An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
The statement of the national cabinet issued yesterday announcing that the national executive is intervening in three Provinces because of concerns “about the state of financial management and governance” in those provinces, once again highlights the nature of the quasi-federal system established by our Constitution. It raises questions about the nature of the relationship between provincial governments and the national government.
More cynical observers — including the ANC Youth League – have also asked questions about the timing and the motivation of this announcement and might wonder whether it has anything to do with President Jacob Zuma’s fight back campaign to neutralise his political opponents inside the ANC. Can it be a co-incidence that the most drastic kind of intervention allowed by the Constitution was only launched in the home province of Julius Malema?
Cabinet announced that it had “received reports on trends in provincial under spending, overspending and challenges with supply chain management” in Gauteng, Limpopo Province and the Free State. It has therefore decided, amongst other things, that “Limpopo Provincial Government be placed under a section 100 (1)(b) intervention of the Constitution” and that members of the National Executive will assume responsibility for the Provincial Treasury, Education, Transport & Roads, Health and Public Works of Limpopo Province.
Section 100(1)(b) of the Constitution seemingly allows for this move as it states that “[w]hen a province cannot or does not fulfil an executive obligation in terms of legislation or the Constitution, the national executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation,… [by] assuming responsibility for the relevant obligation in that province to the extent necessary to maintain essential national standards or meet established minimum standards for the rendering of a service; maintain economic unity; maintain national security; or prevent that province from taking unreasonable action that is prejudicial to the interests of another province or to the country as a whole”.
The Provincial executive of Limpopo has a constitutional duty in terms of section 125(2) of the Constitution to implement all national legislation within the functional areas listed in Schedule 4 or 5 and to co-ordinate the functions of the provincial administration and its departments. These functions include those now taken over by the national executive. One assumes the cabinet believes that the Limpopo Province is “unable to fulfil its obligations” to run the various functions now taken over by the national executive as it is allegedly experiencing a cash crisis. According to the cabinet statement:
They used up their R757,3 million overdraft facility with the Corporation for Public Deposits (CPD). The CPD is the subsidiary of the South African Reserve Bank which facilitates banking arrangements that national, provincial governments and state owned entities have with the Reserve Bank within which they inter-lend to each other with the approval of the National Treasury. Limpopo had requested that their facility should be increased by R1 billion (to R1,7 billion)from the National Treasury for the province to pay salaries and wages on the 23 November 2011. This request was declined but alternative arrangements were made for an early transfer (2 days before the actual date of transfer) of their equitable share in order to be able to pay salaries.
If this is correct, the provisions of section 100(1)(b) quoted above (in terms of which this action was taken) is probably suitably broad to ensure that this intervention is constitutionally allowed. After all, if a Province runs out of cash and cannot pay the salary of its employees, the intervention might be said to be necessary to ensure that the province provides a minimum standard for rendering a service.
This section represents a potentially radical incursion on the autonomy of a Province and should be read narrowly so as not to empower the national government to interfere in the workings of a province merely for political reasons. This is so because an expansive reading would be in conflict with the larger scheme of the Constitution which creates provincial governments with both exclusive powers and powers it has to exercise in concurrence with the national government. Nevertheless, even on a constricted reading, the requirements of section 100(2) are probably met.
The Constitution does contain a safeguard to protect the abuse of this section for political purposes. However, this safeguard will work best where the balance of powers in the various provinces are more evenly spread. The section states that when the national executive intervenes in a province in terms of subsection (1)(b) a “notice of the intervention must be tabled in the National Council of Provinces (NCOP) within 14 days of its first sitting after the intervention began; the intervention must end if the Council disapproves the intervention within 180 days after the intervention began or by the end of that period has not approved the intervention; and the Council must review the intervention regularly and make any appropriate recommendations to the national executive”.
The NCOP consists of ten person delegations from each province and densely populated provinces have exactly the same say in the NCOP as thinly populated provinces. In a scenario where a majority of the smaller provinces are governed by opposition parties, this section would ensure that the national government would not abuse the section for political purposes. As the ANC controls 8 of the 9 provinces and hence 8 of the 9 NCOP delegations, one assumes a vote to ratify this decision of the cabinet is a mere formality.
Interestingly, the cabinet also announced less invasive measures which will apply to the Free State Province, where (with the agreement of the Premier), directives will be issued in line with section 100 (1)(a) by the relevant members of the National Executive for the following departments: Provincial treasury; and Police/Roads & Transport. This section states that [w]hen a province cannot or does not fulfil an executive obligation in terms of legislation or the Constitution, the national executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation, including issuing a directive to the provincial executive, describing the extent of the failure to fulfil its obligations and stating any steps required to meet its obligations”.
This step would ordinarily precede the steps taken in terms of section 100(1)(b) and the fact that no such preliminary action was taken in the Limpopo case will add fuel to the fire of the speculations that while some kind of intervention in Limpopo was practically required, the extent of the intervention reeks of political meddling. I have absolutely no idea if this is the case or not. It might well be that the situation in Limpopo is so dire that the cabinet had no choice but to intervene in the drastic manner that it did.
But given the political ramifications of this interventions, the more suspicious among us will invariably ask questions about the motivation behind this radical interference in the autonomy of a province.
It is necessary to highlight one last issue raised by this intervention. It reminds us that where corruption thrives, efficient governance can be dramatically derailed and can lead to disaster for the government and for the people it is supposed to serve. It might be trite to say, but it is important to remind ourselves that corruption and maladministration may have serious consequences for service delivery and will eventually directly affect the lives of the poor. Where a provincial government dishes out tenders to well-connected politicians like Julius Malema (or the friends of Julius Malema) and where such tenders are inflated, the cash eventually runs out — with disastrous consequences for the poor.
If it is true that the Limpopo Provincial government has been milked dry by Mr Malema and his cronies – as alleged by various newspapers – then the intervention comes as a sort of acknowledgment of the deleterious effects of corruption. Somebody eventually has to pay for the cars, the houses and the expensive watches. The people who pay are seldom the well-connected and the rich. More often than not they are the very poor whose interests are supposedly being advanced by those who have abused the system.BACK TO TOP