Why provinces have little real power but huge responsibilities

The exact contours of South Africa’s quasi-federal system of government, in which legislative and executive powers are distributed between different spheres of government in a way that seems to tilt power away from provincial governments towards the national government, has not yet been fully worked out. The Constitutional Court has only been asked to consider this rather complex issue in very few cases, perhaps because provinces — even the Western Cape government currently controlled by the opposition Democratic Alliance – have not pushed the envelope on this issue.

There are reasons for this reluctance on the part of Provinces to challenge the powers of the national legislature and executive. Provincial governments do not have the power to raise much revenue and is also required to co-operate with the national sphere of government. Besides, provincial legislatures do not have any residual powers to pass legislation. In other words, unlike the national Parliament, which enjoys plenary legislative power within the bounds of the Constitution, the legislative authority of provinces is circumscribed by the Constitution.

Schedule 4 of the Constitution lists those functional areas on which both the national Parliament and the provincial legislatures can pass legislation. These include important areas such as housing, health care, education, policing and education. Schedule 5 lists functional areas with regard to which provincial legislatures have exclusive legislative competence, but these exclusive powers relate to subjects of little importance such as beaches and amusement facilities; billboards and the display of advertisements in public places; cemeteries, funeral parlours and crematoria; fencing and fences; local sport facilities; noise pollution; street trading; street lighting; and traffic and parking.

Provinces have no power to legislate on a matter falling outside Schedules 4 and 5 unless it is a matter “that is expressly assigned to the province by national legislation” or is a “matter for which a provision of the Constitution envisages the enactment of provincial legislation”.

This does not mean that provincial governments have no power to affect the lives of ordinary citizens. A good provincial government can make a huge difference to the delivery of basic services and can also wreck the best-laid plans of a national minister if it does not do its job properly. This is because provincial executives are tasked with implementing not only provincial legislation in the province, but also with implementing all national legislation within the functional areas listed in Schedule 4 or 5 (except where the Constitution or an Act of Parliament provides otherwise).

That is why a national minister of housing, health or education has limited powers to ensure that the services provided in a province is of a high standard. Where the MEC for education and her officials in a province fail to ensure that textbooks are delivered on time or that ARV medication is freely available at hospitals and clinics, the national minister can usually do little more than discuss this problem with that MEC during a MINMEC meeting (a meeting of the minister and relevant MEC’s).

Our system of co-operative government means that the national government and provincial governments have a duty to co-operate with one another “in mutual trust and good faith”, but as anyone knows who has tried to delegate work to an incompetent or lazy person, these requirements work best when the MECs are diligent and their departments are run efficiently. Unless the national government decides to intervene officially in a province in terms of section 100 of the Constitution (in cases where a province cannot or does not fulfil an executive obligation in terms of legislation or the Constitution), the national minister has limited power to interfere in the day to day running of the affairs of a provincial department.

But despite the fact that these general principles are now quite settled, it is far from clear exactly where the powers of the national Parliament and Executive end and where the powers of provincial Parliaments and Executives begin. We would need more test cases to be brought to the Constitutional Court to clarify the boundaries of the powers that may constitutionally be exercised by provincial Parliaments and provincial Executive Committees.

That is why the Constitutional Court judgment handed down today in the case of Premier: Limpopo Province v Speaker of the Limpopo Provincial Government and Others is of some interest — even though the case dealt with a seemingly rather technical question. The question presented in the case was whether the Provincial Legislature of Limpopo had the authority to enact legislation dealing with its own financial management. It arose out of the Financial Management of the Limpopo Provincial Legislature Bill, 2009 (Bill), which was passed by the Provincial Legislature, but which the Premier – very properly, it must be said — declined to assent to and sign. (Maybe the Premier’s legal adviser could be promoted to assist the State Law Adviser with the more complex constitutional questions with which he seems to have such difficulties.)

The Bill mirrored to a large degree national legislation on how to deal openly and transparently with the finances of the Limpopo legislature by creating an oversight committee; setting out the responsibilities of the accounting officer in relation to the money of the provincial legislature; how to deal with the financial misconduct of its own employees and several other related issues.

Schedule 4 or 5 of the Constitution does not allow the provincial legislature to pass laws dealing with its own financial management. The most important legal question was therefore whether the Bill dealt with a matter “that is expressly assigned to the province by national legislation” or a “matter for which a provision of the Constitution envisages the enactment of provincial legislation”. It is the second question that is of particular interest here.

In a minority judgment, Justice Yacoob (in a judgment concurred in by Justice Cameron) argued that the Constitution did “envisage” that a province could pass legislation like the Bill under discussion. Finding that the word “envisages” means something different from “expressly assigned”, Yacoob argued that section 215(1) of the Constitution envisaged that provincial legislatures had the power to pass legislation dealing with its own financial management.

This section requires provincial budgetary processes to promote transparency, accountability and effective financial management of the economy, debt and the public sector. The section then provides that national legislation must prescribe certain pre-requisites that must be complied with by provincial entities and prescribes what budgets in each sphere of government should contain. This, in effect, implied (although the minority is careful not to use this term) that a provincial legislature has the power to determine its own budgetary processes and that it could determine this process by passing legislation regulating that process.

The majority disagreed. In a judgment authored by Chief Justice Ngcobo, a slightly narrower view was taken on the powers conferred on provincial legislatures by the Constitution. It did so by arguing that where the Constitution does not expressly grant legislative powers to the provincial legislature, it does not “envisages” the enactment of provincial legislation. The majority judgment thus confirmed the view that one cannot assume that provincial legislatures have the power to pass legislation merely because they have the power to regulate their own processes and  can do so administratively.

Our constitutional scheme does not permit legislative powers of the provincial legislatures to be implied. Were it to be otherwise, the constitutional scheme for the allocation of legislative power would be undermined. The careful delineation between the legislative competence of Parliament and that of provincial legislatures would be blurred.  This may very well result in uncertainty about the limits of the legislative powers of the provinces. In the light of the plenary legislative powers of Parliament, it would result in the provinces having concurrent legislative competence with Parliament in respect of many matters. This is not what the drafters of our Constitution had in mind.

If the legislative powers of the provincial legislatures are to be implied beyond those expressly set out in the Constitution, this would, in my view, diminish, through an expansive reading of the Constitution, the residual legislative powers of Parliament. This would be inconsistent with the scheme of the Constitution, by which the provincial legislatures are given specific powers under the Constitution and Parliament is assigned the rest. In my view, the plenary legislative powers granted to Parliament are not to be diminished by implying legislative powers of provincial legislatures not expressly stated in the Constitution. The assignment of powers to the provinces must be expressed in clear and unequivocal language.

Chief Justice Ngcobo argued that the sections relied upon by Justice Yacoob do not envisage the enactment of provincial legislation but, on the contrary, expressly envisage the enactment of national legislation. The national parliament could therefore pass such legislation for provinces, but provinces could not pass such legislation themselves.

In a formal legal sense, I suspect this reading is the more accurate one. It is also more in line to the spirit of the Constitutional Court’s previous forays into this area of the law as it is based on the assumption that provinces only have those powers explicitly provided for by the Constitution and that our Constitution was drafted to secure the upper hand in such matters for the national sphere of government.

On a policy level the (perhaps) slightly more strained interpretation of Justices Yacoob and Cameron is probably preferable to the more logical and coherent interpretation of the majority. If we are going to have a provincial sphere of government that works effectively, a sphere of government where each province established its own character and its government could demonstrate its ability to do better than the national government, our courts should be hesitant to interpret the Constitution too narrowly in a way that favours the powers of the national sphere of government.

At the moment this will make little difference but as the political landscape changes and as more provinces are governed by parties who are not represented in the national government, this could become important. Imagine the SACP or some other party of the left governs three provinces while the ANC retains power at national level. In such a scenario one would probably want the provinces to have the freedom to experiment with different policies that might demonstrate — within the boundaries of what is constitutionally permissible — the benefits of such progressive policies. Whether this will really make any difference — given the fact that budgets are mostly determined at national level — is another question.

However, because the case dealt with a rather technical issue, it does not really help us to understand how the Court will rule in cases where provincial governments push through legislation aimed at further regulating the administration of health, education, policing and housing and where such legislation is in conflict with national legislation on the same topic.

One may argue that it is time for provincial governments to become more adventurous by establishing particular legislative standards and criteria for the delivery of very important services in the fields of education, housing, health and policing as they are co-responsible for these along with the national government. But because provinces have very little independent revenue raising capacity and depend on an allocation from the national budget, this will be rather difficult — especially if a province wished to establish higher standards for the delivery of a particular service and this would have budgetary implications.

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