often a political issue. Discussing the courts’ role in determining
284 Ibid.
285 Ibid.
286 Ibid. at 322.
287 Ibid.
288 E Bray op cit n7 at 178.
289 See above.
290 J de Visser Developmental Local Government (2005) 117 as cited in N Steytler & YT Fessha op. cit.
n122 at 321.
291 N Steytler & YT Fessha op. cit. n122 at 326.
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disputes relating to legislative competence, Bronstein notes that '[t]he categorisation of legislation may raise challenging questions of statutory interpretation that force the Court to engage delicate political issues.'292 The court has been reluctant to use the constitutional mechanisms contained in the principle of co-operative governance to 'impose judicial solutions on quintessentially political problems.'293 Therefore, courts should been seen as having a limited role in defining the boundaries of the functional areas and the manner in which the spheres of government are to co-operate.
A further problem that exists, which is evident from the above cases discussed, is that the guidance provided by judicial interpretation is inadequate as it is couched in broad and general terms and has only been applied to relatively few functional areas.294 Therefore, whilst providing crucial insight into the manner in which functional areas are to be interpreted, such guidance is limited.
Therefore, alternative mechanism for clarifying the scope of functional areas should be considered. Steytler identifies three alternative means of interpreting the functional areas: legislative interpretation, administrative definitions, and negotiated definitions.295 Interestingly, due to the fact that courts have approached defining functional areas in a bottom up manner, the legislative definition of 'environment' as contained in NEMA, has never been considered as being relevant. Prior to the judgments outlined above, Bosman noted that 'the competencies listed in Schedules 4 and 5, read with the definition of ‘environment’ in the National Environmental Management Act 107 of 1998 […], could potentially lead to inconsistency in decision-making and even conflict among and between spheres of government that cannot be resolved with reference to the provisions on co-operative governance alone.'296 Whilst conflict has indeed arisen in the area of environment, it has never fallen to the court to consider what is meant by this term. Bosman et al argue that it is apparent from a consideration of Schedules 4 and 5 that the definition of environment as contained in NEMA is not what the drafters of the Constitution had intended to allocate by including ‘environment’ as a functional
292 V Bronstein 'Chapter 15: Legislative Competence' in S Woolman et al (eds) CLOSA 2ed (RS4 2012) Vol 1 at 15-2.
293 S Woolman & T Roux op. cit. n32 at 14-8.
294 N Steytler & YT Fessha op. cit. n122 at 327.
295 Ibid. at 327-330.
296 C Bosmam, L Kotze and W Du Plessis op. cit. n2 at 411.
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area listed in Schedule 4.297 This, it is argued, is because such a situation 'negates co- operation, harmonization, and integration and actually leads to confusion and even conflict.'298 Bosman et al conclude by arguing that the 'Constitution will have to be amended to provide clarity not only on the role and responsibilities of the different spheres of government, but also within specific spheres.'299 However, as has been seen from the manner in which the courts have interpreted the functional areas that have given rise to conflict that creative interpretation can lead to results that are flexible and give effect to the principles of the Constitution.
A further consideration when analysing the functional areas is to note that as a general rule, a municipal council 'is not compelled to legislate in any of its functional areas.'300 It is therefore a discretionary power that vests in the municipal council, and thus the absence of local government laws should not be construed as meaning that local government is not entitled to legislate within such area.