The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
President Jacob Zuma has appointed two ministers in The Presidency, but it is unclear whether the jobs they have been given might not require them to act unconstitutionally. Trevor Manual was appointed to head the National Planning Commission while Collins Shabane was appointed to oversee Performance Monitoring and Evaluation as well as Administration in the Presidency. In President Zuma’s announcement he explained these positions as follows:
Following extensive research on international models on how governments in other parts of the world plan and monitor performance, we have decided to establish a National Planning Commission which will be based in the Presidency. The NPC will be responsible for strategic planning for the country to ensure one National Plan to which all spheres of government would adhere. This would enable us to take a more comprehensive view of socio-economic development in the country.
We have also created a monitoring and evaluation competency in the Presidency, to monitor and evaluate the performance of government in all three spheres.
The problem is that we do not have a pure unitary state. Our Constitution explicitly bestows both exclusive and concurrent powers on provincial governments (chapter 6) and Municipalities (chapter 7).
It is true that section 40(2) of the Constitution states that all spheres of government must observe and adhere to the principles of co-operative government, which require the various spheres in all the provinces and municipalities to co-operate with one another in mutual trust and good faith by: fostering friendly relations; assisting and supporting one another; informing one another of, and consulting one another on, matters of common interest; co-ordinating their actions and legislation with one another; adhering to agreed procedures; and avoiding legal proceedings against one another.
It is also true that the Constitution tilts the legislative power decisively in favour of the national parliament by providing provincial legislatures with very few and inconsequential exclusive powers. Moreover, the way the Constitution deals with the most important powers shared by the national and provincial legislatures – such as powers to legislate on housing, health care, police, public transport, trade and welfare services – will almost always allow the national parliament to pass framework legislation to establish uniform norms and standards and national policies.
This means that Helen Zille and her ten man cabinet would seldom be able to formulate and implement their own policies on these important issues and will be bound by the national legislation that sets out the broad policy framework within which they have to operate.
But section 125(2) of the Constitution states very clearly that the Premier exercises the executive authority in a province, together with the other members of the Executive Council, and has the power to implement both the provincial legislation in the province and the national legislation setting out the norms and standards or the broad policy frameworks on the many important issues like housing, health care, social welfare and policing.
This means that a provincial government is firmly in charge of the implementation of policy. It is only where a provincial government cannot or does not fulfill its obligations that the national cabinet may intervene. This can only happen if notice of the intervention is tabled in the National Council of Provinces (NCOP) and if the intervention is to last for more than 30 days must be approved by the NCOP and must be regularly reviewed.
Unless there is a demonstrable failure to implement policies by a provincial executive and the requisite procedure is followed, Minister Manual or Minister Shabane would therefore not be allowed to interfere with the day to day running of a province. If Trevor Manual formulates one national plan to implement housing policy or health care policy (as envisaged in the announcement) and Helen Zille decides this plan is not to her liking, she will be able to ignore that plan.
And Manuel will be powerless to do anything about it unless he can show that the provincial government is not doing its job at all. If the provincial government chooses a different way of implementing the policies set out in national legislation and does so diligently, Manuel can shout blue murder but constitutionally he will be powerless to force Mrs Botox and her cabinet to follow his national plan.
It seems to me for this Planning Commission to work, we will have to amend the Constitution and will have to abolish the provinces or will have to further diminish their powers. I am not sure that is a good idea. Sometimes the national government does not know best. For example, when Thabo Mbeki and Manto Tshabalala-Msimang decided that anti-retrovirals was poison concocted by the CIA to kill black people, the Western Cape and Gauteng provincial governments ignored the rantings and ravings of Dr Beetroot and thus saved the lives of countless South Africans.
As Anthony Butler points out today in Business Day:
This seems like a dangerous, unconstitutional and impractical set of ideas. Would anyone accept this if Manuel was not in charge? What will happen when Manuel departs and this position is given to a minister without his long and impeccable track record? Dangerous institutions should not be justified by the particular individuals who currently occupy them.
In any event, we are going to have some interesting clashes between the Western Cape Government and the National Government if this thing is going to fly at all. Let the games begin.