THE LEGISLATIVE AUTHORITY OF THE LOCAL SPHERE OF GOVERNMENT TO CONSERVE AND PROTECT THE ENVIRONMENT

 

Warren Freedman
University of KwaZulu-Natal

 

Abstract:

Section 156 of the Constitution allocates legislative authority to the local sphere of government. This section gives rise to a number of difficult questions. One of these is the extent to which the local sphere of government can pass by-laws that are aimed at the conservation and protection of the environment. This issue was considered recently by the KwaZulu-Natal High Court: Pietermaritzburg in its judgment in Le Sueur v eThekwini Municipality [2013] ZAKZPHC 6 (30 January 2013). The facts of this case were as follows. In 2010 the eThekwini Municipal Council adopted a resolution amending its town planning scheme to introduce the Durban Open Space System (D-MOSS). This system is aimed at protecting areas that have a high biodiversity value in Durban by creating a system of open spaces that will link them together. In order to achieve this goal, the system provides that land which falls within a D-MOSS area may not be developed without first obtaining an environmental authorisation and even then it may only be developed subject to strict controls aimed at protecting the ecological goods and services the land provides. After the municipal council adopted this resolution, the applicant, who owned land located in the eThekwini Municipality, applied for an order declaring the resolution to be unconstitutional and invalid. He based his application, inter alia, on the grounds that the subject matter of the resolution was the “environment”; that this matter is listed in Schedule 4A as a functional area of national and provincial legislative competence; and, consequently, that the resolution fell outside the legislative authority of the municipal council. The High Court, however, rejected this argument. This paper will critically examine the judgment in Le Sueur v eThekwini Municipality in light of the legislative powers allocated to the local sphere of government by section 156 of the Constitution.

 

Presentation Topic
THE LEGISLATIVE AUTHORITY OF THE LOCAL SPHERE OF GOVERNMENT TO CONSERVE AND PROTECT THE ENVIRONMENT
Contact Mr Freedman:
Email Warren Freedman