Municipalities are not off the hook for food security

Published May 22, 2019, by Jaap de Visser

Food security is typically and administratively considered the exclusive concern of national and provincial government, but a plausible case can be made that municipalities should and can also play a role, says Professor Jaap de Visser of the UWC Dullah Omar Institute for Constitutional Law, Governance and Human Rights; and the Centre of Excellence in Food Security.

South Africa produces sufficient food to feed its people, yet household food insecurity and malnutrition is unacceptably high.

It is not uncommon to argue that addressing food insecurity is primarily the responsibility of the national and provincial governments and that local government’s role is limited. Food security is often associated with food production and thus with agriculture. Since the Constitution allocates agriculture to the national and provincial governments, local government bears little responsibility. Or so the argument goes.

Firstly, I and many others will argue that food security will not be achieved by increasing food production alone. South Africa produces enough food yet has unacceptably high food insecurity levels. Food security is as much about access and quality as it is about production. South Africa’s food insecurity challenge is inextricably linked to the high levels of poverty and the gaping inequality. This negatively influences people’s access to, and ability to make food choices. Most South Africans are simply too poor to make healthy food choices and are thus food insecure. A 2016 survey revealed that in the year leading up to the study, 19.9% of households had run out of money to buy food at some stage of a week or month. This is a problem that cannot addressed by increasing production. Secondly, there are many structural and systemic problems in South Africa’s food system that impede food security. For example, the food value chain is one-dimensional: it is dominated by large-scale farmers, major agri-processors and big retail stores. Small-scale framers and small retailers occupy a very minor position in South Africa’s food system. This is despite the fact that diversity in the food value chain is an essential ingredient of a sustainable food system.

This clearly debunks the notion that addressing food insecurity is somehow an agricultural and therefore primarily national and provincial issue. Similarly, we can disprove the notion that municipalities are not responsible for realising food security if we take a more nuanced interpretation of the constitutional right of access to sufficient food.

The right of access to sufficient food is inscribed in section 27(1)(b) of the Constitution. The argument that this right must be ‘realised’ by the national government and that municipalities cannot be held accountable for residents being food insecure may be appealing. It is then argued that food insecurity must be addressed by the national government by not just increasing food production, but also by ensuring a social welfare safety net for the most vulnerable. This would then absolve municipalities from any accountability for realising the right of access to sufficient food.

However, the manner in which the Constitutional Court has interpreted the responsibilities of local government in respect of other socio-economic rights runs counter to the above approach. Take the right of access to housing. The Court has established a legal precedent that holds municipalities accountable for the realisation of aspects of that right, despite the fact that the Constitution lists ‘housing’ as a concurrent power held by national and provincial governments. This was most clearly illustrated in the case of the City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another. In that case, the Court ruled that the City was indeed accountable for providing shelter to communities that are rendered homeless, essentially because the responsibility to do so emanated from the Bill of Rights and because it falls squarely within that municipality’s listed powers in the Constitution.

The effect of judgments such as Blue Moonlight was not that the Constitutional Court shifted the entire burden of realising the right of access to housing to municipalities. However, where the realisation of the right intersected with municipal responsibilities, even where they were assigned by statute, the municipality was responsible. In other words, municipalities are responsible for those parts of the fulfilment of the right to housing that intersect with what it is regularly done by municipalities

This argument can be applied to food security as well.

Given the multidimensional nature of food security, there are many local government competencies that are indirectly linked to the realisation of the right of access to food, such as access to potable water (without which access to safe and healthy food is compromised) and access to electricity, which is essential for cooking and cold storage. In regards to these, the Constitution not only empowers, but also instructs municipalities to provide these services.

The first important and more direct intersection between food security and local government powers can be observed in the area of local food trade. The Constitution lists three local government competencies here – namely trading regulations, markets and street trading – all of which are integral to the food value chain, and over which local governments exert substantial influence that can directly impact on the distribution and access to food.

Furthermore, with respect to enhancing access to healthy and nutritious food, municipal planning responsibilities are equally important. They offer points of leverage for municipalities to find a better balance between the role of large retailers and local food traders in the market. They may also offer opportunities to reduce the regulatory burden on food traders in low-income and informal settlements. There are a number of other municipal competencies that offer opportunities for municipalities to help improve access to healthy and nutritious food. So for instance, municipalities can use their power to regulate fresh produce markets to connect small-scale farmers and informal traders to consumers. They can likewise use their power to regulate refuse removal to reduce food wastage. And they can use their power to regulate billboards in a way that discourages the promotion of unhealthy foods.

Clearly, then, municipalities are awarded powers that relate directly and indirectly to the realisation of the right of access to food, even when they overlap with the powers of national and provincial government.

It would be foolhardy to suggest that all the above arguments and recommendations would make for credible policy proposals. In fact, policy experts may disagree with some of them or have much more refined proposals. My argument is rather that there are many points where local government powers intersect with what is required to realise the right of access to food. If municipalities use this leverage constructively and progressively, greater progress can be made in the quest to ensure access to food for all South Africans.