By design, the drafters of the South African Constitution did not create a fully-fledged federal system of government. Instead, it created a quasi-federal system in which the national sphere of government retains most of the power and, in many respects, the final say on the powers exercised by the provincial and local spheres of government.

Thus, the powers of provincial legislatures and provincial executives (as well as municipal councils) are narrowly circumscribed in the Constitution, which also makes clear that these spheres may not exercise powers that are not expressly assigned to them by the Constitution or by the national Parliament and executive in accordance with the Constitution.

These powers can be divided into three categories.

First, provinces enjoy the exclusive competence to pass legislation on a small number of functional areas listed in schedule 5 of the Constitution, which includes abattoirs, ambulance services, liquor licences, provincial planning, and provincial roads and traffic. But even then, section 44(2) of the Constitution allows the national Parliament to intervene by passing legislation dealing with these functional areas in narrowly defined circumstances.

Second, both national and provincial legislatures are empowered to pass legislation on the list of concurrent competencies listed in schedule 4 of the Constitution. This shared power deals with issues of significant importance, including agriculture, casinos, consumer protection, disaster management, education at all levels, excluding tertiary education, environment, health services, housing, industrial promotion, public transport, tourism, trade, urban and rural development, and welfare services.

When a conflict arises between national legislation and provincial legislation dealing with any of the functional areas listed in schedule 4, the national legislation will prevail over the provincial legislation if any of the conditions set out in section 146(2) or (3) of the Constitution are met.

This includes situations where national legislation deals with a matter that cannot be regulated effectively by legislation enacted by the respective provinces individually; where national legislation deals with a matter that, to be dealt with effectively, requires uniformity across the nation; and where the national legislation is aimed at preventing unreasonable action by a province that is prejudicial to the economic, health or security interests of another province or the country as a whole, or impedes the implementation of national economic policy.

Third, the national sphere can delegate powers to a province on other matters that fall outside the functional areas of a provincial legislature and executive. This can be done in two ways. First, the National Assembly can expressly assign such powers to the province through national legislation, or allow the relevant minister to do so. Second, national legislation can delegate the power to pass legislation on such matters to provincial legislatures. This delegation of power can, of course, be withdrawn at any time.

The premiers of provinces, acting collectively with the other members of the executive council, are empowered to implement provincial legislation in the province, as well as implementing all national legislation dealing with concurrent competences like basic education, housing, health, tourism, and welfare services. They are also empowered to administer any other national legislation in the province if its administration had been assigned to the provincial executive in terms of an act of Parliament.

Municipal councils also enjoy exclusive and concurrent competences set out in Schedules 4B and 5B of the Constitution. Moreover, both the national and provincial spheres of government may in certain circumstances also assign additional powers not contained in these schedules to municipal councils.

Because provincial governments are currently empowered to implement national legislation dealing with, among others, basic education, housing, and healthcare services, a well-run province can make a real difference to the quality of schooling, housing and health services in that province.

Conversely, this means that where a province does a bad job at running its basic education, housing or health department (for example, by failing to deliver textbooks, or mismanaging a learner placement policy) the power of the national minister to fix the mess is limited.

Odds stacked against the DA

Arguing that it is able to govern better than the national government in any number of areas, the Western Cape government has tabled the Western Cape Provincial Powers Bill with the aim of maximising its legal authority to deal with a variety of issues in which it shares competence with the national government, as well as in areas where the national government enjoys exclusive competence.

But given the constitutional scheme set out above, the province has little room to manoeuvre to achieve this goal, which is why the draft bill largely reads like a policy statement or a declaration of intent, and not like the unlawful power grab it has been described as by some supporters and opponents of the bill.

Thus section 3(1) of the bill lists several areas in which the “Western Cape intends to assert its existing provincial and local powers and/or seek the delegation or assignment of powers”.

Some of the areas identified in the bill (public transport, trade) fall within the concurrent competences shared with the national sphere of government, others (energy, including electricity generation, international harbours, and international trade) deal with areas that fall within the exclusive competence of the national government.

Another matter (policing) deals with matters in which the province is given limited constitutional powers of oversight and monitoring.

The bill is not entirely clear on how the intention expressed in section 3 will be implemented in practice, apart from creating a requirement for the premier to draft regular reports on “the ways in which the National Government has failed to perform its constitutional obligations”, the additional powers required to rectify this, and if appropriate, to “draft provincial legislation, regulations or policies to assert those powers”.

Potential for some success 

Assuming that the bill is not merely an election season stunt, there are two distinct, constitutionally compliant, avenues open to the provincial government to pursue these aims.

First, as far as shared competences such as public transport and trade are concerned, the provincial legislature could pass legislation to grant additional powers to the provincial government to deal with these matters.

Where a conflict arises between such legislation and national legislation, the Constitutional Court, applying section 146(2) of the Constitution, will probably have the final say on whether the national or provincial legislation prevails. It will be fascinating to see how the Constitutional Court deals with such a matter and especially whether it will be more open to claims of provincial autonomy than it has been so far.

I am not sure, however, that this approach will produce the kind of results that supporters of this bill envisage.

This leaves the second option, namely to convince the relevant national minister (and thus the Cabinet) to delegate further powers — both dealing with concurrent areas of competence and areas of exclusive national competence — to the provincial government or municipality where this is authorised by existing legislation, or to convince the national Parliament to delegate legislative powers on specific issues to provincial legislatures.

While this would be a more effective way of achieving the goals set out in the bill, it depends entirely on the willingness of the national government and/or legislature to delegate powers to the province or the relevant municipality. Those who argue that this is a politically feasible strategy might well point to moves by the national government to allow municipalities to develop their own power-generating projects and to access power from sources other than from Eskom.

But the fact that the minister of transport recently rejected a request from the City of Cape Town to take over the passenger rail service in the city, and the consistent refusal by Police Minister Bheki Cele to consider the devolution of policing powers to the province, suggest that this option remains, for the most part, politically unfeasible.

To what extent this may change after the national election next year (and whether the outcome may provide the DA with an opportunity to set devolution of such powers as a precondition for support of a minority or coalition government) is impossible to say.

That said, the Constitution does allow the national sphere of government to devolve specific powers to the provincial and local spheres of government, so in principle, the idea (unlike the idea of Western Cape secession from the rest of the country) is not far-fetched.

However, I would argue that the extensive devolution of powers to other spheres of government should not be undertaken lightly, and should only be done in a manner that respects the basic design of the Constitution.

Where such devolution inhibits economic activities across provincial or municipal boundaries; erodes the common market in respect of the mobility of goods, services, capital, and labour; further entrenches inequality; is prejudicial to the economic, health or security interests of another province or municipality; or impedes the implementation of national economic policy, it may do more harm than good, and should be avoided.

But for the moment these are largely academic concerns, not least because the Western Cape Provincial Powers Bill is not likely to achieve the devolution of power to the Western Cape and the City of Cape Town in the manner punted by some of its supporters. DM