Last week, the Democratic Alliance (“DA”) announced that it would be introducing a Private Members Bill to amend the Referendums Act of 1983 (“the Referendums Act”). This Private Members Bill would give effect to the constitutional powers of Premiers to call a provincial referendum.

The power to call provincial referendums is afforded to a Premier in terms of section 127(2)(f) of the national Constitution. However, this section contains the caveat that any such referendum must be called “in accordance with national legislation.” The Referendums Act already exists and was used by the old National Party government on two occasions for “whites-only” referendums.

The Tricameral Parliament referendum of 1983 was supported by a margin of 66% to 34%, whilst the referendum held in 1992 effectively proposing the dismantling of Apartheid was supported by a margin of 69% to 31%.

The trouble with the existing Referendums Act is that it makes no mention of Premiers calling provincial referendums. This is because back in 1983 the provinces and the Premiers did not exist. Therefore, there is currently no national legislation which enables Premiers to call provincial referendums.

So we are left with a situation where Premiers have the constitutional authority to call provincial referendums “in accordance with national legislation” but that enabling legislation does not exist. What should have happened is that in the mid-1990s the national Parliament should have amended the Referendums Act to enable Premiers to call provincial referendums. I do not know why, but this was never done.

This is what the DA is aiming to remedy via their draft Private Members Bill.

Asking the ANC for something it does not want to give

The ANC is unlikely to be pleased by this development and would far rather this long forgotten provision of the Constitution remain forgotten. The governing party has always been resentful of provinces and suspicious of federalism which it views as undermining “democratic centralism” which is its favoured means of structuring both party and state.

The ANC only grudgingly agreed to establish the provincial sphere of government at CODESA and then proceeded to significantly curtail provincial legislative powers when drafting the final Constitution.

Nevertheless, numerous ANC politicians have come to appreciate the opportunities offered by provincial administrations to build patronage networks and to cultivate fiefdoms from which they can exert influence on party leadership contests, and so the provincial sphere of government has become entrenched on the landscape of South African politics.

Assuming that the Constitution retains its current form on this issue, there is an interesting question concerning what can be done to force the national Parliament to enact the enabling legislation contemplated in section 127(2)(f) of the Constitution.

The DA’s Private Members Bill is a good start. But it is possible that the ANC caucus (which holds an outright majority in both houses of Parliament) may refuse to enact the DA’s Bill or indeed any other similar Bill.

It is too early to speculate, but if the national Parliament simply refuses to enact any enabling legislation, it might be necessary for the DA and / or the Premier of the Western Cape to approach the Constitutional Court for an order effectively requiring the national Parliament to pass enabling legislation by a due date. It will be interesting to see how this plays out.

What should the referendum question(s) be?

Assuming that the DA gets its Bill (or an equivalent Bill) enacted into law, how might Western Cape Premier Alan Winde go about exercising this new power? The DA’s press release states that it aims to “achieve significantly greater devolution of powers to provinces” with its focus being on areas where “the dysfunctional national government has failed, such as railways, the police and electricity generation”.

My view is that the referendum should consist of three distinct questions printed on three separate ballots.

Question 1

Do you believe that control over the criminal justice system in the Western Cape (including control over the South African Police Service, National Prosecuting Authority and Correctional Services) should be transferred from the national government to the Western Cape government?

YES     or        NO

Question 2

Do you believe that control over passenger rail transport in the Western Cape (including control over Metrorail and PRASA) should be transferred from the national government to the Western Cape government?

YES     or         NO

Question 3

Do you believe that control over electricity generation, transmission and distribution in the Western Cape (and control over ESKOM assets and employees located in the Western Cape) should be transferred from the national government to the Western Cape government?

YES     or         NO

There are no doubt many other similar questions which could be put to the electorate. These would include matters such as SANParks, Transnet, the Port of Cape Town and taxation policy. However, I think that the above three issues are the most relevant and urgent and are what the referendum should focus on.

The practical implications of a provincial referendum

South Africans are used to lining up outside of IEC voting stations to vote for political parties. The process of holding a provincial referendum will look similar to a regular election but there will be an important difference. Instead of voting for political parties, South Africans will need to read a question and then make a cross in a box labelled “Yes” or a “No”.

This will also be a novelty for the IEC. Ballot papers would need to be printed in at least English, Afrikaans and isiXhosa. It may also be necessary to print ballot papers in braille so that visually impaired voters will be able to read the questions. With significant levels of illiteracy, it is worth considering whether all voters will be able to understand the questions properly.

Importantly, there are also budgetary implications which need to be dealt with. In an era of high budget deficits and cost cutting, it is not clear whether the IEC has the budget to run a provincial referendum. Would a province that calls a referendum be required to fund the cost of the exercise and, if so, would it be able to do so? These are just some of the questions that will need to be resolved.

Don’t make this about Cape independence

I strongly believe that the DA needs to act decisively early on to distinguish this referendum from any notion of Cape independence. It needs to be made clear that this is not about establishing some kind of Cape Republic.

This is about fixing the police, the trains and electricity. It is about bringing power closer to the people and allowing individual provinces to innovate and improve levels of service delivery. If the referendum is interpreted as being a bid for outright independence (as already seems to be the case) then it is likely to face cross-party hostility in the national Parliament.

The DA would no doubt be in a far stronger position if it had more than just one province under its control. In an ideal world, a DA Premier of Gauteng could team up with DA Premiers in the Northern Cape and Western Cape as well as an IFP Premier in KwaZulu Natal to drive this provincial agenda in a way that would potentially be more radical and more powerful than the Western Cape acting on its own.

Unfortunately, considering that this initiative will be driven solely by the Western Cape and the DA, it is inevitable that it will give rise to accusations that the province wishes to secede from South Africa.

The legal effect and political implications of a referendum

An important question concerns whether a provincial referendum would be legally binding on the national government. The short answer is “no”. Referendums do not have binding legal effect and the national government would be entitled to ignore the outcome.

However, the moral and democratic authority which the province would win should the result of the referendum reflect a large majority of voters in favour of greater provincial powers would be enormous.

I can think of two main political implications.

Firstly, it would give the DA and the Western Cape Government significant democratic legitimacy. The Premier would be able to declare to the national government “Look – 73% of the people of the Western Cape support transferring SAPS to the Western Cape Government, so please do so as quickly as possible.”

Should the ANC national government refuse to implement the wishes of the people, it would find itself in the unusual position of being on the wrong side of the masses and will be accused of being authoritarian and anti-democratic.

Secondly, a referendum would highlight which sphere of government is responsible for current government underperformance. Many (in fact most) South Africans do not understand what provincial governments are responsible for and what they are not responsible for.

In short, the Western Cape Government’s two main functions are basic education (but not tertiary education) and healthcare services. These two departments are allocated 72% of the 2021 provincial budget. Other than that, the province has shared or partial control over housing, certain roads, agriculture, museums and social development whilst having oversight over local government and policing.

The Western Cape Government is not responsible for policing, prosecutions or correctional services, nor is it involved in electricity generation or passenger rail services. By calling a provincial referendum on these issues, the Premier can cleverly highlight that service delivery failures in these areas are the fault of national government and are beyond his control. “However”, the Premier may add, “if you transfer these functions to the province then we will fix them.”

Whatever happens, this is likely to be a smart move from a political perspective.

Risks for the DA

What are the potential risks which the DA may face? I can think of at least three.

Firstly, although I think that this scenario is highly unlikely, it is worth considering that the DA may end up losing its own referendum. The Premier may ask the people of the Western Cape the following question:

“Do you believe that control over the criminal justice system in the Western Cape (including control over the South African Police Service, National Prosecuting Authority and Correctional Services) should be transferred from the national government to the Western Cape government?”

And the people of the Western Cape might respond as follows:

Yes: 42%

No: 58%

This would be very embarrassing for the DA and would leave them without a leg to stand on when arguing for greater devolution of powers to the provinces.

Secondly, the ANC-EFF coalition in the national Parliament might respond to the DA’s call for enabling legislation by simply changing the Constitution to deprive the Premiers of the power to call provincial referendums altogether.

The Western Cape has long been a thorn in the side of the ANC and both the ANC and EFF deeply resent the success of the DA in the province. The easiest and most brutal way to make this problem go away would be to change the Constitution – and they have the numbers to do so.

Thirdly, the DA might get its enabling legislation and the Western Cape Premier may call his referendum. However, the country as a whole may then develop a taste for governance by referendum which could lead to us opening Pandora’s Box. “Do you support the expropriation of all land without compensation?” and “Do you support the reintroduction of the death penalty” are probably not referendum questions which the DA has in mind, but they might be questions which ANC national or provincial governments could put to the electorate. To paraphrase Oscar Wilde, a little direct democracy may be a dangerous thing, and a great deal of it absolutely fatal.

And what of Cape independence?

A final point that should be made concerns the nascent movements which are emerging in support of an independent Cape Republic. These include the highly active Capexit pressure group and Cape Independence Advocacy Group. It also includes the Cape Party, which has participated in provincial and local elections for over ten years, as well as the Freedom Front Plus which has recently expressed interest in the idea of the Cape seceding from South Africa.

Capexit claims to have received over 800,000 online registrations, a figure which has been met with some scepticism. Whatever the case, there is extensive anecdotal online evidence which indicates that support for Cape independence has recently become significant and is now growing rapidly.

It seems to me that taking a slightly tangential approach is something that both the DA and the Cape activists can agree on. For the time being, the Cape activists should shelve theoretical debates about secession and instead focus on specific short-term objectives that are relevant to a broad spectrum of voters.

Police, trains and electricity: these are tangible issues around which people from all backgrounds can mobilise and will allow Cape activists the opportunity to demonstrate the democratic potency of its cause.

At the same time, by supporting provincial referendums the DA would be able to deal with a tactical weakness which threatens to blow up in the next ten years in the form of voters deserting the party for another party explicitly committed to Cape independence.

This could result in the DA’s support being reduced to the point where the party is forced into coalition in the Western Cape. However, by limiting itself to the issues of policing, passenger rail and electricity, the party will hopefully avoid toxic, emotive and divisive debates about independence.

For the Cape activists, the possibility of a provincial referendum is undoubtedly their biggest win to date and now gives them something tangible to work towards. They can focus on fighting for their referendum and then they can focus on winning at the ballot box. Whatever happens thereafter is less important. A referendum win would be a clear line in the sand – and there is nothing sweeter than being afforded a resounding democratic mandate by the people.

Conclusion

Ultimately, this is a bold move by the DA and one that it was previously not prepared to take when I first proposed provincial referendums back in 2011. The ravages of the State Capture years which led to the collapse of most state owned enterprises as well as the degradation of many national government departments and agencies has no doubt spurred the party into pushing provincial boundaries to a greater extent.

If the DA does manage to get a Bill through Parliament and if it does manage to hold a provincial referendum then it would have achieved a huge milestone in the history of South Africa. Firstly, South Africans will experience direct democracy in which ordinary voters get to express themselves at the ballot box on questions of public policy. And secondly, the country will have its first proper brush with federalism as a province finally flexes its muscles.

In any event, it is likely that this development will fundamentally shape the course of our politics for years to come.