Role of courts in interpreting local government's environmental powers in South Africa

Abstract

Local government in post-apartheid South Africa has undergone fundamental transformation. This is evident from its extensive governing powers and functions and its expanded developmental mandate. At the forefront of sustainable development, municipalities have legislative and executive powers to administer the matters listed in Schedules 4B and 5B of the Constitution of the Republic of South Africa, 1996. Moreover, matters listed in Schedules 4A and 5A of the Constitution can be assigned to municipalities by national and provincial governments. Like other spheres of government, municipalities are obliged to contribute towards realising s 24 of the Constitution – guaranteeing environmental rights. However, the exact contours of their powers in promoting the objectives of s 24 of the Constitution are ill-defined and subject to ongoing definition by way of legislation, policies and case-law. This article argues that environmental litigation presents courts an opportunity to further redefine the powers of municipalities in fostering constitutional environmental objectives in South Africa. Drawing from Le Sueur and Another v eThekwini Municipality and Others [2013] ZAKZPHC 6 (30 January 2013), this article demonstrates how courts can play an important role in clarifying the environmental powers and functions of municipalities in South Africa. This article is based on a review of legal and extra-legal sources.