Constitutional Law Textbook - Chapter 8 - South African Government PDF

Multilevel government in South Africa 8.1 The division of powers between spheres of government: general principles 8.1.1 Introduction 8.1.2 Historical background 8.1.3 The constitutional principles 8.1.4 The principles of co-operative government 8.1.5 Intergovernmental co-ordination 8.2 The division of legislative and executive power between the national and provincial spheres of governments 8.2.1 Introduction 8.2.2 The objectives and structure of provincial government 8.2.3 Determining legislative competence 8.2.4 The resolution of conﬂicts between the national and provincial spheres 8.2.4.1 Conﬂicts related to concurrent competences set out in Schedule 4 8.2.4.2 Conﬂicts related to exclusive provincial competences in Schedule 5 8.3 The division of legislative and executive power between the national and provincial and local spheres of government 8.3.1 Introduction 8.3.2 The objectives of local government 8.3.3 The structure of local government 8.3.4 Municipal powers 8.3.4.1 Original municipal powers 8.3.4.2 Assigned municipal powers 8.3.4.3 Incidental municipal powers 8.3.5 Conﬂicting national, provincial and municipal laws 8.3.6 Supervision of local government 8.4 Financial aﬀairs 8.4.1 Introduction 8.4.2 The division of ﬁscal powers 8.4.3 The collection of revenue 8.4.4 The distribution of revenue 8.4.5 The budgetary process 8.4.6 The central bank 8.4.7 Procurement 8.4.7.1 Introduction 8.4.7.2 The Preferential Procurement Policy Framework Act 5 of 2000 Summary 8.1 The division of powers between spheres of government: general principles 8.1.1 Introduction An important characteristic of the Constitution is that it not only divides power vertically between the legislative, executive and judicial branches of government in terms of the separation of powers doctrine. It also divides power horizontally between the national, provincial and local spheres of government, thus establishing a quasi-federal system of government. Section 40(1) of the Constitution provides in this respect that ‘[i]n the Republic, government is constituted as national, provincial and local spheres of government which are distinctive, interdependent and interrelated’. In this chapter we deal with this horizontal division of power. We identify the exact powers allocated to each sphere of government, address the relationship between the diﬀerent spheres of government and explore the constitutional management of conﬂicts between the various spheres of government. It is important to understand that in a federal or quasi-federal system, the division of power between diﬀerent spheres of government may be based either on a divided model of federalism or an integrated model of federalism. In a divided model of federalism, the subject matters in respect of which policies and laws may be made are strictly divided between the diﬀerent levels or spheres of government. Each level or sphere, therefore, has its own exclusive powers and there are very few, if any, concurrent or shared powers. In this model, the policies and laws made by each level or sphere will also be implemented and administered by their own separate civil services and departments of state. Australia, Canada and the United States are examples of a divided model of federalism. 1 In an integrated model of federalism, some subject matters are allocated exclusively to one level or sphere of government, but most are concurrent or shared. The subject matters in respect of which policies and laws may be made, therefore, are not strictly divided between the diﬀerent levels or spheres of government. In this model, the framework policies and laws made by the central level or sphere of government may be complemented by provincial or local policies and laws and must be implemented and administered by the provincial or local spheres of government. Germany and South Africa are examples of an integrated model of federalism. 2 When we say that South Africa broadly adheres to an integrated model of federalism, we are not saying that South Africa is a fully ﬂedged federal state. Throughout this chapter we will raise questions about the nature of the relationship between the three spheres of government. We contend that while the South African system displays several characteristics of a federal system, it could probably best be described as a quasi-federal system. In a quasi-federal system, the national government retains more power and inﬂuence over law making and policy formulation than is usually the case in a fully ﬂedged federal system. 8.1.2 Historical background Although we contend that South Africa could probably best be described as a quasi-federal state, it is important to note that the Constitution itself studiously avoids describing the system of governance in South Africa as federal or quasi-federal. 3 This is partly because there was profound antipathy towards the notion of a federal state among the African National Congress (ANC) and other liberation organisations and this manifested in positions assumed during the negotiations process. The antipathy displayed by the ANC towards the notion of a federal state may be traced back, at least in part, to the ‘grand design’ of the apartheid government. This involved the fragmentation of the country into so-called ‘self-governing’ and later ‘independent’ entities based on ethnic, group or tribal aﬀiliations. The ultimate goal of grand apartheid, therefore, was that black South Africans would be stripped of their South African citizenship and be aﬀorded the citizenship of one of these ‘independent’ entities in which they would exercise their civil and political rights. 4 The ANC and its allies were concerned that a federal system would result in the resurrection of the despised homeland system in a diﬀerent guise. There were also concerns that a rigid division of powers between the national sphere of government and the various provincial spheres would inhibit and frustrate the developmental and egalitarian objectives of the new state seeking to the improve the quality of life of all. During the process of negotiations, however, the ANC leadership started seeing the beneﬁt and advantages of strong regional government for the delivery of services and the political empowerment of the citizens. It seems that exposure to models of federalism such as the German Constitution assisted in convincing the liberation organisations that eﬀective regional government could be combined with strong central leadership and this was the model that was eventually adopted. 5 Some of the political groups such as the predominantly Zulu party, the Inkatha Freedom Party (IFP), favoured a strong federal arrangement and advocated an asymmetrical arrangement with maximum devolution of original power to the Kwazulu-Natal (KZN) region. It was the inability to reach consensus on this and other issues that caused them to boycott the constitutional drafting process for the interim Constitution. 6 PAUSE FOR REFLECTION Should the number of provinces be reduced? South Africa currently has a national government, nine provinces, six metropolitan councils together with a number of district and local municipalities. At the time of the transition, the provincial system allowed parties which had strong regional support but limited national support to participate meaningfully in the political process. This contributed to the stabilisation of the democratic order. The IFP boycotted the initial constitutional drafting process in the run-up to the 1994 elections, but eventually participated in the elections and was the dominant party in the KZN provincial legislature for about 10 years. This contributed to the ending of the civil strife in the province as the IFP, despite their limited national support, played an important role in the provincial legislature. In this sense, the system accommodated diverse political aspirations. There is now some thinking, particularly within the ANC, that we should reduce the number of provinces and emphasise strong national and local governments.7 Part of the argument is that the costs do not justify the beneﬁts derived from having nine provincial governments. In addition, there are concerns about whether all the regions possess the capacity to function eﬀectively and to implement wide-ranging policies devised by the national sphere of government. On the other hand, the argument is that provincial government has the potential to secure a closer link between voters and their democratically elected representatives. If all decisions are taken in Cape Town or Pretoria, the quality of democracy would suﬀer. However, the question remains: should the number of provinces be reduced, say, from nine to ﬁve? If this is reduced, will it enhance the eﬃciency and democratic accountability of government? 8.1.3 The constitutional principles As we saw in chapter 2, the transition to democracy in South Africa took place in two stages. An important aspect of this two-stage process was that the ﬁnal Constitution had to be consistent with 34 Constitutional Principles agreed to by the various parties at the multiparty negotiating process and enshrined in Schedule 4 of the interim Constitution. A signiﬁcant number of these principles dealt with the structure of government. They provided in this respect that: government shall be structured at national, provincial and local levels 8 the powers and functions of the various spheres had to be deﬁned in the ﬁnal Constitution and that they could not be substantially less or substantially inferior to those provided for in the interim Constitution 9 the functions of the national and provincial levels of government had to include exclusive and concurrent powers 10 the allocation of a competence to either the national or provincial spheres had to be in accordance with listed criteria 11 the national sphere was precluded from exercising its powers so as to encroach on the geographical, functional and institutional integrity of the provinces 12 disputes concerning legislative powers allocated by the Constitution concurrently to the national and provincial spheres had to be resolved by a court of law. 13 A framework dealing with powers, function and structures of local government also had to be set out in the Constitution. 14 In addition, every sphere of government had to be guaranteed an equitable share of revenue collected nationally to ensure that provinces and local government were able to provide basic services and execute the functions allocated to them. 15 In Certiﬁcation of the Constitution of the Republic of South Africa, 1996, the Constitutional Court held that the question of whether the powers and functions allocated to the provinces were substantially less or substantially inferior to those provided for in the interim Constitution was the most diﬀicult question it had to deal with. 16 After evaluating the allocation of the powers to various spheres of government and assessing the breadth of the override clause that allows for national legislation to prevail over provincial legislation in certain instances, the Court concluded that the diminution in provincial power was substantial and that this was inconsistent with Constitutional Principle XVIII. 17 This required the drafters to reorder the arrangements, aﬀord more powers to the provinces and restrict the scope of the override clause before it met the approval of the Court. In Certiﬁcation of the Amended Text of the Constitution of The Republic Of South Africa, 1996, the Constitutional Court found that the revised override clause (section 146) was more stringently drafted and removed any presumption in favour of national legislation. 18 This, together with the adjustment of the allocation of powers to the provinces, satisﬁed the Court that the amended text complied with Constitutional Principle XVIII. We discuss the exact allocation of powers to the various spheres of government and the override clauses applying when there is a conﬂict between the spheres of government in detail below. 8.1.4 The principles of co-operative government As we noted in the introduction to this chapter, an important characteristic of the Constitution is that it not only divides power vertically between the legislative, executive and judicial branches of government, but also horizontally between the national, provincial and local spheres of government and that this horizontal division of power follows an integrated model. 19 An important consequence of the integrated model adopted by the drafters of the Constitution is that mechanisms must be put in place to regulate the overlap of power between the various spheres of government. The principle of co-operative government plays an important role in regulating the overlap of power between the various spheres of government. To understand fully this principle of co-operative government, it is necessary to set out the basic structure according to which power is divided beween the three spheres of government. It is to this basic structure that we now turn. First, the nine provincial governments share the power to make laws on a wide range of important matters with the national government. Schedule 4 of the Constitution sets out these shared or concurrent matters that include important matters such as education, the environment, health, housing and policing. 20 Second, in so far as the concurrent powers of the national and provincial governments are concerned, the national and provincial governments have equal law-making powers. If the laws made by the national and provincial governments conﬂict with each other, the national law will override the provincial law, but only if the national law satisﬁes the criteria set out in section 146 of the Constitution. 21 Third, apart from their concurrent powers, provincial governments also have the exclusive power to make laws on the matters set out in Schedule 5 of the Constitution. These exclusive powers deal with relatively unimportant matters such as abattoirs, ambulance services and libraries other than national libraries. Despite the fact that these Schedule 5 powers have been exclusively reserved for provinces, section 44(2) of the Constitution provides that the national government may intervene and pass a law on a Schedule 5 matter if it is necessary to achieve the objectives set out in section 44(2) itself. Fourth, local government has been given the authority to make by-laws for the eﬀective administration of the matters they have the power to administer. These local government matters are set out in Part B of Schedule 4 and Part B of Schedule 5. By-laws which conﬂict with national or provincial laws are invalid. 22 Fifth, the laws that are made by the national government and that fall into the broad areas of concurrent competence must be implemented and administered by provincial and local governments. The primary role of provincial and local governments, therefore, is the implementation and administration of national laws. 23 Last, the national government has the plenary power to pass laws and administer laws on any other topic or subject matter not mentioned in either Schedule 4 or 5. This means that the powers of provinces are explicitly restricted to those functional areas set out in either Schedule 4 or 5, while the powers of the national government are not restricted and can encompass any matter not mentioned in Schedule 4 or 5. PAUSE FOR REFLECTION When the principles of co-operative government become pivotal This system that allocates important service delivery powers to both the national sphere and the provincial spheres of government can create governance challenges. For example, the national government department is required to oversee the basic education system and to ensure the smooth running of schooling in the country. However, each of the nine provincial departments of education has to implement the broad policy objectives set out by the national department and the national South African Schools Act.24 But what happens if a provincial department of education fails to implement these broad policy objectives? What can a national Minister of Education do if a provincial education department fails to deliver textbooks to schools on time or when it fails to spend its capital budget to eradicate mud schools and pit latrines which still exist in many schools in South Africa? As we shall see, in extreme cases, the national government can take over the running of a provincial department if it fails to fulﬁl its constitutional and legal obligations.25 But short of this, it is not clear how much power the national Minister and his or her department will have to ensure that the money allocated for basic education to each province is spent eﬀectively and in accordance with the broad policy directives set out by the national department. It is for this reason that the principles of co-operative government set out in Chapter 3 of the Constitution become pivotal as they require the national government department and the provincial government departments to meet regularly and to co-operate with one another. Even when diﬀerent political parties govern nationally and in some of the provinces, these governments at national and provincial level are required by these provisions to co-operate with one another to ensure the eﬀective implementation of national policies. Given the overlap between the legislative and executive authority of the national, provincial and local spheres of government, the Constitution makes provision for a system of intergovernmental co-ordination to manage any potential conﬂict between the various spheres exercising concurrent competences. This forms the heart of the system of co- operative government. The most important rules governing this system are set out in Chapter 3 of the Constitution. Chapter 3 of the Constitution entrenches the notion of co- operative government which recognises the distinctiveness, interdependence and interrelatedness of the national, provincial and local spheres of government. 26 All spheres of government – national, provincial and local – are required to observe and adhere to the principles of co-operative government set out in Chapter 3 of the Constitution. 27 Particularly important in this context are the principles set out in section 41. This section provides, inter alia, that ‘[a]ll spheres of government and all organs of state within each sphere’ must: respect the constitutional status, institutions, powers and functions of government in the other spheres 28 not assume any power or function except those conferred on them in terms of the Constitution 29 exercise their powers and perform their functions in a manner that does not encroach on the geographical, functional or institutional integrity of government in another sphere 30 co-operate with each other in mutual trust and good faith. 31 In addition, Chapter 3 of the Constitution also provides that an organ of state involved in an intergovernmental dispute must make every reasonable eﬀort to settle the dispute by means of mechanisms and procedures provided for that purpose, and must exhaust all remedies before approaching a court of law to settle the dispute. 32 There has been some confusion about which bodies are bound by these provisions. Do they apply only to those organs of state that exercise legislative and executive power in the national, provincial and local spheres of government or do they also apply to those organs of state that are supposed to be independent such as the Electoral Commission, the National Prosecuting Authority (NPA)and the South African Human Rights Commission (SAHRC)? After some ambivalence, there is now relative certainty as to the bodies bound by Chapter 3. In Independent Electoral Commission v Langeberg Municipality,33 the Constitutional Court held that the Independent Electoral Commission (IEC) is an organ of state as deﬁned in section 239 of the Constitution. However, it is not part of government as it is not an organ of state in the national sphere of government. Chapter 9 entrenches the independence of the institutions identiﬁed in this Chapter and hence these institutions cannot simultaneously be independent of and yet part of government. 34 Thus, a dispute between a Chapter 9 institution and an organ of government cannot be regarded as an intergovernmental dispute requiring compliance with Chapter 3. The Court stated that while it is preferable for organs of state not to litigate against each other readily, there was no obligation on Chapter 9 institutions to follow the prescripts of Chapter 3. 35 In Uthukela District Municipality and Others v President of the Republic of South Africa and Others, the Constitutional Court conﬁrmed that municipalities are organs of state in the local sphere of government while the President and the national Ministers are organs of state in the national sphere. 36 Thus, a dispute involving these spheres would, prior to being referred to court, have to comply with Chapter 3. For these purposes, the provincial executive cannot be distinguished from the national executive and the provincial executive will be regarded as an organ of state in the provincial sphere. The essence of Chapter 3 was described by the Constitutional Court as requiring that disputes ‘where possible be resolved at a political level rather than through adversarial litigation’. 37 In Uthukela, the Court held that it will rarely decide an intergovernmental dispute ‘unless the organs of State involved in the dispute have made every reasonable eﬀort to resolve it at a political level.’ 38 The Court held that the duty to avoid legal proceedings placed a two-fold obligation on all organs of state. They had to make every reasonable eﬀort to settle the dispute through the mechanisms provided and to exhaust all other remedies before they approached the courts. 39 The Court will decline to hear the matter if there is a failure to comply with this obligation. In eﬀect, the matter will be referred back to the parties to comply with their obligations in terms of Chapter 3. 8.1.5 Intergovernmental co-ordination To avoid conﬂicts between the national, provincial and local spheres of government, especially in so far as their concurrent powers are concerned, the Constitution establishes or provides for the establishment of co-ordinating bodies. Some of these bodies are responsible for co-ordinating the legislative activities of the three spheres of government and others for co-ordinating the executive activities of government. The responsibility for co-ordinating the legislative activities of the diﬀerent spheres of government has been vested in the National Council of Provinces (NCOP). This is because each province, as well as organised local government, is represented in the NCOP. Given that we have already discussed the NCOP, however, we will not dwell on the manner in which it co-ordinates the legislative activities of the three spheres of government here. Instead, we will focus on those bodies that have been established by the Intergovernmental Relations Framework Act (IGRFA) 40 to co-ordinate the executive activities of the diﬀerent spheres of government. The IGRFA was passed to establish structures to promote and facilitate intergovernmental relations and to provide mechanisms to settle intergovernmental disputes. The provisions of the IGRFA do not apply to conﬂicts between the national and provincial legislatures. 41 These conﬂicts have to be resolved in accordance with section 146 of the Constitution. As a consequence of the Langeberg case, all Chapter 9 institutions and other independent institutions fall outside the scope of the Act. Finally, as the courts are independent, they too are not bound by the provisions of the IGRFA. The purpose of the IGRFA is to provide a framework for the various spheres of government and organs of state within those spheres to facilitate co-ordination in the implementation of policy and legislation. 42 These include the provision of coherent government, the eﬀective provision of services, the monitoring of implementation of policy and the realisation of national priorities. 43 To help achieve this purpose, the IGRFA creates a number of co-ordinating forums. Among the most important of these are the President’s Co-ordinating Council,44 National Intergovernmental Forums,45 the Premiers’ Intergovernmental Forum 46 and District Intergovernmental Forums. 47 PAUSE FOR REFLECTION Co-operative intergovernmental relations or coercive intergovernmental relations? Steytler draws a distinction between co-operative intergovernmental relations and coercive intergovernmental relations.48 He argues that while the Constitution envisages a system of co-operative intergovernmental relations, statutes such as the IGRFA lean more in the direction of a system of coercive intergovernmental relations dominated by the national sphere of government. This leads him to the conclusion that South Africa currently operates as an integrated federal state that utilises a coercive form of intergovernmental relations. In other words, while the national sphere is obliged to co-operate with the other spheres, it also dominates them. In some instances, organs of state have to act in conjunction with other organs of state to carry out their statutory and constitutional responsibilities or to provide eﬀective service delivery. The IGRFA requires that in these instances, implementation protocols must be agreed on by the various participating organs of state. 49 Among various objectives, the implementation protocols must: identify the roles and responsibilities of each organ of state in implementing policy and carrying out its statutory functions provide for aims and objectives of the project determine indicators to measure the attainment of the objectives provide for monitoring and evaluation mechanisms provide for dispute-resolving procedures determine the duration of the protocol. 50 One of the most important objectives of the IGRFA is to set in place mechanisms to deal with intergovernmental disputes. The IGRFA does not apply to disputes concerning interventions in terms of sections 100 and 139 of the Constitution. 51 Any intervention in terms of these sections must satisfy the procedural and substantive constraints built into these sections. An intergovernmental dispute is deﬁned as a dispute between diﬀerent spheres of government or between organs of state from diﬀerent spheres concerning matters arising from statutory powers or functions assigned to them or from an agreement between the parties regarding the implementation of their statutory powers. In addition, the issue must be justiciable in a court of law. 52 The deﬁnition is wide and covers disputes that arise as a consequence of the various parties exercising their statutory power. This would include disputes about which party is responsible for paying for the services provided and which party should provide particular services. In addition, disputes may arise as a consequence of an agreement entered into by the parties in furtherance of a joint mandate. The IGRFA imposes a direct duty to avoid intergovernmental disputes. 53 This duty involves taking reasonable steps both to avoid intergovernmental disputes and to settle intergovernmental disputes that arise without resorting to judicial proceedings. The IGRFA prescribes various steps which must be followed as a prerequisite to taking legal proceedings. As a ﬁrst step, the parties must try to settle the dispute through direct negotiations or through an intermediary. If this is unsuccessful, then one of the parties may declare a formal intergovernmental dispute by notifying the other party of this in writing. 54 After a formal intergovernmental dispute has been declared, the parties are obliged to convene a meeting to determine the precise issues that are in dispute, the material issues that are not in dispute and any mechanisms and procedures, other than judicial proceedings, that are in place and which can resolve the dispute. The parties are also required to agree on appropriate mechanisms to settle the dispute and to designate a person to act as a facilitator. 55 If the meeting is not convened and if the dispute involves a national organ of state, the Minister responsible for provincial and local government must convene the meeting. 56 Similar responsibilities rest on the MEC for local government in respect of disputes involving provincial organs of state and local government or municipal organs of state. The IGRFA assigns speciﬁc responsibilities to the facilitator. 57 The main mandate is to settle the dispute in any manner necessary and to provide progress reports to the relevant parties. The attempts to settle and the contents of the progress reports are deemed to be privileged documents and may not be used in judicial proceedings. Importantly, no organ of state may institute proceedings to settle an intergovernmental dispute unless it has been declared a formal intergovernmental dispute and eﬀorts made to settle the dispute have proved to be unsuccessful. 8.2 The division of legislative and executive power between the national and provincial spheres of governments 8.2.1 Introduction The division of legislative and executive authority between the three spheres of government is one of the key features of the system of multisphere government adopted in the Constitution. In this part of the chapter, we discuss the division of legislative and executive authority between the national and provincial spheres of government. Although there is a large overlap between the matters over which each sphere has, ﬁrst, legislative authority and, second, executive authority, these matters are not necessarily identical. For example, additional administrative powers may be delegated to provincial executives by the national legislature. 58 This would empower provincial executives to exercise administrative powers in terms of such legislation even though the provincial legislatures may not be empowered to legislate on that matter. Nevertheless, to a large degree, provincial executives have authority over the same subject matter as provincial legislatures. Unless indicated otherwise, we will deal with these matters as if they overlap. Before discussing this further, however, it will be helpful to discuss brieﬂy the objectives and structure of provincial government. 8.2.2 The objectives and structure of provincial government South Africa is divided into nine provinces, namely the Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Mpumalanga, Northern Cape, Northern Province, North West and Western Cape. 59 The Constitution regulates the governance of the provinces in Chapter 6 and sets out the structure, powers and functions of the provincial legislatures 60 as well as the provincial executive authorities. 61 Judging from the structure and powers bestowed by the Constitution on the nine provinces, provinces are required to fulﬁl at least three important interrelated but distinct functions: First, provinces provide a close link between voters and their government to ensure that the government addresses the particular concerns and unique challenges and needs of discrete geographical areas. Second, provinces are required to implement national policies and plans relating to important service delivery areas such as housing, health care, policing and education. Third, provinces must oversee the smooth running of the local sphere of government within the boundaries of the province. To a large extent the structures and functions of the nine provinces mirror one another. Each province is entitled to pass a provincial constitution,62 and the Western Cape Province has indeed done so. 63 However, such a constitution cannot bestow substantially more powers on a province or deviate from the basic structure of governance of the province as set out in the national Constitution. 64 The constitution-making power is not a power to constitute a province with powers, functions or attributes in conﬂict with the overall constitutional framework established by the national Constitution. The provinces remain creatures of the national Constitution and cannot, through their provincial constitution- making power, alter their character or their relationship with the other levels of government. 65 When discussing the structure and functioning of provinces, we shall therefore focus on the provisions of the 1996 Constitution only. The legislative authority of each province is vested in its provincial legislature. The provincial legislature has the legislative power to pass a provincial constitution and to pass legislation for its province with regard to any matter: within a functional area listed in Schedule 4 66 within a functional area listed in Schedule 5 67 outside those functional areas and that is ‘expressly assigned’ to the province by national legislation 68 for which a provision of the Constitution ‘envisages’ the enactment of provincial legislation. 69 A provincial legislature may also assign any of its legislative powers to a municipal council in that province. 70 In addition, the legislature of a province may change the name of that province by adopting a resolution with a supporting vote of at least two-thirds of its members, requesting Parliament to change the name of that province. 71 Apart from the legislative powers set out above, the Constitution also provides that provincial legislation with regard to any matter that is reasonably necessary for, or incidental to, the eﬀective exercise of a power concerning any matter listed in Schedule 4, is for all purposes legislation with regard to a matter listed in Schedule 4. 72 The members of provincial legislatures are elected in accordance with the same electoral system that applies to the election of members of the National Assembly (NA). The size of each of the legislatures is determined in terms of a formula prescribed by national legislation relating to the population size of that province, but cannot be smaller than 30 and no larger than 80 members. 73 The Western Cape legislature’s size is determined by the Western Cape Constitution. 74 The requirements for membership of provincial legislatures, as well as the loss of membership, are identical to those prescribed for the NA. 75 Provincial legislatures are also elected for a term of ﬁve years and can be dissolved before the expiry of that term for exactly the same reasons as those that apply to the NA. 76 As we may recall, a province’s permanent delegates to the NCOP are not members of the provincial legislature. However, such permanent delegates to the NCOP may attend and may speak in their provincial legislature and its committees, but may not vote. The legislature may require a permanent delegate to attend the legislature or its committees. 77 The rules regarding the functioning of provincial legislatures also mirror those prescribed for the NA. The executive authority of a province is vested in the Premier of that province, whose role mirrors that of the President at national level. Obviously, though, Premiers do not enjoy the head of state powers bestowed on the President by section 84 of the Constitution. The Premier exercises executive authority, together with the other members of the Executive Council, by: implementing provincial legislation in the province implementing all national legislation in the functional areas listed in Schedule 4 or 5 except where the Constitution or an Act of Parliament provides otherwise administering in the province national legislation outside the functional areas listed in Schedules 4 and 5, the administration of which has been assigned to the provincial executive in terms of an Act of Parliament developing and implementing provincial policy co-ordinating the functions of the provincial administration and its departments preparing and initiating provincial legislation performing any other function assigned to the provincial executive in terms of the Constitution or an Act of Parliament. 78 Over and above the explicit powers bestowed on the Premier and his or her executive, they also enjoy any additional powers that have been bestowed on them by the national legislature. A province has executive authority in terms of those functional areas listed in Schedules 4 and 5 of the Constitution, but ‘only to the extent that the province has the administrative capacity to assume eﬀective responsibility’. 79 The Constitution enjoins the national government to assist provinces to develop the administrative capacity required for the eﬀective exercise of their powers and performance of their functions through legislative and other measures. 80 Any dispute concerning the administrative capacity of a province in regard to any function must be referred to the NCOP for resolution within 30 days of the date of the referral to the Executive Council. 81 A member of the Executive Council of a province may assign any power or function that is to be exercised or performed in terms of an Act of Parliament or a provincial Act to a municipal council. An assignment must be in terms of an agreement between the relevant Executive Council member and the municipal council. It must be consistent with the Act in terms of which the relevant power or function is exercised or performed, and it takes eﬀect on proclamation by the Premier. 82 Premiers are elected by the provincial legislature. 83 Premiers can also be removed in two ways: First, Premiers can be impeached in terms of section 130(3) of the Constitution for a serious violation of the Constitution or the law, serious misconduct or inability to perform the functions of oﬀice. Second, in terms of section 141 of the Constitution, a provincial legislature may remove a Premier for purely political reasons by instituting a motion of no conﬁdence in the Premier. PAUSE FOR REFLECTION The division and demarcation of legislative competences between the national and provincial spheres Unlike Parliament, which has plenary legislative powers, the provincial legislatures have limited legislative powers. The limited nature of the provincial legislatures’ legislative powers was highlighted by the Constitutional Court in its judgment in Premier: Limpopo Province v Speaker of the Limpopo Provincial Legislature and Others.84 The facts of this case were as follows. In 2009, the Limpopo Provincial Legislature passed the Financial Management of the Limpopo Provincial Legislature Bill, 2009. The purpose of this Bill was to regulate the ﬁnancial management of the Limpopo Provincial Legislature itself. After the Limpopo Provincial Legislature had passed this Bill, it was referred to the Premier of Limpopo for his assent and signature. The Premier, however, had reservations about the constitutional validity of the Bill and refused to assent to it. Acting in terms of section 121 of the Constitution, the Premier referred the Bill back to the Provincial Legislature and, after the Provincial Legislature had failed to address his concerns, to the Constitutional Court for a decision on its constitutional validity.85 The Premier’s reservations were based on the fact that the ﬁnancial management of a provincial legislature is not listed as a functional area in either Schedule 4 or Schedule 5 of the Constitution. This meant he argued that the Bill fell outside the Provincial Legislature’s legislative competence. The Provincial Legislature accepted that ﬁnancial management of a provincial legislature is not listed as a functional area in either Schedule 4 or Schedule 5. It argued, however, that the Bill did fall into its legislative competence because the power to pass legislation regulating the ﬁnancial management of a provincial legislature has been ‘expressly assigned’ to the provinces by the Financial Management of Parliament Act.86 In addition, the Provincial Legislature argued further, the power to pass legislation regulating the ﬁnancial management of a provincial legislature was ‘envisaged’ by sections 195, 215 and 216 the Constitution.87 Section 195 deals with the basic values and principles governing public administration. Section 215 deals with the national, provincial and municipal budgets and section 216 indicates the nature of treasury controls that must be implemented. A majority of the Constitutional Court rejected both these arguments and came to the conclusion that the Bill did not fall into the legislative competence of the Limpopo Provincial Legislature. It was, therefore, unconstitutional and invalid. In arriving at this conclusion, the Constitutional Court pointed out that the deﬁning feature of our constitutional scheme for the allocation of legislative powers between Parliament and the provinces is that the legislative powers of the provinces are enumerated and clearly deﬁned, while those of Parliament are not.88 The plenary power that resides in Parliament is therefore contrasted with the limited powers that have been given to provincial legislatures.89 An important consequence of this feature, the Constitutional Court pointed out further, is that a provincial legislature may pass legislation only on: those matters set out in Schedule 4 those matters set out in Schedule 5 those that have been ‘expressly assigned’ to the provinces by national legislation those in respect of which a provision of the Constitution ‘envisages’ the enactment of provincial legislation.90 The general scheme of the Constitution, the Constitutional Court went on to point out, was aimed at ensuring that the legislative authority of the provinces is clearly identiﬁed.91 In addition to the competences directly articulated in Schedules 4 and 5, the Constitution speciﬁcally requires that additional competences are ‘expressly assigned’ by national legislation to the provinces or are ‘envisaged’ by a provision of the Constitution.92 After setting out these principles, the Constitutional Court turned to consider whether the Financial Management of Parliament Act has expressly assigned the ﬁnancial management of a provincial legislature to the provinces. In this respect, the Constitutional Court noted that the word ‘expressly’ must be interpreted as part of the objective to ensure that provincial competences are clearly identiﬁed. This meant, the Court noted further, that the national legislation assigning the additional powers must leave no doubt of its intent and must clearly stipulate the nature and scope of the powers assigned. The reason why the national legislation assigning the additional powers must leave no doubt of its intent, the Constitutional Court went on to note, is because it will provide reasonable certainty as to the areas of competence of the provincial legislatures.93 Clarity as to the nature and extent of the power assigned will advance co- operative government which has, as one of its guiding principles, that no sphere will assume any power or function except those conferred in terms of the Constitution. This clarity, the Constitutional Court also held, would prevent disputes and inform the public as to which sphere has competence over the particular matter.94 The Court suggested that the preamble and the objectives of the enabling legislation should make the intent clear and unequivocal.95 The Court concluded that if the assignment is merely implied as opposed to express, it will fail to comply with the requirements of the Constitution regarding the assignment of legislative authority.96 Having found that the Financial Management of Parliament Act did not expressly assign the ﬁnancial management of a provincial legislature to the provinces, the Constitutional Court turned to consider whether the power to pass legislation regulating the ﬁnancial management of a provincial legislature was ‘envisaged’ by sections 195, 215 and 216 of the Constitution.97 In keeping with the theme of maximum clarity in respect of the allocation of legislative powers to the various spheres, the Constitutional Court also adopted a restrictive approach to this argument. It held that only those provisions of the Constitution which in clear, unequivocal and express terms sanctioned the enactment of provincial legislation fell under this section.98 The Constitutional Court stated that the power had to be expressly assigned and not merely implied. To do otherwise would, in the view of the Court, undermine the principle of certainty and adversely aﬀect the constitutional scheme.99 The Court identiﬁed section 155(5) of the Constitution as an example of such express assignment. This section provides that provincial legislation must determine the diﬀerent types of municipalities to be established in the province.100 On the facts, the Constitutional Court concluded that the sections of the Constitution relied on by the provincial legislature did not in clear and unmistakeable terms envisage the enactment by the provincial legislature of this law.101 In their dissenting judgments, the minority of the Constitutional Court disagreed with the manner in which the majority interpreted the word ‘envisages’. The word ‘envisages’, the minority reasoned, must mean something diﬀerent from the phrase ‘expressly assigned’.102 If they meant the same thing, the drafters of the Constitution would not have used diﬀerent words. The word ‘envisages’, the minority reasoned further, means something less than ‘expressly assigned’, but not much less.103 ‘It must appear that the relevant provisions of the Constitution read in context lead to no conclusion but that the Constitution contemplates the exercise of the power by the provincial legislature and that the Constitution could mean nothing else’.104 After setting out these principles, the minority turned to apply them to the facts and found that the power to pass legislation regulating the ﬁnancial management of a provincial legislature was ‘envisaged’ by sections 195, 215 and 216 of the Constitution.105 The case represents an attempt to have reasonable certainty in respect of the division and demarcation of legislative competences between the national and provincial spheres. The constitutional scheme vests the residual legislative powers in the national sphere and makes speciﬁed allocations to the provincial legislatures. The Court did not permit the boundaries to be blurred and insisted that the provinces can only legislate in respect of functional areas falling within Schedules 4 and 5, or if national laws clearly assign further function to the provinces, or if the Constitution expressly assigns power to the provinces to legislate on speciﬁed matters.106 8.2.3 Determining legislative competence As we have already seen, the legislative powers bestowed on Parliament overlap to some degree with the legislative powers bestowed on provincial legislatures. One of the more diﬀicult questions of South African constitutional law is the exact relationship between the legislative powers of the national Parliament in relation to the legislative powers of the provincial legislatures. There are two distinct issues at play here: First, when dealing with concurrent competences listed in Schedule 4, both the national legislature and the provincial legislatures are empowered to pass legislation on a particular topic. When both the national legislature and a provincial legislature have passed legislation on a particular concurrent competence set out in Schedule 4, both the national and the provincial legislation will have been validly passed. However, as we shall see, where there is a direct conﬂict between the provisions of national legislation and provincial legislation, the provisions of the provincial legislation will prevail unless one or more of the requirements of section 146 of the Constitution is met in which case the national legislation will prevail. 107 We shall deal with the rules relating to such clashes below. Second, usually only provincial legislatures can pass legislation dealing with one or more of the exclusive competences listed in Schedule 5. However, in exceptional cases set out in section 44(2) of the Constitution, the national Parliament may intervene and pass legislation listed in Schedule 5. We shall deal with this below. At this point it is important to note that the division of legislative authority between the national, provincial and local spheres of government imposes important federalist limits on the power of each sphere of government to legislate. At the heart of these limits lies the principle that each sphere may not adopt legislation that falls outside its legislative authority. Legislation passed by a legislature in a particular sphere, therefore, may be challenged on the ground that it does not fall into the legislature’s authority. Whenever a person challenges legislation on the ground that it does not fall into a legislature’s authority, a court will have to determine whether the legislature in question was competent to pass the legislation. There are two distinct questions that arise whenever there is uncertainty whether the legislature of one sphere of government is competent to pass legislation on a speciﬁc topic: First, there is a need to decide whether the impugned legislation deals with a topic listed in Schedule 4 or Schedule 5. Our courts have developed a special test for this which we will discuss below. Second, once we have determined whether the legislation falls within Schedule 4 or 5, we must ask whether the relevant legislature was authorised to pass the legislation as a matter of course or in terms of section 44(2) or section 146 of the Constitution. The Constitutional Court considered the manner in which a court must determine whether a piece of legislation has been competently enacted by either the national legislature or by one of the provincial parliaments (or both) in several cases, including in Ex Parte President of the Republic of South Africa: In re Constitutionality of the Liquor Bill. 108 In this case, the national legislature passed the Liquor Bill which sought to regulate comprehensively the liquor industry. The Bill divided the economic activity of the liquor industry into three categories: manufacture, distribution and retail sales. The Bill treated manufacture and distribution as national issues and retail sales as provincial issues to be dealt with by provincial liquor authorities. However, even in respect of retail sales, the Bill prescribed detailed mechanisms as to how the provincial legislatures should establish their retail licensing systems. The Western Cape government, then controlled by the New National Party, challenged the constitutionality of the Bill by arguing that it exhaustively regulated issues concerning manufacture and distribution and that even in the retail sphere, it relegated the provinces to the role of funders and administrators. Parliament contended that the Bill primarily dealt with trade, economic and social welfare issues, which are concurrent competences. The Western Cape provincial government argued that the Bill dealt with liquor licences, an exclusive competence of the province in terms of Schedule 5. The Bill, in fact, aﬀected both concurrent and exclusive provincial competencies. The Constitutional Court emphasised that under the post-apartheid constitutional developments, governmental power is not located in the national sphere alone. 109 Legislative authority is vested in Parliament for the national sphere, in the provincial legislature for the provincial sphere and in municipal councils for the local sphere. 110 Any interpretation must recognise and promote the philosophy of co-operative government at various levels. 111 However, given the breadth of the competencies listed in the various Schedules, their parameters of operation will, of necessity, overlap. 112 The Constitutional Court pointed out (as we have done above) that the Constitution allows for provincial exclusivity in respect of matters falling within Schedule 5, subject to an intervention by the central sphere that is justiﬁed in terms of section 44(2) of the Constitution. This, argued the Court, meant that the functional competencies in Schedule 4 should be interpreted as being distinct from, and excluding, Schedule 5 competencies. 113 The Court found that the primary purpose of Schedule 4 is to enable the national government to regulate various issues interprovincially (between all the provinces). 114 Conversely, the provinces, whose jurisdiction is conﬁned to their geographical territory, are accorded exclusive powers in respect of matters that may be regulated intraprovincially (exclusively within the province). 115 The main substance and character of the legislation determines the ﬁeld of competence in which it falls. A single piece of legislation may have various parts and more than one substantive character. 116 According to this reasoning, the Court concluded that the national sphere has the power to regulate the liquor trade in all respects other than liquor licensing. The manufacture and distribution segments of the legislation aﬀect interprovincial as opposed to intraprovincial competencies. 117 This would suggest that the competence of liquor licensing in Schedule 5 was not intended to encompass the manufacturing and distribution of liquor. 118 In any event, the Court was prepared to conclude that even if the provincial competence in respect of liquor licences extends to licensing, production and distribution, ‘its ( the central spheres) interest in maintaining economic unity authorises it to intervene under section 44(2) of the Constitution’. 119 However, the Court adopted a much stricter approach to the national regulation in respect of retail sales. A relatively uniform approach to liquor licensing in the country may be desirable but this did not amount to a necessity that justiﬁed an intrusion into the exclusive provincial competence. Thus, the Court deemed those aspects of the law that regulated the manufacture and distribution of liquor constitutional and the segment of the national law regulating the retail industry unconstitutional. 120 CRITICAL THINKING The substantial measure test versus the pith and substance test for Bills It is important to recall what we stated in chapter 3, namely that there is a distinction between the test to determine whether a Bill should be tagged and then passed as a section 75 Bill not aﬀecting provinces or a section 76 Bill aﬀecting provinces, and the test to determine whether a Bill deals with a concurrent competence in terms of Schedule 4 or an exclusive provincial competence in terms of Schedule 5. There is an important diﬀerence between the substantial measure test used to decide how to tag a Bill and the pith and substance test used to determine whether the subject matter of a Bill falls within Schedule 4 or Schedule 5. In terms of the pith and substance test, those provisions of a Bill that fall outside its substance are treated as incidental. In contrast, the tagging test is distinct from the question of legislative competence. It focuses on all the provisions of the Bill to determine the extent to which they substantially aﬀect functional areas listed in Schedule 4 and not on whether any of its provisions are incidental to its substance. The more it aﬀects the interests, concerns and capacities of the provinces, the more say the provinces should have on its content.121 Importantly, the Court endeavoured to remain faithful to the structure of the Constitution. Had the Court interpreted the competence of ‘trade’ very broadly, this would have provided an opportunity for the national legislature to intervene in a variety of matters that fall under Schedule 5 such as liquor licensing, control of undertakings that sell liquor, licensing and control of undertakings that sell food to the public, markets and street trading. By demarcating the boundary by reference to intra- and interprovincial activities, the Court ensured that national intervention in respect of Schedule 5 matters that apply intraprovincially must comply with section 44(2) of the Constitution. A broad interpretation of the competences listed in Schedule 4 would have ultimately negated the exclusive competence of the provinces to legislate in respect of matters listed in Schedule 5. 122 Given that subject matter or the substance of legislation determines the ﬁeld of competence in which it falls, it is important to be able to identify the subject matter or the substance of a law. The Constitutional Court discussed the manner in which this may be done in Abahlali Basemjondolo Movement SA and Another v Premier of the Province of Kwazulu-Natal and Others. 123 In this case, the applicants, an association representing residents of informal settlements, applied for an order declaring the Elimination and Prevention of the Re-emergence of Slums Act,124 which had been passed by the KZN Provincial Legislature, to be unconstitutional and invalid. They based their application on a number of grounds, one of which was that the KZN Provincial Legislature lacked the competence to pass this law. The KZN Provincial Legislature lacked the competence to pass the Act, the applicants argued, because it did not deal with housing. Housing is a functional area of concurrent national and provincial competences listed in Schedule 4. They argued that the Act dealt with land tenure and access to land which, in terms of section 25 of the Constitution, is a functional area of exclusive national competence. 125 The key question the Constitutional Court had to determine, therefore, was whether the subject matter or substance of the Act was housing, in which case it would fall into the legislative competence of the KZN Provincial Legislature, or whether it was land tenure and access to land, in which case it would not fall into the legislative competence of the KZN Provincial Legislature. When it comes to determining the subject matter or substance of a law, the Constitutional Court held that two important principles must be taken into account: First, the substance of the law does not depend on its form, but rather on the true purpose, eﬀect and essence of what the law is about. Second, no national or provincial legislative competence is watertight and it is therefore important to determine the main substance of the legislation in order to ascertain whether the provincial legislature has legislative competence. 126 After setting out these principles, the Constitutional Court applied them to the facts. In this respect, the Court held that in determining the substance of the Act it had to be considered as a whole. 127 The preamble of the Act identiﬁed the purpose of the legislation as being to eliminate and prevent the re-emergence of slums in a manner that protects and promotes the housing construction programmes of provincial and local governments. 128 The Court found that the overall strategy of the Act was to eliminate slums and to make provision for the progressive realisation of adequate housing by improving service delivery and by generally improving the conditions under which people are housed. It was not simply about eviction with no regard for the consequences of rendering people homeless. 129 The Court concluded that the Act was primarily about improving the housing conditions of those living in slums in KZN. 130 It was therefore about housing and fell within the legislative competence of the province. 131 However, the majority of the court found that section 16 of the Elimination and Prevention of the Re-emergence of Slums Act obliged owners to institute eviction proceedings when directed to do so by the MEC even if to do so would not be in accordance with the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act). 132 The majority found this to be inconsistent with section 25 of the Constitution which seeks to provide greater security of tenure to communities whose tenure is legally insecure as a result of past racially discriminatory laws. 133 Thus, a full and complete appraisal of the law is required to determine the substance of the legislation. This, in turn, assists with assessing whether the law deals with a matter that falls under Schedule 4 or 5 or within the exclusive competence of Parliament. Once this determination has been made, then clarity can be obtained as to which legislative body has competence over the matter. 8.2.4 The resolution of conﬂicts between the national and provincial spheres 8.2.4.1 Conﬂicts related to concurrent competences set out in Schedule 4 As stated earlier, both the national and provincial legislatures possess power to legislate concurrently over the functional areas contained in Schedule 4. Aﬀording concurrent legislative responsibilities over the same functional areas to diﬀerent legislatures can lead to conﬂicting laws being enacted over the same subject matter. For instance, education is a concurrent function and thus both the national and provincial legislatures have jurisdiction to pass laws in respect of this competence. Provisions of a law passed by the national legislature on education may conﬂict with provisions of a law passed by a provincial legislature on the same subject matter. It is thus imperative for the Constitution to anticipate such conﬂicts and to include provisions that seek to resolve conﬂicts between laws dealing with the same subject matter and which are passed by the diﬀerent legislatures. Section 146 of the Constitution provides a framework in terms of which these conﬂicts are to be resolved. It has been suggested that conﬂicts between central and provincial laws are dealt with by reference to the following enquiries: 134 Does the central legislature have the legislative competence to pass its law? Does the provincial legislature have the legislative competence to pass its law? If both legislatures have the legal competence to pass the laws, then the issue would be whether the diﬀerent laws can be reconciled. If there is an irreconcilable conﬂict, then the central law will prevail if the provisions of section 146 of the Constitution are satisﬁed. If the provisions of section 146 of the Constitution are not met, then the provincial law will prevail. Thus, the ﬁrst question is whether the legislative body possesses the constitutional power to legislate over the matter. If the response is that the provincial legislature, as in the case of the Premier: Limpopo, or Parliament, as in Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and Others,135 does not possess the authority to legislate, then that is the end of the enquiry. The legislative body lacking the power cannot constitutionally legislate and therefore there is no need to determine whether national law should prevail or provincial law or vice versa. It is only if both national and provincial legislatures have the power to legislate and do so that attempts must be made to reconcile the laws. If the laws cannot be reconciled, section 146 of the Constitution must then be applied to determine which law should prevail. If any one of the criteria listed in section 146 is met, the national law will prevail. 136 The provisions of section 146 can only be resorted to in respect of conﬂicting laws dealing with a functional area listed in Schedule 4. 137 Criteria permitting the central override are divided into two categories. If one of the criteria listed either in section 146(2) or 146(3) is satisﬁed, then the conﬂicting provincial law is rendered inoperative for the period of the conﬂict. 138 If, for some reason, the conﬂicting national law is repealed, the provincial law that had been rendered inoperative as a result of the application of section 146 will again be operative. All the criteria listed in section 146(2) are subject to the additional requirement that the central legislation must apply uniformly to the country as a whole. Thus, a national law that targets a particular province will not prevail in terms of section 146(2). In terms of section 146(2), central law will prevail if any one of the following three conditions is established: The central legislation deals with a matter that cannot be regulated eﬀectively by legislation enacted by the respective provinces individually. 139 The central legislation deals with a matter that, to be dealt with eﬀectively, requires uniformity across the nation, and national legislation provides that uniformity by establishing norms and standards, frameworks or national policies. 140 The central legislation is necessary for the maintenance of national security; the maintenance of economic unity; the protection of the common market in respect of the mobility of goods, services, capital and labour; the promotion of economic activities across provincial boundaries; the promotion of equal opportunities or equal access to government services; or the protection of the environment. 141 In Mashavha v President of the Republic of South Africa and Others,142 the Constitutional Court had to consider the constitutionality of the President assigning to the provinces the administration of the Social Assistance Act 143 in its entirety. In terms of the interim Constitution, the President could only assign the administration of the Act to the provinces if the provisions of section 126(3) of the interim Constitution 144 were not applicable. The Court found that the assignment was invalid as the administration dealt with a matter that could not be regulated eﬀectively by separate provincial legislation. For the administration of social welfare grants to be administered fairly and equitably, it needed to be regulated or co-ordinated by uniform norms or standards that applied throughout the Republic. 145 To achieve equity and eﬀectiveness, it was necessary to set minimum standards across the nation. 146 The primary objection of the Court was that if Gauteng, the richest province in the country, paid a higher old-age pension than Limpopo, then the dignity of people in Limpopo would be oﬀended as diﬀerent classes of citizenship would be created. 147 Thus, to prevent inequality and unfairness in the provision of social assistance to people in need, uniform norms and standards had to be applicable throughout the country. 148 In terms of section 146(3) of the Constitution, national law will prevail over provincial law if it is aimed at preventing unreasonable action by a province that is prejudicial to the economic, health or security interests of another province or the country as a whole, or impedes the implementation of national economic policy. PAUSE FOR REFLECTION When is section 146 invoked? It is important to note that conﬂicts only arise and section 146 will only be invoked when one or more of the speciﬁc legal provisions in a provincial Act cannot be obeyed at the same time as one or more of the provisions in a national Act. It is also important to remember that as both the national and provincial spheres have legislative competence over these matters, the provisions that conﬂict do not become invalid. All that happens is that section 146 is used to decide whether the provisions of the provincial Act will prevail or whether the conﬂicting provisions of the national Act will prevail. The provisions of the Act that do not prevail will remain in limbo. If the conﬂicting provisions of the Act that prevails are scrapped, the provisions of the conﬂicting Act will be ‘resurrected’, so to speak, and will again become operational. For example, if both the national Parliament and the Western Cape Provincial Parliament pass legislation dealing with the regulation of the use of blue-light brigades by politicians, both will have the legislative power to pass such legislation as Schedule 4 states that road traﬃc regulation is a concurrent competence. If there is a direct clash between the provisions of the Western Cape law and the provisions of the national law, say the national law allows all politicians to use blue-light convoys while the Western Cape law prohibits this, then a court may have to decide whether the national legislation prevails in terms of section 146 of the Constitution. If the court ﬁnds that section 146 is indeed applicable and that the provisions of the national law would prevail, the prohibition contained in the provincial law would become inoperable until such time as the national law is amended or scrapped. If the court ﬁnds that section 146 is not applicable, then the prohibition contained in the provincial law against the use of blue-light convoys by politicians will prevail, but only in the Western Cape. 8.2.4.2 Conﬂicts related to exclusive provincial competences in Schedule 5 Section 44(2) of the Constitution states that even though provincial legislatures have the exclusive powers to pass legislation on one of the functional areas listed in Schedule 5 of the Constitution, the national Parliament may nevertheless intervene in areas listed in Schedule 5, but only when it is necessary: to maintain national security to maintain economic unity to maintain essential national standards to establish minimum standards required for the rendering of services to prevent unreasonable action taken by a province which is prejudicial to the interests of another province or to the country as a whole. If Parliament does intervene and validly passes legislation on one of the functional areas listed in Schedule 5, a conﬂict may arise between national legislation and provincial legislation with respect to the matters listed in Schedule 5. A conﬂict between national legislation and provincial legislation with respect to these matters must be resolved in terms of section 147(2) of the Constitution. This section provides that national legislation referred to in section 44(2) of the Constitution prevails over provincial legislation that falls with the functional areas listed in Schedule 5. 8.3 The division of legislative and executive power between the national and provincial and local spheres of government 8.3.1 Introduction As we have already seen, an important aspect of the Constitution is that it distributes legislative and executive authority between the national, provincial and local spheres of government. In the ﬁrst part of this chapter, we discussed the division of legislative and executive authority between the national sphere of government, on the one hand, and the provincial spheres of government, on the other. In this part of the chapter, we discuss the division of legislative and executive authority between the national and provincial spheres of government, on the one hand, and the local sphere of government, on the other. Before doing so, however, it will be helpful to discuss brieﬂy the objectives and structure of local government. 8.3.2 The objectives of local government The objectives of local government are set out in section 152(1) of the Constitution. This section provides that the objectives of local government are: to provide democratic and accountable local government for local communities to ensure the provision of services to communities in a sustainable manner to promote social and economic development to promote a safe and healthy environment to encourage the involvement of communities and community organisations in the matters of local government. In addition, section 153 of the Constitution also provides that a municipality must: structure and manage its administration and budgeting and planning processes to give priority to the basic needs of the community structure and manage its administration and budgeting and planning processes to promote the social and economic development of the community participate in national and provincial development programmes. Despite the fact that these sections impose a wide range of obligations on local government, the Constitutional Court held in Joseph and Others v City of Johannesburg and Others that one of the most important objectives of local government is to meet the basic needs of all of the inhabitants of South Africa. 149 To achieve this objective, the Constitutional Court held further that sections 152 and 153 of the Constitution, read together with the Local Government: Municipal Systems Act,150 impose an obligation on every municipality to provide basic municipal services to their inhabitants, such as water and electricity, irrespective of whether or not they entered in a contract for the supply of these services with the municipality. 151 PAUSE FOR REFLECTION Municipalities derive their power from the Constitution The constitutional status of local government today is radically diﬀerent from what it was prior to the transition to democracy in 1994. Prior to 1994, municipalities were at the bottom of a hierarchy of law-making powers. This is because they derived their existence and their powers from provincial ordinances which, in turn, derived their existence and powers from Acts of Parliament. An important consequence of this fact is that municipalities were not recognised or protected by the pre-1994 Constitution. Instead, they were classiﬁed as mere administrative agencies exercising delegated or subordinate powers. The institution of elected local government could, therefore, have been terminated at any time and its functions entrusted to administrators appointed by the central or provincial governments. Today, however, as the Constitutional Court pointed out in City of Cape Town and Other v Robertson and Other,152 the Constitution has moved away from this hierarchical division of governmental power. It has ushered in a new vision of government in which the sphere of local government is interdependent, ‘inviolable and possesses the constitutional latitude within which to deﬁne and express its unique character’ subject to constraints permissible under our Constitution.153 This means, the Constitutional Court pointed out further, that: [a] municipality under the Constitution is not a mere creature of statute otherwise moribund save if imbued with power by provincial or national legislation. A municipality enjoys ‘original’ and constitutionally entrenched powers, functions, rights and duties that may be qualiﬁed or constrained by law and only to the extent the Constitution permits. Now the conduct of a municipality is not always invalid only for the reason that no legislation authorises it. Its power may derive from the Constitution or from legislation of a competent authority or from its own laws.154 8.3.3 The structure of local government Section 155 of the Constitution distinguishes between three diﬀerent categories of municipalities, namely category A municipalities, category B municipalities and category C municipalities: A category A municipality has exclusive municipal executive and legislative authority in its area and is referred to as a metropolitan municipality in section 1 of the Local Government: Municipal Structures Act. 155 A category B municipality shares its municipal executive and legislative authority in its area with a category C municipality and is referred to as a local municipality in section 1 of the Municipal Structures Act. A category C municipality has municipal executive and legislative authority in an area which includes more than one municipality and is referred to as a district municipality in section 1 of the Municipal Structures Act. Apart from distinguishing between category A (metropolitan), category B (local) and category C (district) municipalities, section 155 of the Constitution also provides that national legislation must establish the criteria for determining when an area should have a single category A municipality or when it should have municipalities of both category B and category C. The national legislation referred to in this section is the Municipal Structures Act. Section 2 of this Act provides that metropolitan municipalities must be established in metropolitan areas, and section 3 provides that local and district municipalities must be established in all other areas. A metropolitan area is deﬁned in section 1 of the Municipal Structures Act as any area which reasonably can be regarded as a conurbation featuring areas of high population density, intense movement of people, goods and services, extensive development, multiple business districts and a number of industrial areas. In addition, the social and economic linkages between the constituent units should be strong. 156 The power to determine whether an area satisﬁes criteria and should therefore be classiﬁed as a metropolitan area with a metropolitan municipality is vested in an independent body known as the Municipal Demarcation Board. The Municipal Demarcation Board is responsible for determining and re-determining the boundaries of municipalities. Its powers and functions as well as the procedure it must follow when it exercises it powers and carries out its functions are set out in the Local Government: Municipal Demarcation Act. 157 PAUSE FOR REFLECTION Why an independent authority must carry out the task of determining municipal boundaries Section 155(3)(b) of the Constitution declares that national legislation must establish criteria and procedures for the determination of municipal boundaries by an independent authority. The independent authority referred to in this section is the Municipal Demarcation Board. The Constitutional Court highlighted the reasons why an independent authority must carry out the task of determining municipal boundaries in its judgment in Matatiele Municipality and Others v President of the Republic of South Africa and Others.158 In 2005, Parliament passed the Constitution Twelfth Amendment Act and the Cross-Boundary Municipalities Laws Repeal and Related Matters Act. 159 In terms of these laws, the boundary between KwaZulu-Natal and the Eastern Cape was altered so that the area in which the Matatiele Municipality was located was transferred from KwaZulu-Natal to the Eastern Cape and new municipal boundaries were created. The applicants then applied for an order declaring the Constitution Twelfth Amendment Act to be unconstitutional and invalid on the grounds that it violated section 155(3)(b) of the Constitution. They argued that the new boundaries of the Matatiele Municipality had been determined by Parliament and not by an independent authority, namely the Municipal Demarcation Board. The Constitutional Court rejected this argument and refused to grant the order. In arriving at this decision, however, it set out some of the reasons why section 155(3)(b) of the Constitution provides that the Municipal Demarcation Board must be an independent body. In this respect, the Constitutional Court pointed out that the ‘purpose of section 155(3)(b) is to guard against political interference in the process of creating new municipalities’,160 This is because, the Constitutional Court pointed out further, if municipalities were established along political lines or if there was political interference in the establishment of new municipalities, our system of multiparty democratic government would be undermined.161 A deliberate decision, the Constitutional Court went on to conclude, was therefore made to confer the power to establish municipal areas on an independent authority.162 The diﬀerent types of municipalities that may be established within each category of municipality are also set out in the Municipal Structures Act. The Act begins in this respect by distinguishing between three ‘executive systems’ of municipal government and two ‘participatory systems’. 163 The three executive systems are the collective executive system, the mayoral executive system and the plenary executive system: A collective executive system is one in which the executive authority of the municipality is exercised by an executive committee. In this system, the leadership of the municipality is therefore collectively vested in the executive committee. A mayoral executive system is one in which the executive authority of the municipality is exercised by an executive mayor assisted by a mayoral committee. In this system, the leadership of the municipality is vested in an executive mayor. A plenary executive committee is one in which executive authority is exercised by the municipal council itself. In this system, the leadership of the municipality is vested in the municipal council. The two participatory systems are the subcouncil participatory system and the ward participatory system: A subcouncil participatory system is one which allows for delegated powers to be exercised by subcouncils established for parts of the municipality. A ward participatory system is one which allows for matters of local concern to wards to be dealt with by committees established for wards. After distinguishing between these diﬀerent systems of municipal government, the Municipal Structures Act goes on to provide that: a metropolitan council must have either a collective or mayoral executive system and may combine its executive system with a subcouncil participatory system or a ward participatory system or both 164 a local council may have a collective, mayoral or plenary executive system and may combine its executive system with a ward participatory system but not with a subcouncil participatory system 165 a district council may have a collective, mayoral or plenary executive system but may not combine its executive system with a subcouncil or ward participatory system. 166 The articulation of the type of municipality is important to determine three issues: ﬁrst, the institutional relationship between the municipality’s executive and legislative functions second, whether a metropolitan or local municipality is permitted to establish ward committees third, whether a metropolitan municipality is permitted to establish subcouncils that exercise delegated powers for parts of the municipality. Finally, it is important to note that section 155 of the Constitution also provides that national legislation must make provision for an appropriate division of powers and functions between local and district municipalities. A division of powers and functions between a local and a district municipality, however, does not have to be symmetrical, but must constantly ensure that the need to provide municipal services in an equitable and sustainable manner is being upheld. 167 The national legislation referred to in this section is the Municipal Structures Act. 8.3.4 Municipal powers As we have already seen, municipalities are no longer simply creatures of statute. Instead, they derive at least some of their executive and legislative powers directly from the Constitution itself. 168 The executive and legislative powers of a municipality are set out in section 156 of the Constitution. This section provides that a municipality has executive authority in respect of and has the right to administer: the local government matters listed in Part B of Schedule 4 and Part B of Schedule 5 169 any other matter assigned to it by national or provincial legislation. 170 In addition, section 156 of the Constitution also provides that a municipality may make and administer by-laws for the eﬀective administration of the matters which it has the right to administer. 171 A careful examination of this section shows that it distinguishes between two types of powers: those powers that are derived directly from the Constitution and that may be referred to as original powers those powers that are assigned to municipalities in terms of national or provincial legislation and that may be referred to as assigned powers. Apart from those powers that are derived directly from the Constitution or that are assigned to it in terms of national or provincial legislation, section 156(5) of the Constitution also provides that a municipality has the right to exercise any power concerning a matter reasonably necessary for, or incidental to, the eﬀective performance of its functions. 172 8.3.4.1 Original municipal powers Section 156(1)(a) of the Constitution provides that a municipality has executive and legislative authority in respect of the local government matters listed in Part B of Schedule 4 and in Part B of Schedule 5. In addition, section 156(5) of the Constitution also provides that a municipality has the right to exercise any power concerning a matter reasonably necessary for or incidental to the eﬀective performance of its Schedule 4 Part B and Schedule 5 Part B functions. Given that these powers can only be altered or withdrawn if the Constitution itself is amended, they form the most signiﬁcant source of municipal powers and are a fundamental feature of local government’s institutional integrity. 173 PAUSE FOR REFLECTION Using the bottom-up method to determine the scope and ambit of the matters set out in Schedule 4 and Schedule 5 In both the Liquor Bill case and in City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others,174 the Constitutional Court held that the scope and ambit of the matters set out in Schedule 4 and Schedule 5 of the Constitution must be interpreted in light of the model of government adopted by the Constitution and the manner in which the Constitution allocates power to the diﬀerent spheres of government. Besides these principles, the Constitutional Court also held in Gauteng Development Tribunal that where two or more matters appear to overlap with each other, they should be interpreted in a bottom-up manner.175 A bottom-up method of interpretation is one in which the more speciﬁc matter is deﬁned ﬁrst and all residual areas are left for the much broader matter.176 In the Gauteng Development Tribunal case, for example, one of the key questions the Constitutional Court had to answer was whether the power to approve applications for the rezoning of land and the establishment of townships fell into the broad matter of urban and rural development, which is listed in Schedule 4A, or into the speciﬁc matter of municipal planning, which is listed in Schedule 4B. In accordance with the bottom-up method of interpretation, the Constitutional Court began its analysis, not with an examination of the scope and ambit of the broad matter of urban and rural development, but rather with an examination of the scope and ambit of the speciﬁc matter of municipal planning. In so far as the scope and ambit of municipal planning was concerned, the Constitutional Court began by noting that although the term is not deﬁned in the Constitution, it has a particular and well known meaning, which includes the zoning of land and the establishment of townships.177 In addition, the Constitutional Court noted further, there is nothing in the Constitution which indicates that the term ‘municipal planning’ should be given a meaning which is diﬀerent from its common meaning.178 The power to approve applications for the rezoning of land and the establishment of townships did, therefore, fall into the area of municipal planning listed in Schedule 4B.179 After coming to this conclusion, the Constitutional Court turned to consider whether the same powers also fell into the broad matter of urban and rural development. The Court held that they did not. In arriving at this conclusion, the Constitutional Court began by noting that the term ‘urban and rural development’ could not be interpreted in a way that included the power to approve applications for the rezoning of land and the establishment of townships. This is because, the Constitutional Court noted further, such an interpretation would infringe the principles of co-operative government which provide that each sphere of government must respect the functions of the other spheres and must not assume any functions or powers not conferred on them by the Constitution or encroach on the functional integrity of the other spheres.180 An important consequence of this approach, the Court went on to note, was that the term ‘urban and rural development’ should be interpreted narrowly so that each sphere of government could exercise its powers without interference by another sphere of government.181 Having found that the term ‘urban and rural development’ was not broad enough to include the powers that form a part of municipal planning, the Constitutional Court then concluded that it was not necessary to go any further and deﬁne exactly what the scope of the functional area of urban and rural development was.182 The Constitution confers the authority on municipalities to pass laws in respect of the matters listed in Part B of Schedule 4 and Part B of Schedule 5. However, it is important to note that the authority to pass laws on the matters listed in Schedule 4B and Schedule 5B has also been conferred on the national 183 and provincial governments. 184 The authority conferred on the national and provincial governments to pass laws on the matters listed in Schedule 4B, however, is limited by section 155(6)(a) and 155(7) of the Constitution. 185 The authority conferred on the provincial governments to pass laws on the matters listed in Schedule 5B is limited by section 155(6)(a) and 155(7) of the Constitution. 186 Section 155(6)(a) of the Constitution provides in this respect that ‘[e]ach provincial government … by legislative and other measures, must provide for the monitoring and support of local government in the province’. Section 155(7) of the Constitution provides that: [t]he national government, subject to section 44, and the provincial governments have the legislative and executive authority to see to the eﬀective performance by municipalities of their functions in respect of matters listed in Schedule 4 and 5, by regulating the exercise by municipalities of their executive authority referred to in section 156(1). In the Gauteng Development Tribunal case, the Constitutional Court held that an important consequence of section 155(7) of the Constitution is that neither the national nor the provincial spheres of government can, by legislation, give themselves the power to exercise executive municipal powers or the right to administer municipal aﬀairs. 187 This is because, the Constitutional Court held further, the mandate of these two spheres is ordinarily limited to regulating the exercise of executive municipal powers and the administration of municipal aﬀairs by municipalities. 188 In other words, while the national and provincial spheres of government are entitled to pass laws regulating the local government matters set out in Schedule 4B and Schedule 5B, they are not entitled to pass laws giving themselves the power to administer or implement those laws. The municipalities themselves must exercise the power to administer or implement those laws. 8.3.4.2 Assigned municipal powers Sections 44(1)(a)(iii) and 104(1)(c) of the Constitution provide that both the national and provincial governments may increase the legislative powers of speciﬁc municipalities or municipalities in general by assigning any of their legislative powers to a speciﬁc municipality or to municipalities in general. Apart from sections 44(1)(a)(iii) and 104(1)(c), sections 99 and 126 of the Constitution provide that a national or provincial Minister may increase the executive powers of a speciﬁc municipality by assigning their executive powers to the municipal council of that municipality. The assignment must, however, be consistent with the Act in terms of which the relevant power is exercised or performed. 189 Finally, it is also important to note that section 156(4) of the Constitution provides that the national and provincial governments must assign the administration of a matter listed in Part A of Schedule 4 or Part A of Schedule 5 to a municipal council if certain conditions are met. These conditions are as follows: First, the matter necessarily relates to local government. Second, the matter would most eﬀectively be administered locally. Third, the municipality has the capacity to administer the matter. Fourth, the municipal council agrees to the assignment. A key diﬀerence between section 156(4) of the Constitution and sections 99 and 126 is that while section 156(4) is mandatory, sections 99 and 126 are discretionary. Section 156(4) thus reinforces the principle of subsidiarity, which requires that the exercise of public power takes place at a level as close as possible to the citizenry. PAUSE FOR REFLECTION The assignment of legislative and executive powers It is not entirely clear how section 156(4) of the Constitution relates to the assignment of legislative powers in terms of sections 44(1)(a)(iii) and 104(1)(c) and the assignment of executive powers in terms of sections 99 and 126. On the one hand, it may be argued that section 156(4) of the Constitution is an additional basis for the assignment of both legislative and executive powers to a municipality. This is because it refers to the national and provincial ‘governments’ and not simply the national and provincial legislatures. On the other hand, it may be argued that section 156(4) of the Constitution simply sets out the circumstances under which the assignment of executive powers in terms of sections 99 and 126 becomes compulsory. This is because it refers to the assignment of the ‘administration’ of the matters listed in Schedules 4A and 5A in terms of an ‘agreement’ to a ‘speciﬁc municipality’. Steytler and De Visser argue that the terms ‘administration’, ‘agreement’ and ‘speciﬁc municipality’ in section 156(4) of the Constitution all point towards assignments that have their basis in sections 99 and 126 of the Constitution. This means, they argue further, that section 156(4) is not an additional basis for assignment, but rather a principle that sets out the circumstances under which an assignment of executive powers in terms of section 99 or 126 becomes compulsory.190 An assigning agent may set the parameters for the exercise of the assigned authority in the legislative act of assignment. The assignment is intended to be a complete transfer of the function and it entails the ﬁnal decision-making power in individual matters. Accordingly, the assignment must conform to the requirements of section 151(4) of the Constitution. The assignment of powers and functions to municipalities by legislation or by an executive act or by agreement is regulated by the Local Government: Municipal Systems Act. 8.3.4.3 Incidental municipal powers Section 156(5) of the Constitution provides that a municipality has the right to exercise any power concerning a matter that is reasonably necessary for or incidental to the eﬀective performance of its functions. This power is sometimes referred to as the incidental power. The incidental power refers to those powers that strictly speaking fall outside the matters over which a municipality has legislative and executive authority, but are so closely connected to the eﬀective performance of its functions that they are considered to be a part of the matters over which a municipality has authority. While they are not intended to create new functional areas of legislative and executive authority, the incidental powers do broaden a municipality’s existing functional areas of legislative and executive authority. PAUSE FOR REFLECTION Determining the subject matter of a law The matters over which a municipality has legislative and executive authority may be divided into three categories: ﬁrst, those set out in Schedules 4B and 5B of the Constitution second, those that have been assigned to a municipality by the national or provincial government third, those that are reasonably necessary for or incidental to the eﬀective performance of its functions. As the judgment in Le Sueur and Another v Ethekwini Municipality and Others191 illustrates, a municipality may base its power to pass legislation on a particular subject matter on any one or all three of these categories. The facts of this case were

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