The Legislative Authority of the Local Sphere of Government to Conserve and Protect the Environment: A Critical Analysis of Le Sueur v eThekwini Municipality [2013] ZAKZPHC 6 (30 January 2013)

Abstract

Legislative authority in South Africa is divided among the national, provincial and local spheres of government. Section 43 of the Constitution provides in this respect that the legislative authority of the national sphere of government is vested in Parliament; that the legislative authority of the provincial sphere of government is vested in the provincial legislatures; and that the legislative authority of the local sphere of government is vested in the municipal councils.

The allocation of legislative authority to municipal councils gives rise to a number of complex questions. One of these is the extent to which municipal councils are entitled to pass legislation that deals with the conservation and protection of the "environment". This issue was considered by the KwaZulu-Natal High Court: Pietermaritzburg in Le Sueur v eThekwini Municipality [2013] ZAKZPHC 6 (30 January 2013).

In this case the High Court found that even though the functional area of "environment" has been explicitly allocated to the national and provincial spheres of government and not to the local sphere by the Constitution (see Schedule 4A of the Constitution), municipal councils are entitled to pass legislation that deals with the conservation and protection of the "environment", at least in those circumstances where it forms a part of "municipal planning".

While there is no doubt that the functional area of "municipal planning" does encompass certain specific environmental matters at the local level, it does not encompass the broad area of the "environment", as the High Court suggests in its judgment. The approach adopted by the High Court, therefore, is open to some criticism. The purpose of this article is to set out and discuss the High Court’s judgment as well as the criticisms that may be levelled against it in the light of the allocation of legislative authority to the three spheres of government.