PBL 210 Exam - Basic Principles of SA's Co-operative Government PDF

PBL 210: EXAM THEME 9: BASIC PRINCIPLES OF SA’S CO-OPERATIVE GOVERNMENT ________________________________________  Pre-27 April 1994, there were 2 dogmatic viewpoints: (1) Centralist: argued that provincial + local government should be totally subordinate to national government, with limited power....

PBL 210: EXAM THEME 9: BASIC PRINCIPLES OF SA’S CO-OPERATIVE GOVERNMENT ________________________________________  Pre-27 April 1994, there were 2 dogmatic viewpoints: (1) Centralist: argued that provincial + local government should be totally subordinate to national government, with limited power. (2) Federalist: argued that each level of government should be allocated specific + entrenched powers + functions. Limitations of such powers should be nullified/invalidated ito Constitution.  Post-27 April 1994, pragmatism replaced dogmatic viewpoints.  Constitution of Republic of South Africa, 1996:  SA’s system provides for a co-operative government.  Allows for federal government.  Aim of co-operative government:  Emphasise + facilitate inter-governmental relations.  Foster co-operation + co-ordination between all levels of government.  Prevent non-competitive political conduct.  Constitution now entrenches co-operative government in S40 + S41 of Constitution.  In Fedsure Life Assurance v Greater Johannesburg TMC, court confirmed that Interim Constitution recognised + provided for 3 levels of government (national, provincial, local) and that all levels of government derived their power from Interim Constitution. - CHRISTELLE SAMONS PBL 210: EXAM DEVELOPMENT OF CONCEPT OF CO-OPERATIVE GOVERNMENT:  States often have internal conflict between spheres, especially in federation.  2 models of federalism: (1) Divided model:  2 separate political institutions who interact through negotiations.  Clear division of power + functions.  No formal mechanisms of co-operation.  Provincial interests not represented at national level. (2) Integrated model:  Aims at integrating + coordinating spheres.  Provides for exclusive + concurrent powers.  Proper division of state revenues.  Specific procedures of co-operation with one another.  There is provincial participation at national sphere. BECAUSE OF THE CONSTITUTION, 1996, SA CAN BE SEEN AS INTEGRATED MODEL OF FEDERALISM: a) b) c) d) e) Chapter 3 of Constitution provides for co-operative government. Constitution refers to “spheres” instead of “levels”. Schedule 4 + 5 provides for concurrent + executive powers. S 228 of Constitution limits provincial taxes. S 41 of Constitution provides for inter-governmental relations.     Provincial interest is represented at national level by NCoP. In SA, all spheres must co-operate horizontally + vertically. Co-operative government will benefit because political tension is reduced. First Certification Judgment:  Court stated that inter-governmental co-operation was implicit in any system where powers had been allocated concurrently to different levels of government and that it was consistent with the requirements of Constitutional Principle XX that national unity be recognised and promoted.  Also held that S41(1) and (4), which provided that different spheres of government should avoid legal proceedings against one another, was consistent with system of co-operative governance.  Western Cape Provincial Government: In re: DVB Behuising (Pty) Ltd v North West Provincial Government:  Functional areas of concurrent legislative authority had to be interpreted in a manner which would enable national parliament + provincial legislatures to exercise their respective legislative powers fully + effectively. - CHRISTELLE SAMONS PBL 210: EXAM  Constitutional provisions mentioned above make it clear that all spheres of government are constitutionally obliged to assist one another.  Constitution states that all spheres are entitled to share in national income and Parliament must ensure that lower spheres of government are able to provide basic services to people + to perform the functions that are allocated to them.  IEC v Langeberg Municipality:  Was held that IEC is not an organ of state in national sphere.  Thus, dispute between local authority and IEC could therefore not be classified as an inter-governmental dispute. - CHRISTELLE SAMONS PBL 210: EXAM INTRODUCTION TO THEME 10-14 ________________________________________ Chapter 1: Founding Provisions  Section 1: Republic of South Africa  RSA = one sovereign, democratic state founded on following values: (i) Human dignity, achievement of equality + advancement of human rights + freedoms. (ii) Non-racialism and non-sexism (iii) Supremacy of constitution + rule of law (iv) Universal adult suffrage, national common voters roll, regular elections…  Section 2: Supremacy of Constitution  Constitution = supreme law of the land and any law or conduct inconsistent with it = invalid Separation of Powers (SoP)  Divided into 4 principles: (1) Trias politica: Formal distinction between legislative, executive and judicial state power. (2) Separation of functions: legislative, executive and judiciary must exercise only those powers + functions that have been conferred upon it. (3) Separation of personnel: legislative, executive and judiciary must be staffed with different officials + employees. (4) Check and balances: each branch of state must keep check on the exercise of functions by the others.  SoP in Constitution:  Constitutional Principle VI in Interim Constitution required Constitution to incorporate system of SoP.  Purpose was to uphold + safeguard important democratic values + norms: (i) Accountability (ii) Responsiveness (iii) Openness  There is no universal model of SoP.  No explicit reference or mention of SoP in Constitution - CHRISTELLE SAMONS PBL 210: EXAM  SoP must be read against structure of the Constitution, which makes provision for SoP ito its institutional and substantive arrangements. Chapter 4: Parliament  S 42(1): Parliament consists of: (a) National Assembly (NA) (b) National Council of Provinces (NCoP)  Function of NA:  NA is elected to represent people + to ensure government by the people under the Constitution.  NA does this by choosing President, providing national forum for public consideration of issues, by passing legislation and by scrutinizing + overseeing executive action. Chapter 5: President + National Executive  S 86: Election of President (1) @ first sitting after election, and whenever necessary to fill a vacancy, NA must elect women/man from among its members to be President. (2) Chief Justice must preside over election of president or designate another judgement to do so. Procedure set out in Part A of Schedule 3 applies to election of president. (3) Election to fill a vacancy in office of President must be held at a time + on date determined by Chief Justice, but not more than 30 days after vacancy occurs.  S 87: Assumption of office by President  When electing President, a person ceases to be a member of NA and, within 5 days, must assume office by swearing or affirming faithfulness to the Republic + obedience to Constitution, in accordance with Schedule 2.  President = head of state + head of national executive (s. 83) and has powers + functions as entrusted by Constitution (s. 84)  S 91: Cabinet (executive) 3) The President a) Must select the Deputy President from among the members of the NA. b) May select any number of Ministers from among members of NA. c) May select no more than 2 Ministers from outside NA. - CHRISTELLE SAMONS PBL 210: EXAM  S 92: Accountability + responsibilities (executive) 2) Members of Cabinet are accountable collectively and individually to Parliament for the exercise of their powers + performance of their functions. 3) Members of Cabinet must: a) Act in accordance with Constitution b) Provide Parliament with full + regular reports concerning matters under their control.  S 55: Powers of NA (parliament) 2) NA must provide for mechanisms a) to ensure that all executive organs of state in national sphere of government are accountable to it; and b) to maintain oversight of (i) the exercise of national executive authority, including the implementation of legislation (ii) and any organ of state Executive and legislative:  there is an overlap between legislature and executive.  Apart from President and 2 Ministers from outside of the NA, all members of Cabinet are members of NA.  Constitutional Principle IV:  Provides for “checks and balances”.  Promotes “efficiency and accountability”.  Executive is under scrutiny of Parliament (ss. 92(2) & 55(2))  NA has “ultimate checking power” (power to remove or recall the executive) (s. 102 & “Motions of no confidence”)  Political power = where NA can remove President by way of 2/3 majority vote, if President is found to have violated the Constitution or the law, engaged in serious misconduct, or found to be no longer able to perform his functions of office. - CHRISTELLE SAMONS