By-laws are the products of the legislative (law-making) authority of a municipality and may be described as local command-and-control regulatory instruments. A municipality may pass 'local legislation' (by-laws) for the functions that fall within its competence as determined by the Constitution of the Republic of South Africa, 1996.

By-laws may be used to set principles for decision-making and to provide for specific rules and regulations, accompanied by offences and penalty clauses. By-laws can also set procedures for the application of authorisations and approvals from the municipality, for example. The legislative authority of a municipality is vested in the council as per s 11 of the Local Government: Municipal Systems Act 32 of 2000.

Basis in law

The legislative authority of municipalities is entrenched in the Constitution of the Republic of South Africa, 1996.  Section 156(2) of the Constitution determines that, as part of the powers and functions of municipalities, "municipalities may make and administer by-laws for the effective administration of the matters which it has a right to administer, as long as such by-law does not conflict with national and provincial legislation, as this will cause it to be invalid." As soon as it conflicts with national or provincial government legislation or is contrary to the Constitution, the provincial or national legislation will apply instead. The Local Government: Municipal Systems Act 32 of 2000 further determines that a municipality is exercising its legislative authority by passing by-laws (s 11(3)(m)) and sets out procedures for the development and introduction of by-laws in the council as well as the subsequent publication thereof (ss 12 and 13 of the Act). The by-law making-process involves the administration, council and community.

Environmental application

Municipalities are co-responsible for the 'reasonable legislative and other measures' called for in the constitutional environmental right (s 24(b)) of the Constitution of the Republic of South Africa, 1996. This suggests that local legislation (by-laws) may be needed to see to it that everyone in South Africa lives and works in an environment that is not harmful to their health or well-being and that pollution is prevented, for example. By-laws are necessary instruments for municipalities to be able to regulate the areas listed in Schedules 4B and 5B of the Constitution as well as matters and activities within their jurisdictions that are either assigned to them by national or provincial government or that are incidental to their legislative and executive functions set out in the Constitution and sector-specific legislation. By-laws can also be used to encourage environmentally-friendly conduct and to restrict and criminalise environmentally-harmful conduct.

Schedules 4B and 5B of the Constitution contain a number of local government matters that have environmental implications (i.e., air pollution, building regulations, municipal planning, etc.) and over which municipalities have legislative authority. In addition, the development of environmental by-laws is called for in an array of sector-specific national environmental legislation such as, but not limited to: the Water Services Act 108 of 1997 (s 21), the National Environmental Management: Air Quality Act 39 of 2004 (s 11), the National Environmental Management: Integrated Coastal Management Act 24 of 2008 (s 18) and the National Environmental Management: Protected Areas Act 57 of 2003 (s 49) .