Co-operative government and intergovernmental relations ...



|UNION INTERPARLEMENTAIRE |[pic] |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 Others[1]. There Jafta J said at para 55:

“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 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 concerned[2].

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 establishment of townships constitutes local government affairs over which municipalities have 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.

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

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]

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 by-laws, 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]

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.

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.

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[1] Citation omitted

[2] See section 41(3)

[3] At para 14

[4] At para 42

[5] At para 45

[6] At para 50

[7] At para 57

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