2.1.1 Distributive environmental justice

Distributive justice refers to the fair distribution of resources, goods, duties and responsibilities throughout society.27 Munalula notes that distributive justice is a principle that guides the just distribution of benefits, services and burdens.28 According to Schlosberg, an individual cannot access distributive justice without duly having justice in the procedures of distribution for producing equitable distribution.29 It follows that in the environmental context, distributive EJ refers to the fair distribution of environmental burdens or the adverse effects of environmentally harmful facilities.30

The relevance of the above to a broader understanding of EJ is that distributive EJ focusses on the process of distributing environmental goods and resources fairly (green spaces, clean water, air and green transport infrastructure). In the local context, this would mean that everyone in society gets a fair share of services that the municipality must provide in terms of the Constitution or legislation.31

2.2.2 Procedural environmental justice

Procedural justice is part of the discourse on EJ.32 It denotes the right to equal concern and respect in political and civil decision-making processes about environmental goods and opportunities (e.g. jobs and sustainable development).33 The term denotes the idea of fairness in the procedures

26 Chemhuru 2019 SAJP 36-39. Scott and Oelofse 2004 JEPM 449. Debbané and Keil

2004 Space and Polity 211. 27 Legal Dictionary 2016 https://legaldictionary.net/distributive-justice/; Maiese 2013

https://www.beyondintractability.org/essay/distributive-justice; Johnson, Pete and

Du Plessis Jurisprudence 180. Also see Munalula 2014 SADCLJ 88; Schlosberg

Defining Environmental Justice 11-13. 28 Munalula 2014 SADCLJ 87. Also see White Crimes against Nature 170.

32 Maiese 2013 https://www.beyondintractability.org/essay/distributive-justice. 33 Maiese 2013 https://www.beyondintractability.org/essay/distributive-justice.

that resolve disputes and that pertain to the distribution of resources.34 It is a core feature of EJ in conflicts and decisions relating to natural resources. The relationship between distributive justice and the judicial pursuit of EJ provides opportunities for society to access courts and exercise its rights to be heard and given information and reasons for any decision.35

In the context of municipal service delivery, distributive EJ means that providing services to the community is procedurally fair. The provision of essential municipal services must duly consider the overall needs and values of the community openly and transparently.36 One procedure provided for in South Africa to recognise the overall needs and values of a local community is related to the development and adoption of an Integrated Development Plan (IDP).37 The IDP process requires consultation with and the participation of the local community in order to reflect the council's vision for the long term concerning critical development and the distribution of basic amenities such as water, sanitation and refuse collection, among other things.38

2.2.3 Environmental justice as "recognition"

Justice as "recognition" emphasises who is given respect by whom, and who is and who is not valued in the decision-making process, for example, concerning the distribution of natural resources or access to environmentally dependent services.39 This dimension of justice also concerns how non-recognition negatively affects the opportunities available to vulnerable and disadvantaged groups in society.40 In the environmental context, justice as recognition involves all interested and affected parties and environmental management stakeholders.41

In the context of South African local government, this typically suggests that municipalities may not design laws, policies or strategies that unfairly discriminate against people directly or indirectly. Municipalities may not discriminate against people due to gender, age, culture, race, pregnancy, sexual orientation or colour regarding the provision of basic municipal services such as water and sanitation, health-care, food and waste removal.42 This means that for laws, policies and strategies to contribute to EJ, vulnerable and marginalised people in poor and low-income communities must be able to get access to services that the municipality must provide in terms of the Constitution and legislation.

2.2.4 Environmental justice as a concept of South Africa law

EJ is expressly provided in NEMA as follows:

Environmental justice must be pursued so that adverse environmental impacts shall not be distributed in such a manner as to unfairly discriminate against any person, particularly vulnerable and disadvantaged persons.43

EJ is also implied in the following principle:

Equal access to environmental resources, benefits and services to meet basic human needs and ensure human well-being must be pursued and special measures may be taken to ensure access to it by categories of persons disadvantaged by unfair discrimination.44

In the absence of a clear definition of what EJ entails from a South African environmental management perspective, the above principles give some sense of what EJ is supposed to mean. Significant emphasis is placed on the meaningful involvement of all people in environmental governance and complementary civil-based instruments, particularly public participation. Similarly, public participation constitutes a crucial civil-based instrument for ensuring that state decisions do not negatively impact on the environment and people.45 In a similar vein, mechanisms such as public participation and notice-and-comment procedures serve as environmental governance tools to consider local communities' environmental concerns whenever an environmental injustice is triggered.46

Sector-specific environmental laws are also devoted to the principle of EJ as envisaged by NEMA. For example, the National Environmental Management: Air Quality Act 39 of 2004 (NEM: AQA) determines that "the burden of health impacts associated with polluted ambient air falls most heavily on the poor" and acknowledges that the "minimisation of pollution is the key to ensuring that air quality is improved" for everyone.47 The fact that NEM: AQA recognises the rights of the poor concerning the environment feeds directly into the aims of EJ. In a similar vein, the National Environment Management: Waste Act 59 of 2008 (NEM: WA) acknowledges the fact that while failures in waste management may have significant negative impacts on the environment, the minimisation of pollution and waste (recycling, reusing and reducing) may be conducive to the environment.48 The minimisation of waste may be one of the keys to realising and ensuring that the environment is protected equally for everyone.

Against the background of the above, the following section links EJ and municipal services in South Africa. The point of departure is that a right to essential municipal services49 and the scope of section 24 of the Constitution could be meaningfully linked to the EJ discourse.

2.3.1 The nexus between developmental local government, environmental justice and municipal service delivery

The Constitution obliges municipalities to provide services sustainably, promote socio-economic development and a safe and healthy environment for local communities.54 According to the Municipal Systems Act, each municipality exercises its executive and legislative authority towards promoting and undertaking "development" in communities.55 "Development" in this instance refers to the improvement of the quality of life of everyone, but especially the poor and disadvantaged, and safeguarding the living standards of future generations.56 The Municipal Systems Act inadvertently emphasises that development must benefit everyone in society concerning their social, economic, environmental, institutional and infrastructural interests.57

Although "developmental local government" (hereafter DLG) has a particular meaning which does not refer directly to EJ, it is of relevance to EJ if one considers its emphasis on fairness, inclusivity and equality. The notion of DLG, as contained in the White Paper on Local Government (hereafter WPLG), has a significant impact on the daily lives of South Africans.58 It defines the notion as the commitment of municipalities "to working with citizens and groups within the community to find sustainable ways to meet their social, economic and material needs and improve the quality of their lives."59 Arguably DLG also unintentionally emphasises the relationship between the pursuit of EJ and the realisation of several socioeconomic rights such as access to health-care, food, water and housing.

Steytler and De Visser argue that DLG should not occur at the expense of the environment and people.60 DLG is about more than municipal service delivery, but the latter is a crucial part thereof. The WPLG provides that municipal service delivery must be accessible to all without discrimination and be affordable in the sense that those who cannot afford to pay for the services must get at least a minimum level of provision.61 Furthermore, the WPLG provides that for services to reflect the purpose of improving the daily lives of people in society, the services must be of good quality, safe and sustainable.62

The idea of universal affordability addresses issues of social inequality broadly by reason that EJ protects the rights of poor and low-income communities. For this reason, a legitimate aim and function of municipalities to promote development in the lives of the people in the communities they serve directly translates into the affirmation of EJ. The nexus between DLG (the provision of services) and EJ could be established in that people should have equitable access to environmental resources, benefits and services, several of which are natural resource-dependent.63 This means that municipal service delivery pertaining to water and sanitation, electricity, land matters and municipal health should supplement, not compromise, the state of local communities' environment, and that access should be equitable.64 The failure to adequately (reasonably) provide such services to all affects DLG (service delivery) and amounts to a breach of the law. The breach also threatens EJ, if one considers its three dimensions (distribution, procedural and EJ as recognition).

Any injustice arising from non-compliance with EJ should, in principle, be able to be judicially challenged. Therefore, it merits to highlight the importance of accessing justice in matters of environmental injustice as related to municipal service delivery.

3.2.1 The Constitution

The Constitution enunciates a right to access justice (the courts) to enable anyone to enforce the rights in the Bill of Rights.72 Section 34 of the Constitution provides that:

Everyone has the right to have any dispute that the application of law can resolve decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.

The right to access to justice provides that everyone may approach the courts or other independent and impartial forums when their human rights (to life, dignity or privacy, among others) are violated, or where legal claims are concerned.73 This means that courts and tribunals or forums have the power to make determinations and offer appropriate redress about such infringements or claims.74 Frequently the right to access to courts operates in parallel with the right to legal representation for individuals or interested groups who cannot afford legal services.75

According to Currie and De Waal, any individual involved in a dispute has three distinct rights, as guaranteed in section 34 of the Constitution, should such an individual resort to this provision.76 They posit that the right to access to justice provided in the Constitution creates a right to access to

Staff Reporter Mail and Guardian 2015: https://mg.co.za/article/2015-02-19-being

courts.77 They argue further that tribunals or forums involved in resolving disputes other than courts (judicial structures) should be independent and impartial when resolving disputes.78 Thirdly, they require that those disputes be resolved in a fair and public hearing in order to embrace the guarantees of a fair trial or proceedings.79 The primary purpose of this right is to protect individuals' interests should disputes arise as to which legal rules are applicable. Insisting on the use of section 34 of the Constitution gives effect to the principle of good order or the rule of law, which prohibits self-help in matters that would require judicial intervention.80

Although the right to access to justice guarantees direct and indirect access to courts or administrative structures, courts have not interpreted this right as granting immediate legal standing.81 Prospective litigants still need to adhere to the rules of legal standing.82 The right to access to justice is entirely justified when a prospective litigant has sufficient interest in the subject matter concerned.83 For this reason, section 38 of the Constitution broadly determines that to have access to justice (the courts) or tribunals and to be able to institute judicial proceedings, litigants must have a sufficient interest in these proceedings to enforce their rights successfully.84

3.2.2 National Environmental Management Act 107 of 1998

Section 32(1) of NEMA expressly provides that any person or group of persons may help protect the environment or natural resources by seeking appropriate relief of any breach of a statutory provision in the Act. In this context, NEMA broadens access to justice by providing for appropriate relief and exempting indigent litigants who institute legal proceedings in the interest of protecting the environment from the payment of costs.85 From an

77 Section 34 of the Constitution. Currie and De Waal Bill of Rights Handbook 711. 78 Currie and De Waal Bill of Rights Handbook 711. 79 Currie and De Waal Bill of Rights Handbook 711. 80 Currie and De Waal Bill of Rights Handbook 711. 81 Thint Holdings (Southern Africa) (Pty) Ltd v National Director of Public Prosecutions:

Zuma v National Director of Public Prosecution 2009 3 BCLR 309 (CC) para 62.

Rautenbach ꞌꞌIntroduction to the Bill of Rightsꞌꞌ (LexisNexis Online Database). 82 Rautenbach ꞌꞌIntroduction to the Bill of Rightsꞌꞌ (LexisNexis Online Database). See

Thint Holdings (Southern Africa) (Pty) Ltd v National Director of Public Prosecutions: Zuma v National Director of Public Prosecution 2009 3 BCLR 309 (CC) para 47. 83 Morrow ꞌꞌThe courts and public participation in environmental decision-makingꞌꞌ 148. Kibugi ꞌꞌEnhanced access to environmental justice in Kenyaꞌꞌ 158.

84 This section provides that any person has the requisite legal standing to enforce the rights in the Bill of Rights if that person (a) is acting in his or her own interest; (b) is acting on behalf of another person who cannot act in his of her own name; (c) is acting as a member of, or in the interest of, a group or class of persons; (d) is acting in the public interest; and (e) an association acting in the interest of its members.

85 Sections 32(1) and (2) of NEMA.

EJ point of view, the provisions of NEMA give recognition of access to justice in the broader context of protecting the environment.

Access to justice is not confined to direct access to administrative structures or courts. Alternative dispute resolution (ADR) mechanisms could also prove beneficial to people involved in environmental or EJ-related disputes. This is because ADR mechanisms are often more cost-effective, flexible and confidential, and their use might encourage poor and vulnerable people to pursue EJ.86 Section 34 of the Constitution directly grants everyone the right to dispute resolution using another independent and impartial tribunal or forum.

The use of ADR mechanisms obviates the barriers of financial constraints or delays in prosecution.87 This is because ADR is understood to be mechanisms that resolve disputes outside courts. Its forms include mediation,88 arbitration,89 conciliation90 and facilitation.91 Authors such as Pretorius92 and Bendeman93 point out that the use of ADR methods brings justice to more people, especially the poor, at a lower cost and at a more acceptable speed. NEMA refers explicitly to two ADR methods, namely, conciliation94 and arbitration.95 The aim of referring disputes to conciliation and arbitration per NEMA is to have fair decision-making, conflict management and environmental protection while at the same time facilitating access to justice in environmental matters.

86 Brand ꞌꞌNature of the Arbitration Processꞌꞌ 100. The characteristics of litigation include formality (the procedure is determined by the Constitution or legislation), the outcome is enforceable, which sometimes destroys ongoing relationships between parties, and the law of precedent is strictly applied.

87 Pretorius "Introduction and Overview" 1-2.

88 Pretorius "Introduction and Overview" 4; Albertyn "Specialized Arbitration and Mediation" 114; Wiese Alternative Dispute Resolution 1-5. Mediation refers to a voluntary process which involves a third person (a mediator) who is impartial and neutral and assists the parties to resolve their dispute. Mediation is voluntary both in its initiation and in its continuation.

89 Reading ss 1 and 3 of the Arbitration Act 42 of 1965 together. De Jong 2014 PELJ 2358. Arbitration is understood to be a "private" process whereby parties voluntarily opt to settle their dispute outside of court. Arbitration is also a form of adjudication. Pretorius "Introduction and Overview" 5. Wiese Alternative Dispute Resolution 7.

90 Conciliation is more or less the same as mediation. The difference is that the conciliator makes a formal recommendation to the parties for settlement of the dispute in addition to being a mediator. See Pretorius "Introduction and Overview" 4.

91 Facilitation denotes the process where a facilitator assists two parties or more to

resolve a dispute in some form of meeting. Pretorius "Introduction and Overview" 4. 92 Pretorius "Introduction and Overview" 2. 93 Bendeman 2007 African Journal of Conflict Resolution 139. 94 Section 17 of NEMA. 95 Section 19 of NEMA.

3.2.3 Jurisprudence on the right to access to justice

The courts have interpreted the right to access to justice in such a way as to enhance access for the poor and low-income communities and to curb the recourse to self-help. According to the court in Concorde Plastics (Pty) Ltd v NUMSA,96 access to justice is the initial requirement for the stability of an orderly community and to ensure that prospective litigants have legal mechanisms capable of resolving disputes among themselves.97 The emphasis on access to justice is on the fact that access to the courts ensures that society is at peace and regulated in terms of law and that the institutionalised mechanisms used are fair and are seen to be fair.

The ruling in Nedbank v Thobejane98 is an example of the courts recognising the right to access justice as enshrined in section 34 of the Constitution. The central question in this case was whether financial institutions must consider the cost implications and the principles concerning access to justice when instituting legal proceedings in the lower or superior courts.99 The court held that financial institutions are obliged to consider the rights and the status of poor and low-income communities when choosing a court in which to resolve disputes.100 According to the court's reasoning, the right to access justice aims to give members of society a meaningful opportunity to institute and efficiently defend any legal action in a court of law.101

The court further emphasised that section 34 of the Constitution places positive duties on the state to remove any restriction, regulation, social or economic hurdle that may prevent the possibility of access to justice.102 This judgement illustrates the fact that without cognisance of the development of the right to access to justice in the pursuit of effective redress when harm occurs, the ideal of equal access for all will not be attained in the current South African legal dispensation.103 Where legal and valid opportunities to seek redress are lacking for whatever reason, this could amount to and exacerbate pre-existing injustices such as environmental injustices.

96 Concorde Plastics (Pty) Ltd v NUMSA 1997 11 BCLR 1624 (LAC).

97 Concorde Plastics (Pty) Ltd v NUMSA 1997 11 BCLR 1624 (LAC) paras 1644F

1645A. Also see Lesapo v North West Agricultural Bank 2000 1 SA 409 (CC) paras

16-17; De Vos and Freedman South African Constitutional Law 632. 98 Nedbank v Thobejane 2018 4 SA 694 (GP). 99 Nedbank v Thobejane 2018 4 SA 694 (GP) para 4. 100 Nedbank v Thobejane 2018 4 SA 694 (GP) para 96. 101 Nedbank v Thobejane 2018 4 SA 694 (GP) para 79. 102 Nedbank v Thobejane 2018 4 SA 694 (GP) para 79. 103 Nedbank v Thobejane 2018 4 SA 694 (GP) para 52.

Therefore, a right to enforce environmental law is essential in promoting access to EJ – in the local and other contexts. In this sense, it is possible to reason that in matters regarding access to justice concerning EJ, the state must take into consideration, commensurate with its duties stipulated in section 7(2) of the Constitution, that access to justice requires that people can claim and seek remedies in the judicial system when environmental harm occurs. This means that access to EJ through courts and other forums enables residents who are adversely affected by environmental injustices to participate in and have claims adjudicated relatively and openly, as envisaged by section 34 of the Constitution.

However, the question remains as to why it is still problematic for people (individuals and groups such as communities) to prosecute non-compliance with environmental law in South Africa. Why is access to the courts in cases of environmental injustice an ideal rather than a practicality? To answer this question, it is essential to consider the elevation of some judicial institutions (municipal courts) in terms of their potential to provide access to justice and EJ in local government.

4.1.1 The nature of municipal courts

The potential role of municipal courts in the judicial system is significant, but the challenge is that the role has not yet been clearly defined. "Municipal court" is understood to refer to a division of a magistrate's court that has powers and functions in the handling of municipal matters only.104 Municipal courts are described as specialist "district magistrates' courts dealing with municipal matters" and as separate lower courts.105 This court, however, remains a district magistrate's court that operates in terms of the Constitution106 and legislation.107 This means that a municipal court is not

104 City of Tshwane 2018 http://www.tshwane.gov.za/sites/Business/Bylaws/

Pages/Promulgated-By-Laws.aspx. 105 City of Tshwane 2018 http://www.tshwane.gov.za/sites/Business/Bylaws/Pages/

Promulgated-By-Laws.aspx. 106 Sections 170 and 171 of the Constitution read together. 107 Municipal Courts functions in terms of the Magistrates' Court Act 32 of 1944, Criminal

Procedure Act 51 of 1977, National Prosecuting Authority Act 32 of 1998 and Municipal Systems Act.

autonomous or a separate lower court but has delegated authority under legislation from the DoJ & CD and the NPA to conduct prosecutions.108

According to section 22(8)(b) of the National Prosecuting Authority Act,109 the National Director of Public Prosecutions (NDPP) may authorise any local authority to conduct prosecutions in respect of statutory offences as well as municipal by-laws. However, municipalities derive their authority to conduct prosecutions from the Municipal Systems Act. Section 112 of the Act determines that an authorised municipal staff member has powers to institute criminal proceedings in matters relating to infringements of any municipal by-law, policy and regulation. These provisions empower municipalities to establish and introduce municipal courts to rationalise court jurisdictions, particularly the prosecution of municipal by-laws and traffic offences and service delivery.110 The aim of rationalising municipal courts was to enhance access to justice in local communities, streamline the prosecutorial process concerning municipal matters, and consolidate cooperative governance between the DoJ & CD and the NPA.111

In recent years many municipalities have shown a great interest in establishing and introducing municipal courts in their jurisdictions. Municipalities like the City of Cape Town,112 Ekurhuleni,113 eThekwini,114

108 DoJ & CD 2016: https://www.justice.gov.za/m_speeches/2016/20160513_

StellenboschCourt.html. 109 National Prosecuting Authority Act 32 of 1998. 110 In a break with the past, local government went through an initial process of

transformation in the post-constitutional era. Chapter 7 of the Constitution is dedicated to local government. Now municipalities have a wide range of powers and functions to effectively administer the executive functions outlined in s 156(1) of the Constitution. See Fedsure Life Insurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 1 SA 374 (CC) para 36.

111 According to s 2(1) of the Magistrate's Courts Act, the Minister may establish a district magistrate's court to prosecute matters such as shoplifting, damage to property, and drinking and driving, the purpose being to enhance access to justice services at courts that are located closer to where people live. DoJ & CD 2014 https://www.gov.za/minister-launch-rationalisation-courts-part-access-justice#.

112 City of Cape Town 2021 https://www.capetown.gov.za/Family%20and%20home/ See-all-city-facilities/Our-service-facilities/Municipal%20courts. The City of Cape Town manages eleven municipal courts.

113 There are four rationalised magisterial districts in Ekurhuleni namely: Ekurhuleni Central (Palm Ridge and Germiston), Ekurhuleni East (Springs and Nigel), Ekurhuleni North (Kempton Park, Boksburg and Tembisa) and Ekurhuleni South East (Benoni, Brakpan, Daveyton and Tsakane).

114 eThekwini Municipality 2011 http://www.durban.gov.za/City_Government/ Administration/city_manager/LegalServices/Pages/Municipal-Courts.aspx. There is only one municipal court in eThekwini Municipality.

Johannesburg115 and Tshwane116 have introduced municipal courts to provide services such as traffic fines, or general inquiries about the payment of outstanding traffic fines and municipal accounts.117 Emfuleni,118 George119 and Mossel Bay120 local municipalities have introduced municipal courts to provide a modern, well-run court service and sustain public confidence in the criminal justice system.121

The role and function of the municipal courts are meaningful in the prosecution of by-law offences and the imposition of the sanctions provided for in these by-laws. Municipal courts have jurisdiction in matters of municipal by-law violations dealing with nuisance, waste dumping, public amenities, cemeteries, air quality management, events management, outdoor advertising and informal trading and traffic rules.122 However, section 112 of the Municipal Systems Act determines that a municipal court may have jurisdiction to prosecute violations and non-compliance with any legislation administered by a municipality, for example, the National Building Regulations and Building Standards Act 103 of 1977. Under section 112, a prosecutor in a municipal court or an authorised municipal staff member

115 There are four magisterial municipal courts in the City of Johannesburg namely: Johannesburg Central, North (Randburg, Midrand and Alexandra) West (Roodeport) and in Emfuleni (Vereening district). Johannesburg Innercity Partnership 2017: https://www.jicp.org.za/news/joburg-municipal-courts-launching-in-johannesburg/.

116 City of Tshwane 2015 http://www.tshwane.gov.za/sites/residents/Services/ MunicipalityCourts/Pages/Municipal-Court-Listing.aspx. There are three main courts (Pretoria Central, Centurion and Wonderboom) and five satellite courts (Mamelodi, Garankuwa, Soshanguwe, Temba and Atteridgeville).

117 Baffalo City municipality is also set to establish a municipal court. Gowa 2017 https://www.dispatchlive.co.za/news/2017-05-23-r4m-municipal-court-on-cards/. 118 Emfuleni Local Municipality 2011 http://www.emfuleni.gov.za/index.php/gallery/5municipal-courts/municipal-courts4.

119 George Local Municipality 2021: https://www.george.gov.za/george-municipalcourt-committed-to-service-despite-stringent-covid-regulations/. Anon 2015 https://www.georgeherald.com/News/Article/General/municipal-court-for-georgeapproved-20170711.

120 Anon 2021 https://www.mosselbayadvertiser.com/news/News/General/20674/ Green-light-for-municipal-court. 121 Emfuleni Local Municipality 2011 http://www.emfuleni.gov.za/index.php/gallery/5municipal-courts/municipal-courts4.

122 Emfuleni Local Municipality 2011 http://www.emfuleni.gov.za/index.php/gallery/5municipal-courts/municipal-courts4; City of Tshwane 2015 http://www.tshwane. gov.za/sites/residents/Services/MunicipalityCourts/Pages/Municipal-CourtListing.aspx. However, by virtue of the commencement of Administrative Adjudication of Road Traffic Offences Act 46 of 1998 (AARTO), many municipalities elect not to establish municipal courts for traffic law violations. This is because AARTO aims to facilitate the adjudication of road traffic infringements and to support the prosecution of offences in terms of the national and provincial laws relating to road traffic. See AARTO Date Unknown https://online.aarto.gov.za/#/.

may effectively and successfully prosecute any offender who fails to comply with any provision or regulation in the Act.

Municipal courts also have jurisdiction in matters connected with the particular provisions enshrined in the Criminal Procedure Act (hereafter CPA).123 For example, where a municipal court intends to prosecute an accused for non-compliance with or the infringement of a by-law, it may issue a summons in order to secure the attendance of the accused successfully.124 The issued summons must contain the complete charge and information specifying the place, date and time for appearance at the municipal court.125 Subsequently, if the accused fails to appear, a municipal court may issue a warrant of arrest to secure his or her attendance. For this reason, a municipal court may impose a fine not exceeding R300 or sentence the accused to imprisonment for a period not exceeding three months if there are compelling and aggravating circumstances.126

4.1.2 Establishment of municipal courts and appointment of judicial officers

Every municipality requires collaboration with the DoJ & CD and NDPP to establish a municipal court successfully.127 This collaboration initially requires a municipality to provide a detailed motivation for establishing a municipal court as an additional and specialist magistrate's court in the judicial system.128 When a municipality intends to establish a municipal court, the municipal manager129 must firstly consult with the DoJ & CD, the NDPP and the area court manager regarding the need for a municipal court.130 During this process, the municipal manager must submit a proposed comprehensive business plan together with a detailed prior establishment investigative report which outlines the mission and vision of

123 Criminal Procedure Act 51 of 1977 (hereafter CPA). A municipal court is a district magistrate's court and is operational in terms of the CPA and the Magistrates' Courts Act.

124 Section 54 of the CPA. However, an accused may elect to admit guilt and pay a fine in terms of s 57 of the CPA. 125 Section 54(1) of the CPA. In a similar manner, a municipal court may issue a written notice to the accused in terms of s 56(1) of the CPA. 126 Section 55(2) of the CPA. Compelling and aggravating circumstances include failure to appear without a proper reason. 127 Linde 2003 Local Government Bulletin; DoJ & CD 2016: https://www.justice.gov.za/m_speeches/2016/20160513_StellenboschCourt.html. 128 Linde 2003 Local Government Bulletin; DoJ & CD 2016: https://www.justice.gov.za/m_speeches/2016/20160513_StellenboschCourt.html.

129 Section 82 of the Local Government: Municipal Structures Act 117 of 1998 defines a municipal manager as the head of municipal administration as well as the accounting officer for the municipality.

130 DoJ & CD 2016: https://www.justice.gov.za/m_speeches/ 2016/20160513_StellenboschCourt.html.

the municipal court.131 Also, the costs associated with the establishment, functioning and challenges encountered, alternative plans, and the municipality's budget must be included in the report.132 The reason for requiring the presentation of a business plan in the initial phase is to scrutinise whether the proposed plan is linked to an approved municipal budget and the municipality's IDP.133

The municipal manager and the relevant municipal legal department must describe to the DoJ & CD and the NPA the advantages of establishing a municipal court and the disadvantages of not doing so.134 The aims of the establishment must reflect what a municipal court as an additional district magistrate's court would seek to achieve.135 In most instances, the aims of establishing the municipal court should be to primarily ensure the implementation and enforcement of all municipal by-laws in conjunction with effective prosecution should infringements arise as a matter of noncompliance.136 Also, a municipal court must seek to impose appropriate fines or penalties and sentences in imprisonment cases, provide access to fair and speedy justice services for all, and ease the roll of the existing magistrates' courts.137

Thirdly, a municipality must consider the following factors in an attempt to establish a municipal court: the number of all municipal-related cases requiring prosecution, the number of court days allocated to these cases in an ordinary magistrate's court, and statistics and data showing the cases reported and the success rates.138 By so doing, a municipality will

131 DoJ & CD 2016: https://www.justice.gov.za/m_speeches/2016/20 160513_StellenboschCourt.html. 132 DoJ & CD 2016: https://www.justice.gov.za/m_speeches/2016/20 160513_StellenboschCourt.html.

133 Section 1 of the Local Government: Municipal Finance Management Act 56 of 2003 (hereafter MFMA). The approved budget refers to an annual budget that is adopted and approved in terms of s 16 of the MFMA. The recent report issued by the Auditor-General seems to indicate that municipalities have run out of funds. This could hamper the establishment of municipal courts, which is a risk to realising EJ. AGSA 2019 https://www.agsa.co.za/Reporting/MFMAReports/2017-2018MFMA.aspx.

134 DoJ & CD 2016: https://www.justice.gov.za/m_speeches/2016/20 160513_StellenboschCourt.html. 135 DoJ & CD 2016: https://www.justice.gov.za/m_speeches/2016/20

160513_StellenboschCourt.html. 136 Linde 2003 Local Government Bulletin. 137 This must be authorised in terms of s 92(1) of the Magistrates' Courts Act; DoJ & CD

2016: https://www.justice.gov.za/m_speeches/2016/20160513_StellenboschCourt.html; George Local Municipality 2021: https://www.george.gov.za/george-municipalcourt-committed-to-service-despite-stringent-covid-regulations/

138 DoJ & CD 2016: https://www.justice.gov.za/m_speeches/2016/20 160513_StellenboschCourt.html.

successfully allocate sufficient time to prosecute specific offences and to trace all exceptional cases on the roll in order to avoid double jeopardy.139 A municipality should also consider cases withdrawn and the reasons that precipitated the withdrawal, the warrants of arrest issued (including outstanding warrants, cases allowed after the execution of warrants per day).