Constitutional powers should be conferred on the lowest sphere of government as this is the sphere closest to the people. in the context of multi-sphere government in south africa, what is this principle? which provisions of the constitution, supported by relevant case law, confirm that this is how south africa’s system of co-operative government is intended to function?
Question: Constitutional powers should be conferred on the lowest sphere of government as this is the sphere closest to the people. in the context of multi-sphere government in south africa, what is this principle? which provisions of the constitution, supported by relevant case law, confirm that this is how south africa’s system of co-operative government is intended to function?
The principle of subsidiarity states that constitutional powers should be conferred on the lowest sphere of government as this is the sphere closest to the people. In the context of multi-sphere government in South Africa, this principle means that local government should have the primary responsibility for delivering services to the people.
The following provisions of the Constitution, supported by relevant case law, confirm that subsidiarity is a key principle of South Africa's system of co-operative government:
- Section 156(4) of the Constitution states that local government has the right to administer any matter that falls within the local sphere, unless that matter is specifically reserved for another sphere of government. This means that local government has a broad range of powers, and it is only where those powers are specifically reserved for another sphere of government that those other spheres of government can intervene.
- Section 156(5) of the Constitution states that national government and provincial governments must support local government in the performance of its functions. This means that the higher spheres of government have a duty to assist local government when it is unable to fulfill its constitutional obligations.
- Section 157 of the Constitution states that local government must consult with communities on all issues of local interest. This means that local government must engage with the communities it serves before making decisions that could affect those communities.
The following case law supports the view that subsidiarity is a key principle of South Africa's system of co-operative government:
- In the case of MEC for Local Government and Housing, Gauteng v City of Tshwane Metropolitan Municipality, the Constitutional Court held that the national government and provincial governments have a duty to respect the autonomy of municipalities. The Court stated that "the autonomy of local government is essential to the system of co-operative government" and that "the autonomy of municipalities must be respected in the absence of compelling reasons to the contrary."
- In the case of Mfuleni Concerned Residents' Association v City of Cape Town, the Constitutional Court held that local government has a duty to consult with communities before making decisions that could affect those communities. The Court stated that "consultation is not the same as an empty ritual." It is a genuine engagement with the community, and the local government must take the views of the community into account when making its decision.
These cases show that the courts are committed to upholding the principle of subsidiarity. The courts have recognized that local government is the sphere of government that is closest to the people and that it is therefore the best sphere of government to deliver services to the people. The courts have also recognized that local government must have the autonomy to make decisions that are in the best interests of the communities it serves.
In conclusion, the subsidiarity principle is a key principle of South Africa's system of co-operative government. This principle means that local government should have the primary responsibility for delivering services to the people. The Constitution and the relevant case law confirm that this principle is respected in South Africa.
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