UNION INTERPARLEMENTAIRE
INTER-PARLIAMENTARY UNION
Association of Secretaries General of Parliaments
COMMUNICATION
from
MR M. E. PHINDELA
Secretary to the National Council of Provinces of South Africa
on
The South African system of co-operative government and
intergovernmental relations: an analysis
Session
Kampala 2012
The nature of the spheres of government
Section 40 of the Constitution constitutes government in the
Republic as national, provincial and local spheres. These spheres,
although
distinct,
are
interdependent
and
interrelated.
The
Constitution does not specifically define these phrases. Their
meaning may however be gleaned from the constitutional scheme.
The spheres are distinct in the sense that they are assigned
different
powers,
interdependent
because,
national
sphere
is
required to assist the provincial sphere in the event that the latter,
due to lack of capacity and resources, is unable to carry out its own
obligation. The provincial sphere is in the same manner required to
assist the local sphere.
Lastly, they are interrelated in the sense
that they must co-exist.
To
reinforce
the
distinct
nature
of
the
three
spheres,
the
Constitution assigns to them (spheres) functions peculiar to each.
These are referred to in Schedule 5 as functional areas of exclusive
legislative
competence.
On
the
other
hand,
to
ensure
the
interdependence of the spheres, the Constitution in Schedule 4
provides for what is referred to as functional areas of concurrent
legislative competence. Co-operation rather than competition is a
golden thread that runs through the constitutional scheme that
underlies the spheres of government.
The Constitutional Court had an opportunity to define the distinctive
nature of the spheres of government in The City of Johannesburg
Metropolitan Municipality v Gauteng Development Tribunal and
Others1. There Jafta J said at para 55:
1
Citation omitted
2
Adv Phindela
Secretary to the NCOP
“It is, however, true that the functional areas allocated to the
various spheres of government are not contained in hermetically
sealed compartments. But that notwithstanding, they remain
distinct from one another. This is the position even in respect of
functional areas that share the same wording like roads, planning,
sport and others. Distinctiveness lies in the level at which a
particular power is exercised. For example, the provinces exercise
powers relating to “provincial roads” whereas municipalities have
authority over “municipal roads”. The prefix attached to each
functional area identifies the sphere to which it belongs and
distinguishes it from the functional areas allocated to the other
sphere. [T]he functional area of “provincial roads” does not include
“municipal roads”. “[P]rovincial planning” and “regional planning”
do not include “municipal planning”.”
The difference between co-operative government and
intergovernmental relations (the principles)
To give effect to the provisions of section 40, the Constitution in
section 41 outlines the principles of co-operative government and
intergovernmental relations.
Whereas the Constitution compels the spheres of government to
maintain their distinctive nature in the exercise of their powers, it at
the same time enjoins them to co-operate (rather than to compete)
in their operations.
Although the Constitution does not define these concepts it is clear
that it is within the distinct, interdependent and interrelated nature
3
Adv Phindela
Secretary to the NCOP
of the spheres of government that the principles of co-operative
government and intergovernmental relations find expression.
The fact that these two different concepts are used in a single
sentence results in them, in most instances, being conflated and
sometimes used interchangeably as if one means the other.
That the two are different appears clearly from the wording of the
Constitution. A simple reading of section 41(1) transports one to the
destination that principles (a) – (d) re-emphasise the indivisibility of
the Republic; principles (e) – (g) apply to intergovernmental
relations; and (h) to co-operative government.
Dispute resolution between the spheres
An intergovernmental dispute arises where an organ in one sphere
alleges that the other has usurped the powers of the other in a
different sphere, e.g. where an organ in a national sphere alleges
that an organ in a provincial sphere has legislated on a matter of
national competence. The case of City of Johannesburg Metropolitan
Municipality referred to above clearly demonstrates this point.
Section 41(3) discourages the organs to approach the courts before
attempting to resolve the dispute first. It compels organs of state to
take all reasonable steps and to exhaust all other remedies before
approaching a court to resolve the dispute. Failure to do so will
result in a court referring the dispute back to the organs
concerned2.
2
See section 41(3)
4
Adv Phindela
Secretary to the NCOP
Application of the principles
The case of City of Johannesburg Metropolitan Municipality clearly
demonstrates the application of the principles of co-operative
government and intergovernmental relations. The facts were briefly
as follows. The City of Johannesburg Metropolitan Municipality (the
Municipality) challenged the constitutional validity of section 33 of
the Development Facilitation Act 67 of 1995 (the Act). The Act
authorised the Gauteng Development Tribunal (the Tribunal),
established in terms of the Act, to determine applications for the
rezoning of land and establishment of townships. The Tribunals is
an organ of provincial government.
The Municipality’s case was that the power to approve the rezoning
of
land
and
government
establishment
affairs
over
of
which
townships
constitutes
municipalities
have
local
exclusive
authority. Alternatively, that the said powers fell within the
functional area of “municipal planning” which is the competence of
local government within the meaning of section 156(1) of the
Constitution read with Part B of Schedule 4.3 This contention is
predicated on the principles of intergovernmental relations.
The Municipality further sought to have the decision of the Tribunal
to rezone certain properties and establish townships reviewed.
According to the Municipality the Tribunal had no power to
determine the applications for rezoning and establishment of the
townships. The Tribunal argued that whereas it had powers to
rezone land and to establish townships arrogated to it by the Act, in
doing so, it was not bound to consider the integrated plan and
associated planning instruments of the Municipality.
3
At para 14
5
Adv Phindela
Secretary to the NCOP
Having failed to resolve the dispute, pursuant to section 41(3) of
the Constitution the parties approached the High Court.
Proceedings in the High Court
In the High Court the Municipality’s challenge failed. The High Court
held
that
the
powers
to
rezone
land
and
to
approve
the
establishment of townships fell outside the functional area of
municipal planning. Further, that those powers formed part of
“urban and rural development”, which fell outside the functional
area of municipalities’ executive authority. Consequently these
powers could not be exercised by the Municipality.
The High Court further found that the Tribunal might have erred in
holding that in determining the applications for rezoning and
establishing the townships it was not bound by the Municipality’s
integrated plan and associated planning instruments.
Proceedings in the Supreme Court of Appeal
6
Adv Phindela
Secretary to the NCOP
Aggrieved by the finding of the High Court, the Municipality
appealed to the Supreme Court of Appeal. The Supreme Court of
Appeal overturned the decision of the High Court. It held that
“municipal planning” falls within the functional area of competence
of the local sphere of government and may not be assigned by an
Act of Parliament to another sphere of government. To the extent
that it conferred this competence on the Tribunal, a provincial
organ,
the
Act
was
inconsistent
with
the
principles
of
intergovernmental relations and therefore Constitution. Simply put,
the provincial sphere had usurped the powers of the local sphere of
government.
Because the Supreme Court of Appeal had declared the provisions
of the provincial Act constitutionally invalid, it referred its order to
the Constitutional Court (the Court) for confirmation. In terms of
section 172(2)(a) of the Constitution an order of constitutional
invalidity has no force and effect unless it is confirmed by the
Constitutional Court.
Proceeding in the Constitutional Court
Jafta J, writing for a unanimous Court, couched the question to be
decided in the following terms:
“The question that needs consideration is whether, by conferring
powers concerned on development tribunals, these chapters [V and
VI of the Act] are consistent with the provisions of the Constitution
regulating the allocation of powers and functions to municipalities.”4
4
At para 42
7
Adv Phindela
Secretary to the NCOP
Contextualising the circumstance under which one sphere of
government may exercise powers arrogated to another, Jafta J said
at para 44:
“The scope of intervention by one sphere in the affairs of another is
highly circumscribed. The national and provincial spheres are
permitted
by
sections
100
and
139
[respectively]
of
the
Constitution to undertake interventions to assume control over the
affairs of another sphere or to perform the functions of another
sphere under certain well-defined circumstances, . . . Suffice it now
to say that the national and provincial spheres are not entitled to
usurp the functions of municipal sphere except in exceptional
circumstances, but only temporarily and in compliance with strict
procedures. This is the constitutional scheme in the context of
which powers conferred on each sphere must be construed.”
According to Jafta J the fact that the Constitution allocates to
municipalities original powers clearly indicates that they are not a
sphere subordinate to either national or provincial sphere. Their bylaws, although required to be consistent with the Constitution, can
no longer be regarded as subordinate legislation in a classical
sense.5
The purpose of Schedules 4 and 5 of the Constitution is to itemise
the powers and functions allocated to each sphere of government.
Accordingly this autonomy cannot be achieved if the functional
areas itemised are construed in a manner that fails to give effect to
the constitutional vision of distinct spheres of government.6
5
6
At para 45
At para 50
8
Adv Phindela
Secretary to the NCOP
Jafta J concluded that barring functional areas of concurrent
competence (Schedule 4), each sphere is allocated separate and
distinct powers which it alone is entitled to exercise. Sections 100
and 139 interventions constitute an exception to the principles of
relative and limited autonomy of spheres of government.7
Conclusion
It
is
clear
from
the
afore-going
that
although
distinctive,
interdependent and interrelated, the spheres of government are not
autonomous. Each exercises powers to the extent conferred by the
Constitution. The Constitution enjoins co-operation rather than
competition. The spheres are required to co-operate with each other
on matters of common interest. This entails planning together on
matters of concurrent competence referred to in Schedule 4 of the
Constitution.
At the same time the spheres are prohibited from
intervening in each other’s affairs except in circumstances referred
to in sections 100 and 139 of the Constitution which authorise
national government and provincial government to intervene in
provincial and local governments affairs respectively.
To ensure that the courts are not necessary drawn into matters of
governance and policy-making , the Constitution contains what one
may refer to as a dispute resolution mechanism which compels the
spheres involved in a dispute to take all reasonable measures to
resolve the dispute before approaching the courts. A court is
compelled to refer the matter back if it is not persuaded that the
warring
spheres
exhausted
internal
remedies
before
seeking
assistance from other arms of the state.
7
At para 57
9
Adv Phindela
Secretary to the NCOP
Despite the constitution of government in the manner referred to
above, South Africa is often defined as a unitary state with federal
characteristics. The principles of co-operative government and
intergovernmental relations forcefully bring this point home.
10
Adv Phindela
Secretary to the NCOP