Remarks by Tony Leon, Parliamentary Institute of South Africa (PISA) Symposium on Provinces: "Growing Pains or Design Flaw?", Mt Nelson Hotel, Cape Town, February 18 2013

Ten thoughts on the Provinces

1. Introduction

If you accept the version of our recent history, as screened recently on DSTV's "Miracle Rising", you will assume that Bono, Whoopi Goldberg, Robert De Niro and sundry other celebrities are informed commentators on, if not real participants in,   our fraught transition from apartheid to democracy!

The same TV docu-drama paints the African National Congress (ANC) in unblemished and heroic colours, etched with equal measures of struggle and victimhood, and reserves the black hats of villainy for an assorted cast from the right-wing AWB to the IFP's Mangosuthu Buthelezi; some of the supporting cast, from the Democratic Party to General Constand Viljoen, simply do not feature at all! Doubtless, in the interests of sprinkling some Hollywood stardust on the 1990-1996 constitutional negotiations this was justified, while in other places it is simply overblown and inaccurate.

However, what that documentary does remind us is just how the achievement of our constitutional democracy was a very touch-and-go matter, whose attainment was never certain and was constantly in danger of terminal derailment.

2. Why Provinces Got Short Changed at Kempton Park

Some of the vivid archival footage screened in "Miracle Rising" is also a useful reminder of what a hard swim the parties advocating a more federal dispensation for the new South Africa had in waters churned by such events as the Bophuthatswana invasion by the AWB and the credible threats of incipient succession by the IFP (which effectively boycotted the proceedings at Kempton Park, and until a week before the historic 27 April 1994 vote, the election itself). It is also useful to remind ourselves that the constitutionally impeccable idea of devolving power and distributing authority through the creation of empowered provincial authorities had been distorted through the recent prism of the National Party's grand design of Bantustans, which balkanized South Africa on unequal and ethnic lines, in a crude attempt to disenfranchise Black South Africans from democratic and citizenship rights in their own country.

As a participant in both the negotiations for the interim and final constitutions, I can attest that the coming power, the  ANC, was at best, prepared to concede at best some federal fig leaves to clothe their unitary model, while the exiting power (NP), which objectively enjoyed a powerful seat at the negotiations' table played their cards very poorly, fixating on ‘power sharing' at central level to the almost total exclusion of  securing other meaningful checks and balances in the new design. The IFP, a pro-federal party, was as mentioned largely ‘missing in action'. The Democratic Party, which in view of its small size had a poor seat at the table, played whatever cards it had with uneven results. For example, it is to the discredit of the party to which I belonged that it agreed to a single ballot for both national and provincial elections, a position which was only reversed after the closure of formal negotiations in an attempt (successful in the event) to lure the IFP to participate in the 1994 elections.

As the British historian, CV Wedgwood once wrote: "History is written backward but lived forward. Those who know the end of the story can never know what it was like at the time." I am pleased to see in today's audience some grizzled veterans from that now far off time of hope and despair which constituted the backdrop to our current set-up.

Given this background, it is some wonder that either the interim (1993) or final (1996 Constitution made any provision for an elected provincial tier of government at all. It is also a necessary fact of universal constitution-making and practice, that when there are three tiers of government (national, provincial and local), it is improbable, if not impossible, that all three will be equally empowered and effective.

The "balance of forces", to borrow a preferred ANC expression, favoured a very strong national level of government and extensively enhanced local authorities with wide powers and large boundaries. This meant that, on any reading, provinces would be weak and enjoy Cinderella status in the new constitutional arrangements. And so it has proven in the two decades since the Kempton Park negotiations.

3. The Current  Limitations on Provincial Powers in the Constitution and What can be Done

So much for history, what about the current reality?

It may  be objectively  observed that the nine provinces provide fulltime employment for 430 provincial legislators with modest powers of legislative competence (rarely enacting more than  a dozen bills a year); status for nine premiers and some 90 provincial ministers or MEC's with few original executive powers and an army of provincial bureaucrats, most of whom are implementing policies determined in and directed from Pretoria.

Given this rather modest menu of power and competencies, the question to ask is this: Is there any purpose, other than as patronage-dispensation and moderating or mitigating  the zero-sum basis of political power (meaning that a party with regional strength may aspire to govern provincially, if not nationally), to the continued existence of provinces as political units?

I think there may be some basis for future and renewed relevance, especially since the ruling party has called for a review of the Provinces and their fitness for purpose, or otherwise. However, it is a future which needs to be fought for, not simply assumed, and the fight needs, in my view, to start showing why the Provinces, and their expensive arrangements, contribute to the deepening of our democratic tapestry and the provision of distinctive services. This is by no means apparent at first blush with the provincial achievements to date. And I am not suggesting that the constitution which we created makes this, in any sense, an easy sell.

On the one hand, it is clear that the scales tip towards South Africa being a unitary state. Consider a laundry list of the powers which fully federal states normally accord their regions, but which South Africa's provinces are deprived of:

• Fiscal and taxation power is centralised in Pretoria (although technically provinces can add surcharges to various taxes).
• The entire criminal justice apparatus is very much in the national sphere.
• Policing is a national competence, with only powers of oversight offered to the provinces.
• Prosecutions are run by the NPA.
• Provinces have no hand in correctional services.
• Provincial Constitutions are quite anorexic, considering that they may not conflict with the national Constitution.
• Provincial electoral systems are regulated by the national Constitution. The Western Cape attempted to include geographic, multi-member constituencies in its Constitution in 1997, but this was rejected by the Constitutional Court.

4.  Opportunities to Explore and Boundaries to Push

If we read the list of concurrent powers (as opposed to exclusive ones) we will see that this Schedule includes some very substantial functions which amount to far more than mere provincial tokenism. Indeed, our provinces can enact law regulating 34 functions of government, including education, healthcare services, trade, industrial promotion, public transport and the environment.

Of course, it should be stressed that the extent of our power here (in the case of a conflict of law) is regulated by a list of ten overrides contained in section 146. Section 146(2) states that in the case of a conflict of law, national legislation will prevail if any of one of the ten overrides can be raised by the national sphere of government.

However, I think that most of these overrides are fairly unrealistic: national security, environmental protection, unreasonable action harming another province etc are unlikely to be easily invoked by the national sphere. On balance, I believe that the ten overrides give committed federalists a fair and open shot to push the boundaries of provincial powers.

Specifically, an area ripe for exploration would be to push the boundaries of the first override, which is enumerated in section 146(2)(a).

As is the style of much of our Constitution, the wording is open -ended and subject to the interpretation of the Court. The essential question that is asked is:

‘Is the matter in question one which can be regulated effectively by legislation enacted by the respective provinces individually?'

When judged against this standard, there is a great deal which national government presently runs which arguably could have - and should have - been allocated to the provincial sphere. The most glaring example is in the field of public transport, e.g. Metrorail, PRASA and Transnet. In the fog of the 1990's, the decision was taken to allocate these entities to the national sphere, despite ‘public transport' being a concurrent function of government. 

However, the absence of any significant jurisprudence on "boundary pushing" by the provinces (perhaps two or three major Constitutional Court judgements on this issue in nearly twenty years) simply exemplifies the lassitude of our Provinces in testing their powers.

A recent example came to us in horrifying form: The disastrous Metrorail train accident which occurred last month in Gauteng stands as only the most recent indication that our (nationally run) rail transport system has gone completely off the tracks. Meanwhile, in that same province the Gauteng Provincial Government has made a wonderful success of the Gautrain which now provides a world class service to thousands of people.

The Gautrain project completely turns on its head the assumption that national government is more adept than provincial governments at running public services. I do not know how these decisions were made, but I suspect that Hernus Kriel and the NP Western Cape government and the IFP government in KwaZulu Natal were preoccupied with other matters than enhancing federalism during the mid-1990's. An entire palisade of critical organisations were lazily allocated to the national sphere apparently without any serious debate or consideration.

So what can we do about this? Duplication would be impossible - although this is exactly what Gauteng has done with the Gautrain. Some sort of application to the Constitutional Court might be needed in which the Court considers the proper allocation of dozens of individual bodies. But this is an enormous undertaking and would be completely unprecedented.

5. Push the Legislating  Boundaries and Go Big

Push the boundaries of legislating: From what I can tell, the Western Cape legislature, for example, rarely enacts more than a dozen Bills per year. Most of these laws are run-of-the-mill, non-political, procedural matters which occur every year, such as the budget, the Unauthorized Expenditure Bill and the Irregular Expenditure Bill. 

By way of comparison, the New South Wales legislature enacted 137 bills in 2010, 73 bills in 2011 and 104 bills in 2012. These laws cover a broad range of policy issues including everything from Mental Health to Tattoo Parlours, Game Farms, Human Tissue control, Forestry, Tobacco and Industrial Relations.

6.  Invest More in Public Policy Work

The truth is that public policy takes a lot of work - I suspect that months or even years of research went into regulating New South Wales' tattoo parlours. In South Africa, we simply don't have the financial resources and intellectual firepower to generate a comprehensive legislative programme. The think tanks that we do have tend to produce mournful commentary on the failures of the ANC national government, rather than working proposals for an alternative provincial government.

Certainly, the Western Cape civil service presently has neither the resources nor the inclination to embark upon an expansive programme of legislation.

In short, the one opposition  province is simply not geared the way New South Wales is geared - largely because in South Africa our provinces are not seen as being the source of original content or bright ideas. National government generally develops the policy (such as the education curriculum, or pharmaceutical pricing regimes) and the provinces then implement without much thought or questioning. 

This is understandable when the governing party at the national sphere is mirrored at the provincial level. For example, there is no reason why the ANC government in Mpumalanga would have any interest in devising a radically different education policy to that of the ANC national government.

But this need not be the case in the Western Cape. As you know, over the past 20 years the governing party there (DA) has assembled over 20 really good and quite detailed policy documents, the most recent of which was the ‘8% Growth Plan' which consists of hundreds of proposals and initiatives.

Sadly, the party has not yet ‘converted' these policies into a format appropriate for provincial legislation. For example, minimal attention has been given to understanding the extent to which the 8% Growth Plan could be rolled out in Gauteng, should the party win power there.

7. Lessons for the future

When you do legislate - go big. Be strategic, but don't be afraid to push boundaries and test both the competences and the ten overrides. One concern is that DA provinces might, out of an abundance of caution, sell ourselves short by bargaining too low.

For example, on road traffic regulation, I understand that the Western Cape Province went for a reduced speed limit but left the blood alcohol level unchanged. I do not know whether this decision was informed by political preference or legal advice, but I would suggest regulating both matters. Yes - the Court might rule that the blood alcohol is ‘not a matter that can be regulated effectively by the provinces individually' but at least we then know where the line is.

My basic point here is that if a province does not reach for the full extent of its powers, it will inevitably forfeit them. 

8. Use the provinces' weaknesses as a strength

The fact that fiscal policy is concentrated in Pretoria must be used to count in our favour when dealing with conflicts of law. In light of this pre-existing imbalance, the ‘equal opportunity' (or seventh) override must surely lose much of its force, as equality is already built into the system by means of the Division of Revenue Act.

Sadly, in Mashavha v President the Court held that provincial regulation of child grants would lead to inequality between the provinces. I disagree strongly with this reasoning. The result is that social assistance has been concentrated in yet another national body (the South African Social Security Agency) despite ‘welfare services' being a concurrent competence.

9. Don't sit back and wait

But in fact there has been there has been very little litigation in this area of law. Nevertheless, in the absence of vigorous defence, provincial powers have inevitably eroded. The case of Mashavha v President is a fine example. I believe that the case was poorly argued by litigants who had little or no interest in advocating the cause of provincial powers. Unsurprisingly, the Court took the easy option and gave social assistance to the national government.

The recent decision of Premier of Limpopo v Speaker of Limpopo is another example of ANC run bodies bungling their way into Court on some or other technicality. The precedent from this case was hugely damaging and means we have probably lost the competence to regulate procurement and other forms of internal financial management.

We need to make sure that when the big cases are argued in front of the Constitutional Court, the forces of federalism are either making the running or at least have a front row seat. Perhaps the pending case in the Constitutional Court between the Premier of the Western Cape and the Minister of Police on the right of Provinces to enquire, via a commission, into policing matters, will deepen our jurisprudence.

10. Conclusion

I said the other evening that opposition-governed provinces need to do much more than just be cleaner, more efficient versions of the ANC. Instead, we need to delineate a clear alternative system of government which reflects our liberal, free market principles. We need to be far bolder in asserting our policies and challenging the Statist tendencies that mark our public policy.

Liberalism, of which federalism is an essential part, has existed for over 200 years in South Africa. After being swamped by British Imperialism, Afrikaner Nationalism and most recently African Nationalism, as RW Johnson put it, the first green shoots of liberal governance appeared in 1999 and then set down firmer roots after 2009 - we are no longer spectators and commentators on South African politics.

In short - there is much to play for. Provincial powers are one of the pivots around which South Africa's democracy can revolve. Campaigning in style and governing with competence are very important and not easy to achieve. But now a new element is needed: to invest heavily in developing the intellectualism that will inform a post-ANC South Africa. 

I would like to acknowledge the input and research of Richard Wilkinson in the preparation of this address.

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