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Developing an Environmental By-law Framework for Sustainable Local Environmental
Governance and Service-delivery in the North West Province
A North West Provincial Government (Office of the Premier) Project conducted by the Faculties of Law and the Centre for Environmental
Management (NWU, Potchefstroom Campus)
2008-2009
STATUS QUO REPORT
June 2009
Acknowledgements
This report is to a great extent the product of the readiness to share knowledge and the support provided by of a number of people and institutions. The research team
wishes to thank all municipal officers, councillors and support staff of all municipalities in the North-West Province as well as all interested and affected
parties involved in the research process. This report would also not have been possible without the financial support of the
Research Coordinating Committee of the Office of the Premier, North-West Province. The research team responsible for this report include: Prof. Louis Kotzé, Dr. Anél du Plessis (eds); Ms. Watsie Ramogola, Ms. Phindi Simelane, Mr. Themba Ndongeni, Prof. Willemien du Plessis and Ms Olivia Lefenya. The editorial and management
assistance of Mrs Isabel James is greatly acknowledged. The research team also wishes to thank the Centre for Environmental Management,
NWU, specifically, Ms Esmé Snyman for managing the project.
For comments on the Report and further information please contact:
Prof. Louis Kotzé ([email protected]) (018 299 1956) Dr. Anél du Plessis ([email protected] ) (018 299 1924)
2
INDEX 1. BACKGROUND ........................................................................................4
1.1 Introduction.............................................................................................4 1.2 Mandate to draft environmental bylaws..................................................5 1.3 Environmental challenges at local level..................................................7 1.4 Contextualising the present report..........................................................8
2. RESEARCH METHODOLOGY.................................................................9 3. SUMMARY OF FINDINGS.........................................................................11
3.1 Fieldwork findings.................................................................................11 3.2 Field work analysis ..........................................................................22 3.3 Workshop findings ...........................................................................25
3.3.1 Environmental Standard Draft Bylaws ...........................................25 3.3.2 Environmental governance issues .................................................27 3.3.3 Additional role players....................................................................28
4. CONCLUSION AND WAY FORWARD......................................................29 ADDENDUM ..................................................................................................31
QUESTIONNAIRE......................................................................................31 PROGRAMME (WORKSHOP I, 6 MARCH 2009)......................................36 REGISTRATION LIST – WORKSHOP 1, 6 MARCH 2009.........................37
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1. BACKGROUND
1.1 Introduction
The face of local government has changed dramatically with the inception of
the Constitution of the Republic of South Africa, 1996 (Constitution). The
country’s constitutional reform brought about a wholesale reform as far as the
structures, powers, functions and duties of the local sphere of government are
concerned.1 This reform was simultaneously accompanied by the
entrenchment of a constitutional environmental right and subsequently,
significant transformation of the environmental law regime in South Africa.
There is little doubt that developments in the local government sphere and
environmental law have had, and will continue to have, a symbiotic and
mutual relationship. Since 1996, local government acquired a number of
environmental duties and functions in terms of the Constitution, framework
local government law such as the Local Government: Municipal Systems Act
117 of 1998 (Systems Act), and the myriad environmental laws that currently
exist. The core provisions in this respect include, among others, sections 152
and 153 of the Constitution which state that the objectives of local government
include to ensure provision of services in a sustainable manner and to
promote a safe and healthy environment. Moreover, municipalities must
structure and manage administration, budgeting and planning to prioritize
basic needs of communities and must further simultaneously promote social
and economic development. The duties of municipalities in terms of the
Systems Act include to: exercise the municipality’s authority and to use its
resources (including its natural resources) in the best interest of the local
community; ensure that services are provided in a financially and
environmentally sustainable manner; promote a safe and healthy environment, and to contribute to the progressive realisation of, among other
fundamental rights, the section 24 environmental right. The latter right is
perhaps (apart from local government’s close positioning to people and their 1 Chapter 7 of the Constitution read together with Schedules 4B and 5B.
4
immediate environment) the clearest indication of local government’s
obligation to take responsibility and action (together with the other two
spheres of government) towards sustainable environmental governance.
Section 24 of the Constitution states that:
Everyone has the right: (a) to an environment that is not harmful to their health or well-being; and (b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that:
(i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.
This section, read with section 7(2) of the Constitution, makes it sufficiently
clear that local government should take positive action towards fulfilling
peoples’ environmental right across the entire South Africa; both in the rural
and urban areas. This right is further reinforced by incidental constitutional
entitlements such as the rights of people to access to sufficient water and
housing in terms of sections 26 and 27 of the Constitution. Cumulatively, the
above constitutional provisions place a positive duty on, among others, local
government to initiate and further facilitate sustainable environmental
governance, which would include, in addition to traditional ‘conservation’
issues, the provision of environmental-related services. The latter includes,
inter alia: waste management, water services provision, management of
public open spaces, noise and air quality management.
1.2 Mandate to draft environmental bylaws
One of the means available to local governments to fulfil these constitutional
obligations is by way of the execution of its legislative power. The mandate
to execute the constitutional duty is, for example, to be found in section 24 of
the Constitution which provides that government must give effect to the right
5
by way of ‘reasonable legislative and other measures’. The Constitution
more specifically provides in this respect that municipalities may make and
administer bylaws for the effective administration of its affairs and that a
bylaw may be enforced after it has been published in an official provincial
gazette.2 The process for bylaw making is outlined in section 12 of the Local
Government: Municipal Structures Act 32 of 2000 (Structures Act). It is
accordingly within the legislative power of municipalities to draft bylaws that
will enable them to properly fulfil their environmental and assigned duties.
However, anecdotal evidence suggests that the development and drafting of
environmental bylaws often require skills and infrastructure that are not readily
available to municipalities; especially in the rural areas of South Africa.
The Systems Act to some extent acknowledges that some local authorities
may experience difficulties in developing a framework of bylaws, generally, by
providing that a province may make standard draft bylaws (SDBs) concerning any matter for which municipal councils may make bylaws. These
SDBs will be applicable only if adopted by the majority of a municipal council,
and subject to any modifications/qualifications made by the council. This
means that the idea of SDBs is not intended to nullify or diminish the law-
making power of local government, but instead to fortify and support
municipalities’ efforts in drafting and adopting bylaws. A council may decide
to use a SDB as the foundation for its own bylaw process, but a council may
also amend an environmental SDB, for example, to fit in with local
environmental conditions and circumstances. A SDB imposes no obligation
on any municipality because it is merely an aid at the disposal of
municipalities that a particular municipality may use in so far and to the extent
that it deems fit.
The National Environmental Management Act 107 of 1998 (NEMA) provides
for model environmental bylaws (MEBs).3 The Minister of Environmental
Affairs and Tourism (DEAT-recently renamed the Minister of Environment and
Water Affairs) may make MEBs (at national level). These MEBs must include 2 Sections 156(2) and 162(1). 3 Section 46.
6
measures for environmental management. NEMA furthermore provides that
any municipality may generally request the Director-General (DG) (of DEAT)
to assist it with the preparation of environmental bylaws. In this event, the DG
is not permitted to unreasonably refuse such a request. NEMA even goes so
far as to provide that the DG may institute programmes to assist municipalities
with preparation of bylaws for the purpose of implementing NEMA in the local
sphere. The latter serves to support the view that local authorities should, as
far as possible, use environmental bylaws to see to the effective governance
of local environmental affairs. It is clear, however, that it is not expected of
local government to embark on the design of local environmental bylaws all by
itself. There are different options available to aid municipalities in this respect.
1.3 Environmental challenges at local level
South Africa faces several environmental challenges. These challenges in the
main concern: water management and water quality (ground and surface
water); waste management (waste collection, disposal, recycling etc.), energy
efficiency and provision, air quality management, the control of noise, and the
conservation of biodiversity and protected areas. A number of related
challenges include: provision of and maintenance of environmental
infrastructure (storm-water, water and sanitation etc.); provision of health
services; protection and management of cultural heritage; management of
conservation areas; management of urban planning and infrastructure;
facilitate urban greening; regulate disaster management; and the transport,
storage, labelling and use of hazardous substances. This list is merely
representative and is non-exhaustive.
All of the challenges mentioned above also exist in the North-West Province
(NWP). In fact, some challenges are intensified by various factors such as
mining activities, manufacturing industries, and sensitive ecological systems.4
Despite the fact that there is not a single metropolitan municipality in the
4 See the latest available NWP State of the Environment Report of 2002. Available at http://www.deat.gov.za/soer/reports/northwest/01%20Contents.pdf.
7
NWP, and that the Province is generally challenged by a lack of sufficient
human and financial resources, all municipalities in the province have
constitutionally entrenched environmental duties as was indicated above.
These duties should be addressed and fulfilled, inter alia, by means of the
design, adoption and implementation of environmental bylaws by all
municipalities in the province.
1.4 Contextualising the present report
In 2008, the Office of the Premier in the North West Provincial Government
(NWPG) provided funding towards a research project that would ultimately
culminate in the province’s adoption of a set of environmental SDBs.5 The
Faculties of Law, North West University, in co-operation with the Centre for
Environmental Management, at the same university, have subsequently
embarked on an extensive research project to assist the NWPG in drafting
environmental SDBs. The project has commenced in February 2009 and the
envisaged date of completion is November 2009.
This report forms part of the inception phase of this project. In order to draft a
set of environmental SDBs that would address the environmentally relevant
needs and conditions of the NWP and its municipalities, it was essential to
first establish the status quo in the province. This report offers a summarised
assessment of the status quo of environmental bylaws, environmental
governance structures and related needs and challenges in some
municipalities situated in the NWP. The data in this report has been collected
by means of semi-structured interviews conducted at a number of identified
municipalities in the NWP and results obtained during an interactive workshop
with representatives from several municipalities in the province and other
interested and affected parties attending. The methodology is explained in
greater detail in section 2 below.
5 See further the Project Flyer in the Addendum to this report.
8
This report is a key instrument for the further design and development of the
project. It is the intention that this report will serve as the main point of
reference to inform the design of a set of environmental SDBs for the NWP.
The research team accordingly encourages all interested and affected parties
to comment on the report and to notify the team of any errors, oversights or
omissions that occur therein.
2. RESEARCH METHODOLOGY The central research question that underpins the project is: what is the current
state of environmental bylaws in some of the municipalities in the NWP and
how could these bylaws be redesigned or established where they do not exist
to achieve sustainable local environmental governance and service delivery in
the Province?
The inception phase of the Project required a determination of the status quo
of environmental bylaws, governance structures, challenges and needs of
local authorities in the NWP. In determining the status quo, the following
research methods were employed by the research team:
• Collection and compilation of existing municipal environmental bylaws,
SDBs and model environmental bylaws across South Africa and in the
NWP;
• A desktop review of environmental SDBs in South Africa;
• Interviews with municipal officials, both in selected district and local
municipalities in the NWP;
• Completion by said officials of a detailed questionnaire which was
drafted with the view to soliciting additional information regarding the
challenges and needs related to local environmental governance
generally, and the status of existing environmental bylaws in the NWP
local authorities; and
• An inception workshop was held in Potchefstroom (6 March 2009) to
disseminate the findings of the empirical and desktop studies (above),
and to solicit further comments and inputs from interested and affected
9
For the purpose of the above qualitative empirical-type study, nine (9) local
authorities, including, local and district municipalities were identified. The
selection was based on size and geographical location. The municipalities
include:
• Rustenburg Local Municipality
• Moses Kotane Local Municipality
• Ramotshere Moiloa Local Municipality
• Mafikeng Local Municipality
• Dr Kenneth Kaunda District Municipality
• Maquassi Hills Local Municipality
• Dr Ruth Mompati District Municipality
• Kagisano Local Municipality
• Greater Taung Local Municipality
A sample of more general questions that were posed to municipal officials in
these municipalities included (see further the Addendum):
• Does your municipality have a dedicated environmental department?
• Does your municipality have a legal officer or legal department?
• Does your municipality have a single file or an electronic document with
all environmental bylaws, and are these bylaws readily available?
These and other related questions were posed to officials with the view to
determining the more general status of environmental awareness and local
environmental governance in each municipality.
More specific questions were intended to determine whether municipalities
have existing bylaws dealing with: environment and/or general pollution; air
pollution; water and sanitation management and services; refuse removal,
refuse dumps, solid waste disposal and/or littering; control of public nuisance,
10
such as noise; cemeteries; cleansing (e.g. the cleaning of parks, streets and
open spaces); traffic (especially transportation of environmentally hazardous
substances); cultural affairs; abattoirs; and any incidental ‘other’ bylaws.
Additional questions related to: whether the municipal officers were aware
that the provincial government of the NWP could issue SDBs; and whether
there is sufficient co-operation within and between authorities in the Province
with respect to local environmental governance.
3. SUMMARY OF FINDINGS
3.1 Fieldwork findings
When analysing the different divisions or units responsible for environmental
issues in the municipalities interviewed, 4 analogous departments were
identified as the most common across the municipalities. These units are
Community Services; Planning and Development; Infrastructure and
Engineering; and Environmental Health (see Table 1). 2 municipalities
consisted of a single environmental department or unit responsible for
managing all environmental issues, while 7 municipalities consisted of
different departments or divisions accountable for managing various
environmental issues (see Figure 1).
Generally, the NWP municipalities that participated in the research have a
single Legal Department (Directorate: Cooperate Services), headed by a
Chief Legal Officer. The legal officers are expected to keep a compendium of
all bylaws the municipality must administer. Of all the municipalities that had
environmental bylaws, half (50%) had the environmental bylaws
reserved/recorded as a single source in the offices of a legal officer, whereas
the other half had their bylaws in their own separate environmental units (see
Figure 2). While most municipalities had existing environmental bylaws to a
greater or lesser extent, Kagisano Municipality did not have any
environmental bylaws.
11
The current status analysis of environmental bylaws in the NWP is based only
on the municipalities visited. The majority of environmental bylaws (either
drafted or promulgated) that were identified subsequent to the distribution of
the questionnaire, covered issues relating to water and sanitation, refuse
removal and cemeteries (see Figure 3). There were numerous ‘other’
incidental environmental bylaws such as fire services, electricity, management
of informal settlements, health services, disposal of contaminated or infectious
waste, keeping of animals and poultry, private and public amenities, hawkers
and food vending (see Table 2).
Most municipalities interviewed were aware that the MEC for Local
Government in the NWP can draft SDBs. The municipalities would prefer the
MEC to draft SDBs on all environmental matters especially those relating to
air quality, waste management, water management, and transportation of milk
and meat (see Table 3).
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Table 1: Institutional composition of environmental governance structures in responding NWP municipalities
Municipality (LM/DM)6 Institutional Composition of Environmental Governance Structures
Maquassi Hills LM
Single Division: Engineering Department • Waste management
• Water and sanitation
• Cleansing
• Storm water management
Ramotshere Moiloa LM
Single Division: Parks and Environment Unit • Waste management
• Street cleansing
• Cemeteries
Rustenburg LM
Multiple Divisions:
1. Integrated environmental management
2. Waste management
3. Environmental health
4. Water and sanitation
5. Parks and cemeteries
6. Development planning
Dr Kenneth Kaunda DM
Multiple Divisions:
1. Environmental Health Department
2. Environmental Management
Moses Kotane LM
Multiple Divisions:
1. Community services
• Waste disposal
2. Engineering department
• Storm water and roads management
3. Housing department
4. Town planning department
6 LM = local municipality. DM = district municipality.
13
Kagisano LM
Multiple divisions:
1. Community Services
• Library services
• Service centres
2. Local economic development
Dr Ruth S Mompati DM
Multiple divisions:
1. Fire disaster management
2. Waste management
3. Environmental health
Greater Taung LM
Multiple divisions:
1. Development land use and planning
• Storm water
• Cemeteries
2. Community services
• Waste removal
• Sports facilities
Mafikeng LM
Multiple divisions: 1. Community services
• Waste management and cleansing
• Environmental health
2. Infrastructure
• Water management
• Storm water management
• Electricity
• Public works
3. Planning and development
• Air quality management
• Natural environment
14
Figure 1: Institutional composition of environmental governance structures in responding NWP municipalities
Maquassi LM
Ramotshere LM
Rustenburg LM
Dr Kenneth Kaunda DM
Moses Kotane LM
Kagisano LM
Dr Ruth S. Mompati DM
Greater Taung LM
Figure 2 Sources of bylaws (single/multiple) in responding municipalities
Rustenburg LM
Dr Kenneth Kaunda DM
Dr Ruth S. Mompati DM
Mafikeng LM
Moses Kotane LM
Greater Taung LM
Maquassi Hills LM
Ramotshere Moiloa LM
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Table 2: State of environmental bylaws in responding municipalities Municipalities Existing environmental bylaws Environmental bylaws
needed
Maquassi Hills LM
• Water and sanitation management and services
• Fire brigade services • Management and control of
informal settlements • Electricity • Public health
• Environment and/or pollution management (generally)
• Air pollution • Refuse removal, refuse
dumps, solid waste disposal and/or littering
• Control of public nuisance (e.g. noise)
• Cemeteries • Cleansing • Traffic and parking (in
relation to carriers transporting hazardous substances)
• Cultural affairs • Abattoirs
Ramotshere Moiloa LM
• Water and sanitation management and services
• Refuse removal, refuse dumps, solid waste disposal and/or littering
• Cemeteries • Cleansing
• Environment and/or pollution management (general)
• Air pollution • Control of public nuisance
(e.g. noise) • Traffic and parking (in
relation to carriers transporting hazardous substances)
• Cultural affairs • Abattoirs
Rustenburg LM
• Air pollution • Refuse removal, refuse dumps,
solid waste disposal and/or littering
• Management and control of informal settlements
• Control of public nuisance (e.g. noise)
• Disposal of contaminated and/or infectious waste
• Keeping of animals and poultry • Preparation of food at
registered private kitchens • Public health hazards and
nuisances • Accommodation
establishments
• Development of illegal structure on sensitive areas
• Cultural affairs • Abattoirs • Environment and/or
pollution (general)
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• Cemeteries • Open spaces, parks, sidewalks
and gardens • Public amenities • Caravan parks and mobile
homes • Electricity supply • Public passenger and goods
transportation
Dr Kenneth Kaunda DM
• Abattoirs • Cemetery and cremation • Hawkers • Streets and miscellaneous • Solid waste • Public open space • Neighbourhood noise • Smoke control • Food vending • Sanitation • Keeping and handling of
hazardous substances • Town lands • Dogs • Prevention and suppression
of health nuisances • Medical waste • Trades working with lead • Conveying and handling of
meat intended for human consumption
• Bylaws relating to the keeping of animals, birds and poultry and businesses involving the keeping of animals, birds, poultry or pets.
• Private amenities
• Environment and/or pollution (general)
• Air pollution • Water and sanitation
management and services
• Traffic and parking (in relation to carriers transporting hazardous substances)
• Cultural affairs
Moses Kotane LM
• Environment and/or pollution control (general)
• Water and sanitation management and services
• Refuse removal, refuse dumps, solid waste disposal and/or littering
• Cemeteries • Cleansing • Control of public nuisance
(e.g. noise) • Traffic and parking (in relation
• Cultural affairs • Abattoirs
17
to carriers transporting hazardous substances)
Kagisano LM No environmental bylaws
• Environment and/or pollution control (General)
• Water and sanitation management and services
• Refuse removal, refuse dumps, solid waste disposal and/or littering
• Cemeteries • Cleansing • Control of public
nuisances (e.g. noise) • Traffic and parking (in
relation to carriers transporting hazardous substances)
• Cultural affairs • Abattoirs • Mortuaries
Dr Ruth S Mompati DM
• Keeping of animals • Control of dogs • Peddlers and hawkers (1992) • Bylaw relating to inflammable
substances • Standard bylaw to keeping of
poultry • Refuse and cemetery • Sewage • Standard bylaw relating to
streets, construction on side walks
• Parking of heavy motor vehicle
• Air pollution • Traffic and parking (in
relation to carriers transporting hazardous substances)
• Cultural affairs • Abattoirs • Water and sanitation
management and services
Greater Taung LM
• Water and sanitation management and services
• Refuse removal, refuse dumps, solid waste disposal and/or littering
• Cemeteries • Cleansing • Control of public nuisance
(e.g. noise) • Keeping of animals, dogs,
poultry and bees • Street parking of motor,
heavy vehicles and caravans
• Environment and/or pollution control (general)
• Air pollution • Cultural affairs • Abattoirs
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• Electricity • Control of street trading • Taxi ranks • Building control • Unsightly and neglected
buildings and premises • Animal pounds
Mafikeng LM
• Control of public nuisances • Air pollution • Environment and/or
pollution management (general)
• Water and sanitation management and services
• Refuse removal, refuse dumps, solid waste disposal and/or littering
• Cemeteries • Cleansing • Traffic and parking (in
relation to carriers transporting hazardous substances)
• Cultural affairs • Abattoirs
*Drafted or promulgated bylaws
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Table 3: Summary of views on environmental SDBs required in the NWP
Responding Municipality Environmental SDBs Required
Greater Taung LM
• Flooding (e.g. topographical designs)
• Integrated environmental management
Dr Ruth S Mompati DM • Transport of meat and milk
(transportation and health)
Dr Kenneth Kaunda DM
• Bylaws on pollution control and management
• Public health
• Keeping of animals
• Transport of meat and milk (transportation and health)
• Formal vending of food
Rustenburg LM • Ridges
Ramotshere Moiloa LM
• Water and sanitation
• Waste management
• Air pollution
• Noise pollution
Maquassi Hills LM
• Air quality management
• Water management
• Waste management
Mafikeng LM
• Refuse removal and sanitation
• Water services
• Public open spaces
• Public amenities
• Cemeteries
• Nuisances (e.g. noise)
• Pollution
• Conservation
• Integrated environmental management
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• Waste management
• Air quality management
3.2 Field work analysis The results from the semi-structured interviews conducted and information
obtained from the answers to the questionnaire, suggest the following:
• Service delivery by NWP municipalities in relation to environmental issues
is compromised by many factors. One of these is a lack of sufficient and
comprehensive environmental bylaws and inadequate enforcement of
existing environmental bylaws.
• In addition, several municipalities lack various management plans such as
Environmental Management Plans (EMPs), Integrated Water Management
Plans (IWMPs), Integrated Waste Management Plans (IWasteMPs); and
Integrated Air Quality Management Plans (IAQMPs). Municipalities also
experience challenges in implementing their integrated development plans
(IDPs).
• Moreover, other key issues resulting in substandard environmental
governance include: lack of financial resources; unfunded or under-funded
environmental mandates; lack of human resources; lack of departmental
and inter-sphere coordination and cooperation (cooperative governance);
and lack of communication and interaction with traditional leaders.
• All responding municipalities indicated that insufficient funds are allocated
to the environmental management sector. As a result, most of the
municipalities do not have sufficient resources and facilities available to
fulfil their mandates regarding environmental management. For example,
environmental health practitioners in rural areas are unable to perform
adequately due to limited transport facilities.
• Furthermore, some municipalities are unable to appoint specialised human
resource personnel such as environmental officers/managers/practitioners
at market-related salaries. This has a spill-over effect in terms of the
enforcement of environmental bylaws. This results in the human
22
resources of the environmental management sector being under-
capacitated. This is contradictory to international best practice. It is
generally accepted that approximately one environmental health
practitioner (EHP) should work with a population of 10 000 people.7 In Dr
Kenneth Kaunda DM, however, one EHP works with a population of 40
000.
• Another challenge is that of an unclear definition of the roles and
responsibilities of environmental management (EM) and environmental
health (EH) officers. It seems that the description of mandates and
distinction between specific roles are muddled at best. EM and EH officers
therefore tend to execute the duties that are beyond their competency
level. This dilemma may, however, be traced back to the strong
environmental focus of the definition of municipal health services as
contained in the National Health Act 61 of 2003.
• Another concern is the fact that some municipalities appoint consultants to
implement municipal environmental management projects. The
appointment of consultants exacerbates municipal financial constraints
since the services of consultants are usually costly. As a result, other
crucial environmental and other projects are then suspended until the
following financial year because of a lack of funding. Consultants may
also be inclined to design and implement generic environmental
management projects that are not necessarily suitable for the specific
needs and challenges of a particular municipality. This is especially true
for municipalities situated in the rural areas.
• Another significant challenge that the municipalities in the NWP face is that
of inadequate coordination and cooperation among the different
environmentally relevant government structures and spheres such as the
provincial government, district authorities and local authorities. There is not
only inter-sphere fragmentation, but also fragmentation between
environmental line functions such as DEAT, the Department of Minerals
7 See Balfour “Municipal Health Services in South Africa, the Opportunities and Challenges” at http://www.dbsa.org/Research/Documents/Municipal%20Health%20Services%20in%20South%20Africa.doc .
23
and Energy (DME-recently divided into the Department of Minerals and the
Department of Energy) and the Department of Water Affairs and Forestry
(DWAF-subsumed into the new Department of Environment and Water
Affairs), and local authorities. The different government structures address
environmental issues incoherently. For instance, certain mandates such as
Environmental Health cannot be easily distinguished between district and
local municipalities. Furthermore, there are inter and intra-municipal
communication gaps. Lack of communication, cooperation and
coordination also exist between environmental officers and traditional
leaders in respect of development and implementation of environmental
projects on communal lands.
Based on the research findings, the general view is that, in order to improve
environmental service delivery in the NWP, adequate funds should be
allocated to the environmental management sector. The provision of more
funding would enable municipalities to appoint qualified environmental
officials. Proper funds can also be used to access better resources and
facilities which the qualified personnel would need to perform their duties
effectively. In terms of improving the communication and coordination among
different spheres of government and within local government itself, it was
suggested that the MEC responsible for local government affairs in the NWP
should intervene by drafting environmental SDBs for the sake of uniformity in
the execution of environmental governance across the Province. The SDBs
drafted by the MEC would counter the lack of environmental bylaw-making
capacity in the NWP municipalities and would serve as a guideline for
customisation of environmental bylaws at the district and local levels which
would simultaneously broaden the application of these bylaws. The
promulgation of environmental SDBs could also possibly shorten the time
taken to eventually promulgate similar environmental bylaws by the different
municipalities of the NWP. The establishment of formal cooperative
agreements and committees to address environmental fragmentation, and the
current uncooperative approach prevalent within and among the local
authorities in the NWP should also be considered.
24
3.3 Workshop findings
The results of the empirical and desktop study outlined in this report were
disseminated and thoroughly discussed with interested and affected parties
(mainly consisting of municipal officials and political office bearers in the
NWP- see the Appendix for a list of attendees). One specific objective of the
workshop that was held on 6 March 2009 was also to determine specific
needs of municipalities as regards the content of eventual environmental
SDBs for the Province. The project team was able to draw the following
conclusions following an analysis of information obtained during the
workshop:
3.3.1 Environmental Standard Draft Bylaws
There seems to be an urgent need to draft a Local Government Framework
Environmental Law (LGEFL) which would be similar to NEMA and which
would serve as an ‘umbrella’ bylaw to regulate general environmental issues
and also to serve as a statutory mandate in terms of which other sectoral
bylaws could be promulgated, amended and enforced. The LGEFL must also
define environmental principles, generic environmental governance
procedures and structures, compliance and enforcement strategies, and
issues related to environmental liability. Certain elements of the Systems Act
must also be considered, aligned and/or included in the LGEFL.
In addition to this generic environmental framework law, sector-specific
bylaws relating to the following environmental issues were suggested:
• Waste and water management. Issues such as the collection, removal,
storage, transportation, disposal and recycling of waste must be
addressed in this bylaw. The following different waste categories should be
clearly defined and adequately regulated.
o Household medical waste
25
o Electronic waste
o Hazardous waste
o Building rubble (illegal dumping)
o Vehicle tyres
o Scrap metal dealers/sandblasting/spray painting/car wash facilities
o Garden refuse bins (rented drums)
• Disaster management including transport of hazardous substances which
should be linked with disaster management plans
• Biodiversity (regulation of alien and invasive species)
• Land use management
• Offensive trades (informal and formal common trades)
• Removal and transport of animal carcasses
• Stray animals
• Pauper burials/indigent burial/exhumation
• In addition, the emergency response plans for all possible disastrous
incidents pertaining to waste and transport of hazardous substances
should be included in the respective bylaws. For this purpose, the
definition of ‘disaster’ should also be aligned with the definition in the
Disaster Management Act 57 of 2002.
• Relevant bylaws should also clarify the mandates and jurisdiction between
environmental officers; and environmental and public health officers
respectively.
26
3.3.2 Environmental governance issues
The attendees at the workshop made the following recommendations
regarding environmental governance issues:
• An environmental institutional structure must be created that engages
with specific environment-related matters by means of political
intervention. This clearly defined structure must prevent the duplication
within the national and provincial departments’ work and must also ensure
integration at the local level. Benchmarking of the job description for
environmental managers and environmental officers is also essential.
• Furthermore, there is a need to standardise the appointment criteria of
environmental and health officers in order to gain uniformity across the
Province. Once the structure is in place, the required environmental
officials can be appointed. Usually, the district and local municipalities
work together regarding waste issues. There, however, might be a need to
separate waste and environmental issues in towns but in rural areas this
responsibility might be the duty of a single department.
• Cooperative governance in and between local, national and provincial
authorities in the NWP must be reinforced. For instance, formalised liaison
between the national departments such as DEAT, the North West
Department of Agriculture, Conservation and Environment (NWDACE) and
the NWP municipalities is essential.
• Service level agreements such as Environmental Management
Cooperative Agreements (EMCAs) provided in NEMA should be made
mandatory. Service level agreements would enable improved cooperation
and engagement in intra- and inter-departmental matters. For example,
issues relating to municipal transboundary resources, such as heritage
sites, could be addressed in this way.
• In addition, some environmental departments are situated at a district level
but actual implementation takes place at the local level. Therefore, there
might be a lack of communication between the district and local
municipalities on the implementation of bylaws.
27
• In order to reinforce cooperative governance even further, there should be
a provision for the establishment of provincial databases on environmental
information such as existing environmental bylaws, environmental plans,
laws, policies, regulations and other incidental but relevant issues.
• Lack of compliance and enforcement of environmental (by)laws at the
local level is a significant concern in the NWP. This challenge could be
addressed by allowing local Magistrates’ Courts to hear environmental
matters and by building enforcement capacity.
• Moreover, fines and penalties for all environmental crimes (e.g. unlicensed
land-fill sites) should be prescribed as there seems to be lack of
acknowledgement for environmental liability by guilty parties.
• The private sector should also be compelled to acknowledge its duties and
obligations to the community in respect to environmental, and more
specifically, waste management.
• It was settled that the ‘polluter pays principle’ (rehabilitation, remediation
and prevention costs) should be used.
• In addition, provisions for public environmental awareness and education should be included in the bylaws.
3.3.3 Additional role players
The following additional interested and affected parties which may have an
interest in the project and its outcomes were identified during the workshop.
• Houses of Traditional Leaders
• North West Province Legal Task Team
• Bojanala Platinum District Legal Task Team (led by Adv. Jurie Vorster)
• SALGA (including the Municipal Managers Forum)
• Law enforcers and the judiciary
28
• Provincial government departments responsible for agriculture,
conservation, water affairs, cultural affairs and local government
(including the respective MECs and heads of department)
• IMASA (especially its Legal Division)
• Institute of Waste Management SA
• Water Boards
4. CONCLUSION AND WAY FORWARD
The findings of this status quo report are intended to inform the eventual
drafting of environmental SDBs for the NWP. The report and its findings are
also intended to provide context and to describe the milieu in terms of which
environmental governance is currently executed at the local level in the NWP.
Valuable insights have been gained and together with the ongoing desktop
study, these results will embolden and guide the drafting of a set of
environmental SDBs. However, it should be made clear that this research
project is not intended to address all of the challenges and needs currently
experienced in terms of local environmental governance in the NWP. It is also
not possible to draft all of the environmental SDBs that are required in the
municipalities of the NWP. The intention is to draft a set of basic
environmental SDBs from which further legislative intervention may follow in
future. The project also neither does not concern itself with the eventual
implementation of these bylaws, nor with the successful enforcement of the
bylaws.
The project team is currently in the process of drafting six different
environmental SDBs for the NWP, taking into account the inputs from the
district and local municipalities as well as the workshop. This stage of the
project will be finalised by the end of July 2009. These drafts will
subsequently be discussed during a second and final workshop with
interested and affected parties and their content will be amended where
29
necessary. The second workshop is to take place on 26 June 2009 in
Potchefstroom.
The final environmental SDBs that have been designed for purposes of this
project will be presented to the Office of the Premier by the end of October
2009.
30
ADDENDUM
QUESTIONNAIRE
NWP: Standard Draft Environmental Bylaws Project
Questionnaire for Semi-structured interviews:
Local and District Municipalities Guidelines:
1. Interviewers must attempt to interview the municipal officer in charge of
environmental management in the municipality. If this is not the duty of one
person or one department, interviewers must attempt to interview as many
officers as possible that are responsible in the municipality for environmental
issues such as water and waste management or the provision of
environmental infrastructure. If there are more than one official you may ask
whether it would be possible to interview all of the officials together or you
may each visit an official to ask him/her the questions, saving time and
energy.
2. Interviewers should always first introduce the project with reference to the
project information flyer.
3. Interviewers should establish whether or not interviewees want to remain
anonymous but should also make it clear that, as far as practically possible,
no information will be published in a way as to incriminate any government
official or political office bearer. It should be explained that the information
would assist the project team to formulate standard bylaws for the province.
4. The questions listed below are intended to stimulate conversation and
interviewers may ask follow-up questions when an interviewee’s answer to a
specific question so allows or requires.
5. All answers to all questions asked must be written down as comprehensively
as possible. The information must be recorded electronically as soon as
possible after the interview has been conducted.
6. Interviewers must ensure that all municipalities’ and interviewees’ information
are complete and correct.
31
7. Interviewers must ensure that all information related to the date, time and
place of the interview is complete and correct.
8. Interviewers must ensure that all interviewees receive invitations to all project
workshops.
9. Interviewers should as far as possible attempt to obtain hard-copies of
existing environmental bylaws. You may ask whether you may copy the
bylaws for example at a copy shop/library or to remunerate the local
government for the expenses of the copies. Make sure that you receive a
receipt for the payment.
Information:
1. Name of interviewer: -------------------------------------------------
2. Name of municipality: -------------------------------------------------
3. Type of municipality (B or C): -------------------------------------------------
4. Name of interviewee(s): -------------------------------------------------
-------------------------------------------------
-------------------------------------------------
5. Position of interviewee: -------------------------------------------------
6. Contact details of interviewee
a. Email address: -------------------------------------------------
b. Telephone: -------------------------------------------------
c. Postal address: -------------------------------------------------
7. Anonymous: Yes ------ No ---------
8. Date of interview: -------------------------------------------------
Questions:
1. Does the municipality have a single department or division that is responsible
for environmental matters? If not, which departments are responsible for
environmental affairs (water management, waste management, provision of
electricity, cleansing, storm water management, air quality management etc)?
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
32
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
------------------------------------------------------
2. Does your municipality have a single legal department or division or a legal
officer? Please provide details.
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
3. Does your municipality have a single file/document/book/electronic source
that contains all of its bylaws? If so, is it available and may we have a copy or
make a copy of these bylaws?
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------
4. Does your municipality have a bylaw on:
4.1
Yes No If no: do you need a bylaw on this
matter – yes or no
Environment and/or pollution
(generally)
Yes / No
Air pollution Yes / No
Water and sanitation management
and services
Yes / No
Refuse removal, refuse dumps, solid
waste disposal and/or littering
Yes / No
Control of public nuisances such as
noise
Yes / No
33
Cemeteries Yes / No
Cleansing8 Yes / No
Traffic and parking (in relation to
carriers transporting environmentally
hazardous substances)
Yes / No
Cultural affairs Yes / No
Abattoirs Yes / No
4.2 Are there any other matters that you regulate in a bylaw that have not been
mentioned?
-----------------------------------------------------------------------------------------------------------------
4.3 Is there any other matter that you think you need a bylaw for?
---------------------------------------------------------------------------------------
5. Did you know that the MEC for local government in the North-West Province
may make standard draft by-laws?
Yes / No
6. Do you think that your municipality can benefit from the bylaws in 5? Please
explain.
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------
7. On which local government environmental matters would you like to see
provincial standard draft bylaws published? 8 Cleansing is generally understood as to include the cleaning of parks, streets and other open spaces.
34
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
---------------------------------------------------------------
8. Does the municipality have sufficient financial and human resources (qualified) to
ensure good local environmental governance? What are the biggest resources
related needs within the municipality as far as environmental governance is
concerned?
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
9. Are there sufficient coordination and cooperation among the different government
structures in your area (local authorities, district authorities and provincial
government) in addressing environmental problems? Do you have any
cooperation agreements or cooperative committees?
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
10. If no in 8, explain what do you think can be done to improve the situation?
-------------------------------------------------------------------------------------------------------
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35
PROGRAMME (WORKSHOP I, 6 MARCH 2009)
DEVELOPING AN ENVIRONMENTAL BYLAW FRAMEWORK
FOR SUSTAINABLE LOCAL ENVIRONMENTAL GOVERNANCE AND SERVICE DELIVERY IN THE
NORTH- WEST PROVINCE
Workshop 1: Project Overview and Preliminary Findings
6 March 2009
Venue: FFG Building (Potchefstroom)
PROGRAMME 08:30 REGISTRATION 09:00 Welcome
Prof Amanda Lourens and Dr Kenneth Lesedi
09:10 Project Overview Louis Kotzé
09:30 Rationale and Legal Framework for Local Environmental
Governance Anél du Plessis
10:15 Politics of Pollution and Fragmentation in Local Government Louis Kotzé & Carin Bosman
11:00 TEA 11:30 Status Quo Report: Preliminary Findings Watsie Ramogola, Phindi Simelane & Themba Ndongeni
12:30 Workshop: Way Forward Facilitated by Anél du Plessis, Louis Kotzé & Willemien du Plessis
13:15 LUNCH 14:00 DEPARTURE
36
REGISTRATION LIST – WORKSHOP 1, 6 MARCH 2009
Surname Initials Contact
Number Email Address Department /
Institution Ciya ND 072 804 9943 [email protected] City of Matlosana Come JH 082 337 5885 [email protected] DEAT Dikgwatlhe K 082 935 4665 [email protected] City of Matlosana Dlamini DG 082 567 2296 [email protected] /
[email protected] DEAT (DR RSM)
Du Plessis W 083 290 4569 [email protected].
za Faculty of Law, NWU
Du Plessis AA 083 310 1828 [email protected] Faculty of Law, NWU Du Plessis T 073 241 7026 [email protected] City of Matlosana Esterhuizen LJR 082 373 1698 [email protected] Tlokwe City Council Groenewald BHJ 083 631 1998 [email protected] Tlokwe City Council Hobe RG 082 475 7020 [email protected] Dr.Kenneth Kaunda
District Municipality Kotzé L 082 335 6290 [email protected] Faculty of Law, NWU Lefenya O 073 190 0257 [email protected].
za Faculty of Law, NWU
Lesedi K 078 298 9811 [email protected] Office of Premier Mabaso Z 079 881 7206 [email protected] Dr.Kenneth Kaunda
District Municipality Maruping TG 076 888 4854 [email protected] Greater Taung Local
Municipality Masekwane NJ 082 806 4345 [email protected] Bojanala Districk
Municipality
37
Masibi M 079 696 0564 [email protected] Ratlou Local
Municipality Matlhakola F 082 427 9145 [email protected] Dr.Kenneth Kaunda
District Municipality Melamu OJ 082 548 2797 [email protected] Taung Local
Municipality Merofe T 083 947 8822 [email protected] Tswaing Local
Municipality Mokansi M 076 889 0406 [email protected] City of Matlosana Mokotedi LK 084 505 4365 [email protected].
za Rustenburg Municipality
Molefe M 076 525 0756 [email protected] Southern District
Municipality Molefe SJ 084 657 0934 [email protected] Office of the Premier Monaheng O 082 492 6394 [email protected]
a Tswaing Local Municipality
Mosebi TH 073 026 3374 [email protected] Ventersdorp
Municipality Mphane M 053 994 9400 [email protected] Greater Taung Local
Municipality Muller PV 018 464 1386 [email protected] City of Matlosana Ndongeni T 018 299 1954 [email protected] Faculty of Law, NWU Nondzaba ME 082 797 1778 speakersecretary@moseskot
ane.gov.za Moses Kotane Municipality
Oagile M 082 928 8355 [email protected] Kagisano Local
Municipality Oosthuizen C 072 119 1488 [email protected] Dr. Ruth S Mompati
District Municipality Phoko F 073 268 3552 [email protected] Rustenburg Municipality Pitso AC 073 228 7631 Mafikeng Local
Municipality Pretorius AC 018 299 5435 [email protected] Tlokwe Stadsraad
38
Ramogola W 018 299 1448 [email protected] CEM, NWU Rossouw JR 082 924 4572 [email protected] Dr.Kenneth Kaunda
District Municipality 084 285 3421 [email protected] Tswaine Local
Municipality Segomotso L 072 704 1343 [email protected]
o.za Mafikeng Local Municipality
Selau L 083 320 5721 [email protected] Ramotshere Moiloa
Local Municipality Sibilanga T 018 642 1081 [email protected] Ramotshere Moiloa
Local Municipality
Simelane P 018 299 1581 [email protected] CEM, NWU Stoltz I 083 462 2246 [email protected] Tlokwe City Council Van Niekerk M 082 568 4960 [email protected] Dr.Kenneth Kaunda
District Municipality Volschenk T 082 820 2374 [email protected] Dr Ruth S Mompati
District Municiplality Vorster J 082 784 0839 [email protected] Bojanala Platinum
District Municipality
39