By Yasin Maoni
1.
INTRODUCTION
The coming of the new constitutional system through
a transitional period of 1993-96 has caused considerable debate in relation to
the federal nature of the system. Kincaid (2011) draws a distinction between a
dualistic system and an integrated system of federalism. Further commenting on
the constitution of South Africa, Hayson[1] writes:
“If the South African
Constitutional schema were to be analysed against the formal federal checklist
it could, with justification, be classified as federal. It has all the
hallmarks of a federal system. Yet a closer examination would also reveal that
the treatment of provincial or regional powers in the final constitution
promotes or sanctions an integrated system of government in which national and sub
-national government are deeply implicated in each others’ functioning.”
In line with the categorisation of Kincaid, this
paper argues in the affirmative that the South African constitutional system is
indeed an integrated federal system.
An effort has been expended to explain the tenets or
features of federalism in general and then in the South African context.
Thereafter, the paper examines the concept of integrated federal system, its
features and its distinction with dualistic features and its prevalence in the South
African Constitutional system.
2.
TRAPPINGS OF FEDERALISM AND THE SOUTH AFRICAN CONSTITUTIONAL SYSTEM
It is logical to start with the common understanding
of federalism. This is paramount as the above assertion presupposes the existence
of federalism in the new South African Constitutional system, mindful however,
that the main question is whether it is an integrated federal system. Federalism
has been diversely understood and described. The most noted and leading
description is of Daniel J. Elazar[2]
who describes it as a mode of political association and organisation that
unites separate polities within a more comprehensive political system in such a
way as to allow each to maintain its own fundamental political integrity.
Taking his explanation, which has been accepted by many, there are certain
norms which must be prevalent in a constitutional system for it to be
classified as federal.. The main norms are noncentralisation, checks and
balances in a sense that constitutionally instituted bodies are checked by others,
open bargaining in formulating the system, constitutionalism and fixed
constitutionally demarcated units, whether territorial or consociational.[3]
Does the South African constitutional system have these norms?
An examination of the South African system shows
that it is not centralised but rather a three sphere system of government where
power is distributed with each of the spheres having constitutionally given
powers and functions; each of the spheres being distinctive and with authority
to act in area of competence.[4]There
are checks and balances in that the provincial governments have power of
oversight on municipal governments whereas the national government has like
powers on the provincial government.[5] The system is a result of constant bargaining
during the transition period until operationalisation and the whole system is
consistutionalised. Lastly, there is a clear demarcation of powers and
functions between the different spheres of government. Thus, as per the norms
propounded by Elazar the South African constitutional system falls within the
federalism rim.
Other writers and scholars have also, to a larger
degree, described the South African constitutional system as federal. Apart
from Hayson, who agrees that it qualifies as a federal system, Robert P Inman
and Daniel L Rubinfeld,[6] Bjorn
Moller,[7] Dirk
Brand,[8]
Steytler and Mettler,[9]
amongst others agree and classify the South African constitutional system as
federal. But the main question is; does it have integrated federalism features
as opposed to dualistic federalism features?
3.
INTEGRATED FEDERALISM FEATURES IN THE CONSTITUTIONAL SYSTEM
Alongside the classification of the forms of
federalism into federations, confederations, federacies and other similar
forms,[10]
is a classification based on the intrinsic distribution of powers particularly
between the state government and the regional or provincial governments. This has
led to the theories of co-operative federal government as a departure from
dualistic federalism,[11]
and the distinction between dualistic (divided) federalism and integrated
federalism.[12]
It is pertinent for this discussion to understand the features of an integrated
federal system and a dualistic federal system. Dual federalism refers to the
concept that the state or regional governments, which in the case of South
Africa are provincial governments, and national government enjoy exclusive and
non-overlapping spheres of authority.[13]
In another context Schapiro[14]
uses the statement of Justice Brewer who affirmed the existence of the
dualistic system of federalism in the United States in that national and state
government each operating within the same territory and upon the same persons;
and yet working without collision, because their functions are different. In
Justice Brewer’s words, there are certain matters of which the national
government has absolute control, and no action of the state government can
interfere therewith, and there are others in which the state is supreme in
respect of which the national government is powerless.[15]
Thus a dualistic federal system entails that the federal/national governments
and state/regional/provincial governments exercise exclusive and
non-overlapping authority and the allocation of authority between the two rests
on functional premises each regulating different matters.
Distinguishing the dualistic and integrated
federalism; in the former, constitutional jurisdiction over different subjects
is generally assigned exclusively to one order of government. Consequently,
each order of government acts in its area of responsibility. In the integrated
model some powers and functions are assigned to one order of government, but
most powers and functions are concurrent, where the national government may set
framework. In the same manner the regional government delivers their own programs
in those concurrent areas. Some writers have classified it as a way of organising
cooperation in a federal system in a way that gives regional or provincial
government a direct voice in the national law making process. Thus, even though
they have their own constitutionally established parameters, the regional
governments also take some part in national legislation. In simplistic term, an integrated federalism
system is designed to integrate policies of different levels of government characteristically
through a sharing of powers, shared financial resources and cooperation between
the various levels of government.[16] Are there more features of integrated federalism
or dualistic federalism in the South African constitutional set up?
Brand calls the South African system an integrated
federalism and has indicated the following as the features of South Africa’s integrated
federal system;
·
Constitutional division of powers among
the three spheres of government, where the majority of powers and functions are
allocated concurrently to national and provincial governments;
·
Division of fiscal resources where the
bulk of the taxing powers rest with the national government, and
·
Cooperative government as the overarching
principle (Vide sections 48, 49, 50 and 51 of the Republic of South African
constitution.)[17]
His
explanation first emphasises that there are three sphere system of government;
the national government, the provincial government and the local government
each with some authority in its own sphere. The examination of the said
features of the new constitutional system including the involvement of National
Council of Provinces and the intervening powers follows below.
3.1 Constitutional division of
power and concurrency
One
distinctive feature of the South African constitution is its introduction into
the text the concurrency of powers and functions between the national and the
provincial governments. This, as discussed above, is a feature of an integrated
system of federalism. The concurrency of powers and functions has been provided
in the South African constitution through section 44 and section 104 of the
1996 constitution, read together with schedules 4 and 5. Section 44 which is
under a chapter dealing with national legislative powers clearly states that
Parliament is conferred with power to pass legislation with regard to any matter,
including a matter which is a functional area listed in part B of schedule 4.[18]
At the same time the constitution[19] also confers to the provincial legislature
power to pass legislation on any matter within the functional areas listed in part
A of schedule 4. Thus, while the former provision gives the national
legislature the powers to legislate on matters in schedule 4, the former also
does the same to provincial legislature, permitting it to legislate on matters
listed in schedule 4.
While
the main text of the 1996 constitution has not clearly used the word concurrent
in conferring the powers to both national and provincial governments, schedule
4 of the said constitution has expressly stated that the list contains
functional areas of concurrent national and provincial competence. The concept
of concurrence of powers and function is clearly existent in the South African
1996 constitutional system from the above. The interesting point is that there
are only 12 functional areas allocated exclusively to the provincial government
whereas there are 33 concurrent functional areas in which the national and
provincial governments share authority.
In
essence, there is an overlap on the powers and functions of government in
different spheres. That is true as between the national and provincial
government as seen above, between the national and local government and between
local government and provincial government. Schedule 4 Part A of the
Constitution provides the functional areas of concurrency between the national
and provincial government, thereby departing from the ideals of dualism as
noted above. At the same time Part B of Schedule 4 provide functional areas for
local government in which the provincial and national government still have the
powers, legislative as well as executive, to regulate, monitor and support the
functioning of local government.[20]
Thus, although the functions listed in part B of the schedules are allocated to
local government, the national and provincial government can exercise power on
those functions. This then means the constitutional setup does not conform to
the functional separation available in a dualistic system. Rather, there is a
correlation of powers within the same functional areas thereby conforming to
the integrated system of federalism.
3.2 Divisions of financial
resources between national, provincial and local governments
The
provincial governments have been given power to impose taxes, levies, duties,
flat rates and to surcharge. The rest of the power to tax has been left with
the national government.[21]
In that way, the tax base has been made available to the provincial and the
national governments. In the same way, and most importantly, the provincial
governments and the local governments are entitled to an equitable share of the
revenue raised nationally.[22]
The constitution further directs that the national government must transfer the
equitable share raised nationally to the provinces promptly (section 227 (3).
It should be noted however that even though the provincial and local government
have been given power to tax by the constitution, the national government has
also been given power to regulate them in the exercise of that power.[23] Thus,
there is a sharing of national revenue amongst the three spheres of government
and at the same time, taxation functional areas of provincial and local
governments are controlled and regulated by national government. Thus, in
financial terms as well, there is no strict demarcation of functions as
envisaged in the dualistic federal system. Rather, there is an explicit
mingling of functions which corresponds to the ideals of integrated system of
federalism.
3.3 Co-operative government in
South Africa
As
indicated elsewhere, the constitution of 1996 has dedicated the whole of
chapter 3 to the concept and principles of co-operative government. These were
not provided for prior to the 1996 constitution, including the interim
constitution of 1993. As observed earlier own, a co-operative form of
federalism was considered by some commentators as a development and departure
from the then common dualistic (divided) form of federalism. It is considered
to be a system where a vast co-operation of all levels of government, together
with all group and individual interests of society in a complex pluralistic
relationship of sharing, reciprocity, mutuality and co-ordination exist.[24] The
1996 constitution establishes these spheres of government as distinctive but at
the same time interdependent and interrelated.[25]
This ordinarily means that although they are distinct from one another, they
are related and dependent in their operational respects.
The
Constitution also provides the principles of co-operation which are to be
followed by all the spheres of government. These, among others, require that the
governments in the three spheres co-operate with one another in mutual trust
and good faith by among other things, assisting and supporting one another,
informing one another of, and consulting one another on, matters of common
interest, and co-ordination their actions and legislation with one another.[26]
This is a clear characteristic of an integrated federal system as it allows the
working together, consultations, co-ordination of legislation and supporting
one another amongst the various spheres of government. In this process a
distinction of function amongst the three spheres of government becomes so
vague, thereby departing from the norms of dualistic federalism.
3.4 The involvement of the National
Council of Provinces (NCOP) in national matters
In
considering whether the South African constitutional system leans towards
dualistic or integrated federalism, the role of the National Council of
Provinces (NCOP) cannot be overlooked. NCOP is constituted of delegates ten
from each province and in essence it is a gathering of provincial governments.[27]
At the same time a portion of local governments is represented in the
proceedings when necessary.[28]
That being the case, it is important to note that the powers that the NCOP
exercise are not classified as provincial or under local government in the
constitutional setup, especially when considered as provided under schedule 4
and 5. The Powers that NCOP exercises are within the functional areas of the
national government. Thus, what is seen here is that the provincial governments
and local governments partake in national legislation which is the functional areas
of national government.
In
broader terms, the national legislative authority is vested in Parliament[29]
which according to section 42(1) is made up of the National Assembly and the
NCOP. This means that minus the NCOP there is no Parliament. Thus, the
representatives of the provincial governments and the local governments, to a
small extent, are an integral part of the national legislative process. The
result is that although national legislation is a functional area of the
national government, that is not so in the strict sense as the provincial and
local governments do have powers in national legislation as well. This
manifests the overlapping of powers and functions amongst the spheres of
government as opposed to strict demarcation prevalent in dualistic theory. The
converse being that the South African system is more integrated in nature than
it is dualistic.
3.5 The powers of intervention in
other spheres of government
As
has been observed above, dualistic federalism envisages a division of
functional areas among the different spheres of government where one sphere is
supreme in one functional area whereas the other spheres are powerless. This
notion is not available in the South African constitutional system as, apart
from the matters discussed above, is undermined by the intervening powers of
other spheres of government. Parliament may intervene by legislation with
regard to functional areas provided to provincial and local government under
schedule 5 if it is necessary for national security, economic unity, proper
national standards, prevention of unreasonable actions by provincial government
or any matter incidental thereto.[30] Apart
from legislative intervention in provincial sphere, the national government may
intervene administratively when the provincial government fails to fulfill an
executive obligation in terms of the constitution or legislation. The
intervention could be by issuing directives and assuming responsibilities.[31]
The
provincial governments have been given similar powers over the local
governments falling within their jurisdictions. The provincial executive may
also intervene by issuing directives and assuming responsibility or dissolving
the municipal council if the municipality cannot or does not fulfil an
obligation in terms of the Constitution or legislation.[32] These
intervening powers allow the national and provincial government to exercise
powers in functional areas of the provincial and local government sphere,
respectively. In essence, there is no exclusivity of functions among the three
spheres of government and there is no functional area belonging to one sphere
that the other spheres cannot exercise power. This is more in alignment with
the integrated than dualistic federalism features.
In
summing up, it needs not be overemphasized that a number of scholars also classified
the South African system into the category of an integrated one, i.e., Dirk
Brand.[33] The assertion, therefore, of an integrated federal
system in the South African context seems justifiable.
4 CONCLUSION
Although
the 1996 constitution has not used the word federal or federalism, the
constitutional system that has been set up by it does have tenets of a federal
system other than a unitary constitutional system. There is, further to that,
clear interdependence, intermingling and interrelation of the different spheres
of government in their functioning. This is entrenched by the co-operative
government principle, the concurrency of powers and functions between the
national and provincial governments, the overlapping of powers and functions
amongst the three spheres of government, the involvement of NCOP in national
legislation and the intervention powers given to the national and provincial
governments. These features of the South African constitutional system do not conform
to dualistic theory of federalism which entails strict autonomy in functional
areas. Rather, the South African system conforms to integrated federalism which
does not recognize strict functional autonomy. The assertion of Hayson above is, therefore, justifiable
and correct one.
Bibliography
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1.
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5.
Elazar J Federalism: Overview (1995)
Pretoria HSRC Publishers
6.
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12.
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[1] Hayson N Federal Features of the Final
constitution in Andrews and Ellman (eds) The
Post Apartheid Constitution: Perspectives
on South Africa Basic Law (2011).
[9] Federal
arrangements as Peacemaking Device During South Africa’s Transitional Democracy
(2001)
93
[11] Zimmerman J M National-state Relations: Co-operative Federalism in the Twentieth
Century (2001) 21.
[13] Schapiro R A Towards
a Theory of Interactive Federalisnm.Iowa Law Review. October (2005) 3
[14] Interactive Federalism Filling the Gap? From Dualistic
Federalism to Interactive Federalism. Emoly
Law Journal, Vol 56 No 1 (2006) 4.
[15] South Carolina V
United States 199 US 437, 448 (1905)
[17] Financial
Constitutional Law 2006 54.
[20] Section 155 (6)(a) and (7) of the Constitution.
[23] Sections 228 (2) (b) and 229 (2) (b) of the
Constitution.
[24] .Zimmerman (2001) 19.
[25] Section 40 of the Constitution.
[26] Section 41 (1) (h) of the Constitution.
[27] Section 60 of the Constitution.
[28] Section 67 of the Constitution.
[29] Sections 43 (b) and and 44 (1) of the Constitution.
[30] Section 44 (2) and (3) of the Constitution.
[31] Section 100 (1) of the Constitution.
[32] Section 139 (1) of the Constitution.
[33] ( 2007) 3
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