This is the fourth in a series of five articles on the topic of federalism in South Africa, past, present, and future. Each article may be read as a standalone piece, but they are best read chronologically.

It is not commonly known that today South Africa is, in law, a federation. While it is understandable that this might escape most laypersons, it is deeply concerning that presumably well-informed politicians like police minister Bheki Cele and former labour and finance minister Tito Mboweni think South Africa is constitutionally a unitary state.

The myth is pervasive. As of writing, the Wikimedia image used throughout Wikipedia’s pages on systems of government, unitary and federal states, indicates South Africa as a unitary state.

Why do I argue South Africa is a federation? 

Douglas Irvine, Emeritus Professor of Political Studies at the University of Natal (now University of KwaZulu-Natal) and, between 1994 and 1996 a technical adviser to the Commission on Provincial Government and to the Constitutional Assembly, and whose focus area is decentralisation, wrote in his contribution to Constitution-Making in the New South Africa (Centre for Federal Studies, 1991), that there are three rights that define a federal state:

  • The federal component (the province) cannot be abolished without its own consent;
  • The federal component has an area of original legislative and administrative competence; and
  • The federal component has the right to participate in the governance of the federal state itself.

Kader Asmal, a senior African National Congress (ANC) lawyer at the time, wrote in 1994, in his contribution to South Africa’s Crisis of Constitutional Democracy: Can the U.S. Constitution Help?, that in a federal state ‘the allocation of power between a federal and a provincial government is [expressly] delineated’ as opposed to left to the discretion of the central government. 

South Africa’s provinces today have constitutionally defined authority, including a set of exclusive provincial areas on which they may legislate. The provinces are also equally represented in the upper house of Parliament, the National Council of Provinces, which must consent to the alteration of any provincial boundaries, powers, or institutions. The Constitution was written in this way because federalism was, in all but name, required by Principles 16 to 27 of the 34 non-negotiable constitutional principles contained in the interim Constitution, adopted during the transition. South Africa is unique in that even local government has constitutionally defined authority, which in a traditional federation is usually left entirely to the discretion of provincial legislatures.

At the time of writing, South Africa is listed as a federation on the website of the Center for the Study of Federalism (CSF) at Lafayette College.

By virtually any constitutional definition, South Africa is a federation. And with the unique position of local government in our constitutional dispensation, South Africa is doubly federal.

Federal for the first time

All the reasons why South Africa is today a constitutional federation, are the same reasons why, under Apartheid, the homeland system which leftist politicians enjoy dishonestly associating with federalism, was not a federal system. 

The homelands, to a large extent even the so-called ‘independent’ TBVC ones, only had those competences assigned to them by Pretoria (they were all established and regulated by Acts of the South African Parliament), they had no right to participate in governance in the central sphere (no homeland representatives sat in any chamber of Parliament), and they could be (and were eventually) unilaterally abolished with minimal democratic input from within their borders.

Far from being federalist, the homelands regime was a system of discretionary devolved government, like we see today in the United Kingdom and Spain, both unitary states. 

And South Africa today, being a federation, is governed like a unitary state. The commentators and politicians who complain about federalism being akin to ‘neo-Apartheid’ should therefore check themselves, as our present unitary political (as opposed to constitutional) arrangement is closer to what happened during Apartheid than what it would be if South Africa properly federalised.

Federation without federalism

The mere fact that South Africa, legally, is a federation, does not mean South Africa subscribes to federalism. The CSF, thus, distinguishes between federalism as a form of government (herein, federation), and the principle of federalism. As a principle, a federal arrangement must check the ‘forces of centralization [on the one hand] and anarchy [on the other]’ and aim ‘at establishing justice among the consenting partners and ensuring liberty.’

The fact that it escapes most people that South Africa is a federation is reason enough to conclude that the federalist principle is absent. The United States of America is rarely referred to as a ‘federation’ – usually it is called a ‘republic’ or a ‘union’ – but everyone in America knows that it is in fact a federation. Often, although not always, American state governments stand up for their autonomy and sometimes push the boundaries of that autonomy, much to the annoyance of a federal government that can only issue threats and withhold grants. In South Africa, by contrast, the governments of most – and perhaps all – provinces, behave as if they are satellite offices of Pretoria.

One of the primary reasons that South Africa is a federation without federalism is, again, the rush of the transition that was addressed in the previous article. This reason is quite ‘meta,’ because it meant ordinary South Africans and participants in the negotiations to end Apartheid could not critically engage with the superficial justifications the ANC provided for why South Africa ought not federalise properly, and why the ANC and NP settled on the German model of federalism.

The German model

The type of federal dispensation that South Africa possesses is sometimes called ‘cooperative federalism,’ the model popularised in the Federal Republic of Germany and, to a lesser extent, in Australia and Canada. This is to be distinguished from the ‘competitive federalism’ that one would associate with the United States.

Cooperative federalism emphasises cooperation between the different spheres of government, whereas competitive federalism is specifically directed at the spheres checking and balancing the power of the others, and therefore when appropriate pushing back against and competing with them. German cooperative federalism is a centralised federalism that (constitutionally) gives regions some discretion to adapt federal policy to their local circumstances, as opposed to having their own policies for their own circumstances. As Ronald Watts writes in Comparing Federal Systems in the 1990s (1996):

‘The federal government [of Germany] has a broad range of exclusive, concurrent and framework legislative powers, but the Länder [German provinces] have a mandatory constitutional responsibility for applying and administering a large portion of these laws.’

Watts also notes how Canadian federalism was intended to be a more centralised kind of federalism, which the Australians during their federalisation had rejected, seeking to limit the central government and empower the regions. That is, in theory. ‘In practice, however,’ writes Watts, ‘the Australian federation has evolved into a relatively more centralized federation, particularly with respect to financial arrangements.’

Ironically, in the case of Canada, ‘[d]espite its originally centralized form, a century and a quarter of pressures to recognize duality and regionalism have made Canada a relatively decentralized federation both legislatively and administratively.’

The German cooperative model of federalism was virtually absent from South Africa’s federalist discourse up to the transition. At best, it was on occasion mentioned in passing as a possibility, but the focus was always on the true federal model: competitive federalism. The main voices for federalism in South Africa, being the Natalians, later the Progressive Party, later Inkatha, later Groundswell and the cantonists, all advocated for true federalism.

It was only after 1990, when the National Party (NP) made some insincere overtures to federalism, that the German model appeared on the radar. Irvine, indeed, argues that the preference for this model in particular came from the NP government’s constitutional planners. Albie Sachs’ defence of the German model in 1992, when he was an ANC lawyer, as we saw in the previous article, is another reason to conclude that the NP and ANC were largely ad idem on important questions during the transition.

As Bertus de Villiers wrote in 2019, ‘the ANC relied strongly on the type of federalism that had developed under the constitution of the Federal Republic of Germany after the Second World War.’ This model has as one of its central characteristics the idea of Bundestreue: ‘the duty of national and sub-national governments within a federal state to take each other’s interests into account in the exercise of their respective responsibilities.’ This idea has been embodied in the principles of ‘cooperative governance’ in the South African Constitution.

Under cooperative governance, De Villiers explains, there is a duty on the spheres of government ‘to cooperate; to respect each other; harmonise; to refrain from litigation; and to regard and treat each other as partners.’ This is a far cry away from the federalist idea of different spheres of government restraining one another, negating one another’s abuses, and regarding one another as opponents.

Elem Eyrice Tepeciklioglu writes:

‘In other words, such systems [like South Africa’s ‘hybrid’ federalism] may carry the characteristics of a federation [on] paper but also have a strong central government in practice, which makes them look like a rather unitary system.’

It would be unfair to lambaste German federalism in this article, however. The German model has worked well for the Germans – a politically stable society where the government, unlike here, does not seem perpetually intent on impoverishing and undermining its subjects – and even though it is a more centralised federalism than one finds in the United States, it is still more decentralised than the South African adaptation of it. It would be more appropriate to speak of ‘South African federalism’ when referring to the constitutional arrangement in which we find ourselves today.

Had the timeline of the transition been more reasonable, with a more roundtable format rather than simply bargaining between the NP and ANC, South African federalism might have been more truly federalist.

Unseen consequences of South African federalism

The centralised South African federalism with which we are saddled has had some discernible consequences, but many remain unseen.

They remain unseen because, while our model of federalism is more centralised than one would find elsewhere, the outer boundaries of South African federalism have not yet been tested. Indeed, this is another indication of the lack of federalism among South Africa’s political elites, even in opposition parties. As Shelley Loe and Russel Crystal recently pointed out, the Democratic Alliance, despite governing a province and various municipalities, still allows the central government, in particular the governing ANC, to set the political agenda. 

For opponents between which there apparently exists a wide blue ocean, it is noteworthy that South Africa’s annual law reports are not filled to the brim with case names like Premier of the Western Cape v President of the Republic of South Africa, which is what would have happened if the Western Cape government was truly committed to testing the limits of South African federalism. 

While cooperative federalism itself should certainly be reconsidered in favour of a competitive model, in the meantime cooperative federalism must be utilised to its fullest extent to check the excesses of our unhinged central government. In practice, in other words, South Africa is governed like a unitary state, not yet even like a cooperative federal state. In this respect, much potential remains untapped. 

Obvious consequences of centralisation

The obvious practical consequences of centralisation in South Africa have manifested themselves in some of the most devastating social problems that face our society today. To name only a few:

The unemployment rate is approaching half of the working-age population, not just because of a bad economic environment, but because a one-size-fits-all labour policy regime was adopted in the late 1990s and applied throughout the country. It is unclear whether this labour regime actually makes sense for any part of South Africa other than Bishopscourt, Umhlanga and Sandton. But wherever an aspiring employee might find themselves, they are kept jobless because Pretoria wanted its nonsensical socialist edicts adhered to everywhere.

The chronic mismanagement of the South African Police Service (SAPS) has also had predictable consequences for the entire country because of its centralised nature. Provincial governments have limited oversight of the SAPS within their jurisdictions, but no powers of command and control. They cannot direct more police resources where it is needed, nor can they take decisive action against the corrupt, often murderous elements within the service. There are no substantive constitutional checks on the ANC gravy train as it relates to the police.

Soon, the SAPS will also be expected to enforce tyrannical policies like property confiscation throughout South Africa. Such an eventuality – such an awesome power wielded by a single centralised government – is precisely the thing federalism is meant to inhibit. It is inconceivable for the United States federal government, for instance, to implement a policy of wholesale nationalisation of private agricultural property throughout the country, as many state governments would stand squarely in the way of that. No such resistance would be forthcoming in South Africa, given the unitary structure of the police.

Another consequence of centralisation is the potential corruption of elections. In the United States, every state government is responsible for the administration and oversight of federal elections within its jurisdiction. This has, without a doubt, led to some concerning events throughout history, with less than stellar consequences for American democracy. But the essential point is that any such detrimental consequences are never uniform. A single mistake at the centre did not and will not lead to the mistake being replicated throughout the country.

In South Africa, on the other hand, the centralised, Pretoria-appointed ‘Independent’ Electoral Commission has dominion throughout the country. If it makes a democracy-destroying decision at the centre, democracy would be destroyed everywhere. The commission’s mistakes, missteps, and (potential) corruption during the lead-up to the 2021 municipal elections, widely covered in the pages of this publication, drove this point home.

This list of practical consequences of centralised political authority would not be complete without reference to how the South African government responded to the COVID-19 pandemic since March 2020. A hamlet with a population of 50 people in the Northern Cape was, and in many ways remains, forced to comply with the same rules and regulations that a city with a population of 1 million in Gauteng must comply. 

The mom-and-pop café in Velddrif with four tables, where the owner could easily implement social distancing standards, had to suffer the same consequences that a mall in Durban had to suffer. Thousands across the country lost their jobs as small businesses in particular had to retrench (if they were lucky) or close down entirely (if they were unlucky), simply, again, because Pretoria insisted that its edicts be adhered to everywhere.

A more abstract, but discernible consequence of South Africa’s federation-without-federalism is the unified court system. Whereas South Africa’s federal characteristics are found in various aspects of executive and legislative governance, it is nowhere to be seen in the unitary judiciary. 

The central Judicial Service Commission, a political institution whose constitution depends on the party-political constitution of Parliament, is responsible for recommending judges in all divisions of the judiciary, including the high courts which are nominally provincial. The President appoints all judges. The lower Magistrates’ Courts fall entirely within the domain of the central Department of Justice. The practical result of this is that provinces governed by more constitutionally and legally enlightened governments cannot appoint judges to their own courts. All regions are subject to the Transformationist appointments of the socialist central government.

‘It will be fine!’ they said

Increased poverty, instances of repression, and damage done to the constitutional-democratic order itself, are all in part to blame on centralised governance in the peculiar South African context that has demanded a federal dispensation since 1910. The ANC’s Kader Asmal and Albie Sachs wanted a centralised government precisely because, as South Africans were assured, this would be the only way to safeguard liberty, to alleviate poverty, and to ensure the abuses of the Apartheid regime did not continue on a regional basis. I wonder if these assurances can today be taken to the bank.

In the next and final article of this series, the necessity of reviving the federalist discourse is considered in light of State collapse in South Africa.

The views of the writer are not necessarily the views of the Daily Friend or the IRR

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