2025
Challenging Jozini Municipality Bylaws
Understanding Municipal Bylaws in South Africa
What are bylaws?
Bylaws are local laws passed by a municipality in terms of the Constitution of the Republic of South Africa, 1996 and the Municipal Systems Act, 2000 (Act 32 of 2000). They regulate matters that fall within the powers and functions of municipalities — such as rates, zoning, waste management, traffic control, and public spaces. Unlike national or provincial laws, bylaws apply only within the geographical boundaries of a particular municipality.
How are bylaws made?
The process is governed mainly by the Municipal Systems Act and the Municipal Structures Act, 1998 (Act 117 of 1998). The key steps are:
1. Drafting: Municipal officials (often through legal advisers or committees) prepare a draft bylaw.
2. Public Participation: Section 152(1)(a) of the Constitution and Chapter 4 of the Municipal Systems Act require municipalities to encourage and create conditions for community involvement in local government. Draft bylaws must be published for public comment (usually in local newspapers and the Provincial Gazette). Public meetings, workshops, and hearings should be held.
3. Council Approval: After considering public input, the municipal council debates and adopts the bylaw.
4. Gazetting: For the bylaw to have legal force, it must be published in the Provincial Gazette (not just in municipal records).
2. Public Participation: Section 152(1)(a) of the Constitution and Chapter 4 of the Municipal Systems Act require municipalities to encourage and create conditions for community involvement in local government. Draft bylaws must be published for public comment (usually in local newspapers and the Provincial Gazette). Public meetings, workshops, and hearings should be held.
3. Council Approval: After considering public input, the municipal council debates and adopts the bylaw.
4. Gazetting: For the bylaw to have legal force, it must be published in the Provincial Gazette (not just in municipal records).
Failure to follow these steps — especially meaningful consultation — can render a bylaw vulnerable to legal challenge.
Constitutional Protections
South Africa’s Constitution enshrines both democratic participation and traditional governance:
- Section 152(1)(e): Municipalities must encourage the involvement of communities and community organisations in local government matters.
- Section 195(1)(e): Public administration must be accountable, and transparency must be fostered by providing the public with timely, accessible, and accurate information.
- Section 211 & 212: The status and role of traditional leadership are recognised. National or provincial legislation may provide for a role for traditional leadership in matters affecting local communities.
- Bill of Rights (Chapter 2): Protects property rights, administrative justice (fair procedures), and the right to just administrative action under Section 33, which is echoed in the Promotion of Administrative Justice Act, 2000 (PAJA).
- Section 195(1)(e): Public administration must be accountable, and transparency must be fostered by providing the public with timely, accessible, and accurate information.
- Section 211 & 212: The status and role of traditional leadership are recognised. National or provincial legislation may provide for a role for traditional leadership in matters affecting local communities.
- Bill of Rights (Chapter 2): Protects property rights, administrative justice (fair procedures), and the right to just administrative action under Section 33, which is echoed in the Promotion of Administrative Justice Act, 2000 (PAJA).
Ingonyama Trust Land and Traditional Leadership
Jozini Municipality falls largely within land administered by the Ingonyama Trust Board (ITB), which was established by the Ingonyama Trust Act, 1994. Key points:
- The land belongs to the Ingonyama Trust, held in trust for the benefit of communities under traditional leaders.
- Occupants do not hold freehold title; instead, they have Permission to Occupy (PTO) or lease agreements administered by the ITB, often via the local Inkosi.
- This means Jozini Municipality does not own the land and cannot unilaterally impose property rates without engaging both the ITB and affected Traditional Authorities.
- Occupants do not hold freehold title; instead, they have Permission to Occupy (PTO) or lease agreements administered by the ITB, often via the local Inkosi.
- This means Jozini Municipality does not own the land and cannot unilaterally impose property rates without engaging both the ITB and affected Traditional Authorities.
Traditional Leadership structures are constitutionally recognised and institutionalised through:
- National House of Traditional and Khoi-San Leaders (NHTKL)
- KwaZulu-Natal Provincial House of Traditional and Khoi-San Leaders (PHTKL)
- Local House of Traditional and Khoi-San Leaders (LHTKL) for Umkhanyakude District
- Seven Inkosi under the Jozini demarcation
- KwaZulu-Natal Provincial House of Traditional and Khoi-San Leaders (PHTKL)
- Local House of Traditional and Khoi-San Leaders (LHTKL) for Umkhanyakude District
- Seven Inkosi under the Jozini demarcation
According to the Traditional and Khoi-San Leadership Act, 2019 (Act 3 of 2019), municipalities are obliged to consult traditional leaders on development and governance matters affecting their communities. This goes beyond token invitations — it requires meaningful engagement and joint decision-making, particularly on sensitive matters like land use and municipal rates.
Why Consultation Matters
When a municipality like Jozini seeks to impose bylaws affecting land, residents, or businesses within ITB territory, it must:
- Engage the ITB formally.
- Consult with the relevant Houses of Traditional Leaders and the seven Inkosi under the LHTKL.
- Provide clear public notices and hold workshops, forums, or community hearings.
- Consult with the relevant Houses of Traditional Leaders and the seven Inkosi under the LHTKL.
- Provide clear public notices and hold workshops, forums, or community hearings.
If these steps are skipped, the bylaws can be challenged as procedurally unfair (violating PAJA), unconstitutional (violating Sections 152, 195, and 211), and even ultra vires (beyond the legal powers of the municipality, since it doesn’t own the land).