CHAPTER 3 LEGISLATIVE AND CONSTITUTIONAL BASIS FOR DISASTER
3.2 History of Local Government
The development of municipalities can be traced in two phases. The first phase, being the pre-1994 dispensation, where municipalities were established in areas outside black communities. These were within the jurisdiction of the Black Administration Act 76 and the Black Authorities Ace7 . Secondly the post 1994 phase introduced the integration of previously excluded communities and entities into the newly demarcated wall -to- wall municipalities78.
Under the apartheid government, there was local government in towns and cities but not in rural areas. This was organized according to racial lines. Therefore, municipalities existed for the White areas in the towns. Black local authorities were established in the townships. Opposition to the old system of government
75Disaster Management Act, (Act no. 57 of 2002)
76Black Administration Act (Act no. 38 of 1927)
77Black Authorities Act (Act nO.58 of 1951).
78Source: Manual on Local Government and Democracy, 2001)(
led to people refusing to pay for services and some of the Black Local Authorities were disbanded79.
The national transition in South Africa began with the release of political leaders and the unbanning of all political organizations in 1990. Under the old system, all tiers of government were racially based and exclusive. There was separate representation for so-called Indians, Coloureds and Whites in Parliament and Blacks were denied access to national government. Provincial government was appointed by national government while local government was fragmented with racially exclusive local authorities established for different racial groupings in urban areas. There was no substantive local government in rural areas.80
The unbanning of political parties and the release of political leaders in 1990, led to national negotiations between all major political parties and organizations to end apartheid and create a new democratic, non-racial dispensation. The negotiations culminated in the approval of the Interim Constitution by the Multi- Party Negotiating Forum at the end of 1993 and its adoption by Parliament. The step paved the way for the elections of non-racial and democratic governments at national and provincial levels, which were held in April 1994.
However, local government had not been a central concern of the Multi-Party Negotiating Forum. The negotiations on the future of local government took place in the Local Government Forum (LGNF). This body was created in March 1993 and included non-statutory members led by South African National Civics Organisation (SANCO) and statutory members that included organized national, provincial and local government. The negotiations led to agreement on a Local Government Transitional Act81 , which dealt with local government. The LGTA
79TheLocalGovernment Transitional Act (Act, no 209 of 1993).
80 Kendall A. , Partners in Transformation: A resource Book,1991
81 Local Government Transitional Act (LGTA), (Act nO.209 of 1993) and Chapter 10 of the interim Constitution
was, therefore, passed by Parliament in December 1993, Local Government Transitional Act82 .
In 1993, the Local Government Transition Act provided the legislative framework for a three-phase process of transition towards a new local government system.
Under this Act, new forms and structures of government such as Transitional Councils and Municipalities were created to respond to the increasing demand of amalgamation of former racially based structures. It is argued that even after the elections of 1994 and the creation of nine provinces in the same year, the interim phase of the transition showed limitations and constraints of the new institutional framework to address the disparities and the inequalities of the past.
A three Phase Change Process was as follows83:
(A) PRE- INTERIM PHASE
During this phase, the local negotiating forums were established on an inclusive basis and negotiated the establishment of appointed transitional councils, which unified the previously racially divided areas. They were based on an equal number of representatives from areas previously controlled by white local authorities and Indian and Colored management committees (commonly known as statutory) and non statutory areas (the remaining areas especially black local authority areas and informal or squatter settlements not under the jurisdiction of white local authorities) which governed towns and cities and prepared for local elections.
82Local Government Transitional Act (LGTA), (Act no. 209 of 1993).
83Source: Guidelines on Local Government elections in South Africa 1995/6)
(B) INTERIM PHASE
The interim phase was to follow non-racial local elections scheduled for November 1995, to last for three to five years. Elected local authorities were created with distribution of seats being on the basis of a50/50 arrangement, 50%
of seats to represent the so-called statutory areas and 50% of the seats to represent the so-called non-statutory areas.
(C) FINAL PHASE
When the Constitution was finally in place and provincial governments had established the framework of local authorities in their areas, elections were to be held for final local government within the framework of the Constitution and provincial legislation. The elections were to mark the end of the interim phase and create a truly democratic and representative local authority.
According to Pillay and Liebenberg [996: 101]84 the following are some of the values and principles for local government. The local government must:
• promote a high standard of professional ethics in its overall system of government and management;
• use its resources efficiently and effectively;
• be development oriented;
• promote fairness, reasonableness and impartiality, and have no bias;
• respond to the needs of its people;
• promote public participation in the management of its affairs;
• be accountantable to its electorate and where necessary, to other stakeholders,
• promote transparency and supply the public with and sufficient information,
• promote good human resource development practices and
84Pillay & Liebenberg , Socio- Economic Rights in South Africa: A Resource Book, 2000
• be broadly representative of the population it serves.
The Constitution85 together with the Municipal Structures Act86 established a system of categories regarding municipalities as follows:
• Category A - this category is the "metropolitan area": One municipality that has the exclusive authority to administer and make rules in its area.
• Category B - this category is the "local municipality': It shares that authority in its area with the "district municipality" of the district in which it falls.
• Category C- this category is the "district municipality": It has authority to administer and make rules in an area, which includes more than one local municipality.
The Constitution stipulates that national legislation must give rules for determining when a municipality will be a metropolitan and when a certain area will consists of a district municipality together with a number of local municipalities.
3.3 RELATIONSHIP BETWEEN NATIONAL, PROVINCIAL AND LOCAL