Role of Provinces and Municipalities 20 Years into Democracy
Master of Ceremonies
Ladies and gentlemen
Thank you so much for inviting me to share some thoughts on an issue we, the Western Cape Government grapples with on a daily basis, namely, the role of our provinces and in particular the interface between ourselves and the local and national spheres of government and how that translates into effective service delivery for our people. At the heart of this lies the understanding of where roles and responsibilities begin and end.
You may be aware that yesterday the Premier of the Western Cape announced our intention to initiate an intergovernmental dispute with National Government, over the management of the 12 fishing harbours in the Western Cape. You may also be aware that in a unanimous judgment the Constitutional Court found the provision of the Structures Act which grants the Speaker of a municipal council a deciding vote, in addition to his or her vote as a councillor, where there is an equal number of votes by council members, to be inconsistent with the Constitution to the extent that it empowered a Speaker to have a casting vote on matters which includes the Budget listed in section 160(2) of the Constitution. This view as shared by the Western Cape Government but it had to go to court to have it confirmed because the municipality in question had a different view.
Ladies and gentlemen as you are aware the South African Constitution provides for three distinct spheres of government. The intention is clearly to distribute powers meaningfully for democratic as well as practical purposes. The provincial and local governments are elected government bodies and have real and meaningful legislative and executive powers conferred on them by the Constitution. Accordingly, there is a real distribution of powers between the spheres of government which must be respected by all concerned.
The powers of the national government to guide, support or intervene are not intended to dominate the other spheres and centralise all powers, or even to take over the powers of the other spheres completely. Rather, they are mechanisms to assist the other spheres to acquire and develop the capacity they need for exercising their constitutionally conferred powers.
The provincial and local governments have a particular purpose to establish and strengthen democracy.
The South African Constitution gives effect to the principle of cooperative government in four specific ways.
Governments participate in limited ways in decision-making in other spheres. The best example is the NCOP whose main purpose is to represent the provinces in national legislative decision-making. The provincial legislatures consider and comment to parliament on national legislation not directly affecting the provinces, and they confer mandates on their delegates in the NCOP on how to vote on legislation that in terms of the constitutional definition affects the provinces. Permanent members of the NCOP may attend meetings of their respective provincial legislatures. Representatives of organised local government are entitled to attend the NCOP as observers. Extensive structures have been developed at the executive level between national ministries and state departments and their provincial counterparts to facilitate participation in policy-making and the coordination of their actions. The way in which these intergovernmental structures have been used to ensure national dominance in concurrent affairs is dealt with elsewhere.
Governments in the different spheres are obliged to assist one another. As mentioned, the provinces and local governments are entitled to an equitable share of national revenue. The national government must assist the provinces to develop the administrative capacity that is required for the effective exercise of their powers and performance of their functions. The national and provincial governments have a similar obligation towards local governments.
Under certain narrowly defined circumstances, the national government may intervene in provincial affairs, and provinces may intervene in local affairs. These powers are intended to be exercised only when necessary; in other words in exceptional circumstances. Section 44 of the Constitution accordingly provides for the circumstances and procedures under which parliament may adopt legislation on an exclusive provincial matter while Section 100 outlines how the national government may intervene in a provincial matter at the executive level and Section 216 under which circumstances the transfer of funds to a province may be stopped. The provinces have similar powers of intervention in local affairs under section 139.
In brief then the Constitution intended that the three spheres of government must respect one another’s constitutional status and powers, and may not encroach on one another’s geographical, institutional or functional integrity. They may not assume powers not conferred on them by the Constitution. Organs of state involved in an intergovernmental dispute are obliged to exhaust other remedies before they turn to the courts for its resolution.
Ladies and gentlemen, I have outlined the intentions of the Constitution, but how has played itself out in the Western Cape Government’s interaction with other spheres of government particularly as given the Western Cape being the only province governed by the Democratic Alliance.
Well, I think that our experience in the Western Cape has highlighted that cooperative governance is indeed easier said than done. Our experience has highlighted that while section 41 of the Constitution in particular requires the spheres of government to preserve the unity and indivisibility of South Africa, provide effective government, and cooperate in mutual trust and good faith by fostering friendly relations, assisting, supporting and informing one another, consulting on mutual interests, coordinating their actions and legislation, and adhering to agreed procedures our interaction is often more adversarial than cooperative of nature. At the heart of this lies the issue of political immaturity.
Ladies and gentlemen I started off by highlighting that South Africa is a constitutional democracy. Furthermore one of the principles of the principles underpinning the work of the Western Cape Government is the principle of the constitutionalism and the rule of law. What the past twenty years have taught us is that building and entrenching principles that will advance the supremacy of the Constitution, the constitutional state and rule of law, the separation of powers, cooperative government, democracy and social justice is easier said than done.
Yesterday’s judgment by f the Constitutional Court gives us hope. It confirms that we are on the right path. It does however also highlight that much more must be done to develop the appropriate level of political maturity engage the mechanisms which are provided for in the Intergovernmental Relations Framework Act 13 of 2005
Master of ceremonies, ladies and gentlemen thank you once gain for listening to me and I wish you well with the rest of your conference.
I thank you.