South Africa is, formally, a federal state, which like many of Africa’s federations lacks federalist substance. Federalism – crucial for limited and accountable government – will continue to evade us for as long as civil society pretends that South Africa is a unitary state with the African National Congress (ANC) as its supreme leader.
Part of realising federalism in practice must include subcentral units of government openly acting against the dictates and desires of the central government. There is no point to federalism if this were not the case.
In the United States, the global exemplar of federalism, when the right is in power nationally, municipalities create “sanctuary cities” for immigrants to find refuge from federal authorities. When the left is in power nationally, county sheriffs refuse to enforce federal firearm restrictions.
Real federalism is confrontation and competition, in the public interest. It is an active tug of war that diffuses political risk and allows for controlled policy experimentation.
Nowhere is confrontation and competition – risky, painful, and awkward as it might be – more necessary than in South Africa’s collapsing civil government space.
Hoffman’s reply
It is within this context that I read Adv Paul Hoffman SC’s letter last week with much interest and concern.
In my column of two weeks ago I defended the principle that subcentral governments may – must – as a matter of (legal) necessity, take tangible steps to protect their inhabitants from the scourge of violent crime that the central government refuses to address.
Utilising the example of Panyaza Lesufi’s AmaPanyaza initiative, I took aim at the destructive response by the “federalist” Democratic Alliance and the “self-determinationist” Freedom Front Plus. These parties did not merely (rightly) criticise Lesufi’s perfectly in-character mishandling of the initiative, but (wrongly) criticised the very principle itself.
Hoffman’s reply to this column can be divided into four essential submissions, to which I respond in turn. Hoffman’s four lines of argument are:
1. The Constitution must “contemplate” a structure for it to be legally established;
2. Provincial and municipal law enforcement are inherently unconstitutional, and related:
3. The Constitution should be amended before there may be lawful provincial or local law enforcement; and
4. The “rule of law” is ultimately something Parliament “makes”.
I have defended the principle of Home Rule multiple times before, including in an extended paper that Hoffman has had sight of. It is therefore unclear why he believes my support for it is “inexplicable”. Nonetheless, the essence of the argument will come out below.
1. The Constitution’s “contemplations”
Hoffman writes:
“It is not a legitimate purpose of government to create a body that is not contemplated by the Constitution simply because it feels politically expedient to do so in a pre-election period.”
In addition to its AmaPanyaza project, Gauteng also has an eGovernment Department. The Constitution in no way directly authorises the existence of such an institution.
The central government also has a Department of Sport, Arts, and Culture. The only place the Constitution “contemplates” sport is in Schedule 5 – “provincial sport” – which concerns matters of exclusive provincial competence. There is no provision for “national sport” as a matter of state concern anywhere.
Has Accountability Now lodged a complaint with the Public Protector to challenge the wasting of taxpayer resources in Gauteng with its eGovernment Department and the central government with its sport portfolio?
Hoffman might reply that Gauteng’s eGovernment Department or the national sport portfolio are implied powers that emanate from explicit constitutional authorisations. This argument would be perfectly sustainable, but then Hoffman must explain – unless he agrees with me, which is doubtful – why “investigating” crime is not an implied part (as I argue it is) of the holistic mandate that municipal police departments have to “prevent” crime.
In reality, of course, the Constitution – like any constitution – creates a framework of governance onto which substance must be built. The Constitution need not itself explicitly “contemplate” a state entity before it may be established.
This is nothing more or less than the basically uncontentious general power of competence that spheres of government have.
Both Parliament and municipalities have this general power of competence, otherwise known as residual powers (they can legislate on whatever is necessary to achieve their constitutional mandates, provided that does not itself contravene the Constitution). Provinces have enumerated powers (that is, specified authority to legislate on anything in Schedules 4 and specifically 5). How they legislate on it will be up to the provincial legislature itself.
The Constitution, then, need not explicitly provide that “Provinces may establish provincial police services” any more than it needs to explicitly provide that “Provinces may establish eGovernment Departments”, provided a province can justify it according to the constitutional schedules. The references to “Provincial planning” and “Provincial roads and traffic” in Schedule 5 – again, the exclusive area of provincial legislative competence – come to mind.
2. The existence of subcentral police structures
Hoffman writes:
“Those who prefer devolution of policing powers to provincial or even local level are not without a remedy. The Constitution is not cast in stone. It has been amended more than a dozen times, and, if the necessary votes can be mustered, the Constitution itself can be amended and new laws can be introduced as a matter of routine business of parliament.”
This second argument is intimately related to the third, addressed below.
There are many municipal police services all across South Africa today, which the Constitution explicitly contemplates in section 206(7). Hoffman should know this, but he says that for “even local level” policing the supposed “solution” is a constitutional amendment.
The Constitution has obviously not set an absolute bar stating that only the South African Police Service may exist for the purpose of law enforcement.
Hoffman writes (correctly) that, “The Constitution itself stipulates that laws or conduct inconsistent with the Constitution are invalid”, but his implication that laws or conduct that give rise to subcentral police services are inherently unlawful is wildly off the mark.
Given the existence of the provincial-adjacent Law Enforcement Advancement Plan (LEAP) in the Western Cape and the many existing municipal police departments throughout South Africa, I hope Hoffman would concede that he has overstated his argument, and that the mere act of constituting a subcentral police service is not inherently unconstitutional and that the Constitution need not in fact be amended for this purpose.
Furthermore, as some Daily Friend commenters under Hoffman’s letter incisively pointed out, what is and is not “constitutional” has been turned into a relatively fluid affair, which Hoffman also surely must admit.
After all, despite the Constitution’s clear provision to the contrary, for instance, the government has succeeded in adopting racialised public policies (evidently incongruent with section 1(b)), and the courts have even countenanced outright nationalisation of private property without the need to pay compensation (unequivocally inconsistent with sections 25(2) and (3)).
More recently, Parliament has expressly deprived organs of state of their clearly established discretion to adopt preferential procurement policies under section 217 of the Constitution, opting instead to dictate that they must adopt such policies, in terms of the Public Procurement Act. This has seemingly passed into law without much objection, even from Accountability Now when I searched their website while writing this column.
It is anyone’s guess, then, why, apparently, when it comes to section 199(1)’s reference to a “single police service” that some legal thinkers believe the Constitution’s meaning is set in stone. Sections 1(b), 25(2) and (3), and 217, which are significantly less ambiguous than 199(1), on the other hand, may apparently be given open-ended meaning that suits the incumbent administration’s political agenda.
Hoffman’s insistence that the Constitution is absolutely and unequivocally prohibitive of subcentral police services, then, must be reconsidered in light of the flexibility that (rightly or wrongly) has been breathed into South African constitutional practice.
3. Amending the Constitution is necessary for decentralised policing
This third argument is closely related to the second, above.
The Constitution of the Republic of South Africa is by definition a federal constitution. This makes a lot of people, including Hoffman, uncomfortable. He characterises it as my mere “preference for federalism”, as though the basic structure of the supreme law is effectively irrelevant. But discomfort by itself is no argument.
It is, in fact, the unitarists who are engaged in undermining the constitutional design to see their preferences realised – with much judicial assistance.
The Constitution does not set up a hierarchy between the central government, provincial governments, and municipalities.
The Premier of the Western Cape is not the President’s subordinate, nor is the Mayor of Cape Town an employee of the Premier. Governing authority is constitutionally prescribed, not left to the discretion of Pretoria or Parliament. The central government has no standalone constitutional authority to prescribe to provincial or municipal governments outside of that which the Constitution specifically authorises it to prescribe – and these prescriptions must in turn be evaluated based on their congruence with the Constitution.
In other words, the conduct of, say, the City of Cape Town as regards its police forces, must not only be evaluated in terms of South African Police Service Act, but the South African Police Service Act must be evaluated against the letter and spirit of the law (not mere legislation) and the Constitution.
And, most importantly, it must be so evaluated according to reason, not merely the say-so of often politically motivated judges. Our allegiance is to the Constitution, not to the people who interpret it.
4. The “rule of law” is the rule of the ANC’s legislation
Hoffman writes:
“Those who value the sanctity of the rule of law will recognise that painting outside the lines of what the law allows is inconsistent with the rule of law and the Constitution itself.”
Hoffman appeals to the rule of law but does so in error. And this manifests a bigger problem than the issue of law enforcement and public safety.
He has, without stating outright that this is what he is doing, equated “legislation of the majority of the ANC parliamentary caucus” (up to recently a mere 201 individuals) with the very principle of the rule of law that is constitutionally entrenched, and has been known to the Western legal tradition for centuries.
To suppose that whatever the ANC’s legislative drafters jot down under the heading of “Act” amounts to a manifestation of the “rule of law” is to pervert that principle to the level of worthlessness. If this is how the rule of law works, then South Africans should want nothing to do with the rule of law.
Let me emphasise this: if it is Hoffman’s submission that the rule of law means we need to comply, without hesitation, with the codified dictates of the ANC, and we accept that this is in fact what the rule of law means, then I will advocate for our swift abandonment of the rule of law principle. Within these definitional and conceptual boundaries, the rule of law is a very bad thing for South Africa.
(I wrote a book in 2019 on the rule of law and was honoured in 2024 with an award for my work on the rule of law. I am as committed as Hoffman to the rule of law, but understanding what we mean when we say “rule of law” is crucially important.)
Equating the rule of law with whatever text appears in legislation (an inherently partisan institution) is precisely how the National Party (NP)’s “rule of law” worked during Apartheid. Back in those days, it was said that something was consistent with the rule of law if it could be traced back to an “enabling provision” in an Act. This barebones, effectively authoritarian “rule of law” was rightly identified and rejected by such eminent legal scholars as Edgar Harry Brookes and others.
The thinking represented by these anti-Apartheid jurists was precisely that which motivated the later constitutional entrenchment of the rule of law. Not the rule of Parliament, or the rule of the courts, or even the rule of the people. The rule of law.
The NP defined the rule of law in terms of legislation – our post-Apartheid promise is that, alongside the written Constitution, the principles of the rule of law stand above legislation. It is legislation that is bound to comply with the Constitution and the rule of law, says section 1(c) of the Constitution.
In his deep exploration of the rule of law, Steven Grosby writes:
“It is an elementary mistake to consider law as being only that which is enacted by the state. Looking at it that way runs counter to how a free people, at least a people with associational freedom, lives.”
Grosby also quotes the father of legal history, Frederic Maitland, who argued (this is Grosby’s paraphrase): “a legal pluralism of a vigorous associational freedom would not require that the validity of any and all ‘special law’ be dependent upon that state’s approval”.
A free society under the rule of law
The rule of law is part of the bedrock of a free society, and it tells us that illiberal political dictates are not true law simply because they refer to themselves as such.
As EH Brookes and Adv JB Macaulay QC explained in 1958, where there is to be freedom under law, there needs to be the rule of law. And what they – correctly – understood by the rule of law, was that it was distinguished from “rule of individual Ministers or officials” or even “any and every statute or regulation that has force”. Instead, the rule of law comprises “basic principles of right”, even and perhaps especially when government acts with benevolent discretion (that is, in the “public interest”).
As regards the establishment of public safety mechanisms, I am not (and cannot be) prescribing how it must be done, but recognising that it must be done.
As Cilliers Brink recently pointed out, “just doing it” might lead to interdicts and predictable losses in court. That may well be. But that litigation – the confrontation of federalism – is necessary. We must allow South Africa’s courts to show us where they stand: on the side of the ANC or on the side of public safety and the rule of law.
Over and above that, however, there are smart ways and stupid ways of doing things, with the three stupidest ways, by far, being:
3. Asking/waiting to amend the Constitution;
2. Asking/waiting for Pretoria to provide; and
1. Doing nothing.
It must be done, preferably smartly, but if it will not (often dressed in the false garb of “cannot”) be done smartly, then it should rather be done stupidly if the only other alternatives are to wait or do nothing. Freedom depends on it.
[Image: https://www.flickr.com/photos/governmentza/47562026971]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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