The Le Sueur Case and a Local Government's Constitutional Right to Govern

Abstract

The KwaZulu-Natal, Pietermaritzburg High Court case of Le Sueur v eThekweni Municipality was decided on the basis that a municipality, in the local government sphere, was permitted to legislate within the functional area of the environment. The Constitution of the Republic of South Africa, 1996 sets out functional areas of governmental powers in Schedules 4 and 5 and allocates these powers to National, Provincial and/or Local Government. Established jurisprudence in the Constitutional Court has entrenched the sanctity of the functional areas and interpreted these areas in such a way as to prohibit intrusion by one sphere into a functional area allocated to another. Both the 'environment' and 'municipal planning' are allocated functional areas, the first to the National and Provincial spheres concurrently and the second to local government. The judgment in the Le Sueur case is seemingly at odds with the accepted jurisprudence. Although the decision in Le Sueur seems to be intuitively correct the reasoning employed seems to be somewhat strained. This paper proposes an alternative rationale which could be used to permit the same decision to be reached in a less strained manner. The local government 'right to govern' is postulated as a plenary power granted to local government and this, in turn, requires that Schedules 4 and 5 be interpreted in a slightly different manner. If this approach is followed then local government would be entitled to legislate in the functional area of the environment (and indeed generally) subject to the limitations discussed.