4 Provincial Government - Centre for Human Rights · 4 Provincial Government ... Separation of powers limitations ... Executive Council would be a delegation of more powers than the

4 Provincial GovernmentMatthew Chaskalson

Jonathan Klaaren

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4.1 Provincial legislative authority under the interim Constitution . . . . . . . . 4--1(a) General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4--1(b) Territorial limitations on provincial legislative authority . . . . . . . . . 4--1

(i) The territory of a province . . . . . . . . . . . . . . . . . . . . . 4--1(ii) The territorial limitation . . . . . . . . . . . . . . . . . . . . . . 4--2

4.2 Provincial executive authority under the interim Constitution . . . . . . . . 4--2(a) The provincial executive . . . . . . . . . . . . . . . . . . . . . . . . . 4--2

(i) General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4--2(ii) Consultation and delegation . . . . . . . . . . . . . . . . . . . . 4--3

(b) Sources of provincial executive authority . . . . . . . . . . . . . . . . 4--4(c) Transitional provisions and provincial executive authority . . . . . . . 4--4

(i) General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4--4 (ii) Assignments under s 235(8) . . . . . . . . . . . . . . . . . . . . 4--6(iii) Administrative responsibility, executive authority and the

interpretation of assigned legislation . . . . . . . . . . . . . . . . 4--7(aa) Administration of laws and power to exercise executive

authority . . . . . . . . . . . . . . . . . . . . . . . . . . . 4--7(bb) Interpretation of assigned legislation . . . . . . . . . . . . 4--7

4.3 Financial issues relating to provincial government under the interim Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4--9(a) General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4--9(b) Transitional provisions relating to assets and liabilities . . . . . . . . 4--10

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4.4 Provincial legislative authority under the final Constitution . . . . . . . . 4--11(a) The provincial legislatures . . . . . . . . . . . . . . . . . . . . . . . 4--11

(i) Provincial legislative structures in terms of the final Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . 4--11

(ii) The provincial legislative process in terms of the final Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . 4--12

(iii) Powers and privileges of provincial legislatures . . . . . . . . . 4--12(b) Sources of legislative competence . . . . . . . . . . . . . . . . . . . 4--12(c) Limitations on provincial legislative competence . . . . . . . . . . . 4--13

(i) Federalism limitations . . . . . . . . . . . . . . . . . . . . . . 4--13 (ii) Fundamental rights limitations . . . . . . . . . . . . . . . . . . 4--13(iii) Limitations of extra-territorial competence . . . . . . . . . . . 4--13(iv) Separation of powers limitations . . . . . . . . . . . . . . . . . 4--14 (v) Delegation limitations . . . . . . . . . . . . . . . . . . . . . . 4--14(vi) Limitations imposed by the legality principle . . . . . . . . . . 4--14

(d) Assignment of legislative power . . . . . . . . . . . . . . . . . . . . 4--14(e) Abstract review of Acts and Bills . . . . . . . . . . . . . . . . . . . . 4--14

4.5 Provincial executive authority under the final Constitution . . . . . . . . . 4--15(a) The Premier . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4--15

(i) Status, appointment and removal . . . . . . . . . . . . . . . . . 4--15 (ii) Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4--15(iii) Consultation by the Premier and the exercise of executive power 4--16(iv) The constitutional veto . . . . . . . . . . . . . . . . . . . . . . 4--16

(b) The provincial Executive Council . . . . . . . . . . . . . . . . . . . 4--16 (i) Composition, appointment and dismissal . . . . . . . . . . . . 4--16 (ii) Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4--17(iii) Collective responsibility . . . . . . . . . . . . . . . . . . . . . 4--17

(c) Sources of provincial executive authority . . . . . . . . . . . . . . . 4--18(d) Executive oversight and intervention . . . . . . . . . . . . . . . . . 4--18A

4.6 Financial issues relating to provincial government under the final Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4--19(a) Provincial revenue . . . . . . . . . . . . . . . . . . . . . . . . . . . 4--19(b) Provincial assets and liabilities . . . . . . . . . . . . . . . . . . . . . 4--20

4.7 Provincial constitutions . . . . . . . . . . . . . . . . . . . . . . . . . . . 4--20(a) The provincial constitution-making power . . . . . . . . . . . . . . . 4--20

(i) General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4--20 (ii) Different legislative and executive structures . . . . . . . . . . 4--22

(b) Certification of a provincial constitutional text . . . . . . . . . . . . 4--23(c) The provincial constitution certification cases . . . . . . . . . . . . . 4--24

(i) The KwaZulu-Natal constitutional text, 1996 . . . . . . . . . . 4--24 (ii) The Western Cape constitutional text, 1997 . . . . . . . . . . . 4--25

CONSTITUTIONAL LAW OF SOUTH AFRICA

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4.1 PROVINCIAL LEGISLATIVE AUTHORITY UNDER THE INTERIM CONSTITUTION

(a) General

Section 125 of the interim Constitution vests legislative authority for a province in theprovincial legislature. A province has legislative competence to make laws for the provincein respect of any matters falling within Schedule 6. Important limits on this legislativecompetence are discussed in chapters 3 and 5 of this work. These limits relate to questionsof federalism,1 the bill of rights2 and the doctrine of separation of powers.3

(b) Territorial limitations on provincial legislative authority

REVISION SERVICE 2, 1998Section 125(3) provides that provincial legislation ‘shall, subject to any exceptions as maybe provided for by an Act of Parliament, be applicable only within the territory of theprovince’. The provincial legislative power thus has a territorial limitation.

(i) The territory of a province

1The territories of the provinces are set out in Part 1 of Schedule 1.4 In Canada questionshave arisen as to the jurisdiction of provinces over off-shore waters and airspace. Thus inRe Offshore Mineral Rights of British Columbia [1967] SCR 792 the rule was establishedthat the territory of a coastal province ends at the low-water mark5 and in The Queen(Manitoba) v Air Canada [1980] 2 SCR 303 that it did not include airspace.6 It is submittedthat these cases should not be followed in South Africa and that the territories of our provincesshould be understood to include the territorial waters contiguous to the shore of a coastalprovince and the airspace above the surface territory of a province. This follows from thefact that the territory of the Republic is defined as the sum of the territories of the provincesas set out in Part 1 of Schedule 17 and there is no basis for reading into the territory of theRepublic a tacit inclusion of territorial waters and airspace without doing the same for theterritories of the provinces. Moreover, as pointed out in the Australian case of Pearce vFlorenca, ‘no rational purpose is served by holding that a law of a State cannot validly operatewithin its off-shore waters’.8

1 Section 125(2). For a discussion of this legislative competence, see below, Klaaren ‘Federalism’ ch 5.2 See above, Klaaren & Chaskalson ‘National Government’ § 3.1(b)(ii). The provincial legislative competence

is subject to the same bill of rights limitations as is the national legislative competence.3 See above, Klaaren & Chaskalson ‘National Government’ § 3.1(b)(iv). The provincial legislative competence

is subject to the same separation of powers limitations as is the national legislative competence.4 Section 124(2).5 The same conclusion was reached by the High Court of Australia in New South Wales v The Commonwealth

(1975) 135 CLR 337 and in Robinson v Western Australian Museum (1977) 138 CLR 283, per Barwick CJ andMurphy J at 294 (but see contra the judgment of Gibbs J at 304--5). However, the High Court frequently recognizesthe jurisdiction of state legislation over off-shore waters as an extra-territorial incident of the power to make lawsfor the peace, order and good government of the State. See for example Pearce v Florenca (1976) 135 CLR 507.

6 The cases are discussed in Peter W Hogg The Constitutional Law of Canada 3 ed (1992) sec 13.3(b).7 See s 1(2).8 (1976) 135 CLR 507 at 519.

PROVINCIAL GOVERNMENT

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(ii) The territorial limitation

In other countries courts take a flexible approach to the territorial limitation of provinciallegislative power. In Australia extra-territorial legislation is permissible where there is a nexusbetween such legislation and the territory of the State.1 This test is not applied strictly. TheHigh Court has stated that ‘the requirement for a relevant connection between the circum-stances on which the legislation operates and the State should be liberally applied and . . .even a remote and general connection between the subject-matter of the legislation and theState will suffice’.2 A similar test is applied in India.3 Hogg sees the issue in Canada as oneof determining the ‘pith and substance’ of the legislation. Where the pith and substance relatesto a matter territorially within a province, provincial legislation can legitimately haveincidental effects extra-provincially.4

2 It can be argued that s 125(3) has no parallel in the Constitutions of Canada, Australia orIndia5 and that courts must be strict in giving effect to its prohibition of extra-territoriality.Such an argument ignores the rationale underlying the Canadian, Australian and Indiandecisions: there is a vast range of matters within the territorial limits of a province and withinthe legislative competence of a province which cannot be regulated without incidentalextra-territorial effects.6

4.2 PROVINCIAL EXECUTIVE AUTHORITY UNDER THE INTERIM CONSTITUTION

(a) The provincial executive

(i) General

The principle of government of national unity is extended explicitly to the provincial executivesby s 149 of the interim Constitution, which provides that parties gaining 10 % or more of the popularvote in provincial elections shall be entitled to representation on the provincial Executive Councilin proportion to their relative electoral support.7 The executive authority of the province vests,

1 See for example Union Steamship Co of Australia (Pty) Ltd v King (1988) 166 CLR 1; New South Wales v TheCommonwealth (1975) 135 CLR 337; Robinson v Western Australian Museum (1977) 138 CLR 283; Pearce vFlorenca (1976) 135 CLR 507.

2 Union Steamship Co of Australia (Pty) Ltd v King (1988) 166 CLR 1 at 14.3 See M P Jain Indian Constitutional Law 4 ed (1994) 241--2 and the cases cited thereat, particularly Wallace v

Income-tax Commissioner AIR 1948 SC 118; Bihar v Charusila Dasi AIR 1959 SC 1002; Bihar v BhabapritanandaAIR 1959 SC 1073; Bombay v RMDC AIR 1958 SC 699.

4 Hogg Constitutional Law of Canada sec 13.3(c) and (d). The cases Hogg relies on are Re Upper ChurchillWater Rights [1984] 1 SCR 297; Ladore v Bennett [1939] AC 468; The Queen v Thomas Equipment [1979] 2SCR 529.

5 The courts in these countries have inferred from their Constitutions that there is a prohibition againstextra-territorial provincial legislation. There is no express prohibition against such legislation in the Indian,Canadian or Australian Constitutions.

6 Tacit recognition is given to this fact by s 126(3)(e), which provides for a national legislative override of aprovincial law which ‘materially prejudices the economic, health or security interests of another province or thecountry as a whole’ (emphasis added).

7 Section 149.


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however, in the Premier, not in the Executive Council.1 The Premier has the same powers ofcontrol over his or her Executive Council as the President has over the Cabinet.2 The Premierdoes not have a veto power, but may send a Bill back to the provincial legislature for furtherconsideration in the event of a procedural shortcoming.3

(ii) Consultation and delegation

ORIGINAL SERVICE, 19963Section 147(2) provides that, with some specified exceptions,4 the Premier exercises hispowers in consultation with the Executive Council, which can delegate its consultationfunction to one of its members.5 The consultation requirement gives weight to the constitu-tional requirement of governments of provincial unity. It serves to ensure that members ofthe Executive Council who are drawn from parties other than that of the Premier are consultedprior to the exercise of executive power by the Premier. No exercise of power by the Premierwithout consultation with the Executive Council or its delegated member is valid unless itfalls within the exceptions set out in s 147(1).6

The scheme of s 147(2) suggests that powers exercised by the Premier cannot be delegatedto another functionary to act without consulting the Executive Council. Delegation of any ofthese Premier’s powers which purported to free the delegate from consulting with theExecutive Council would be a delegation of more powers than the Premier possesses.7

Moreover, it would subvert the purpose of s 147(2): to place a check on the exercise of powersconsidered sufficiently important to have been assigned to the Premier.8

1 Section 147(1).2 Section 153. See above, Klaaren & Chaskalson ‘National Government’ § 3.2(a).3 Section 140(1).4 See s 147(1) and (2).5 See s 147(2). Section 233(3) makes it clear that this form of consultation requires the concurrence of the

Executive Council.6 This would follow from the importance of the consultation requirement to the principle of governments of

provincial unity. See also Government of South Africa v Government of KwaZulu 1983 (1) SA 164 (A) and Maqomav Sebe NO & another 1987 (1) SA 483 (Ck).

7 This would be true even if the delegation were to be performed in consultation with the Executive Council. TheExecutive Council cannot abdicate its consultation function in respect of a power of the Premier’s which has notbeen delegated. (See Lawrence Baxter Administrative Law (1984) 434--44.) It follows that the Executive Councilcannot abdicate its consultation function in respect of a power of the Premier’s which has been delegated.

8 There would be an analogy between this sort of delegation and the delegation under s 57(2) of the MunicipalOrdinance 1963 (C), which was struck down in BEF (Pty) Ltd v Cape Town Municipality & others 1983 (2) SA387 (C), where Grosskopff J stated at 398F--399A: ‘The purpose of s 57(2) is to effect a separation of powers betweena local authority, whose approval is in law required for the erection of a building, and the Administrator, whoseprior consent is required for such approval if the building would conflict with a proposed scheme. If the power togrant consent is delegated to a local authority this would amount not merely to a delegation but in effect to a protanto abdication. The local authority would then be entitled to approve a nonconforming plan falling within theambit of the delegation, provided the local authority has received prior consent from itself, which means that noprior consent is required from anybody . . . The delegation will . . . create the anomaly that there will no longer beany separation between the authority which approves the building plans, and the authority which waives compliancewith the scheme. This anomaly becomes even more apparent when the local authority’s power to approve buildingplans and the Administrator’s power to consent to non-compliance with a scheme are both delegated to the sameofficials of the local authority, as happened here.’


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(b) Sources of provincial executive authority

Constitutionally, provincial executive authority is derived from three sources: (1) exercisedprovincial legislative competence, (2) powers delegated to the province by any law, and(3) powers assigned to the province.1 It is clear from s 144(2) that the first source of executiveauthority does not extend to all matters falling within the legislative competence of theprovince, but only to matters over which the province has actually exercised its legislativecompetence. The provincial executive competence in respect of legislation which existed on27 April 1994 and which deals with matters falling within the legislative competence of theprovince is to be determined exclusively with reference to the provisions of s 235.2

4 The judgment in President of the Republic of Bophuthatswana & another v MilsellChrome Mines (Pty) Ltd & others3 suggests that s 144(2) and s 235 present two differentvehicles for the acquisition by a province of executive powers in respect of legislation whichexisted on 27 April 1994. The court approached the issue on the basis that a province mayexercise any executive powers under legislation relating to matters in respect of which theprovince has legislative competence. This approach cannot, with respect, be correct. It failsto give effect to the wording of s 144(2), which ties the executive powers of a province toexercised provincial legislative competence. The legislative competence of a province isexercised only when that province enacts legislation. So the relevant part of s 144(2) relatesonly to executive authority conferred by Acts of the provincial legislature and not to any otherexecutive authority in respect of matters within the legislative competence of the province.4

(c) Transitional provisions and provincial executive authority

(i) General5

The procedure for the transfer to the provinces of executive authority in respect of existinglegislation is set forth in s 235. Section 235 was designed to deal with the practical reality

1 Section 144. In Executive Council, Western Cape Legislature, & others v President of the Republic of SouthAfrica & others 1995 (4) SA 877 (CC) para 173 Kriegler J emphasized the difference between assigned executivepowers and delegated executive powers (original emphasis):

‘It is important to distinguish between the assignment of executive authority under s 235(8) and delegation thereofin accordance with s 144, the section defining executive power for the provincial governments. Section 144(2)of the Constitution draws a clear distinction between assignment and delegation which should be maintained inconstruing s 235. Section 235(8) deals with assignment, i e the transfer to a province of the executive authorityto which it is entitled in terms of the Constitution. It is not concerned with delegation. Delegation postulatesrevocable transmission of subsidiary authority. The assignment contemplated by s 235 relates to the formalvesting of authority derived from the Constitution.’2 See below, § 4.2(c).3 1995 (3) BCLR 354 (B) at 363H--367A.4 The approach of Waddington J in President of the Republic of Bophuthatswana & another v Milsell Chrome

Mines (Pty) Ltd & others also fails to take into account that the legislative powers of the provinces are, with veryfew exceptions, concurrent legislative powers which the national government also posesses. If executive power islinked to abstract legislative competence rather than to actually exercised legislative competence, both the nationaland the provincial governments will have executive powers under any legislation dealing with Schedule 6 matters,irrespective of whether the legislation in question was passed by Parliament or by a provincial legislature. Thiswould be an untenable situation and is one which the wording of s 144(2) clearly sought to avoid.

5 The transitional provisions relating to executive authority are discussed in Executive Council, Western CapeLegislature, & others v President of the Republic of South Africa & others 1995 (4) SA 877 (CC). See the judgmentsof Chaskalson P at paras 66--98 and Kriegler J at paras 162--89.


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that the new constitutional framework was superimposed on a public administration whichwas not provincialized. On 27 April 1994 there were no provincial administrations throughwhich the executive authority of the new provinces could be exercised. Therefore the broadscheme of s 235 is to provide for most executive powers to vest in the national governmentand for executive powers relating to Schedule 6 matters to be assigned to the provinces asthey develop the administrative capacity to deal with these powers. To this end s 235distinguishes four categories of existing legislation:

l laws with regard to matters which do not fall within the functional areas specified inSchedule 6;1

l laws with regard to matters which fall within the functional areas specified in Schedule6, but fall within the ambit of the national government legislative override covered bys 126(3)(a)--(e);2

l laws with regard to matters which fall within the functional areas specified in Schedule6, are not covered by the national government legislative override, and were, prior to 27April 1994, administered by provincial or national authorities within South Africa;3

l laws with regard to matters which fall within the functional areas specified inSchedule 6, are not covered by the national government legislative override, and were,prior to 27 April 1994, administered by homeland authorities.4

5 In terms of s 235(6) executive authority in respect of the first three categories of existinglaws was allocated on 27 April 1994 to the national government, while executive authorityin respect of the fourth category of laws was allocated to the relevant provincial governments.However, by virtue of Proc R102 of 1994,5 promulgated by the President under s 235(9),executive authority over the fourth category of laws was removed from the relevant provincialgovernments and assigned to the national government. The effect of s 235(6) and Proc R102is that the only way in which provincial governments can now acquire executive authorityover existing legislation under s 235 is by assignment by the President in terms of s 235(8).The allocation of laws under s 235(6) has therefore been superceded in all practical respectsby the assignment of laws under s 235(8).6

Section 235(8)(a) provides that once the provinces have the necessary administrativecapacity7 the President may, and, if requested by the Premier, must, assign by proclamationthe administration of laws falling in the third or fourth categories above to ‘a competentauthority within the jurisidiction of the government of a province’. ‘Competent authority’ isdefined in this respect as ‘an authority designated by the Premier’.8 The Proclamation

1 Section 235(6)(a)(i) 2 Section 235(6)(a)(ii). 3 Section 235(6)(b)(i). 4 Section 235(6)(b)(ii)5 Regulation Gazette 5344, Government Gazette 15781 of 3 June 1994.6 The categorization of laws under s 235(6) remains important only in so far as s 235(6)(b)(i) and (ii) identify

which laws may be assigned to the provinces under s 235(8). Thus in Executive Council, Western Cape, & othersv President of the Republic of South Africa & others 1995 (4) SA 877 (CC) a majority of the Constitutional Courtheld that the purported assignment to the provinces under s 235(8) of the Local Government Transition Act 209 of1993 was invalid because the Act did not fall within the categories covered by s 235(6)(b).

7 The satisfaction of this requirement of ‘administrative capacity’ was the subject of much dispute, leading to theformation of an intergovernmental committee to define objectively the term ‘administrative capacity’.

8 Section 235(6)(c)(ii).



assigning administration of laws to a province may amend any law to regulate its applicationor interpretation.1 The extent of this power of amendment by Proclamation remains unclear.In the Western Cape case2 the Constitutional Court split evenly between judges whoconstrued this power narrowly, so that it encompasses only those amendments objectivelynecessary to achieve functional efficiency in the administration of the assigned laws,3 andjudges who construed the power more broadly, to relate to any amendments which thePresident bona fide considers necessary for the efficient carrying out of the assignment.4

(ii) Assignments under s 235(8)

6There have now been numerous assignments to the provinces made by presidential procla-mation under s 235(8).5 None of these proclamations names the functionary to whomadministrative responsibility over the laws in question is to be assigned. Rather, they refersimply to ‘a competent authority within the jurisdiction of the government of the Provinceof . . . designated . . . by the Premier of that province’.6 It is arguable that these Proclama-tions, in failing to name the specific authority designated by the Premier, do not comply withthe requirements of s 235(8)(a) read with s 235(6)(c)(ii). The President seems not to haveexercised his powers under these sections, but merely to have recited them. Moreover, thepurpose of publicity served by the requirement of assignment by Proclamation would befrustrated, at least partially, by the failure to name a specific authority in the Proclamation.7

If these Proclamations are invalid, the effect would be to strip the provincial governments ofmost of their existing executive powers and to invalidate most of the actions of provincialgovernments. A court would be reluctant to reach such a conclusion and it is likely that s 235will be interpreted to allow an assignment of legislation to be completed by the Premier’sact of designating a competent authority. Until the Premier has designated a competentauthority, however, no proper assignment of responsibility for the laws in question can havetaken place and the laws cannot be treated as having been allocated to the province.8

Moreover, it is desirable that the Premiers’ designations should be made publicly available.

1 Section 235(8)(b).2 Executive Council, Western Cape Legislature, & others v President of the Republic of South Africa & others

1995 (4) SA 877 (CC). Three judges, Didcott, Kriegler and Langa JJ, did not express a view on this issue.3 See the judgment of Chaskalson P at paras 96--8. Ackermann, O’Regan and Sachs JJ concurred with Chaskalson

P in this respect. See paras 146 and 198.4 See the judgments of Mahomed DP at paras 144--6 (in which Mokgoro J concurred) and Madala and Ngoepe JJ

at paras 228--30.5 The ‘Table of Acts of Parliament Assigned to the Provinces’ in Juta’s South African Statutes Index lists all Acts

of the South African Parliament which have been assigned to provinces under s 235(8). There are separate tablesfor each province. There is, however, no published index which provides details of the homeland legislation,provincial ordinances, and delegated legislation which have been assigned to provinces under s 235(8).

6 Cf Proclamation R102 of 1994 Government Gazette 15781 of 3 June 1994, in terms of which administrativeresponsibility of laws falling within the ambit of s 235(6)(b) was assigned to competent authorities within thejurisdiction of the national government. The relevant authorities were clearly specified in the schedule to Procla-mation R102. The Proclamation remains vulnerable to the criticism that it is vague in its description of the lawswhich were allocated to the respective specified authorities.

7 It is impossible for the public to determine from the Proclamations who is responsible for the administrationof the laws which are assigned by the Proclamation.

8 There is no possible compliance with s 235(8) until a competent authority is designated. In this regard it mustbe borne in mind that provincial administrative capacity is a necessary precondition to any assignment in terms ofs 235(8). A basic requirement of this capacity would be the designation of a member of the Executive Council whowill take political responsibility for the proper administration of the law assigned.



(iii) Administrative responsibility, executive authority and the interpretation of assignedlegislation

(aa) Administration of laws and power to exercise executive authority

The use of the terms ‘administration of a law’1 and ‘power to exercise executive authority’in s 235 is potentially confusing. At first sight the terms appear to have been used interchange-ably, but this is not the case. ‘Power to exercise executive authority’ is the authority to exercisepowers conferred by law, whereas ‘administration of laws’ relates to something else. In Zamav Minister of Safety and Security 1994 (4) SA 699 (D) Levinsohn J commented on thedifference between the two concepts as follows:

‘The concepts of ‘‘power to exercise executive authority in terms of laws’’ and ‘‘laws administeredby a competent authority within the jurisdiction of a national government’’ seem to me to bedifferent . . . Both [paras] (6)(a) and (b) provide for these laws to be administered by ‘‘competentauthorities’’ within the jurisdiction of the national government or the provincial government,whatever the case may be. This appears to confer management functions upon the particular‘‘competent authority’’ rather than investing them with executive powers . . . In my view[subsec] (6) does not confer executive authority in terms of the existing laws upon the ‘‘competentauthorities’’ designated by the president. The subsection seeks to allocate the administration of thelaws to either the national government or to a province.’2

7 As Levinsohn J points out, the ‘competent authorities’ contemplated by s 235 do notnecessarily acquire all the executive powers created by the laws in respect of which they aredesignated. The laws in question may confer different executive powers on a range offunctionaries. The ‘administration of the law’ cannot therefore mean the exercise of executivepower under that law. Rather, it refers to the managerial control of the exercise of executivepowers created by that law. Thus the significance of the designation of the competentauthority is that he or she is the member of the Executive Council or Cabinet Minister underwhose portfolio an assigned law will fall, and he or she becomes the party who will be heldpolitically responsible for the proper administration of the law in question.

(bb) Interpretation of assigned legislation

The allocation of executive powers created by laws assigned in terms of s 235 is a matter ofstatutory interpretation. Here the crucial transitional provisions are s 232(1)(c) ands 235(8)(d). Where the administration of an existing law has been allocated or assigned to aprovince,3 s 232(1)(c) provides that a reference in that law to ‘a State President, ChiefMinister, Administrator or other chief executive, Cabinet, Ministers’ Council or executivecouncil’ shall, ‘unless it is inconsistent with the context or clearly inappropriate’, beconstrued as a reference to the Premier acting in accordance with the Constitution.4 Thus all

1 Section 235(8) refers to ‘administration of a law’. Section 235(6)(a) and (b) refer to ‘laws [which] . . . shall beadministered’.

2 Zama v Minister of Safety and Security 1994 (4) SA 699 (D) at 703C--F.3 The allocation of laws takes place under s 235(6). The assignment of laws takes place under s 235(8). See

above, § 4.2(c)(i). Cf President of the Republic of Bophuthatswana & another v Milsell Chrome Mines (Pty) Ltd &others 1995 (3) BCLR 354 (B) at 366E--G, where Waddington J seems to suggest that all existing legislation relatingto Schedule 6 matters is, for the purposes of s 232(1), allocated to the provinces by s 147(2). It is submitted thatthis cannot be correct and that s 232 contemplates only allocations effected by virtue of s 235(6).

4 In terms of s 147(2), this would mean a reference to the Premier acting in consultation with the ExecutiveCouncil.



executive powers in laws assigned to a province which vested in a person or body referredto in s 232(1)(c) now vest in the Premier unless this is clearly inappropriate. A generalcategory of such executive powers which might be inappropriate to vest in the Premier wouldbe those powers which previously vested in Provincial Administrators. Under the previoussystem of provincial government legislation granted no executive powers directly tomembers of the provincial executives. Rather, all executive powers of provincial governmentwere granted to the Administrator, who then used powers of delegation to distribute thesepowers to the members of the executive committees.1 Given that there may now beconstitutional barriers against delegations by the Premier,2 it may be ‘clearly inappropriate’within the meaning of s 232(1)(c) to construe all references to an Administrator as referencesto the Premier acting in consultation with the Executive Council. Where the Premier hasdesignated a member of the Executive Council as the competent authority responsible forthe administration of the law which vests powers in ‘the Administrator’ it can be argued thatthe relevant executive powers should vest instead in the member of the Executive Councilconcerned as ‘the appropriate authority’ within the meaning of s 235(8)(d), as pointed outbelow. The alternative would be to require that every executive power that was previouslyexercised by a functionary of provincial government should now be exercised by the Premieracting in consultation with the Executive Council. This might be so unwieldy as to be ‘clearlyinappropriate’.8 Section 232 provides no guidance on how references to Cabinet Ministers are tobe construed. However, s 235(8)(d) provides that any reference in a law assigned to aprovince under s 235(8)(a) shall ‘be deemed to be a reference mutatis mutandis to theappropriate authority of the province concerned’.3 We can therefore assume that executivepowers which existing laws vested in Cabinet Ministers are, on assignment of the laws inquestion to a province, powers which vest in the relevant member of the Executive Council.4

Likewise, powers which existing laws vested in the administrative head of a department willbe exercised by the administrative head of the relevant department of the provincial admini-stration.

Of course, it is open to the President, when assigning the administration of a law to aprovince, to amend that law to regulate its interpretation or application.5 The President has,

1 In all four provinces there were Delegation of Powers Ordinances which enabled the Administrator to delegateany of his powers to a member of the Provincial Executive: Ordinance 20 of 1945 (T), Ordinance 4 of 1951 (N),Ordinance 10 of 1951 (O), and Ordinance 13 of 1965 (C).

2 See above, § 4.2(a)(ii).3 Section 235(8)(d).4 There is no tension between s 232(1)(c) and s 235(8)(d) because the Premier is usually the ‘appropriate

authority’ in respect of powers which vested in any person or body referred to in s 232(1)(c). Thus in Zama v Ministerof Safety and Security 1994 (4) SA 699 (D) at 703J--704B Levinsohn J stated: ‘In my judgment, once it is foundthat the KwaZulu Police Act is a law which in terms of the Constitution has been allocated to the nationalgovernment, then the situation which was envisaged in s 232(1)(c)(i) comes into effect and ‘‘Cabinet’’ is construedas a reference to ‘‘the President acting in accordance with this Constitution’’. In my view, the intention was that thePresident should assume the executive functions which were invested in those erstwhile functionaries. That, to mymind, is totally consonant with the President’s position as the principal arm of executive government.’ (Emphasisadded.) Where the Premier is not the appropriate authority in respect of powers which vested in a s 232(1)(c) bodyor functionary, the section will not operate to construe references to that body or functionary as references to thePremier because that would, of necessity, be ‘clearly inappropriate’.

5 Section 235(8)(b)(i).



on some occasions, exercised this amending power to clarify which provincial functionariesare to exercise the executive powers created by an assigned Act.1 This practice is to beencouraged because it creates certainty and circumvents the need for recourse to theprovisions of s 232 and s 235, which do not always produce clear answers to these questions.

4.3 FINANCIAL ISSUES RELATING TO PROVINCIAL GOVERNMENT UNDER THE INTERIM CONSTITUTION

(a) General

REVISION SERVICE 2, 19989The interim Constitution gave provincial legislatures the power to impose taxes on casinos,betting, gambling and lotteries.2 They had the power to impose other taxes only if that powerwas granted by an Act of the national Parliament,3 but they could pass legislation authorizingthe imposition of user charges for provincial services after considering the recommendationsof the Financial and Fiscal Commission.4

The interim Constitution contemplated that the most important source of provincialrevenue would be a fixed percentage of nationally collected income tax, VAT and fuellevies, provided for under s 155. The percentages were to be set in an Act of Parliamentpassed after considering the recommendations of the Financial and Fiscal Commission.5

The national legislation contemplated by s 155 was not passed under the interim Constitution.Thus provincial government was financed by allocations made by the national governmentin terms of s 157(2)(e).

1 See for example Proclamation R151 of 1994 Government Gazette 16049 of 31 October 1994.2 Section 156(1B).3 Section 156(1). No such Act was passed during the lifespan of the interim Constitution.4 Section 156(3).5 Section 155(2) and (3). The Financial and Fiscal Commission is established under s 199(1) to render advice to

legislative authorities regarding financial and fiscal requirements of local, provincial and national government. TheCommission has sixteen members, including one person designated by each of the provincial Executive Councils(s 200). The brief of the Commission includes a consideration of financial and fiscal policies, revenue allocationsfrom the national to other levels of government, taxes which a provincial government may impose, loans which aprovincial government may raise, and general criteria for the allocation of financial and fiscal resources (s 199(1)).



10 All revenue raised or accruing to a province and allocations made to a province by thenational government were paid directly into the Provincial Revenue Fund of the province.No funds could be withdrawn from a Provincial Revenue Fund otherwise than in accordancewith an Act of the provincial legislature.1 Section 159 gave the provinces exclusive controlover their own financial resources. The national government had no constitutional powersover provincial funds, even where those funds had their origin in national allocations.2 Thusit appears that the provinces had the power to use conditionally allocated funds3 for a purposeother than that for which the national government had allocated the funds to them. Theprincipal constraint against such use of conditional funds was political rather than constitu-tional. A province which used funds for a purpose other than that for which they wereallocated by the central government was likely to jeopardize its future ability to raiseconditionally allocated funds from the central government.

(b) Transitional provisions relating to assets and liabilities

Section 239 regulated the allocation of state assets and liabilities existing on 27 April 1994,between the national and provincial governments. The first principle was that assets5

associated with the administration of a particular law vested, at any given time, in theauthority which had been allocated or assigned administrative responsibility in respect ofthat law in terms of s 235.6 Assets which were not associated with the administration of anyparticular law were divided into two categories. Those that were to be applied in connectionwith a matter referred to in Schedule 6 which was not subject to the national governmentlegislative override, vested in the relevant provincial governments.7 Those that were to beapplied in connection with matters not covered by Schedule 6, or matters covered bySchedule 6 but subject to the national government legislative override, vested in the nationalgovernment.8 Where assets could not be classified according to these principles, disputes

1 Section 159.2 For this reason there is cause to doubt the conclusion reached in Government of the Republic of South Africa

v Malevu 1995 (8) BCLR 995 (D) at 1000C--J that the national government has locus standi to sue for the recoveryof money allocated by Parliament to a province and then stolen from that province.

3 Conditional allocations are contemplated by s 155(2)(e). Conditional allocations which depend on provincialcontributions to the projects to which the funds are allocated by the national government can be controversialin that they allow the national government to dictate provincial spending. See Hogg Constitutional Law ofCanada secs 6.11--6.15.

5 ‘Assets’ are defined by s 239(1) to include funds and administrative records. The broad use of the term suggeststhat it covers all debts owed to a government. See Government of the Republic of South Africa v Malevu 1995 (8) BCLR 995(D) at 998I--J.

6 Section 239(1)(c). The provisions relating to the assignment of administrative responsibility over existinglegislation are discussed above, § 4.2(c). The relationship between these provisions and s 239, the transitionalprovision relating to state assets, is described by Kriegler J in Executive Council, Western Cape, & others v Presidentof the Republic of South Africa & others 1995 (4) SA 877 (CC) at para 176.

7 Section 239(1)(b). The wording of s 239(1)(b) is confusing. The section refers to any ‘matter which is not amatter referred to in paragraphs (a) to (e) of section 126(3)’, but it is obvious that it ought to refer to ‘any matterfalling within a functional area specified in Schedule which is not a matter referred to in paragraphs (a) to (e) ofsection 126(3)’. Cf the wording of s 239(1)(a).

8 Section 239(1)(a).



between a provincial government and the national government were to be referred to theCommission on Provincial Government for advice.1 All public debts and liabilities whichexisted on 27 April 1994 were assumed by the national government.2

4.4 PROVINCIAL LEGISLATIVE AUTHORITY UNDER THE FINAL CONSTITUTION

(a) The provincial legislatures

(i) Provincial legislative structures in terms of the final Constitution

REVISION SERVICE 5, 199911The Constitution provides for single-chamber provincial legislatures in whom the legislativeauthority of a province vests and to whom the provincial executive is accountable.3 Provinciallegislatures consist of between 30 and 80 members4 elected on that province’s segment of acommon national voters roll. Provincial elections must take place in terms of an electoralsystem prescribed by national legislation which produces, in general, proportionalrepresentation.5 The ordinary term of a provincial legislature is five years,6 but a majority ofthe members of the legislature may cause the legislature to dissolve before expiry of its termby adopting a resolution to this effect.7 The legislature is also dissolved whenever there is avacancy in the office of the Premier for more than thirty days.8 A provincial legislature ischaired by a Speaker who, by convention, stands above party politics and acts on behalf ofthe legislature as a whole.9 Questions within a provincial legislature are generally decidedby majority vote.10 The ordinary quorum of the legislature is one-third of its members.11

Section 116(2) of the Constitution obliges a provincial legislature to make rules providinginter alia for the establishment of committees. The committees contemplated by this sectioninclude portfolio committees, the provincial equivalent of parliamentary select committees.Portfolio committees are responsible for the detailed consideration and debate of Bills aftertheir first reading. They are also the institution to which public comment on Bills is usuallyaddressed. Outside the legislative process, portfolio committees have the powers to summonany person to appear before them to give evidence or to produce documents and to requireorgans of state to report to them.12 Through the use of these powers the committees are, inpractice, important institutions of responsible government.

1 Section 239(1)(d). 2 Section 239(3)(a) as amended by s 11 of the Constitution of the Republic of South Africa Second

Amendment Act 44 of 1995. 3 Sections 104(1), 114(2) and 133(2). If the provincial legislature passes a vote of no confidence in the Premier

and members of the Executive Council, they must resign (s 141). 4 Section 105(2). The number of members may differ from province to province and is fixed in terms of national

legislation. 5 Section 105(1). At the time of publication the relevant legislation had not been enacted. 6 Section 108(1). 7 Section 109(1)(a). 8 Section 109(2). The circumstances in which such a vacancy may arise are discussed below, § 4.5(a)(i). 9 Kilian v Gauteng Provincial Legislature 1999 (2) BCLR 225 (T).10 Section 112(1)(c). A two-thirds majority vote of members is required for the adoption of a provincial

constitution (see below, § 4.7) or for a resolution calling upon Parliament to change the name of the province(s 104(2)).

11 Section 112(1)(b). 12 Section 115.



(ii) The provincial legislative process in terms of the final Constitution

12Members of the legislature, committees or members of the Executive Council can introduceordinary Bills into the legislature, but only the member of the Executive Council responsiblefor finance can introduce a money Bill.1 There is a special quorum for a vote on a Bill ---- amajority of the members of the legislature must be present.2 The Constitution leaves mostother details of the provincial legislative process to be determined by the legislaturesthemselves in their rules.3 When the provincial legislature passes a Bill it is referred to thePremier for his or her assent and signature.

(iii) Powers and privileges of provincial legislatures

Sections 116 and 117 of the Constitution make provision for certain powers and privilegesto be conferred on provincial legislatures. These sections reflect the corresponding provi-sions4 in Chapter 4 of the Constitution, which deals with the national legislature. The latterprovisions are discussed above,5 and this discussion applies equally to ss 116 and 117.

(b) Sources of legislative competence

Provincial legislative powers under the final Constitution can be divided into two categories:original legislative power and assigned legislative power. The former derives from s 104(1)(b)(i)and (ii) read with Schedules 4 and 5, the latter from s 104(1)(b)(iii) read with s 44(1)(a)(iii).

Section 104(1)(b)(i) and (ii) gives the provinces original legislative authority over allmatters listed in Schedules 4 and 5 respectively. Schedule 5 is a source of exclusive provinciallegislative competence, but the provinces share legislative competence over Schedule 4matters with the national government. Where laws made by a provincial legislature relatingto Schedule 4 matters conflict with those made by the national Parliament, the conflict willbe resolved according to the provisions of s 146(2)--(6).6 The relevant subsections determinewhen provincial legislation prevails over national legislation and when the contrary obtains.The legislation which does not prevail is not invalidated by the conflict. It merely becomesinoperative as long as the conflict persists. If the prevailing conflicting legislation issubsequently repealed, the conflict is removed and the previously inoperative legislationis revived.7

1 Section 119. A money Bill is any Bill which appropriates money or imposes taxes, levies or duties (s 120(1)).Provincial legislation must provide a mechanism for the amendment of money Bills by the provincial legislature (s120(2)).

2 Section 112(1)(a).3 The rules are made in terms of s 116(1)(b).4 See ss 57 and 58 (powers and privileges of the National Assembly) and 70 and 71 (powers and privileges of

the National Council of Provinces).5 See above, Chaskalson & Klaaren ‘National Government’ § 3.3(i).6 These provisions are discussed in more detail below, Klaaren ‘Federalism’ § 5.5.7 Section 149. See also Ex parte Speaker of the National Assembly: In re Dispute Concerning the Consitution-

ality of Certain Provisions of the National Education Policy Bill No 83 of 1995 1996 (3) SA 289 (CC), 1996 (4)BCLR 518 (CC) at paras 16--19.



12ASection 104(b)(iii) gives the provinces legislative competence in respect of matters fallingoutside Schedules 4 and 5 if legislative competence over those matters is expressly assignedto the province by national legislation. The corollary to s 104(b)(iii) is s 44(1)(a)(iii), whichallows the National Assembly to assign any of its legislative powers to a provincial legislatureor to a municipal council. Thus the competence to legislate over ‘national’ matters may beassigned to a provincial legislature by an Act of Parliament. Such an assignment would extendlegislative powers to the provincial legislature for as long as the Act of Parliament is in force.If the Act were repealed, provincial laws which had already been made under it wouldcontinue to be valid, but the province would not be able to make any further laws in

REVISION SERVICE 3, 1998

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[REVISION SERVICE 3, 1998] 4--12A

respect of matters covered by the assignment Act because it would no longer have theassigned legislative competence to do so.1

13 National legislation prevails over conflicting provincial laws which are made under anassigned legislative competence2 but does not invalidate that legislation.3

(c) Limitations on provincial legislative competence

(i) Federalism limitations

REVISION SERVICE 5, 1999As was the case under the interim Constitution, the system of federalism under the finalConstitution imposes clear limitations on the legislative power of the provinces. Theselimitations are discussed in detail below.4

(ii) Fundamental rights limitations

The fundamental rights limitations on the legislative authority of the provinces are discussedgenerally above5 and in relation to particular fundamental rights below.6 Of particularsignificance under the final Constitution is the duty placed on the provinces not only torefrain from interfering with fundamental rights but also to give effect to fundamental rightsby positive action. This duty is stated generally with respect to the Bill of Rights in s 7(2).It is also repeated specifically in many cases.7

(iii) Limitations of extra-territorial competence

The boundaries of the provinces under the final Constitution are the same as those under theinterim Constitution.8 The territorial limitation on provincial legislative competence isdiscussed above in respect of the interim Constitution.9 The provisions of the final Constitutionare consistent with the flexible approach to the territorial limitation which we have advocatedin respect of the interim Constitution. In particular, the final Constitution has no equivalent

1 This raises the question of who has the legislative authority to amend or to repeal such laws once the assignmenthas been withdrawn. The province would not have this authority, because in the absence of any assigned legislativepower it would lack the competence to pass laws covering the subject-matter of an amending or repealing Act. Thenational government would ordinarily not be able to repeal provincial legislation (National Education Policy BillNo 83 of 1995 1996 (3) SA 289 (CC), 1996 (4) BCLR 518 (CC) at para 19), but an exception to this general rulemay have to be made in cases involving laws made under an assigned legislative competence which has subsequentlybeen withdrawn. Unless the national government has the authority to amend or to repeal such laws, no legislaturewould have this authority and the laws would be completely unamendable.

2 A conflict between provincial legislation of this nature and a national law would not fall under s 146 or s 147(2)because the provincial legislation does not relate to matters within Schedules 4 or 5. Thus the conflict would be onewhich cannot be resolved by a court and, in terms of s 148, the national legislation would prevail.

3 Section 149.4 See below, Klaaren ‘Federalism’ ch 5.5 See above, § 3.1(b)(ii).6 See below, chs 14--40.7 See, for example, s 9(4) (equality and private discrimination), s 24(b) (environmental rights), s 25(5)--(7) (land

rights), s 26(2) (housing), s 27(2) (health, food, water and social security).8 Section 103(2).9 § 4.1(b).



of s 125(3) of the interim Constitution, which states that provincial laws shall ‘be applicableonly within the territory of the province’.

(iv) Separation of powers limitations

14This matter is discussed in relation to Parliament above, § 3.1(b)(iv). The discussion appliesequally to the provincial legislatures.

(v) Delegation limitations

This matter is discussed in relation to Parliament above, § 3.1(b)(v). The discussion appliesequally to the provincial legislatures.1

(vi) Limitations imposed by the legality principle

This matter is discussed in relation to Parliament above, § 3.5. The discussion applies equallyto the provincial legislatures.

(d) Assignment of legislative power

Section 104(1)(c) of the final Constitution allows a provincial legislature to assign any of itslegislative powers to a municipal council. The assignment proceeds by Act of the provinciallegislature. An assignment extends legislative powers to the municipal council for as long asthe Act is in force. If the Act is repealed, local government by-laws which have already beenmade under it would continue to be valid, but the municipal council would not be able tomake any further laws in respect of matters covered by the Act because it would nolonger have the assigned legislative competence to do so. Provincial legislation prevailsover conflicting local government by-laws which are made under an assigned legislativecompetence and invalidates them.2

(e) Abstract review of Acts and Bills3

Unlike the interim Constitution,4 the final Constitution makes no provision for abstractjudicial review of provincial Bills by the Constitutional Court at the instance of members ofthe provincial legislature. At the end of the legislative process the Premier may refer a Billto the Constitutional Court for a decision on its constitutionality, but he or she may do soonly if he or she has first remitted the Bill to the legislature for reconsideration, and thelegislature has failed to address his or her concerns relating to the constitutionality of the Billdespite being given the opportunity to do so.5

1 Note that s 104(1)(c) allows a provincial legislature to assign to local governments any of its legislativepowers. Thus legislative interdelegation to local governments is clearly permitted under the final Constitution.Section 104(1)(c) could, however, indicate that provincial legislatures may not delegate to Parliament the power tolegislate in respect of Schedule 5 matters other than those to which s 44(2) applies.

2 Section 156(3).3 Abstract review of national Bills is discussed above, Chaskalson & Klaaren ‘National Government’ §§ 3.1(d)

and 3.4(h).4 See above, § 3.1(d). 5 Section 121.



REVISION SERVICE 2, 1998Section 122 allows one-fifth of the members of a provincial legislature to apply to theConstitutional Court1 for abstract review of a provincial Act within thirty days of the date onwhich the Premier assented to the Act and signed it. When it receives an application forabstract review, the Constitutional Court may grant an interim order suspending the operationof the Act, or those sections of it which are subject to review, until the main applicationhas been decided. The discretion of the court in this regard is limited to cases where theapplication has reasonable prospects of success and the interests of justice requirethe suspension of the operation of the legislation.2

4.5 PROVINCIAL EXECUTIVE AUTHORITY UNDER THE FINAL CONSTITUTION

(a) The Premier

(i) Status, appointment and removal

15The Premier is the head of the provincial executive. The Premier is chosen by the provinciallegislature from among its members, at the first sitting after an election.3 The election of thePremier takes place by the same process as that which governs the election of the nationalPresident.4 No person may hold office as Premier for more than two terms.5 Sections 130and 141 provide respectively for the removal of the Premier from office and for votes ofno confidence in the Premier or Executive Council. These sections correspond to ss 89 and102, which govern the national executive, and the discussion of ss 89 and 102 above6 appliesequally to ss 130 and 141.

(ii) Powers

Section 127(2) vests in the Premier a range of specific functions which he or she performsas head of the provincial executive. These are the power to assent to and sign Bills, to referto the provincial legislature a Bill passed by it for further consideration of its constitutionality,to refer a Bill to the Constitutional Court for a decision on its constitutionality, to summonsthe legislature to an extraordinary sitting to conduct special business, to appoint commissionsof inquiry, and to call referenda. The Constitution also vests in the Premier the power toappoint members of the Executive Council and to assign responsibilities to them.7 In additionto the powers which he or she derives from the Constitution directly, the Premier exercisespowers conferred by legislation.

1 In the interim Constitution an application for abstract review of a provincial Bill could also be made to theSupreme Court (see s 101(3)(e) of the interim Constitution). This is no longer the case. Section 167(4)(b) givesthe Constitutional Court exclusive jurisdiction over applications for abstract review of provincial Bills.

2 Section 122(3). 3 Section 128(1).4 Section 128(2) read with Part A of Schedule 3. See above, § 3.4(a)(i) for a discussion of this process.5 Section 130(2). 6 See above, § 3.4(a)(i).7 See below, § 4.5(b).



(iii) Consultation by the Premier and the exercise of executive power

16The interim Constitution provided that the Premier exercised most of his or her powers inconsultation with the Executive Council.1 The final Constitution appears to maintain thisrequirement of consultation with the Executive Council2 in the exercise of all powers otherthan those conferred by the Constitution specifically on the Premier.3 Any decision taken bythe Premier which has legal consequences or which is authorized by legislation must be inwriting.4 Decisions which concern the functions of particular members of the ExecutiveCouncil must be countersigned by those members.5

(iv) The constitutional veto

Section 121 gives the Premier a suspensive veto over a Bill. This veto power is the same asthat conferred on the national President by s 79 and is discussed in the previous chapter.6

(b) The provincial Executive Council

(i) Composition, appointment and dismissal

Until 30 April 1999 the final Constitution provides for the continued existence of aGovernment of National Unity in the provinces. In this period the provincial ExecutiveCouncils will consist of the Premier and a maximum of 10 members of the Executive Councilwho are members of the provincial legislature.7 Any party with more than 10 % of the seatsin the provincial legislature is entitled to representation in the Executive Council in propor-tion to its support in the legislature. The Premier allocates Executive Council portfolios toparties represented in the Government of National Unity and appoints members of the legislaturefrom those parties to the portfolios after consulting with the leaders of the relevant parties.8

The Premier has a general discretion9 to terminate specific Executive Council appoint-ments in the interests of good government and must terminate the appointment of a memberof the Executive Council if he or she is requested to do so by the leader of the party to which

1 See above, § 4.2(a)(ii).2 Section 125(2) states that the ‘Premier exercises the executive authority, together with the other members of

the Executive Council, by . . .’. As pointed out above, § 3.4(a)(iii), the emphasized words appear to be a ‘plainEnglish’ formulation for ‘in consultation with the other members of the Executive Council’.

3 These powers are not subject to the consultation requirement of s 125 because they do not fall into any of thecategories enumerated in paras (a)--(g) of s 125(2). They would include, for example, the power to appoint membersof the Executive Council (s 132) and the powers of the Premier listed in s 127(2) (see above, § 4.5(a)(ii)).

4 Section 140(1). 5 Section 140(2).6 See above, § 3.4(a)(iv).7 Section 132(1) and 132(4)(b) as inserted by Clause 1 of Annexure C to Schedule 6, read with Item 12(2) of

Schedule 6.8 Section 132 as inserted by Clause 1 of Annexure C to Schedule 6 read with Item 12(2) of Schedule 6.9 Section 132(4)(d)(ii) as inserted by Clause 1 of Annexure C to Schedule 6 read with Item 12(2) of Schedule 6

prima facie obliges the Premier to terminate the appointment of a member of the Executive Council where this isnecessary for the purposes of the Constitution or where it is in the interests of good government. In practice the‘interests of good government’ requirement is unlikely to be objectively justiciable save in extreme cases. For goodreasons, in the context of Executive Council appointments courts are likely to defer to the Premier’s decision as towhere the interests of good government lie. See, for example, Mpehle v Government of the Republic of South Africa& another 1996 (7) BCLR 921 (Ck).



that member belongs.1 An incident of the power to terminate an appointment is the power tosuspend a member from his or her office pending any decision on his or her dismissal.2

17 Following 30 April 1999 the Government of National Unity ceases to be a constitutionalrequirement. The Executive Council will then consist of the Premier and between 5 and 10other members.3 The Premier makes all appointments to the Executive Council. Parties haveno claim to portfolios and party leaders need not be consulted with regard to ExecutiveCouncil appointments.4 The dismissal of members of the Executive Council is a discretionarypower which vests in the Premier and which is not subject to any express limitations.5

(ii) Powers

REVISION SERVICE 5, 1999As stated above,6 s 125(2) appears to oblige the Premier to consult the Executive Council inany exercise of his executive authority. This is the principal constitutional source of ExecutiveCouncil power. Ordinary legislation tends to confer powers on individual members of theExecutive Council rather than on the Council as a whole. Individual members also haveexecutive responsibilities assigned to them by the Premier and by Ministers in the nationalCabinet.7 The Premier may, by proclamation, reallocate these responsibilities from onemember to another and may also provide that powers conferred by legislation on a particularmember will be transferred to another member.8

Any function which, in terms of legislation, is to be performed by a member of theExecutive Council may be delegated to a member of a municipal council or to a nationalCabinet Minister provided that the delegation is consistent with the legislation in terms ofwhich the function is performed.9 Delegation is revocable and does not deprive the delegatorof the power to perform the relevant function during the period in which the delegation is inforce.10 Executive power over a delegated function thus remains with the delegator.

(iii) Collective responsibility

Section 133(2) of the final Constitution states that‘[m]embers of the Executive Council of a province are accountable collectively and individuallyto the legislature for the exercise of their powers and the performance of their functions’.

The principles of collective responsibility have been discussed above in relation to thenational executive.11 These principles apply equally to the provincial executive.

1 Section 132(4)(d)(i) as inserted by Clause 1 of Annexure C to Schedule 6 read with Item 12(2) ofSchedule 6.

2 Mpehle v Government of the Republic of South Africa & another 1996 (7) BCLR 921 (Ck) at 929E--930H. 3 Section 132(1). 4 Section 132(2). 5 Section 132(2). 6 § 4.5(a)(iii). 7 See above, § 3.4(b)(ii). 8 Section 137. 9 Section 238 read with the definition of ‘organ of state’ in s 239(1). As pointed out above, § 3.5(b)(ii), the scope

of the ‘consistency’ requirement is not clear.10 Executive Council, Western Cape Legislature, & others v President of the Republic of South Africa & others

1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC) at para 173.11 Above, Chaskalson & Klaaren ‘National Government’ § 3.4(b)(iii).



(c) Sources of provincial executive authority

The ambit of provincial executive authority under the final Constitution is described bys 125(2). Included in the list are several categories of executive power which are to beexpected: the implementation of provincial legislation, the administration of national legisla-tion assigned to the provincial executive, the development and implementation of provincialpolicy, the co-ordination of the functions of departments of the provincial administration,and the preparation and initiation of provincial legislation.1 Of particular interest, however,is the provision in s 125(2)(b) for the provinces to be primarily responsible for the imple-mentation of national legislation in respect of Schedule 4 and 5 matters. This provision mustbe read with those relating to the participation of the provinces in the national legislativeprocess over Schedule 4 and 5 matters through the NCOP.2 Together they vest the provinceswith considerable powers in respect of Schedule 4 and 5 matters which are the subject ofnational legislation.18 Section 125(2)(g) grants the provinces general executive authority in respect of ‘any otherfunction assigned to the provincial executive in terms of the Constitution or an Act ofParliament’. This general category would include the executive responsibilities assigned tomembers of the Executive Council by Cabinet Ministers in terms of s 99.3 It also includesthe assigned executive powers which are regulated by the transitional provisions of the finalConstitution, Schedule 6. Schedule 6 gives continuing effect to any assignments effectedunder s 235(8) of the interim Constitution.4 Item 14 of Schedule 6 is the successor to s 235(8).It provides for the assignment to provinces of executive powers under legislation whichrelates to Schedule 4 or 5 matters and which pre-dates the final Constitution. The Presidentis given a discretion to make such assignments by proclamation. Unlike s 235(8), Item 14does not give the provinces the right to demand any assignment of Schedule 4 or 5 powers.The President may refuse to assign the relevant powers. Another significant difference is thatItem 14 permits the assignment of any executive powers conferred by Schedule 4 or 5legislation, and not only those relating to matters in respect of which the national legislativeoverride does not operate.

1 Implicit in these executive responsibilities is the power to employ persons to positions in a provincialadministration (Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of theRepublic of South Africa 1996, 1996 (4) SA 744 (CC), 1996 (10) BCLR 1253 (CC) at para 276). However, theprovinces do not have the executive power to structure their administrations as they see fit. Provincial administrationsform part of the public service of the Republic and s 197 of the Constitution provides that this single public servicemust be structured in terms of national legislation. See further Premier of Province of the Western Cape v Presidentof the RSA & another 1999 (3) SA 657 (CC), 1999 (4) BCLR 382 (CC).

2 See above, Chaskalson & Klaaren ‘National Government’ § 3.3(b).3 These have been discussed above, Chaskalson & Klaaren ‘National Government’ § 3.4(b)(ii).4 Item 2(2) provides that pre-1994 legislation continues in force and is administered by the authorities that

administered it when the final Constitution took effect. Thus assignments of administrative responsibility unders 235(8) of the interim Constitution are sustained. These assignments are discussed above, § 4.2(c).



(d) Executive oversight and intervention

REVISION SERVICE 5, 1999The executive power of a province is subject to national government oversight. As hasbeen discussed above, if a province fails to fulfil any of its executive obligations, thenational government may intervene to ensure that the obligation is fulfilled.1 The provincesare given an equivalent executive oversight and intervention power with respect to localgovernments.2

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1 Above, Chaskalson & Klaaren ‘National Government’ § 3.4(c).2 Section 139.


[REVISION SERVICE 5, 1999] 4--18A

18B

4.6 FINANCIAL ISSUES RELATING TO PROVINCIAL GOVERNMENT UNDER THE FINAL

CONSTITUTION1

(a) Provincial revenue

REVISION SERVICE 2, 1998The final Constitution provides that provinces are entitled to an equitable share of revenuecollected nationally to enable them to provide basic services and to perform the functionsallocated to them.2 As was the case under the interim Constitution,3 the final Constitutioncontemplates that an Act of Parliament will provide for the determination of this equitableshare.4

19 A significant change from the interim Constitution is the creation of a constitutionallyentrenched provincial power of taxation.5 Section 228 empowers provinces to impose taxes,levies and duties other than income tax, value-added tax, general sales tax, rates on propertyor customs duty and to impose surcharges on any national taxes other than corporate incometax, value-added tax, rates on property or customs duty. The taxing power conferred by s 228is a legislative competence which is additional to that conferred by s 104.6 Thus provincialtaxes need not be limited to taxes in respect of matters falling within Schedules 4 and 5.Section 228(2)(b) provides that the provincial taxing power must be regulated by nationallegislation, but there will be clear limits to the exercise of this national power of regulation.It will not be capable of a use which would extinguish the provincial taxing power.7

As was the case under the interim Constitution, the final Constitution provides that allmoney received by a provincial government must be paid into the Provincial Revenue Fund andcan be withdrawn only in accordance with a provincial appropriation Act or as a direct chargeprovided for by the Constitution or provincial legislation.8 Under the final Constitution, however,the general rule is subject to reasonable exceptions provided by an Act of Parliament.9 Thiswould allow Parliament to exercise direct control over conditional grants in a way which wasnot possible under the interim Constitution.10 It would also allow Parliament to encouragecost recovery in provincial departments by providing for recovered funds to be retained bythe departments as opposed to being paid into the Provincial Revenue Fund.

1 Note that the provisions of the final Constitution relating to provincial finances will come into effect only on1 January 1988. Until that date the relevant provisions of the interim Constitution continue in force. See s 243(5)and Item 24 of Schedule 6.

2 Section 227(1). 3 See above, § 4.3(a). 4 At the time of going to print this Act had still not been passed. 5 The significance of this change was underestimated by the Constitutional Court when it compared provincial

powers under the interim and final Constitutions for the purposes of Constitutional Principle XVIII.2 in the firstcertification judgment, Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitutionof the Republic of South Africa, 1996 1996 (4) SA 744 (CC), 1996 (10) BCLR 1253 (CC) at paras 437--42.

6 In this regard it is analogous to the provincial constitution-making power. See Ex parte Speaker of theKwaZulu-Natal Provincial Legislature: In re Certification of the Constitution of the Province of KwaZulu-Natal,1996 1996 (4) SA 1098 (CC), 1996 (11) BCLR 1419 (CC) at para 4 and Ex parte Speaker of the ProvincialLegislature of the Western Cape: In re Certification of the Constitution of the Western Cape, 1997 1997 (4) SA 795(CC), 1997 (9) BCLR 1167 (CC) at para 8.

7 See R v Williams 1914 AD 460 and Baxter Administrative Law (1984) at 406. 8 Section 226. 9 Section 226(1).10 See above, § 4.3(a).



(b) Provincial assets and liabilities

The final Constitution contains no provisions relating to the succession to public assets whichvested in governments disestablished by the interim Constitution.1 Ordinarily this will notcreate any difficulties. The national and provincial governments under the final Constitutionsucceed the identical governments which existed under the interim Constitution. Thus assetswhich were owned by any particular government under the interim Constitution will remainthe property of that government under the final Constitution. Where, however, a public assetwhich pre-dated the interim Constitution was not capable of allocation in terms of the rulesof s 239(1)(a)--(c) of the interim Constitution, and was not allocated in terms of s 239(1)(d),a problem arises. Section 239(1)(d) no longer exists and the final Constitution contains noprocedure comparable to s 239(1)(d) by which to allocate such an asset. In such a situation,while the asset would vest in the state, there would be no obvious mechanism for its allocationto the provincial or national governments as agents of the state.2 This is a matter which needsto be rectified by legislation.3

20 The final Constitution also does not regulate the succession to public liabilities whichpre-dated 27 April 1994. There was no need for it to do so, because the interim Constitutionprovided that these liabilities were all assumed by the national government.4

4.7 PROVINCIAL CONSTITUTIONS

(a) The provincial constitution-making power

(i) General

The provinces are not sovereign states. They exist only by virtue of the final Constitutionand have no powers beyond those which the final Constitution specifically confers uponthem.5 Thus the scope of their constitution-making power must be found in the finalConstitution. A province derives its power to pass a constitution from ss 142 and 143 of thefinal Constitution, which provide as follows:

1 It appears to have been drafted on the assumption that all such questions of succession to assets would havebeen resolved under the interim Constitution, either by operation of law in terms of ss 239(1)(a)--(c), or by agreementin terms of s 239(1)(d).

2 In the absence of any legislation regulating the issue, the allocation of the asset between provincial and nationalgovernments would have to be negotiated between the governments concerned, having regard to the principles ofco-operative government set out in Chapter 3 of the final Constitution.

3 Pending the enactment of any legislation to regulate the matter, the national government would probably havelocus standi to sue in respect of such an asset. The power to sue to recover a state asset is an aspect of the executivepower of the state, and the national government is vested with the residual executive authority of the state: ExecutiveCouncil, Western Cape Legislature, & others v President of the Republic of South Africa & others 1995 (4) SA 877(CC), 1995 (10) BCLR 1289 (CC) at para 74(iv). This conclusion is also supported by Government of the Republicof South Africa v Malevu 1995 (8) BCLR 995 (D) at 1000C--J, although the court in that case reached the conclusionthrough a different line of reasoning, which is criticized above, § 4.3(b).

4 See above, § 4.3(b).5 National Education Policy Bill No 83 of 1995 1996 (3) SA 289 (CC), 1996 (4) BCLR 518 (CC) at para 23;

Ex parte Speaker of the KwaZulu-Natal Legislature: In re Certification of the Constitution of the Province ofKwaZulu-Natal 1996 (4) SA 1098 (CC), 1996 (11) BCLR 1419 (CC).



‘142. Adoption of provincial constitutionsA provincial legislature may pass a constitution for its province, or where applicable, amend itsconstitution, if at least two thirds of its members vote in favour of the Bill.1

143. Contents of provincial constitutions (1) A provincial constitution or constitutional amendment must not be inconsistent with thisconstitution, but may provide for ----(a) provincial legislative or executive structures and procedures that differ from those provided

for in this Chapter; or(b) the institution, role, authority and status of a traditional monarch, where applicable. (2) Provisions included in a provincial constitution or constitutional amendment in terms ofparagraphs (a) or (b) of subsection (1) ----(a) must comply with the values in section 1 and with Chapter 3; and(b) may not confer on the province any power or function that falls ----

(i) outside the area of provincial competence in terms of Schedules 4 and 5; or(ii) outside the powers and functions conferred on the province by other sections of the

Constitution.’2

21 Sections 142 and 143 are empowering provisions which grant a province a constitution-making legislative competence which is additional to the legislative competence which isconferred on a provincial legislature by s 104. Thus within the scope afforded by ss 142 and143 a province has the power to design its own constitution and does not have to bring itsconstitution-making power within the range of the legislative powers conferred on it by s 104.It has a separate power to regulate the structures, powers and relationships of organs ofprovincial government and other organs of state which are subject to the powers of provincialgovernment.3 In Ex parte Speaker of the Provincial Legislature of the Western Cape: In reCertification of the Constitution of the Western Cape, 1997 (‘the first Western Cape Consti-tution case’)4 the Constitutional Court described the provincial constitution making poweras follows:

‘. . . [T]he power is a significant one, enabling a province to regulate its governance in its ownfashion, subject to the provisions of NC 143. It includes organizing the provincial government,regulating, distributing and circumscribing the functions of its different departments, and prescrib-ing the manner in which the powers it derives from the NC are to be exercised. It also includespowers incidental to such competences and making provision for or regulating other powers of thetype normally found in a constitution which are not inconsistent with the NC or the powerrelationship it establishes.’5

However, the scope afforded by ss 142 and 143 is subject to clear limits. Save in respectof the exceptions specified in s 143(1)(a) and (b), a constitution produced by a provincecannot be inconsistent with a provision of the final Constitution. Even where s 143(1)(a) and(b) authorises provisions in a provincial constitution which differ from those of the final

1 The equivalent provision of the interim Constitution was s 160(1).2 The equivalent provision of the interim Constitution was s 160(3).3 Ex parte Speaker of the KwaZulu-Natal Legislature: In re Certification of the Constitution of the Province of

KwaZulu-Natal 1996 (4) SA 1098 (CC), 1996 (11) BCLR 1419 (CC) at para 4.4 1997 (4) SA 795 (CC), 1997 (9) BCLR 1167 (CC) at para 8.5 NC refers to the final Constitution. An example of a power ’of the type normally found in a constitution’ is the

power to confer honours. The Constitutional Court accordingly, accepted a provision in the Western Cape 1997constitutional text which empowered the province to confer its own honours. (first Western Cape Constitution caseat para 36). See also paras 77 to 78 of the judgment where the Court accepted that a provincial constitution couldcontain directive principles of provincial policy.



Constitution, these provisions must comply with the fundamental values in s 1 and theprinciples of co-operative governance in Chapter 3, and may not confer on a province morepowers than it has under the final Constitution.1

22 That a provincial constitution has no effect whatsoever on the powers of the nationalgovernment under the Constitution2 follows from the fact that a provincial constitutioncannot be inconsistent with the Constitution and from the fact that it is a provincialconstitution. The final Constitution confers a range of governmental powers on the nationalgovernment which are not subject to provincial regulation or limitation.3 If a provincialconstitution purports to limit these powers, it necessarily creates an inconsistency with theConstitution which, in terms of s 143(1), is impermissible.4

(ii) Different legislative and executive structures

Section 143(1)(a) allows a province to provide in its provincial constitution for ‘provinciallegislative or executive structures and procedures that differ from those provided for in [thenational Constitution]’. This creates a limited exception to the general principle that provi-sions of a provincial constitution must be consistent with those of the national Constitution.In the first Western Cape Constitution case5 the Constitutional Court pointed out thatstructures and procedures had to be distinguished from powers. The exception created bys 143(1)(a) affects only ‘the form, composition and organization of a province’s institutions(‘‘structures’’) and the manner in which they exercise their powers (‘‘procedures’’)’.6 It doesnot affect the substance of those legislative and executive powers. Thus a provincialconstitution can create a legislature or executive, the component parts of which differ fromthose prescribed by the national Constitution.7 It can also create a legislature or executivewhich exercises its powers by processes which differ from those of the national Constitution.However, the powers of the provincial legislature or executive derive exclusively from thenational Constitution and a provincial constitution cannot purport to extend to its legislature

1 This is stated expressly in s 143(2)(b). See also Ex parte Speaker of the KwaZulu-Natal Legislature: In reCertification of the Constitution of the Province of KwaZulu-Natal 1996 (4) SA 1098 (CC), 1996 (11) BCLR 1419(CC) at para 8 and Minister of the Interior v Harris 1952 (4) SA 769 (A), where Van den Heever JA stated at790D--E: ‘No legislative organ can perform an act of levitation and lift itself above its own powers by the bootstrapsof method.’

2 In Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republicof South Africa, 1996 1996 (4) SA 744 (CC), 1996 (10) BCLR 1253 (CC) at para 349.

3 For example, s 43 of the final Constitution confers on Parliament the legislative authority of the Republic. Whilethis power is subject to the provisions of the interim Constitution (Executive Council, Western Cape Legislature, &others v Government of the Republic of South Africa & others 1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC)at para 62), it is not subject to the provisions of any provincial constitution. Any attempt in a provincial constitutionto render it so subject would therefore be inconsistent with the final Constitution.

4 Ex parte Speaker of the KwaZulu-Natal Legislature: In re Certification of the Constitution of the Province ofKwaZulu-Natal 1996 (4) SA 1098 (CC), 1996 (11) BCLR 1419 (CC) at paras 16 and 34.

5 1997 (4) SA 795 (CC), 1997 (9) BCLR 1167 (CC).6 At para 16.7 For example, provisions of the 1997 Western Cape constitutional text which prescribed numbers of members

of the Western Cape legislature and the Western Cape executive which differed from those prescribed in the nationalConstitution were held by the Constitutional Court to be unobjectionable. First Western Cape Constitution case1997 (4) SA 795 (CC), 1997 (9) BCLR 1167 (CC) at paras 51 and 59--61.



or executive more powers than they are given by the national Constitution. Moreover, s 143(1)(a)does not permit a provincial legislature to exercise, otherwise than in its constitution itself,the power to provide for different legislative or executive structures. The provincial constitutioncannot purport to delegate this power to ordinary provincial legislation. To do so would beto circumvent the certification process and the special procedural requirements which applyto the adoption of provincial constitutions.1

23 The scope of the exception created by s 143(1)(a) is decidedly limited. In the first WesternCape Constitution case the Constitutional Court refused to certify a provincial constitutionaltext which contained a provision purporting to empower the provincial legislature to enacta provincial electoral law which provided for a form of proportional representation whichdiffered from that set out in the national Constitution. The province contended that the powerto enact an electoral law was incidental to the power to provide for different legislativestructures because the electoral law was necessary to determine how those structures wouldbe filled with legislators. The Constitutional Court disagreed. It stated the following:2

‘When NC 143(1)(a) permits a provincial constitution to provide for a provincial legislativestructure different from that provided for in NC chap 6, it permits no more than a differenceregarding the nature and number of the elements constituting the legislative structure. An electoralsystem not only does not constitute one of these elements but also has no effect on the nature or thenumber of such elements. It is accordingly not encompassed within the permissive provisions ofNC 143(1)(a).’

(b) Certification of a provincial constitutional text

Section 144 of the final Constitution states the following: ‘(1) If a provincial legislature has passed or amended a constitution, the Speaker of the legislaturemust submit the text of the constitution or constitutional amendment to the Constitutional Courtfor certification. (2) No text of a provincial constitution or constitutional amendment becomes law until theConstitutional Court has certified(a) that the text has been passed in accordance with section 142; and(b) that the whole text complies with section 143.’3

Section 144 is designed to protect constitutionality and certainty.4 It provides a mechanismwhich ensures that a provincial constitution has no effect until the Constitutional Court hasdetermined that it is fully consistent with the final Constitution, and thus protects a provincialconstitution which has been certified from future challenges to its validity.5 Considerations

1 First Western Cape Constitution case 1997 (4) SA 795 (CC), 1997 (9) BCLR 1167 (CC) at para 19.2 At para 48.3 The equivalent provision of the interim Constitution was s 160(4).4 Ex parte Speaker of the KwaZulu-Natal Legislature: In re Certification of the Constitution of the Province of

KwaZulu-Natal 1996 (4) SA 1098 (CC), 1996 (11) BCLR 1419 (CC) at paras 11 and 37.5 Section 160(5) of the interim Constitution expressly precluded any court of law from enquiring into the validity

of a provision of a provincial constitution after that constitution had been certified. Such a provision would not havebeen appropriate in the final Constitution because the final Constitution has an indefinite lifespan and will beamended from time to time. Whereas the requirements of certainty justified the total protection of a certifiedprovincial constitution during the three-year life of the interim Constitution, constitutional supremacy demandsthat provincial constitutions certified under the final Constitution are not protected permanently from constitutional

[continued on page 4--24]



of constitutionality and certainty are more important in the case of a constitution than inordinary legislation because a constitution provides a framework for the exercise of provin-cial governmental power. If a provincial constitution itself is vulnerable to constitutionalchallenge, there can be no certainty with respect to the validity of acts of governmentperformed in terms of that constitution.24 The certification jurisdiction of the Constitutional Court is derived exclusively from s 144.The wording of s 144(2)(b) precludes a piecemeal approach to certification. The court musteither certify that the whole text of a provincial constitution is consistent with the finalConstitution or it must state that this is not the case. Section 144(2)(b) does not allow theConstitutional Court to certify certain provisions but not others and to provide, in a processakin to severance, that the certified provisions will take effect but the uncertified provisionswill not.1 The rationale for the section appears to be that a provincial constitution is soimportant an instrument that its writing is the exclusive preserve of the provincial legislature.Thus any act of ‘severance’ performed by the court would be an impermissible trespass onthe domain of the provincial legislature.

(c) The provincial certification cases

(i) The KwaZulu-Natal constitutional text, 1996

In Ex parte Speaker of the KwaZulu-Natal Provincial Legislature: In re Certification of theConstitution of the Province of KwaZulu-Natal, 1996 2 the Constitutional Court declined tocertify a constitutional text adopted with the unanimous support of the provinciallegislature of KwaZulu-Natal. The constitutional text failed to pass the certification test onvarious counts.3

First, a number of provisions of the constitutional text purported to usurp powers whichcould derive only from the national constitution. Thus clause 1(1) of chapter 1 purported todetermine the status of KwaZulu as a ‘self-governing province’, clause 1(5) purported to structurethe relationship between the province and the national government, and clause 1(8) assertedthat the provincial constitution set out the basis of interaction between the province and therest of the Republic.4 In a similar vein, chapter 3 contained a Bill of Rights including certainrights which could have no possible application to matters within the constitutional compe-

scrutiny, even in circumstances where national constitutional amendments have created inconsistencies between aprovincial constitution and the national Constitution. However, the national government may not amend the nationalConstitution with the express purpose of invalidating a provincial constitution. Such an amendment would, inall likelihood, violate the co-operative governance provisions of Chapter 3 of the Constitution. See, for example,s 41(1)(e) and (g).

1 Ex parte Speaker of the KwaZulu-Natal Legislature: In re Certification of the Constitution of the Province ofKwaZulu-Natal 1996 (4) SA 1098 (CC), 1996 (11) BCLR 1419 (CC) at para 10.

2 1996 (4) SA 1098 (CC), 1996 (11) BCLR 1419 (CC).3 The case was brought under the interim Constitution and the certification enquiry took place in terms of s 160(4)

of that Constitution. However, the reasoning of the Constitutional Court in the case will apply equally to acertification case brought under the final Constitution. In Ex parte Chairperson of the Constitutional Assembly:In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC), 1996 (10) BCLR1253 (CC) at para 350 the Constitutional Court concluded that the constitution-making power of a province underthe final Constitution was subject to the same limitations as it had been under the interim Constitution.

4 See paras 14--16.



tence of a province,1 while chapter 5 purported to confer certain exclusive powers on theprovince and to recognize other exclusive powers as vesting in the national government.2

25 The constitutional text stated in clause 1(9) of chapter 1 and clause 1(1) of chapter 4 thatif any of its provisions were inconsistent with the national constitution or the constitutionalprinciples, those provisions would be of no force or effect. Counsel for the province arguedthat these clauses, in themselves, rendered the constitutional text certifiable. The argumentwas that, as clauses inconsistent with the national constitution would have no force, theConstitutional Court could certify the constitutional text because all that it would becertifying would be those provisions of the text which were consistent with the nationalconstitution. The court rejected this argument because it defeated the purpose of certaintywhich underlay the certification process:

‘[The device of these clauses] would effectively preclude this Court from testing any provision inthe provincial Constitution against the requirements of section 160(3). Its application, no doubt,would be to immunise the provisions of that Constitution from the obligatory discipline of theconstitutional certification process. We would be prevented from saying that a provision soimmunised is not inconsistent with provisions of the interim Constitution. The objectives of inalityand certainty would thereby be defeated.’3

Suspensive conditions were another device with which the province attempted to achievecertification of its constitutional text. The operation of several chapters of the text wassuspended until the final Constitution came into effect and then made subject to theirconsistency with the final Constitution. The court held that the suspended provisionsremained part of the text and that if they were inconsistent with the interim Constitution, thetext could not be certified.4 Other provisions were suspended for a period of six months andtheir operation was made subject to additional resolutions being passed by the legislaturewith specified levels of voting support. The very existence of suspensive conditions of thisnature was held by the court to be a barrier to certification.

‘[These suspended provisions] cannot be said to be part of a constitution ripe for certification interms of section 160. Section 160 contemplates the certification of a constitutional text which hasbeen adopted; not one that might be adopted or might be repudiated dependent on decisions still tobe taken. At the time of the submission of the KZN Constitution to this Court for certification, afinal decision on important provisions of the constitutional text had not yet been taken; in truth, thedecision on such provisions had been deferred for later determination by the provincial Legislature,and the constitution in the form in which it was submitted for certification was inchoate, and lackingin finality. The request that the text be certified before a final decision has been taken on thesematerial provisions is premature, and on this ground alone the Constitution cannot be certified.’5

(ii) The Western Cape constitutional text, 1997

The first constitutional text adopted by the Western Cape provincial legislature in 1997 faredbetter in the Constitutional Court than the 1996 KwaZulu-Natal constitutional text had done.Nevertheless, the Constitutional Court declined to certify the Western Cape text on threelimited grounds. The first, and most serious, obstacle to certification was created byclauses 14 and 15 of the text. These stated the following:

1 See paras 17--31. 2 See paras 32 and 34.3 At para 36. 4 At paras 40--6.5 At para 46.



‘14 Election of Provincial ParliamentThe Provincial Parliament consists of persons elected as members in terms of an electoral systemthat ----(a) is prescribed by provincial legislation . . .(d) is based predominantly on the representation of geographic multi-member constituencies.’

‘15 Membership . . . (4) Vacancies in the Provincial Parliament must be filled in terms of provincial legislation.’

26 These provisions were inconsistent with the electoral system prescribed by ss 105 and106 of the national Constitution. The province argued that they fell into the exceptionalconstitution-making power created by s 143(1)(a), but this argument was rejected by thecourt. The court held that an electoral system is not an aspect of a legislative structure andthat, in any event, s 143(1)(a) does not permit a provincial constitution to empower itslegislature to enact ordinary laws relating to legislative structures which are inconsistent withthe provisions of the national Constitution.1

There were two additional minor problems which precluded certification of the WesternCape text. First, the text required the Judge President of the High Court of the Western Capeto perform certain ceremonial functions and to administer the oaths of office of variousprovincial functionaries. This was held to be inconsistent with the corresponding provisionsof the national Constitution, which required the President of the Constitutional Court toperform these functions and to administer these oaths.2 Finally, clause 46(3) of the textrestated the injunction in the national Constitution against members of the provincial cabinetundertaking paid work outside the government.3 However, it purported to empower theprovincial legislature to define in provincial legislation what constituted paid work forthe purposes of this clause. The Constitutional Court held that this was inconsistent with thenational Constitution and did not fall into the exception created by s 143(1)(a).4 The meaningof ‘paid work’ had to be determined by the Constitutional Court in the interpretation ofthe national Constitution and not by the provincial legislature in its own discretion.5

Following the first Western Cape Constitution judgment the legislature of the WesternCape amended its text to remove the defects identified by the Constitutional Court.6 Theamended text was submitted for certification without opposition and was duly certified bythe court.7

1 See above, § 4.7(a)(ii).2 See paras 52--6.3 See FC s 136.4 See para 65 where the Court stated the following:‘The ethical conduct of a provincial MEC is patently not a provincial ‘‘executive structure’’. Can it be said to bea provincial ‘‘executive procedure’’? Providing for ‘‘executive procedures’’ means to provide for proceduresregulating the functioning of the executive as executive; the phrase is not naturally extended to prohibitionsregarding private activities of members of the executive. It follows that any prohibition regarding paid work doesnot fall under NC 143(1)(a). WCC 46(3)(a) can therefore be certified only if it is not inconsistent with theprovisions of the NC.’5 See para 66.6 There was one additional amendment which related to the composition of the provincial cabinet.7 Second Western Cape Constitution case 1997 (12) BCLR 1653 (CC).



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