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 (Louis.Kotze@nwu.ac.za) (018 299 1956) Dr. Anél du Plessis (Anel.Duplessis@nwu.ac.za ) (018 299 1924)

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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

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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.

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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.

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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

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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

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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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Figure 3: Existing Environmental Bylaws in responding municipalities in the NWPG

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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 dciya@klerksdorp.org City of Matlosana Come JH 082 337 5885 hcome@deat.gov.za DEAT Dikgwatlhe K 082 935 4665 kdikgwatle@klerksdorp.org City of Matlosana Dlamini DG 082 567 2296 dgdlamini@deat.gov.za /

dlamini@bophirima.co.za DEAT (DR RSM)

Du Plessis W 083 290 4569 willemien.duplessis@nwu.ac.

za Faculty of Law, NWU

Du Plessis AA 083 310 1828 anel.duplessis@nwu.ac.za Faculty of Law, NWU Du Plessis T 073 241 7026 tduplessis@klerksdorp.org City of Matlosana Esterhuizen LJR 082 373 1698 lukase@potch.co.za Tlokwe City Council Groenewald BHJ 083 631 1998 barnieg@potch.co.za Tlokwe City Council Hobe RG 082 475 7020 envhealth@sdm.org.za Dr.Kenneth Kaunda

District Municipality Kotzé L 082 335 6290 louis.kotze@nwu.ac.za Faculty of Law, NWU Lefenya O 073 190 0257 kesoloretse.lefenya@nwu.ac.

za Faculty of Law, NWU

Lesedi K 078 298 9811 klesedi@nwpg.gov.za Office of Premier Mabaso Z 079 881 7206 zanu@sdm.org.za Dr.Kenneth Kaunda

District Municipality Maruping TG 076 888 4854 marupingt@taunglm.co.za Greater Taung Local

Municipality Masekwane NJ 082 806 4345 nozim@bojanala.gov.za Bojanala Districk

Municipality

37

Masibi M 079 696 0564 masego.motogo@lgnet.org.za Ratlou Local

Municipality Matlhakola F 082 427 9145 envhealth@sdm.org.za Dr.Kenneth Kaunda

District Municipality Melamu OJ 082 548 2797 melamno@taunglm.co.za Taung Local

Municipality Merofe T 083 947 8822 thapelo.merofe@lgnet.org.za Tswaing Local

Municipality Mokansi M 076 889 0406 mmokansi@klerkddorp.org City of Matlosana Mokotedi LK 084 505 4365 mitumeleng@rustenburg.gov.

za Rustenburg Municipality

Molefe M 076 525 0756 molefem@sdm.org.za Southern District

Municipality Molefe SJ 084 657 0934 sjmolefe@nwpg.gov.za Office of the Premier Monaheng O 082 492 6394 onica.monaheng@lgnet.org.z

a Tswaing Local Municipality

Mosebi TH 073 026 3374 tmosebi@ventersdorp.co.za Ventersdorp

Municipality Mphane M 053 994 9400 mphanem@taunglm.co.za Greater Taung Local

Municipality Muller PV 018 464 1386 vmuller@klerksdorp.org City of Matlosana Ndongeni T 018 299 1954 12425095@nwu.ac.za Faculty of Law, NWU Nondzaba ME 082 797 1778 speakersecretary@moseskot

ane.gov.za Moses Kotane Municipality

Oagile M 082 928 8355 oagilem@kagisanolm.co.za Kagisano Local

Municipality Oosthuizen C 072 119 1488 oosthuizenc@bophirima.co.za Dr. Ruth S Mompati

District Municipality Phoko F 073 268 3552 mphoko@rustenburg.gov.za Rustenburg Municipality Pitso AC 073 228 7631 Mafikeng Local

Municipality Pretorius AC 018 299 5435 ansiep@potch.co.za Tlokwe Stadsraad

38

Ramogola W 018 299 1448 watsie.ramogola@nwu.ac.za CEM, NWU Rossouw JR 082 924 4572 rossouwj@sdm.org.za Dr.Kenneth Kaunda

District Municipality 084 285 3421 mosed@webmail.co.za Tswaine Local

Municipality Segomotso L 072 704 1343 david.segomotso@mafikeng.c

o.za Mafikeng Local Municipality

Selau L 083 320 5721 motlatsi.sediti@lgnet.org.za Ramotshere Moiloa

Local Municipality Sibilanga T 018 642 1081 thato.sibilanga@lgnet.org.za Ramotshere Moiloa

Local Municipality

Simelane P 018 299 1581 Phindi.simelane@nwu.ac.za CEM, NWU Stoltz I 083 462 2246 inas@potch.co.za Tlokwe City Council Van Niekerk M 082 568 4960 miegv@potch.co.za Dr.Kenneth Kaunda

District Municipality Volschenk T 082 820 2374 volschenkt@bophirima.co.za Dr Ruth S Mompati

District Municiplality Vorster J 082 784 0839 jurievorster@gmail.com Bojanala Platinum

District Municipality

39

PROJECT FLYER

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41

42

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