Freedom, Federalism, Free Enterprise, reads a Democratic Party poster from the 1990s. Those words form the essence of liberalism as South Africa has known it since the 1820s, and as the Progressive and Democratic parties ably embodied it during the previous century.

In the last two years, the Democratic Alliance (DA) has also made much progress in reclaiming ground that it lost as the premier representative of political liberalism in South Africa.

Imagine my shock, then, when the new Mayor of Johannesburg, Dr Mpho Phalatse, accompanied the municipally controlled Johannesburg Metro Police Department on a ‘raid’ on night clubs on 3 December 2021, and complained on Twitter about ‘the level of lawlessness’ exhibited by these clubs. Their crime, of course, was inadequate ‘screening of patrons for COVID, completing attendance registers, managing numbers, ensuring ventilation as well as other COVID protocols.’ ‘No more!’ she concluded.

One would think the term ‘lawlessness’ would be reserved for real criminal activity, or a breakdown in public order, not for peaceful people enjoying their evening peacefully. But more than that, why was a DA mayor pushing so eagerly for the enforcement of regressive lockdown policy that is the brainchild of the central government under the African National Congress (ANC)?

Herman Mashaba, Mayor of Johannesburg at the time when expropriation without compensation was placed at the top of national discourse by the ANC and the Economic Freedom Fighters, happily said that his government at the time would utilise the power to expropriate liberally so that he may ‘rejuvenate’ the inner city.

Two Johannesburg mayors of the official opposition identified themselves too closely – at least for my liberal sensibilities – with policies and priorities that ultimately emanate from Luthuli House.

I have had this discussion with opposition politicians before. After chastising me for a hint of liberal idealism, I am told that municipal and provincial governments depend on the central government for their funding. I am further told that ‘the law is clear,’ and that not enforcing national laws would tend to break down the opposition’s appeals to law and order and constitutionalism.

To too many, allegiance to the Constitution and to the law is confused with allegiance to the central government and to its judges’ debatable interpretations of the law.

A lesson from the dawn of South African liberalism

South African liberalism is a rich tradition, and for this set of facts a story from that tradition is warranted.

In 1848-49, the Imperial Government in Britain decided to make its possession in South Africa, the Cape Colony, a penal colony, like Australia had been. The decision was taken in terms of national British law. The public participation process, as it were, was over, and stamp of lawfulness had already dried. A ship carrying juvenile convicts, the Neptune, was eventually dispatched to the Cape. The colony erupted in continuous peaceful protest for the ensuing months.

William Porter was a staunch Irish unionist and great admirer of Great Britain. That did not stop him from availing his services to the people of the colony to write to the Imperial Government, in large letters, that they must ‘Commit no nuisance here.’ Porter was appointed by the British government to serve as the Attorney-General of the Cape Colony; a position he occupied for 26 years. He was a loyal servant of the Crown and to doubt his patriotism and allegiance to the law would have inspired offence. But even he realised that his constituency was the people of the Cape, and they did not want to be a dumpster for convicts from Britain. That was ultimately supposed to be their decision to make.

John Fairburn, another prominent early Cape liberal and a leader of the anti-convict movement, said, ‘The whole population had stated distinctly that the Colony should not be a penal settlement; and if any power on earth attempted to make it a penal settlement it would have to bring its food with it for no food would it obtain there.’

Eventually, the Neptune arrived off Simon’s Town, and there it would remain, while the Cape steadfastly refused to accept its passengers. Authorities in Simon’s Town directed that the bell in the Old Town Hall be tolled every 30 seconds while the ship remained in the bay.

The Anti-Convict Association adopted a resolution that embodied this resistance to nonsensical central imposition. It read as follows:

‘That it is the one duty of all good and loyal subjects of Her Majesty at once from this day to suspend all business transactions with the Government in any shape or on any terms, until it is officially declared that the ‘Neptune’ with the convicts on board will go away as soon as all necessary supplies for her voyage can be put on board; and that all intercourse and connection between private individuals and His Excellency [the Governor] and heads of victualling departments shall be dropt from this day – the merchants, auctioneers, bakers, butchers, shopkeepers and all other good and loyal people dealing only with such private individuals as they know and clearly understand to be unconnected with these departments by or through which supplies sufficient to afford a pretext for the detention of the convicts may possibly be obtained. And that the measures already taken for this purpose being too slow for the urgency of the case, it is recommended that from this moment all shops and stores shall be closed for a solemn fast, except for the accommodation for ordinary private and well-known customers, that His Excellency may no longer be in doubt as to the impossibility of detaining the ‘Neptune’ with her convicts within the limits of the Colony…’

This resolution, according to William Ewart Gladstone Solomon, in his biography of his father, Saul Solomon: THE Member for Cape Town, was complied with along the length and breadth of the colony.

At a meeting of the association, Saul Solomon, a prominent Cape liberal, said the following:

‘No Colony can successfully resist Colonial Office aggression but by awakening its fears, or disturbing its repose. And how can it be otherwise? Look at the system upon which England is now governing her colonies. Forty-three colonies – or thereabouts – numbering some hundreds of thousands – some millions – of people, of all complexions, all creeds, and all classes – of the most dissimilar habits, living under the most varying institutions, and the most complicated and contradictory laws – forty-three colonies. I say, under such circumstances, subjected to the government of one man called a Colonial Secretary – or, as is more frequently the case, one of his clerks – a government essentially secret and arbitrary, virtually irresponsible, necessarily distant and therefore ignorant of the circumstances and indifferent to the interests of the colonists. Is it any wonder that a government so constituted should be embarrassed and crushed to the earth by its own burdens? Is it any wonder that such a government should obstruct when it is inactive, and injure when it is in motion?’

The liberals would win the day, with the Neptune being sent on to Australia. The Imperial Government’s local representatives believed that unloading the passengers might lead to open rebellion among the colonists.

Solomon, alongside Fairburn and Porter, would go on to be staunch supporters of the representative and later responsible government movements, to bring control closer to those who have to live with the repercussions of political decisions.

Indeed, in 1854, Capetonians petitioned Solomon to represent them in the first representative Cape Parliament. He would do so for about the next 40 years.

In his reply to the petition, Solomon explained his political positions to his would-be constituents. He said he would support ‘all measures calculated to secure the civil and religious liberty of the people, as well as to those intended to advance the material prosperity, and to develop the resources, of the Colony.’ He would ‘give my decided opposition to all legislation tending to introduce distinction, either of class, colour, or creed.’ Solomon also explained that he was a South African unionist – not a separatist – but came out in favour of federalism:

‘With their own legislatures for domestic purposes, and with a central legislature for purposes of common interest to all, the Western Province, the Eastern Province, British Kaffraria, Natal, the Orange River Territory, and even the Transvaal Republic, might form one great nation; and as the United States of South Africa, while they would form a most powerful confederation for external defence, they would be governed, or would govern themselves, with comparative ease and satisfaction.’

Patriotically and without a hint of sedition, the Cape Colony, led by the earliest South African liberals, refused to accept a lawful decision taken by the central government. The answer, despite any formal procedures having been complied with by government, quite simply, was ‘no.’ The people of the Cape – certainly the figures of authority who participated – knew that their behaviour could yield serious repercussions for their own careers, but they stood on principle. They pushed for their decentralist beliefs despite any pressures brought to bear for them to stop.

Emergent federalism

There is too great an eagerness among opposition-controlled governments today – much more sophisticated than the bureaucracy at the Cape in the 1840s – to play nicely with the central government. In a mature constitutional democracy, this might be commendable and desirable. But in a context where the central government is effectively a criminal cabal seeking out any opportunity for corruption and wrongheaded economic policy, playing nice with such a syndicate is akin to being complicit in its country-scale looting. One owes no deference or respect to thugs.

Municipalities and provinces, while bound by national laws, owe no allegiance to the central government. Their allegiance is to their own constituents. This decision was taken consciously when the Constitution was being adopted, with levels of government being regarded as ‘spheres’ rather than ‘tiers,’ the latter of which implies a hierarchical relationship. That means that where national law – especially the Constitution – allows ‘lower’ spheres any room to dissent from the detrimental and backward priorities of the central government, they can and should exploit that room to its fullest potential. And the Constitution allows much room for such dissent.

Constitutionally, premiers don’t work for the President, and mayors don’t work for the premiers.

These municipalities and provinces have to accept that a confrontational and dissenting approach will endanger the funding they receive from the central government. That is the way of the world, and they will have to start exploring other avenues for funding.

The private movement, Solidarity, recently raised upwards of R300 million exclusively through voluntary contributions and built an entire private university, for example. It can be done. But what should never be done, is having municipal and provincial governments shifting the unnecessary burden of national priorities unto their constituents simply because they want to grease the fundraising process.

In a previous article I hypothesised that federalism in South Africa is emergent. It is not, at this stage, something that was agreed upon by politicians sitting around a table drafting a constitution. South Africa, while formally a federation, is one without federalism.

The political elite detests the idea of federalism, and therefore it is something that will have to come at the initiative of ordinary South Africans and those from outside the political elite they elect. Privately, this has already begun, with various communities having stepped into the void left by a collapsing State and taking the reins of control for themselves. In the public sphere, however, much is left to be desired, including and especially from those governments controlled by opposition parties at the municipal and provincial levels.

It is high time that municipalities and provinces governed by the opposition tell the central government in no uncertain terms: Commit no nuisance here. It must be possible, again, in South Africa, for the answer to be ‘no.’

[Image: https://pixabay.com/photos/puzzle-game-solution-connection-226743/]

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

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contributor

Martin van Staden is a legislative and policy consultant for Sakeliga, a member of the Council of the Institute of Race Relations, and serves on the the Executive Committee and Rule of Law Board of Advisors of the Free Market Foundation. He is pursuing a doctorate in law at the University of Pretoria. For more information visit www.martinvanstaden.com