Multi-sphere governance in South Africa: An interim assessment

Publius

Volumn 31, Issue 4, 2001, Pages 65-91

  Simeon, Richard ^a   Murray, Christina ^b  

^a UNIVERSITY OF TORONTO   (Canada)

^b UNIVERSITY OF CAPE TOWN   (South Africa)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0039891943     PISSN: 00485950     EISSN: None     Source Type: Journal    
DOI: 10.1093/oxfordjournals.pubjof.a004921     Document Type: Article

References (98)

1. Ronald L. Watts, Comparing Federal Systems, 2d ed. (Kingston, ON: Institute of Intergovernmental Relations, Queen's University, 1999), p. 7. See also his "Is the New Constitution Unitary or Federal?" Birth of a Constitution, ed. Bertus De Villiers (Kenwyn: Juta and Company, 1994), pp. 75-88.
2. Ronald L. Watts, Comparing Federal Systems, 2d ed. (Kingston, ON: Institute of Intergovernmental Relations, Queen's University, 1999), p. 7. See also his "Is the New Constitution Unitary or Federal?" Birth of a Constitution, ed. Bertus De Villiers (Kenwyn: Juta and Company, 1994), pp. 75-88.
3. Otherwise known as "homelands."
4. See Jenny Robinson, "Federalism and the Transformation of the South African State," Federalism: The Multiethnic Challenge, ed. Graham Smith (London: Longman, 1995), pp. 255-278. She describes the Interim Constitution as "protofederalism."
5. Along with clauses on labor and a few other issues.
6. This is, of course, true of all federal systems.
7. This is the South African term for its variant on the category of "multi-level" systems.
8. The Cape, Orange Free State, Natal, and the Transvaal.
9. Richard Humphries, et al., "The Shape of the Country: Negotiating Regional Government," The Small Miracle: South Africa's Negotiated Settlement, eds. Steven Friedman and Doreen Atkinson (Johannesburg: Ravan Press, 1994), pp. 148-181. They quote Albie Sachs: "We spoke of a unified country and the sovereignty of the people to emphasize the fundamental and equal citizenship of all," p. 149.
10. Richard Humphries, et al., "The Shape of the Country: Negotiating Regional Government," The Small Miracle: South Africa's Negotiated Settlement, eds. Steven Friedman and Doreen Atkinson (Johannesburg: Ravan Press, 1994), pp. 148-181. They quote Albie Sachs: "We spoke of a unified country and the sovereignty of the people to emphasize the fundamental and equal citizenship of all," p. 149.
11. See Allister Sparks, Tomorrow is Another Country: The Inside Story of South Africa's Negotiated Revolution (Sandton: Struik Book Distributors, 1994), pp.191, 204-206. Some of these ideas suggested that others would not have the vote; others held that only Afrikaners would be allowed to live in such a homeland. Some Afrikaners still maintain hopes of a homeland.
12. See Humphries, et al., "The Shape of the Country: Negotiating Regional Government," pp. 148-181.
13. Heribert Adam and Kogila Moodley, The Opening of the Apartheid Mind: Options for the New South Africa (Berkeley: University of California Press, 1993), p. 156. The extent of the autonomy Buthelezi had in mind was reflected later in KwaZulu-Natal's abortive attempt to write its own provincial constitution. The Constitution was rejected by the Constitutional Court, which deemed it inconsistent with the national constitution. See In re: Certification of the Constitution of the Province of KwaZulu-Natal, 1996, 1996 (11) BCLR 1419; 1996 (4) SA 1098 (CC).
14. Consultative Business Movement, Regions in South Africa: Constitutional Options and Their Implications for Good Government and a Sound Economy, Confidential Report for Discussion with Political Parties (1993), pp. vi-vii.
15. Kay Hailbronner and Christine Kreuzer, Implementing Federalism in the Final Constitution of the Republic of South Africa (Johannesburg: Konrad Adenauer Stiftung, 1995), p. 7.
16. Humphries et al., "The Shape of the Country: Negotiating Regional Government," pp. 152-153.
17. Richard Simeon, "Considerations on the Design of Federations," SA Public Law 13 (1998): 42-71.
18. Unlike Canada, the United States, or Australia, the system was not constituted by previously existing units coming together, as in confederation.
19. Department of Finance, Republic of South Africa, Intergovernmental Fiscal Review 2000, (Pretoria: October 2000), p. 8.
20. Department of Finance, Republic of South Africa, Intergovernmental Fiscal Review 1999, (Pretoria: September 1999), p. 1.7. The scores range between 0 and 1 and this index seeks to measure quality of life.
21. Ibid., 1.7.
22. In KwaZulu-Natal the Inkatha Freedom Party governs in coalition with the ANC. All other provinces are governed by the ANC.
23. Elsewhere, however, it is made clear that the Constitutional Court is the ultimate arbiter of relationships among the three spheres.
24. Including abattoirs, provincial planning, cultural matters, recreation, roads and sport, and veterinary matters.
25. Section 44 (2).
26. In re: Certification of the Amended Text of the Constitution of the Western Cape, 1997, 1997 (12) BCLR 1653; 1998 (1) SA 655 (CC); In re: Certification of the Constitution of the Province of KwaZulu-Natal, 1996 (11) BCLR 1419; 1996 (4) SA 1098 (CC).
27. Sections 228 (2) (b), 216 and 197
28. Department of Finance, Intergovernmental Fiscal Review 1999, p. A.2. Formally, all revenue raised nationally is subject to equitable division under the Constitution. In practice, however, a "top slice" is first taken off to service debt and provide a pool for contingencies. The remainder is shared among the national, provincial, and local spheres of government with local government receiving just over one percent.
29. Section 214 (1) and (2).
30. Inter-Governmental Fiscal Relations Act 97 of 1997, Section 10 (5).
31. Section 228.
32. See Christina Murray and Richard Simeon, "From Paper to Practice: the National Council of Provinces after its First Year," SA Public Law 14:1 (1999): 96-141.
33. Section 42.
34. This differs crucially from the German Bundesrat, which represents provincial executives, thus unifying legislative and executive federalism.
35. Extensive reshuffling of ANC provincial cabinets following the second set of elections in 1999 may also suggest a lack of political autonomy. See Richard Humphries, "Little Continuity in Provincial Posts," Business Day, 7 July 1999, p. 11. "If anything, the newness of so many MECs to these positions indirectly strengthens the hand of the national government as it interacts with provinces in the MinMECs."
36. As provincial executives gain more confidence, and as provincial branches of the ANC become more assertive, there may be resistance to such domination by the national party. Thus, in Gauteng, the national and provincial parties differed in their candidates for premier. The national executive won the battle, but a sense of provincial autonomy and distinct provincial interests was present.
37. Tom Lodge, South African Politics Since 1994 (Cape Town and Johannesburg: David Philip, 1999), p. 16.
38. Ibid., p. 24.
39. Robert Mattes, Yul Derek Davids and Cherrel Africa, Views of Democracy in South Africa and the Region: Trends and Comparisons (Johannesburg: Southern African Democracy Barometer, October 2000). The polling results are difficult to assess. In 1999, in a Human Sciences Research Council poll, 46 percent of respondents "approved" of the performance of their provincial government (up from only 32 percent the previous year), and 54 percent reported that they trusted their provinces. Somewhat larger percentages reported approval and trust of the national government. (Human Sciences Research Council, Pretoria, Media Releases, 18 May 1999, January 2000).
40. Firoz Cachalia, "Provincial legislatures do not Warrant being Maligned," Business Day, 17 November 1999, p. 14.
41. Murray and Simeon, "From Paper to Practice."
42. See Walter Sehurutshe, "NCOP in North West rises above (some) problems," Provincial Whip (Cape Town: Institute for Democracy in South Africa, 1998). The NCOP must usually deal with Bills referred to it from the National Assembly within four weeks. See Murray and Simeon, "From Paper to Practice," pp. 105-106.
43. See Walter Sehurutshe, "NCOP in North West rises above (some) problems," Provincial Whip (Cape Town: Institute for Democracy in South Africa, 1998). The NCOP must usually deal with Bills referred to it from the National Assembly within four weeks. See Murray and Simeon, "From Paper to Practice," pp. 105-106.
44. Ebrahim Fakir, "Mpumalanga still beset with technical and communication glitches," Provincial Whip (Cape Town: Institute for Democracy in South Africa, 1998).
45. Firoz Cachalia, "Public Participation in Legislative Processes," Gregory Houston, et. al. Work in Progress Seminar Paper (Pretoria: Human Sciences Research Council, 1999). Mpumalanga and the Eastern Cape are in the process of introducing public petitions processes modeled on that of Gauteng.
46. Between 1994 and 1999, the annual average number of laws passed by the provincial legislatures was eight. This estimate does not take account of the North West Province because at the time of publication, the province had not yet collated the relevant information. See also Nico Steytler, "Concurrency and Co-operative Government: A South African Case Study" (paper presented at the Conference on Reform of German Federalism: An International Comparative Approach, Bertelsmann Stiftung, Berlin, May 2000), p. 5.
47. In re: Certification of the Constitution of the Province of KwaZulu-Natal, 1996, 1996 (11) BCLR 1419(CC); 1996 (4) SA 1098 (CC); In re: Certification of the Constitution of the Republic of South Africa, 1996, 1996 (4) SA 744 (CC); In re Certification of the Amended Text of the Constitution of the Republic of South Africa, 1996, 1997 (2) SA 97 (CC).
48. Ex parte President of the Republic of South Africa: In re Constitutionality of the Liquor Bill, 2000 (1) SA 732 (CC) para. 76.
49. Ex parte President of the Republic of South Africa: In re Constitutionality of the Liquor Bill, 2000 (1) SA 732 (CC) para. 20.
50. Premier, Western Cape v President of the Republic of South Africa and another 1999 (4) BCLR. 382; 1999 (3) SA 657 (CC), para 60.
51. This is unfortunate because it seems to close the door on provincial experimentation that federalism makes possible. Given the problems associated with the purely proportional electoral system, it would have been salutary to permit provinces to experiment with alternatives. See Christina Murray, "Provincial Constitution-Making in South Africa: The (Non) Example of the Western Cape," Jahrbuch des Offenlichen Rechts der Gegenwart, Neue Folge / Band 49, pp. 481-497.
52. Tom Lodge notes that the provinces that have been relatively successful in building administrative capacity-Gauteng, Western Cape, Northern Cape, and the Free State-are those that were least encumbered by the legacy of Bantustan regimes. Lodge South African Politics Since 1994, p. 14.
53. The problem is not simply one of under-trained black civil servants, but also of the inheritance of a white-dominated public service, both nationally and in the homelands, which was in many respects underskilled, imbued with highly traditional models of administration, and often deeply committed to the old regime.
54. Robert Cameron and Chris Tapscott, "The Challenges of State Transformation in South Africa," Public Administration and Development 20 (2000): 86.
55. Minister for the Public Service and Administration, Provincial Review Report (Pretoria: Department of Public Service and Administration, 1997).
56. Section 125(3). National support has been inadequate partly because the national administration has its own problems of building capacity to make the new system work.
57. Indeed, many of the observations in the Provincial Review Report could apply equally to the national administration.
58. Department of Finance, Intergovernmental Fiscal Review 1999, Introduction.
59. See for more detail, Joachim Wehner, "Fiscal Federalism in South Africa," Publius: The Journal of Federalism 30:3 (Summer 2000): 47-72 and Christina Murray and Richard Simeon, "South Africa's Financial Constitution: Towards Better Delivery?" South African Public Law 15:2 (2000): 477-504.
60. See for more detail, Joachim Wehner, "Fiscal Federalism in South Africa," Publius: The Journal of Federalism 30:3 (Summer 2000): 47-72 and Christina Murray and Richard Simeon, "South Africa's Financial Constitution: Towards Better Delivery?" South African Public Law 15:2 (2000): 477-504.
61. For an excellent survey, see Joachim Hans-Georg Wehner, Intergovernmental Fiscal Relations in South Africa (Cape Town: Applied Fiscal Research Centre, October 1999).
62. Department of Finance, Intergovernmental Fiscal Review 1999, p. 2.11.
63. Departmem of Finance, Intergovernmental Fiscal Revieiv 1999, A.2.
64. For example, provinces were directed recently to monitor liquor licenses and establishments, but the national government continued to collect the relevant fees, even though liquor licensing is one of the few areas of exclusive provincial jurisdiction.
65. Thabo Rapoo, "A System in Dispute," Policy Issues and Actors 8 (10, 1995): 13-14. See also his, "Fertile Feuding: Conflict and Reform in South African Intergovernmental Relations," Policy, Issues and Actors 12 (1999): 15-16.
66. Thabo Rapoo, "A System in Dispute," Policy Issues and Actors 8 (10, 1995): 13-14. See also his, "Fertile Feuding: Conflict and Reform in South African Intergovernmental Relations," Policy, Issues and Actors 12 (1999): 15-16.
67. Farouk Chothia, "Provincial Tax Collection Declines," Business Day, 25 February 2000, p. 3.
68. See also Seventh Interim Report of the Commission of Inquiry into certain Aspects of the Tax Structure of South Africa-Synthesis of Policy Recommendations with regard to Provincial Taxation (Pretoria: 14 July 1998) and see summary in the Department of Finance Intergovernmental Fiscal Review 1999, p. 2.8.
69. See also Seventh Interim Report of the Commission of Inquiry into certain Aspects of the Tax Structure of South Africa-Synthesis of Policy Recommendations with regard to Provincial Taxation (Pretoria: 14 July 1998) and see summary in the Department of Finance Intergovernmental Fiscal Review 1999, p. 2.8.
70. Work on legislation to permit provincial surcharges on a variety of other revenue sources is under discussion. Linda Ensor, "Council rules out levy on Income tax," Business Day, 22 October 1999, p. 5.
71. Bertus de Villiers, "Intergovernmental Relations in South Africa," SA Public Law 12(1997): 197-213.
72. Section 41 (2). Section 41 (3) calls on government to exhaust all other avenues of dispute resolution before having recourse to the courts; section 148 calls on the courts to "prefer any reasonable interpretation ... that avoids a conflict over any alternative resolution that results in a conflict."
73. Ministry of Provincial and Local Government, "An Overview of Intergovernmental relations in South Africa in the Year 2000," IGR Focus 1:1 (2000): 4.
74. Permanent members include the ministers of Provincial and Local Government, Finance, and Public Service and Administration; the director-general of the President's Office; the nine provincial premiers; and ex officio the president and deputy president. Chris Tapscott, "Intergovernmental Relations in South Africa," Public Administration and Development 20 (2000): 124.
75. Xolani Xundu, "Tuning Govt from Top to Bottom," Business Day, 17 December 1999, p. 2.
76. The Council is supported by prior meetings with the largest spending departments, known as "four by fours." 71 Apart from the Budget Council, only the Committee of Education Ministers has a statutory basis.
77. Ibid., 213. The Constitution calls for national legislation to govern intergovernmental relations. It has not yet been developed, even as the day-to-day operation of IGR continues.
78. Tapscott, "Intergovernmental Relations in South Africa," 127. See also Ronald L. Watts, Intergovernmental Relations (Pretoria: Department of Constitutional Development and Provincial Affairs, 1999).
79. Tapscott, "Intergovernmental Relations in South Africa," 127. See also Ronald L. Watts, Intergovernmental Relations (Pretoria: Department of Constitutional Development and Provincial Affairs, 1999).
80. See David Cameron and Richard Simeon, "Intergovernmental Relations and Democratic Citizenship," Governance in the Twenty-first Century, eds. B. Guy Peters and Donald Savoie (Ottawa and Montreal: Canadian Centre for Management Development and McGill-Queen's University Press, 2000), pp. 58-118.
81. Steven Friedman, "Why We Need Provincial Governments," Business Day, 9 March 1998, p. 6.
82. De Villiers, "Intergovernmental Relations in South Africa," 212.
83. Ibid., 212.
84. Tapscott, "Intergovernmental Relations in South Africa," 126-127.
85. Department of Provincial and Local Government and the Ministry for Local and Provincial Government in collaboration with the School of Government University of the Western Cape and the Institute of Government of the University of Fort Hare, The Intergovernmental Relations Audit: Towards a Culture of Co-operative Government: Final Report of the Intergovernmental Relations Audit (Pretoria: 1999).
86. Intergovernmental relations in Canada and Australia are also almost exclusively conducted at the executive level.
87. A comment by KwaZulu-Natal Premier Lionel Mtshali. See Farouk Chothia, "Provinces are Powerless Cogs," Business Day, 31 March 1999, p. 5.
88. Nico Steytler, "Concurrency and Cooperative Government: A South African Case Study," (Unpublished Paper, 2000): 15.
89. AUTHOR?, "The Rise of Formal Democracy and the Demise of Participatory Community Structures in Post Apartheid South Africa." (Unpublished paper 2000).
90. Friedman, "Why We Need Provincial Governments," 6.
91. Zuern, 8.
92. For a discussion of provincial efforts in this area, see Gregory Houston, et al., "Public Participation in Legislative Processes," Work in Progress Seminar Paper (Pretoria: Human Sciences Research Council, November 1999).
93. Friedman, " Why We Need Provincial Governments," 6.
94. Arguing that South African governance should give a greater role to traditional leaders, the deputy president of the NCOP noted that "as we carry out this work with traditional leaders, we should also remain vigilant that we do not encourage a retrogressive ethnicity and the re-invigoration of backward customs and habits." Speech, NCOP, 18 December 1999, distributed by Government Communication and Information System, http://www.gcis.gov.za.
95. Richard Simeon, "Federalism and the Management of Conflict in Divided Societies," Democracy in Plurinational Societies, eds. Alain-G Gagnon and James Tully (Cambridge: Cambridge University Press, 2001).
96. Heribert Adam and Koglia Moodley, The Negotiated Revolution: Society and Politics in Post-Apartheid South Africa (Johannesburg: Jonathan Ball, 1993), writing early in the negotiations, suggest that were the constitution to impose centralism on KwaZulu-Natal, the result could be secession or civil war. A federal constitution guaranteeing "meaningful regional autonomy" could avert such outcomes.
97. It may be no accident that the government of KwaZulu-Natal has been (along with Gauteng) among the strongest contributors to the work of the NCOP. On the other hand, the Western Cape has played little role in the NCOP.
98. Donald Horowitz, A Democratic South Africa? Constitutional Engineering in a Divided Society (Berkeley: University of California Press, 1991), p. 217.