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Fedsure Life Assurance v Greater Johannesburg Transitional Metropolitan Council
''Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others''〔1999 (1) SA 374 (CC).〕 is an important case in South African law, heard in the Constitutional Court on 18 and 20 August 1998, with judgment handed down 14 October. The bench was occupied by Chaskalson P, Langa DP, Ackermann J, Goldstone J, Kriegler J, Madala J, Mokgoro J, O'Regan J, Sachs J and Yacoob J. DJB Osborn (with him PJ Van Blerk) appeared for the appellants, RM Wise (with him J. Kentridge) for the first respondent, and CZ Cohen (with him M. Chaskalson) for the second, third, fourth and fifth respondent.
== Principles ==
The interim Constitution recognises and makes provision for three levels of government: national, provincial and local. Each level of government derives its powers from the interim Constitution. In the case of local government, however, the powers are subject to definition and regulation by either the national or the provincial governments, which are the "competent authorities" for enacting such legislation. Under section 174(1) of the interim Constitution, though, there is a constitutional obligation on the "competent authority" to establish local government, which has to be "autonomous and, within the limits prescribed by or under law () entitled to regulate its affairs."〔s 174(3).〕 In section 174(4), it is specifically provided that "Parliament or a provincial legislature shall not encroach on the powers, functions and structure of a local government to such an extent as to compromise the fundamental status, purpose and character of local government." In terms of section 175 (2), the competent authority is also obliged to assign to a local government "such powers and functions as may be necessary to provide services for the maintenance and promotion of the well-being of all persons within its area of jurisdiction." In section 175(4), the interim Constitution specifically provides that a "local government shall have the power to make by-laws not inconsistent with this Constitution or an Act of Parliament or an applicable provincial law." Section 178(2) gives local government a taxing power subject to certain conditions. The constitutional status of local government is thus materially different from what it was when Parliament was supreme, when not only the powers but the very existence of local government depended entirely on superior legislatures. Although the detailed powers and functions of local governments have to be determined by laws of a competent authority, this does not mean that the powers they exercise are "delegated" powers; nor does it prevent the powers from being regarded as "original" and not "delegated."〔Paras 35-39.〕
While section 24 of the interim Constitution applies to the exercise of powers delegated by a council to its functionaries, the court in the present case found it difficult to see how it can have any application to by-laws made by the council itself. The council is a deliberative legislative body whose members are elected. The legislative decisions taken by them are influenced by political considerations for which they are politically accountable to the electorate. Such decisions must, of course, be lawful, but the requirement of legality exists independently of, and does not depend on, the provisions of section 24(a). The procedures according to which legislative decisions are to be taken are prescribed by the Constitution, the empowering legislation and the rules of the council. While this legislative framework is subject to review for consistency with the Constitution, the making of by-laws and the imposition of taxes by a council in accordance with the prescribed legal framework cannot appropriately be made subject to challenge by "every person" affected by them on the grounds contemplated by s 24(b). Nor, the court found, are the provisions of s 24(c) or (d) applicable to decisions taken by a deliberative legislative assembly. The deliberation ordinarily takes place in the assembly in public, where the members articulate their own views on the subject of the proposed resolutions. Each member is entitled to his or her own reasons for voting for or against any resolution and is entitled to do so on political grounds. It is for the members, not the Courts, to judge what is relevant in such circumstances. Sections 24(c) and (d) cannot sensibly be applied to such decisions. The enactment of legislation by an elected local council in accordance with the Constitution is, in the ordinary sense of the words, a legislative and not an administrative act.〔Paras 41-42.〕
It seems plain, the court determined, that when a legislature, whether national, provincial or local, exercises the power, conferred by section 178(2) of the interim Constitution, to raise taxes or rates, or determines appropriations to be made out of public funds, it is exercising a power that under the Constitution is a power peculiar to elected legislative bodies. It is a power that is exercised by democratically elected representatives after due deliberation. Such action of the municipal legislatures, in resolving to set the rates, to levy the contribution and to pay a subsidy out of public funds, cannot be classed as administrative action as contemplated by section 24 of the interim Constitution. In the past, the action of a municipal council in setting rates was considered to be an action that was subject to judicial review on the principles of administrative law, but the principles upon which that jurisprudence was based are no longer applicable. It follows that the imposition of rates and levies, and the payment of the subsidies, do not constitute "administrative action" under section 24 of the interim Constitution.〔Para 45.〕
抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』
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