As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
After the African National Congress (ANC) resolved this past weekend at its National General Council that the government “should fast track the implementation of the Presidential Commission review of provinces,” the question of whether it would be wise (and constitutionally possible) to change the powers or the boundaries of provinces has again becoming a political talking point. While the system of provincial government is not working as well as it should, it is far from clear that it will be either politically or constitutionally possible to change the system.
When the democratically elected Constitutional Assembly devised the system of provincial government between 1994 and 1996, the political landscape in South Africa looked very different from the way it does now. Mangosuthu Buthelezi and his Inkatha Freedom Party (IFP) governed KwaZulu-Natal, while the National Party of FW de Klerk governed the Western Cape.
A low level civil war, fuelled by IFP and its National Party backed warlords, was still raging in KwaZulu-Natal. Although the violence was not as bad as between 1990 and 1993 when an average of 100 people were being killed each month in clashes between IFP and ANC, there was still considerable violence in the region and there was consequently considerable pressure on the Constitutional Assembly to devise a system of provincial government to appease both the National Party and the IFP.
This had to be done while retaining sufficient power for the central government to enable it to create one administration out of the ten homeland administrations, the various “own affairs” departments form the Tri-cameral Parliament, and the previously National Party dominated civil service and to begin the process of addressing the racially based economic and social inequality established through 350 years of colonialism and apartheid.
The Constitutional Assembly devised a hybrid system in which the national and provincial governments shared power over important matters such as education, housing, welfare services, tourism, health and the environment, while retaining exclusive powers for the provinces to deal with minor issues such as abattoirs, ambulance services, liquor licences and provincial sport.
The provinces were also given a direct say in the adoption of legislation by the National Parliament through the creation of a National Council of Provinces (NCOP), a second house of Parliament representing the interest of the various provinces (with 10 delegates from each of the nine provinces) that usually has to approve legislation in order for it to become law.
Leaving party politics aside (which is difficult to do given the strong support expressed by the IFP and the then National Party for the retention of strong provinces), one could make relatively good arguments for the retention of provinces in South Africa.
Provinces are supposed to enhance democracy by bringing government closer to those actually affected by the decisions of government. Provincial government will therefore ideally be good for democracy and may empower communities who may have a bigger say in how they are governed.
It is also said that where a culture of provincial government takes hold it serves as a check on the exercise of power by an all-powerful central government and central party leaders of a governing party. Even when the same party is in power nationally and in a province, strong provincial governments where party structures are strong can check the policy excesses and unpopular decisions of a national government led by a central party leadership far removed from the people. The manner in which the Gauteng province defied the Mbeki government by rolling out anti-retroviral drugs to HIV positive pregnant mothers (in defiance of the national government) is a case in point.
But there are also good arguments against provincial governments. Where provincial governments and the provincial structures of governing parties become strong, it may lead to excessive patronage politics and factionalism. Over time it diminishes the power of the central leaders of a governing party and makes that party more difficult to lead and steer in new directions. I would argue that one of the reasons why there was such a groundswell of opposition to Thabo Mbeki, was that provincial party bosses saw Mbeki as limiting their ability to exert power (and dispense patronage) within provinces.
Provincial governments also create another layer of bureaucracy and perks (houses, cars, salaries, blue light brigades) which can be costly and wasteful. In our system, one could also argue that because each province is equally represented in the NCOP, it grants disproportionate power to less populated rural provinces, to the detriment of densely populated urban provinces like Gauteng.
There is obviously no agreement within the ANC on whether provinces should be reformed, reduced or their powers enhanced. Some party members (those aligned to the alleged “Premier League” would be perfect candidates) might favour changes on the condition that their own powers and perks and their ability to dispense patronage are not tampered with, while those of factional opponents are diminished. Others may favour changes with a view to rein in the powers of regional ANC leaders (such as the “Premier League”) in order to save the ANC from the patronage politics now threatening to engulf it.
At the ANC elective conference in Mangaung it was decided to appoint a Presidential Commission which would make “proposals on, among other issues, the role of provinces and the number the country should have and their possible boundaries”. The Mangaung resolution stated that:
[th]e Report of the Presidential Commission [must] be presented to the next ANC NGC and any changes that have to be made to the provincial system be given effect to in the 2019 national and provincial elections.
It is unclear why this resolution has not been implemented yet and why the NGC has now decided that its implementation should now be fast tracked. Those with intimate knowledge of the power politics within the ANC would be better placed to explain the politics of this decision.
However, if the Presidential Commission proposes that the provincial boundaries, powers, functions or institutions be changed, it is not clear that such a proposal will be constitutionally implementable.
In terms of section 74 of the Constitution, most provisions in the Constitution can be changed by a vote supported by at least two thirds of the members of the National Assembly and at least six of the nine provincial delegations to the NCOP. This means most amendments can be secured with the support of 267 out of the 400 members in the National Assembly and 6 of the nine provinces. However, section 1 of the Constitution as well as the section that deals with the amendment of the Constitution requires support of 75% of the members of the National Assembly which amounts to at least 300 of the 400 votes.
At present the ANC controls 8 of the nine provinces (and hence NCOP delegations) and can easily muster support from the required 6 provinces in the NCOP. However, it “only” has 62.15% support in the National Assembly (which amounts to 249 seats). Assuming that all ANC MPs are in attendance when a vote is taken, at least 18 opposition party members would have to support the amendment.
Assuming the DA (89 seats), the EFF (25 seats), the IFP (10 seats), the Freedom Front Plus (4 seats), the UDM (4 seats), COPE (3 seats) and the ACDP (3 seats) are not likely to support such an amendment, the ANC will fall 5 votes short of securing a two-thirds majority in the National Assembly for such a change. Even if it secures the votes of the NFP (6 votes), the AIC (3 votes), Agang (3 votes), PAC (1 vote), and APC (1 vote), it will not be enough to secure a majority.
Of course, if the ANC could secure the votes of the EFF (which it would be able to do, for example, if it proposed changes to the property clause), it would be able to secure the requisite majority in the National Assembly.
Even then, it would under present political circumstances be difficult to change the provincial boundaries of at least some provinces. This is because section section 74(8) of the Constitution, read with section 74(3)(b), states that if a Bill (or any part of it) aimed at amending the Constitution “concerns only a specific province or provinces”, the NCOP “may not pass the Bill or the relevant part unless it has been approved by the legislature or legislatures of the province or provinces concerned”.
This means that an amendment that abolishes provinces could be passed by the ordinary 267 votes in the National Assembly and 6 of the 9 NCOP delegations as it would treat all provinces the same. However, an amendment that aims to change the boundaries of specific provinces (for example, an amendment that proposes to amalgamate the Eastern Cape and the Western Cape) would have to be passed by the legislatures of the provinces concerned (in the example, it would be the Western Cape and Eastern Cape legislatures).
As the Western Cape legislature is currently controlled by the Democratic Alliance (DA), it is unlikely that it would support any amendments of the borders of the Western Cape province.
I may be wrong but I would think that one of the most compelling ways to gather support within the ANC for changes to the borders of provinces would be to argue for an amalgamation of the Western Cape and Eastern Cape. But as things stand this option is not politically open to it.
I have no idea to what extent there is any appetite within the ANC (and especially within provincial party structures) for reducing the powers or a completely abolishing the provinces. My guess is that provincial party elites would be very reluctant to support such a move as it would rob an entire layer of party members of positions, perks and opportunities to access and distribute patronage.
If this is correct, the leader who tries to clip the wings of provinces may well find him or herself in the same boat as former President Thabo Mbeki – and sooner rather than later.BACK TO TOP