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.
As part of South Africa’s negotiated constitutional settlement, the drafters of both the interim and final Constitution created a quasi-federal system with 9 separate provinces, each with its own legislature and executive These provinces have very limited exclusive law making powers. They have exclusive powers to make laws and implement policy on earth-shatteringly important issues like abattoirs; ambulance services; libraries other than national libraries; liquor licences; provincial cultural matters and provincial sport.
They also have concurrent powers shared with the national sphere to make laws and implement policy on rather more important issues such as casinos, racing, gambling and wagering, excluding lotteries and sports pools; consumer protection; education at all levels, excluding tertiary education; environment; health services; housing; industrial promotion; policing; public transport; road traffic regulation; trade; and welfare services.
This means that responsibility for very important “service delivery” issues such as primary education, housing, health, policing and welfare services are shared between the national legislature and executive on the one hand and the 9 provincial legislatures and executives on the other. The idea is that the national government would formulate policy and the national legsilature would pass legislation setting general norms and standards; frameworks; or national policies on the areas set out above, which are then implemented by the provinces. Provinces have some leeway to pass their own legislation where this is not going to conflict with nationally determined frameworks or policies required to ensure the smooth and effective running of the country.
What has happened, in effect, is that provinces to a large extent have become implementation agencies of the national government. Where a provincial government is more efficient (like in Gauteng, the Western Cape and to a lesser extent KwaZulu-Natal) the national department’s policies are implemented more effectively. Where the provinces are completely dysfunctional (like in Mpumalanga and the Eastern Cape) the best laid plans of the national department are completely derailed by the lack of effective implementation.
That is why a decision to move residents from Gauteng to the North-West and from Kwazulu-Natal to the Eastern Cape created such resistance from residents who rely extensively on state services: these residents knew far better than Sydney Mufamadi and Thabo Mbeki that the move would make their lives more difficult.
I have heard that former national Ministers of Education and Health were shocked when they realised that they had limited ability to ensure improvement of schooling and health in the various provinces that are dysfunctional. They make the policies but the policies must be implemented by the politicians and bureaucrats at provincial level. The national treasury determines what resources are allocated to the provinces and the national departments determine broad policies, but the provincial counterparts actually allocate and spend the money.
The fact that the most dysfunctional provinces inherited civil servants from the apartheid Bantustans further complicates this picture as it suggests that service delivery was hampered by the effects of apartheid as well as by the utterly unprincipled but politically astute decision by the ANC to co-opt Bantustan civil servants and politicians.
Because of the incorporation of corrupt or under-qualified Bantustan officials in provincial government structures, because of really disastrous ANC deployment practices at provincial level (the best people seem to be deployed to national government or to Gauteng and those who would not be able to organise a piss up in a brewery are shunted off to places like Bisho and Polokwane), and because of a structural and legal inability of national treasury to reign in the corrupt behaviour or powerful local political elites, many provinces do not provide the quality of health care, education, housing and policing that it theoretically should and could — given the enormous resources at their disposal.
Now finally the ANC has woken up to the fact that the present system of provincial government is not working very well. The ANC has decided to set up a review commission to investigate the future of provinces and provide a ‘blueprint’ for a new government structure.
The DA will of course claim that this move by the ANC is part of a dark plot by the ANC to destroy the DA power-base in the Western Cape. On paper this might seem plausible. In a one-party dominant democracy, one way for smaller opposition parties to begin to address the dominance of the dominant political party is to build up regional power bases which can give such smaller parties access to the power and resources that comes with government incumbency. But because of the ANC policy of centralised deployment which makes it less likely that powerful local groups would challenge the ANC dominance in provinces other than the Western Cape, the DA’s control of the Western Cape is probably not going to be of much use to the DA in the short to medium term to unseat the ANC or even to challenge its electoral dominance in any plausible manner.
There might be people in the ANC who find it unpalatable that the DA is governing the Western Cape and would love to abolish the provinces or reduce the power of provincial governments “to teach the DA a lesson”, but that does not mean that there are not genuine problems with the provincial system as it currently functions and that many ANC leaders are not genuinely concerned about the way in which some provinces are failing to serve the people who elected the ANC into office.
The problem is that abolishing provinces or diminishing their powers do not seem politically plausible and would probably not make a huge difference to service delivery as long as corrupt, lazy, inefficient or unqualified government officials required to implement national policy at provincial level are not fired and replaced with more professional and efficient bureaucrats. Too many ANC politicians are deployed to provinces and they will resist any attempts to take away their power and — perhaps even more importantly — their perks. And the ANC’s strategy of co-opting the Bantustan civil servants helped it to secure huge majorities in many rural provinces and alienating so these people who rely on their government jobs or whose families and friends rely on these jobs, may help to break the electoral stranglehold of the ANC in regions where it currently enjoys huge support.
In essence — as I see it — the problem of the provinces is intimately related to the politics of patronage. The ANC needs to be seen to be the party of patronage to retain its electoral dominance but this requires it to turn a blind eye to incompetence and corruption at provincial government level — no matter how the provinces are politically or legally structured. In essence — so its seems to me — no matter what “solution” the task team derives at, it will not solve the problem that currently appears to be one of constitutional design but is really a problem related to the political dynamic that helps to secure the ANC’s electoral dominance.
If the ANC wants to “solve” the problem of service delivery at provincial and local government level it will have to act in a way that is contrary to its short and medium term electoral interest. Few parties act against their own self-interest merely because this would be in the interest of the country and the people who elected them into government. One could even argue for the ANC to act in the interest of the country rather than in its own interest would be foolish.
So, when the task team reports back in 2013 it will not come up with a politically palatable solution that will actually begin to address the problem of service delivery in dysfunctional provinces. As Frederik Van Zyl Slabber said about the tricameral Parliament, any plan the ANC task team comes up with will merely be a re-arranging of the deck chairs on the Titanic.
This is probably good news for the DA. It will probably not be in the interest of either the DA or the ANC to abolish the provinces or diminish the power of the provinces and we will probably continue to muddle through with the present system until something gives and the voters finally ditch the ANC – as voters in a democracy always finally ditch the governing party. In India that process took about 30 years but here in Mexico it took about 80 years. How long this will take in South Africa I am not foolish enough to predict.BACK TO TOP