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The paper will argue that… • The adoption of by-laws is an imperative • The implementation, administration and enforcement of by-laws are executive obligations • These executive obligations are in most instances not fulfilled • Provincial executives can intervene in terms of the Constitution • The implementation of by-laws is important from the perspective of fulfilling other obligations, the reduction of crime and revenue enhancement
Legislative and executive powers of municipalities • Constitution • S156 – Municipality may make and administer by-laws for the effective administration of matters it may administer • Systems Act • S 11 – Municipality exercises legislative or executive authority by – • Passing by-laws • Implementing by-laws • S 15 – must compile and maintain municipal code • S 5(2)(e) community to comply with by-laws of the municipality applicable to them • S 55 – MM responsible for administration and implementation of by-laws and other legislation;
Executive Obligations • The obligation of local government is to provide government at a local level and to discharge the functions associated therewith. • This obligation is exercised within the functional areas and extends to the obligation to, within those functional areas, implement and administer legislation in relation thereto, provide the services associated therewith, provide an administration to do so, develop policy in relation thereto and initiating by-laws to effectively govern within those functional areas. • That this is consistent with what must be understood by the term “executive” is confirmed by section 11(3) of the Municipal Systems Act (Mnquma-case)
Failure to Exercise Executive Obligations • When a municipality cannot or does not fulfil an executive obligation in terms of the Constitution or legislation, the provincial executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation, including- (a) issuing a directive to the council, describing the extent of the failure to fulfil its obligations and stating any steps required to meet its obligations (b) assuming responsibility; or • dissolving the Council and appointing an administrator • What happens when (a) used and not heeded?
Mnquma did not diminish provincial powers of intervention • “It is evident from the reading of subsection (1) … that it deals with failure by a municipality to fulfil an executive obligation • By reason of such failure provincial executive empowered to take appropriate steps to ensure the fulfilment of obligations. • The subsection falls to be divided into three parts; firstly, a failure of the executive obligation; secondly, a discretionary power to intervene; and thirdly, the taking of appropriate steps...” • Appropriate steps have included appointing an administrator to ensure that particular executive obligations are fulfilled e.g. Oudtshoorn • Clear: Failure to implement legislation (including by-laws = failure to fulfil executive obligation)
Why important • Generally accepted – tolerance of “petty crimes” lead to more serious crimes • Guiliani – mayor on 1 January 1994 • Wanted an early, clear, decisive victory – Gives people hope • Ran on platform of public safety • Wanted to turn around view that NY = dangerous place • Attacked crime immediately but results would only show much later • Needed people to see improvement – not just hear about it (our crime stats!)
People need to be and feel safe • Won’t happen if still see urinating in street and if other quality-of-life issues remained same
Jaywalking • Give ticket • Check who they are • Outstanding warrants • 180 men operated – thought there were 1000’s • Reduced crime by 5000 felonies per week
State of by-law enforcement • Difficult to say – questions asked – no reply • Insufficient records to truthfully answer • Visit to municipal court in PE – very infrequent receipt of control documents • Courts bundle by-law enforcement fines with traffic fines • Municipalities don’t realise potential of income that can be generated through by-law enforcement • Improper oversight by councils – very few questions asked – mostly reactionary • Not on agenda of most MPACS
Brief check revealed … • NMBMM – no mention in 2011-12 annual report – visit to court +/- 3 cases p/a • Cape Town – appointed 3 dedicated officers to enforce transit by-laws – 112 490 citations issued across city – 1038 fines for contravention of Liquor by-law – characteristic = specialised units • Makana – 40 by-law transgressions • Kouga – no reference • Swartland - Enforce relevant municipal legislation – 853 by-law infringements attended
With few exceptions (what there is shows it can be done) - very little implementation and enforcement
Why insufficient enforcement? • Lack of cooperation in criminal justice system - SAPS & NPA - not priority • Political unwillingness & interference • Courts not structured and capacitated to deal with prosecution of by-laws - situation leads to great inconvenience to the public and general lawlessness as municipal legislation is ignored due to the non-enforcement of such laws • Inadequate enforcement - Lack of knowledge of contents of by-laws and other legislation dealing with problematic issues e.g: • Burning of rubber and plastic • Criminalising purchasing from street traders in prohibited areas • Illegal taverns and house shops
WHO CAN ENFORCE? • Municipal employees appointed as peace officers • Municipal police • Traffic officers • Members of the SAPS
Role of district municipalities • S 83(3) of Structures Act – DM’s must … build the capacity of LM’s to perform their functions and exercise their powers where capacity is lacking • Very few districts in a position to do this • Conclusion – Where necessary, intervene ito S139(1)(a) – issue directive with steps required – if unable, appoint administrator for the purpose
More reasons? • Income-grabbing from local government • Looming in the National Political arena • Metro Police (including huge traffic components) - to SAPS • Traffic – to RTMC • Licensing – to Province • Water – to Central Government • Enforce by-laws and raise meaningful fines for by-law infringements – revenue enhancement