Local government's role in the pursuit of the transformative constitutional mandate of social justice in South Africa
South Africa's transition to constitutional democracy marked the end of a system of government that perpetuated injustice on the basis of race. The previous system of government, underpinned by the principle of parliamentary supremacy, did not only exclude the majority of the population from public governance processes, it also economically exploited the majority of the population. As such, it laid the foundation for widespread poverty and inequalities in access to basic services. The Constitution of the Republic of South Africa, 1996 (the Constitution), is committed to correcting these past injustices and aims to establish a society based on social justice. This constitutional vision finds expression in the notion of transformative constitutionalism. Klare introduced the notion of transformative constitutionalism over a decade ago. For purpose of this thesis, the notion represents the socio-economic and political vision of post-apartheid South Africa to eradicate extreme poverty and inequalities in access to basic services as well as establish a democratic system of government that is inclusive, caring, participatory, representative and accountable. It captures the constitutional commitment to establish and maintain a society based on social justice by inter alia, eradicating poverty and inequalities in access to social services. The realisation of the socio-economic rights entrenched in the Bill of Rights of the Constitution (by all organs of state) is one of the ways in which to contribute towards meeting this transformative constitutional mandate, and by extension, striving towards the attainment of social justice. Although transformative constitutionalism and the achievement of a socially just society remain an ideal, the Constitution as the supreme law in the country, obligates the state, constitutive of public and private entities, to work towards its realisation, to the fullest extent possible. As part of post-apartheid institutional transformation, the Constitution established three spheres of government – national, provincial and local - which are distinct, interrelated and interdependent. All three spheres are obliged to operate in accordance with the principles of co-operative government and intergovernmental relations and are co-responsible for realising a number of constitutional objectives. Since 1996, the Constitution obliges local government (municipalities) to play an expanded "developmental" role. This has marked a move away from local government being regarded as merely a service delivery arm of government. The extended function of local government that came about with the constitutional dispensation finds expression in the notion of "developmental local government". This study is based on the premise that developmental local government must and can, together with the authorities in the other two spheres, contribute to transformative constitutionalism and social justice. Primarily, this study questions the extent to which the legal and policy framework on local government in South Africa enable local government (municipalities) to contribute towards realising the constitutional socio-economic rights underpinning the mandate of transformative constitutionalism. This study presents a review of relevant literature in order to establish links between the theoretical concepts underpinning this thesis. It examines the legal and policy framework on "developmental" local government in South Africa and analyses the central legal framework for the realisation of socio-economic rights at the local government level. In addition, the study explores the relevance and potential of local government indigent policies and Integrated Development Plans (IDPs) - as legally prescribed governance instruments - in contributing towards a more just society by examining their underlying legal and policy framework. It further distils from the theories and perspectives of social justice, benchmarks to guide local government towards achieving the transformative constitutional mandate aimed at social justice. Based on the legal, policy and other gaps identified, recommendations are made on how to optimise the potential of IDPs and municipal indigent policies in contributing towards achieving social justice.
- Law