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The Quest for Constitutionalism
This page has been left blank intentionally
The Quest for Constitutionalism
South Africa since 1994

Edited by

Hugh Corder
University of Cape Town, South Africa

Veronica Federico
University of Florence, Italy

Romano Orrù
University of Teramo, Italy
© Hugh Corder, Veronica Federico and Romano Orrù and the contributors 2014

All rights reserved. No part of this publication may be reproduced, stored in a retrieval
system or transmitted in any form or by any means, electronic, mechanical, photocopying,
recording or otherwise without the prior permission of the publisher.

Hugh Corder, Veronica Federico and Romano Orrù have asserted their right under the
Copyright, Designs and Patents Act, 1988, to be identified as the editors of this work.

Published by
Ashgate Publishing Limited Ashgate Publishing Company
Wey Court East 110 Cherry Street
Union Road Suite 3-1
Farnham Burlington, VT 05401-3818
Surrey, GU9 7PT USA
England

www.ashgate.com

British Library Cataloguing in Publication Data

A catalogue record for this book is available from the British Library

The Library of Congress has cataloged the printed edition as follows:

Corder, Hugh, author.
The quest for constitutionalism : South Africa since 1994 / by Hugh Corder, Veronica
Federico, and Romano Orrù.
pages cm
Includes bibliographical references and index.
ISBN 978-1-4724-1631-5 (hardback : alk. paper) – ISBN 978-1-4724-1632-2 (ebook) –
ISBN 978-1-4724-1633-9 (epub) 1. Constitutional history—South Africa. 2. Constitutional
law—South Africa. 3. Civil rights—South Africa. 4. Representative government and
representation—South Africa. 5. Democracy—South Africa. 6. State, The. I. Federico,
Veronica, author. II. Orrù, Romano, author. III. Title.
KTL2101.C67 2015
342.6802’9–dc23
2014021468

ISBN 9781472416315 (hbk)

ISBN 9781472416322 (ebk – PDF)
ISBN 9781472416339 (ebk – ePUB)

Printed in the United Kingdom by Henry Ling Limited,

at the Dorset Press, Dorchester, DT1 1HD
 Contents

Table of Cases   vii

Notes on Contributors   xiii
Foreword   xvii
Acknowledgements   xix

Introduction   1
Veronica Federico, Hugh Corder and Romano Orrù

Part I: The Structure of the State

1 South African Quasi-Federalism   15

Veronica Federico

2 South African ‘Quasi-Parliamentarianism’   27

Romano Orrù

3 Parliament and the Separation of Powers – A Critical Analysis

in Relation to Single-party Domination   39
Sanele Sibanda

4 Local Government: Between Subsidiarity and Shortfalls in

Service Delivery     53
Francois Venter

Part II: Rights, Equality and the Courts

5 Competing Notions of the Judiciary’s Place in the Post-apartheid

Constitutional Dispensation   69
Morné Olivier

6 Depoliticising Socio-economic Rights   81

Linda Stewart

7 Dignity and Disgrace – Moral Citizenship and Constitutional

Protection   95
Edwin Cameron
vi The Quest for Constitutionalism

8 HIV and the Constitution: Campaigning for Constitutionalism

and the Keeping of Constitutional Promises   111
Mark Heywood and Tim Fish Hodgson

9 Administrative Justice and the Enforcement of the Constitution   127

Cora Hoexter

Part III: Citizenship, Political Rights and the Party

System

10 From Disenfranchisement to Enfranchisement: The Right to Vote

in South Africa   143
Francesca Romana Dau

11 The Contradictions of Party Dominance in South Africa   155

Roger Southall

12 Freedom of Information: Controversies and Reforms   169

Iain Currie

Part IV: Transformative Constitutionalism

13 Constitutional Reform in South African History   181

Hugh Corder

14 The Position of Indigenous Customary Law in South Africa’s

New Constitutional Order   195
Tom Bennett

15 Land Reform and Constitutional Rights   207

Nic Olivier, Nico Olivier and Clara Williams

16 Green Economy, Sustainable Development and the Constitution   225

Tumai Murombo

Part V: South Africa in Context

17 BRICS: A Mirage of Reality   241

Lucia Scaffardi

18 From Import to Export?Some Signs of the External Circulation

of South African Constitutional Jurisprudence   253
Andrea Lollini

Index   267
 Table of Cases

Adalah Legal Centre for Arab Minority in Israel and others v. Minister of Interior
and others HCJ, 7052/2003 261
Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293(CC) 130
Allpass v Mooikloof Estates (Pty) Ltd t/a Mooikloof Equestrian Centre [2011]
ZALCJHB 7;(2011) 32 ILJ 1637 (LC) 116
Arsenault-Cameron v. Prince Edward Island [1999] 3 S.C.R. 851 256
August and another v Electoral Commission and others 1999(3) SA 1 (CC)
147, 149–50

Bangindawo and others v Head of the Nyanda Regional Authority and another
1998 (3) SA 262 (Tk) 197
Bowers v Hardwick 478 U.S. 186 (1986) 103
BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environmentand
Land Affairs 2005(4) SA 125 (W) 227, 229, 232
Brink v Kitshoff [1996] ZACC 9; 1996 (4) SA 197 (CC); 1996 (6) BCLR 752 (CC)
102
Brümmer v Minister for Social Development and others 2009 (6) SA 323 (CC) 170

C v Minister of Correctional Services 1996 (4) SA 292 (T) 115

Camps Bay Ratepayers and Residents Association and Another v Harrison and
another [2012] ZACC 17; 2012 (11) BCLR 1143 (CC) 122
Chirwa v Transnet Ltd 2008 (4) SA 367 (CC) 130
City of Johannesburg v Mazibuko (Centre on Housing Rights and Evictions as
amicus curiae) 2009 (3) SA 592 (SCA) 82, 85–90
Collins v Minister of the Interior 1957(1) SA 552 (AD) 183
Costa Gazidis v Minister of Public Services Case No: A2050/04 unreported
judgment of the Transvaal High Court (24 March 2006) 120

Dawood and Another v Minister of Home Affairs and Others [2000] ZACC 8;
2000 (3) SA 936 (CC) 100, 102, 261
De Lange v Smuts 1998 (3) SA 785 (CC) 35, 45
Democratic Alliance v President of the Republic of South Africa 2013 (1) SA 248
(CC) 75
The Democratic Party v The Minister of Home Affairs and the Electoral
Commission 1999 (3) SA 254 (CC) 148
Director: Mineral Development, Gauteng Region and SASOL Mining (Pty) Ltd v
Save the Vaal Environment and Others 229
viii The Quest for Constitutionalism

Du Plessis & others v De Klerk & another 1996 (3) SA 850 (CC) 260
Du Toit v Minister for Welfare and Population Development [2002] ZACC 20;
2003 (2) SA 198 (CC); 2002 (10) BCLR 1006 (CC) 103
Dudley Lee v Minister of Correctional Services [2012] ZACC 30; 2013 (2) SA144
(CC) 119

EN v Government of RSA (No. 1) 2006 (6) SA 543 (D) 118

EN v Government of the RSA and Others (No. 2) 2006 (6) SA 575 (D) 118
Ex parte President of the RSA: In re Constitutionality of the Liquor Bill 2000 (1)
BCLR 1 19
Executive Council of the Western Cape Legislature v President of the RSA 1995(10)
BCLR 1289 (CC) 35

Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan

Council 1999 (1) SA 374 (CC) 129, 130
‘First’ Rundfunkurteil. BVerfGE 12, 205 58
Fuel Retailers Association of Southern Africa v Director-General: Environmental
Management, Department of Agriculture, Conservation and Environment,
Mpumalanga Province, and others 2007 (6) SA 4 (CC) 226, 232, 233

Gila Louzon v. Government of Israel, HCJ, 3071/2005 261–2

Glenister v President of the Republic of South Africa 2011 (3) SA 347(CC) 82–3
Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR
761(CC) 81
Government of the Republic of South Africa and others v Grootboom and others
[2000] ZACC 19; 2001 (1) SA 46 (CC) 8, 83, 85, 87, 88, 117
Grant v. Torstar Corp [2009]; SCC, 61 260

Harksen v Lane [1997] ZACC 12; 1998 (1) SA 300 (CC) 100, 102
Harris v Minister of the Interior 1952(2) SA 428 (AD) 143, 183
Hoffman v SAA 2001 (1) SA 1 (CC) 115–17

In Re Certification of the Amended Text of the Constitution of the Republic of

South Africa, 1996 1997(2) SA 97 (CC) 186
In Re Certification of the Constitution of the Province of KwaZulu Natal 1996 (11)
BCLR 141 (CC) 21
In Re Certification of the Constitution of the Republic of South Africa 1996(4) SA
744 (CC) 56, 83, 186
In re Certification of the Constitution of the Western Cape 1997 (9) BCLR 1167
(CC) 19, 21
Independent Newspapers (Py) Ltd v Minister for Intelligence Services: In re
Masetlha v President of the Republic of South Africa 2008 (5) SA 31 (CC) 170
Irvin and Johnson Ltd v Trawler and Line Fishing Union and others [2002]
ZALC105 (2003) 24 ILJ 565 (LC) 115
 Table of Cases ix

Jansen Van Vuuren and another NNO v Kruger [1993] ZASCA 145 1993 (4) SA
842 (AD) 114
Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and
others 2010 (6) SA 182 (CC) 59
Judicial Service Commission v Cape Bar Council 2012 (11) BCLR 1239 (SCA) 130
Justice Alliance of South Africa v President of Republic of South Africa 2011 (5)
SA 388 (CC) 70, 73, 74

Kaunda v President of the Republic of South Africa 2005 (4) SA 235 (CC) 127
Khumalo v Holomisa 2002(5) SA 401(CC) 99
Kindler v. C107anada (Minister of Justice) [1991] 2 S.C.R. 779 257–8

Lawrence v Texas 539 U.S. 558 (2003) 103

Le Roux and Others v Dey [2011] ZACC 4; 2011 (3) SA 274 (CC); 2011 (6) BCLR
577 (CC) 105
Le Sueur and another v Ethekwini Municipality and others (9714/11) [2013]
ZAKZPHC 6 233

Maccsand (Pty) Ltd v City of Cape Town and others 2012 (4) SA 181 (CC) 233
Matatiele Municipality and Others v President of the RSA and others 2006(5)
SA47 (CC) 188
Mazibuko v The City of Johannesburg (Centre on Housing Rights and Evictions as
amicus curiae) 2008 JOL 21829 (W) 82, 85–90
MEC, Department of Agriculture, Conservation and Environment and another v
HTF Developers (Pty) Ltd 2008 (2) SA 319 (CC) 232
MEC, Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA) 127
MEC for Agriculture, Conservation, Environment and Land Affairs v Sasol Oil
(Pty) Ltd and another 2006 (5) SA 483 (SCA) 229
Merafong Demarcation Forum v President of the RSA and others 2008(5) SA171
(CC) 188
Mhlekwa and Feni v Head of the Western Tembuland Regional Authority and
another 2001 (1) SA 574 (Tk) 197
Minister for Justice and Constitutional Development v Nyathi (Nyathi II) 2010 (4)
SA 567 (CC) 133
Minister of Health and Others v Treatment Action Campaign and others [2002]
ZACC 16; 2002 (5) SA 72 (CC) 35, 83, 85, 87–8
Minister of Home Affairs and another v Fourie and another [2005] ZACC 19;
2006 (1) SA 524 103
Minister of Home Affairs v National Institute for Crime Prevention and Re-
Integration of Offenders (NICRO) 2005 (3) SA 280 (CC) 150
Minister of the Interior v Harris 1952(4) SA 769 (AD) 183

National Coalition for Gay and Lesbian Equality and others v Minister of Home
Affairs and others (CCT 10/99) [1999] ZACC 17; 2000 (2) SA 1 (CC) 99
x The Quest for Constitutionalism

Naude v MEC for Health Mpumalanga [2008] ZALC 158; (2009) 30 ILJ 910 (LC)
121
New National Party v Government of South Africa 1999 (3) SA 191 (CC) 145, 146
Ngwenyama v Mayelane and another 2012 ZASCA 94 201
Njongi v MEC, Department of Welfare, Eastern Cape 2008 (4) SA 237 (CC) 132
NM and Others v Smith and Others [2007] ZACC 6; 2007 (5) SA 250 (CC) 114, 115
Nyathi v MEC for Department of Health, Gauteng (Nyathi I) 2008 (5) SA 94 (CC)
132–3

Occupiers of 51 Olivia Road, Berea Township v City of Johannesburg 2008 (5)

BCLR 475 (CC) 90
Oriani-Ambrosini, MP v Sisulu, MP Speaker of the National Assembly 2012 (6)
SA 588 (CC) 43

Permanent Secretary, Department of Welfare, Eastern Cape v Ngxuza ZASCA 85;

2001 (4) SA 1184 (SCA) 132
Pharmaceutical Manufacturers Association of SA: In re Ex parte President of the
Republic of South Africa 2000 (2) SA 674 (CC) 130
Pikoli v President of South Africa 2010 (1) SA 400 (GNP) 45
Premier, Mpumalanga v Executive Committee of State-aided Schools, Eastern
Transvaal 1999 (2) SA 91 (CC) 35
President of the Republic of South Africa v South African Rugby Football Union
2000 (1) SA 1 (CC) 35, 130
President of the Republic of South Africa and another v Hugo [1997] ZACC 4;
1997 (4) SA 1 (CC) 35, 187
Private (res.) Raphael Yissacharov v Chief Military Prosecutor et alii, Supreme
Court of Israel sitting as Court of Criminal Appeals, CrimA 5121/98 262–3
Public Protector v Mail & Guardian Ltd 2011 (4) SA 420 (SCA) 135

Reference Re Ng Extradition (Can), [1991] 2 S.C.R. 858 257–8

R v Hall [2002] 3 SCR 309, 2002 SCC 64 259
R v Oakes (1986) 19 CRR 308, 334–5 101
Richter v The Minister for Home Affairs and others 2009 (3) SA 615 (CC) 150

S v Cooper and others 1976 (2) SA 875 (T) 98

S v Dlamini 1999 (4) SA 623 (CC) 259–60
S v Jordan and Others (Sex Workers Education and Advocacy Task Force and
Others as Amici Curiae) [2002] ZACC 22; 2002 (6) SA642 (CC) 105
S v Makwanyane 1995 (3) SA 391 (CC) 71, 100, 101, 108, 190, 196, 257–8
SA Security Forces Union v Surgeon General AO High Court of Pretoria –
Transvaal Provincial Division – case n. 18683/07 of 2008-05-16 [accessed 30
June 2014] 116
Satchwell v President of the Republic of South Africa and another [2002] ZACC
18; 2002 (6) SA 1 (CC) 103
 Table of Cases xi

Sauvé v Canada (Directeur général des élections), [2002] 3 R.C.S., 519, CSC 147
Soobramoney v Minister of Health (Kwazulu-Natal) [1997] ZACC 17; 1998 (1)
SA 765 (CC) 123 83, 121

Thusi v Minister of Home Affairs and 71 Other Cases 2011 (2) SA 567 (KZP) 133
Tongoane and others v National Minister for Agriculture and Land Affairs and
others [2010] ZACC 10; 2010 (6) SA 214 (CC) 42, 214

Unitas Hospital v Van Wyk 2006 (4) SA 436 (SCA) 169–71

United Democratic Movement v President of the Republic of South Africa (No 2)
2003 (1) SA 495 (CC) 45, 129
United States v Burns [2001] 1 S.C.R. 283; 2001 SCC 7 256–8
This page has been left blank intentionally
 Notes on Contributors

Tom Bennett – BA LLB (Rhodes), PhD (UCT), Professor in the Department of

Public Law and Fellow of the University of Cape Town. Research interests include
African customary law, traditional African religions, ubuntu and the implications
of legal pluralism in a constitutional democracy.

Edwin Cameron – Educated at the universities of Stellenbosch, South Africa, and

Oxford. An academic and advocate, then Judge of the High Court and the Supreme
Court of Appeal, and currently a Justice of South Africa’s Constitutional Court. A
distinguished author and social activist.

Hugh Corder – Studied law at the universities of Cape Town, Cambridge and
Oxford. After five years at Stellenbosch as a senior lecturer, appointed to the Chair
in Public Law at the University of Cape Town in 1987. Served as Dean of Law
from 1999 to 2008.

Iain Currie – Advocate, Johannesburg Bar.

Francesca Romana Dau – Post-doctoral fellow in Comparative Public Law at

the University of Milan. PhD in Theory of the State and Comparative Political
Institutions at the University of Rome and lecturer in Anglo-American Public Law
in the same university. She has been a visiting researcher in universities based in
France, the United Kingdom and South Africa, and has published several essays
and a book entitled Costituzionalismo e rappresentanza. Il caso del Sudafrica
(Milano: Giuffrè, 2011).

Veronica Federico – PhD (Ecole des Hautes Etudes en Sciences Sociales-Paris),

research fellow in the Department of Legal Sciences of the University of Florence,
where she has taught public comparative law. Honorary Research Associate in the
School of Social Sciences of the University of the Witwatersrand, Johannesburg,
from 2001 to 2004, her research interests include democratic transitions,
fundamental rights, African constitutionalism.

Mark Heywood – Executive Director of SECTION27 (which incorporated the

AIDS Law Project in 2010). He joined the AIDS Law Project (ALP) in 1994 and
in 1998 he was one of the founders of the Treatment Action Campaign (TAC). He
serves on the TAC Secretariat, National Council and Board of Directors. Mark was
the deputy chairperson of the South African National AIDS Council from 2007
xiv The Quest for Constitutionalism

until 2012. Mark has written extensively on HIV, human rights and the law, and
with the ALP and SECTION27 has been involved in major litigation around HIV
and other human rights issues in South Africa.

Tim Fish Hodgson – Bachelor of Business Science (2008) and an LLB (2010) at
the University of Cape Town. He joined SECTION27 in 2011 before spending an
inspiring year clerking for Justice Zakeria Yacoob at the Constitutional Court of
South Africa. In 2012, he graduated with an LLM at the University of Michigan,
returning to SECTION27 as a legal researcher in 2013. His work is in a variety
of areas including constitutional literacy, basic education, private and public
healthcare and the right to food.

Cora Hoexter – Professor in the School of Law at the University of the

Witwatersrand, Johannesburg, where she teaches public law and pursues her
main research interest, administrative law. A second edition of her leading text,
Administrative Law in South Africa, was published by Juta & Co, Ltd in 2012.

Andrea Lollini – PhD (Ecoles des Hautes Etudes en Sciences Sociales, Paris).
He has published widely on international and constitutional law and is Assistant
Professor of Comparative Constitutional Law at the University of Bologna.
He works as a permanent research fellow at the Institut des Hautes Etudes sur
la Justice in Paris, and was one of the coordinators of the international research
project ‘Changing Role of the Highest Courts in an Internationalising World’ of
the Hague Institute for Internationalisation of Law (HiiL).

Tumai Murombo – Associate Professor and Director of the Mandela Institute,

School of Law at the University of the Witwatersrand, Johannesburg. He is a legal
practitioner admitted to practice law in Zimbabwe. Murombo is also Co-founder
and Chairperson of the Board of the Zimbabwe Environmental Law Association
(ZELA) and a member of the IUCN Commission on Environmental Law. He
currently researches and teaches in environmental law, energy law and regulation,
sustainable development, climate change law, and conservation and biodiversity
law. Murombo has published and consulted in these areas internationally.

Morné Olivier – Associate Professor of Law at the University of the Witwatersrand,

Johannesburg, where he teaches mainly administrative law and jurisprudence.
He writes about the judiciary, and has a special interest in the selection and
appointment of judicial officers. Morné frequently comments on judicial matters
in the media. He and Cora Hoexter are the contributing editors of The Judiciary in
South Africa, published in 2014.

Nic Olivier – BA (Law), LLB, BA (Hons), MA and LLD (University of Pretoria),

BPhil and BA (Hons) (the former PUCHE), and Drs Iur and LLD (Leiden
University). Professor and Director: SADC Centre for Land-related, Regional
 Notes on Contributors xv

and Development Law and Policy (CLRDP), Post-graduate School of Agriculture

and Rural Development, University of Pretoria. He was previously professor
in the Law Faculties of the Universities of Pretoria, PUCHE and Natal. Since
1994, he has been involved in various projects relating to rural development, land
reform, legal pluralism, cooperative governance, and the rationalisation of policy
frameworks and legislation, and has on a number of occasions been seconded to
the South African Government.

Nico Olivier – BPolSci, BA (Hons) Political Sciences with specialisation in

International Relations, and MA (Political Sciences and International Relations).
Independent policy analyst and research fellow at the Department of Political
Sciences, University of Pretoria. His areas of expertise include African politics,
monitoring and evaluation, higher education, cooperative governance, violence,
rural development, land reform, agricultural land, and traditional leadership.

Romano Orrù – PhD in Public Law, Full Professor of Public Comparative Law
at the University of Teramo. He teaches Comparative Constitutional Law and
Public Law in both the University of Teramo and Bocconi University in Milan.
He has extensively written on South African and African constitutional law and
his research interests include constitutional adjudication, European public law,
political rights and constitutional history.

Albie Sachs – Anti-apartheid legal activist, took part in the writing of South
Africa’s Constitution and was appointed by Nelson Mandela to the country’s first
Constitutional Court where he served from 1994 until 2009.

Lucia Scaffardi – PhD (Università di Bologna), Associate Professor of Public

Comparative Law at the Department of Law, University of Parma. Her areas of
expertise include the UK, the US and Commonwealth Countries (with special
focus on Australia, Canada, South Africa); Emerging Countries (BRICS) and
fundamental rights (hate speech, health rights, privacy, social rights). She is the
coordinator of the ‘BRICS Parma’ (www.brics.unipr.it), an observatory of BRICS
legal systems and their development.

Sanele Sibanda – Senior Lecturer at the School of Law at the University of the
Witwatersrand, Johannesburg, where he teaches constitutional law and the law of
persons. His research interests are in the areas of constitutional law, customary
law reform, decolonial theory and liberation theory. He has taught, researched
and published on questions related to separation of powers, administrative law,
customary marriage, customary law reform and South African constitutionalism
from a critical perspective.

Roger Southall – Professor Emeritus, Department of Sociology, University of the

Witwatersrand, Johannesburg. He is the author of the recently published Liberation
xvi The Quest for Constitutionalism

Movements in Power: Party and State in Southern Africa (James Currey, London;
UKZN Press, Pietermaritzburg).

Linda Stewart – BComm, LLB, LLM, LLD. Professor of Law teaching legal
hermeneutics and human rights. Her research inter alia focuses on poverty and the
realisation of socio-economic rights in terms of the South African Constitution.

Francois Venter – Taught law from 1974 in the Faculty of Law in Potchefstroom,
North West Province, South Africa. Dean of the Faculty 2001–12. Convenor of
the Technical Committee on Constitutional Affairs of the Multiparty Negotiation
Process, drafting the 1993 Constitution in Kempton Park, May–December 1993.
Founded P E R (Potchefstroom Electronic Law Journal) in 1998. President of the
South African Law Deans’ Association 2009–10.

Clara Williams – LLB and LLM (Child Law). Extraordinary Lecturer: Department
of Procedural Law, University of Pretoria, legal researcher and legislative drafter
and non-practising attorney. Since 2009, she has been involved in a number of
projects for local, provincial and national government departments relating to
the review of legislation, the drafting of policy documents, legislation, and so
on. Focus areas include rural development, land reform, agricultural land, the
rationalisation of municipal legislation, pension law and traditional leadership.
 Foreword

We legal academics are a curious lot. Eternally restless, vocationally anxious, we are
ever sceptical about law’s pretensions, yet relentlessly search for the idealism at its
core. So it is no surprise that although there is much to celebrate in South Africa’s
evolution in the last twenty years from a racist, authoritarian state to a constitutional
democracy, this is not a book of jubilation.
Yes, let the praise-singers sing … and I will be amongst the first of them. After all,
in these two decades, four presidents have vacated office without being pressurised
by an army coup or massive street demonstrations; people from all over the world
have flocked to observe our elections, not to determine if they are free and fair, but
to see what lessons they can learn for other developing countries; armies that in the
apartheid period had bitterly fought against each other have amalgamated into one
service providing peace-keepers throughout the Continent; the Truth Commission
helped to establish new, transparent and profound ways of examining the past with
a view to promoting restorative justice in the future; government and the public
administration have been completely reconstructed on non-racial lines, while
schools, hospitals and residential areas have been desegregated, and we have a robust
press with some of the best investigative journalists in the world. And decisions
of the Constitutional Court, on which I had the honour to serve, ranging from the
abolition of capital punishment, to the enforcement of social and economic rights,
to the evolution of an innovative concept of living customary law, to recognition of
same-sex marriages, and to the right of prisoners to vote are cited as examples of
progressive legal thinking throughout the world. Yes, there are undoubtedly many
things to shout from the jurisprudential rooftops.
And yet, and yet …
As Bertrand Russell said, the most powerful word in the English language is
‘but’. The stocktaking in this book by leading scholars of constitutional and public
law, locates itself precisely in the area of ‘yes, but …’. The writers point out that
just as there have been noteworthy achievements in virtually every sphere, so there
have been significant shortcomings, deficiencies and threats. Great concern has
been expressed about corruption and cronyism, with consequent pressures on the
integrity of public institutions. And despite massive programmes of re-housing,
extensive provision of electricity and clean water and the furnishing of social
grants to a quarter of the population, the gap between rich and poor remains huge.
Unemployment continues to be extremely high, and although the levels of violent
crime have been brought down to some extent, they still remain unacceptable. True,
as many authors in this volume point out, it is not the Constitution that has caused
xviii The Quest for Constitutionalism

any of these problems. Yet the gap between the kind of society that the Constitution
is designed to achieve and the reality on the ground continues to be vast.
Two sets of readers will be disappointed by this volume. The first will lament
the absence of professorial panegyrics and sunshine legal writing. The second will
bemoan seeing anything positive at all written about the contemporary scene, and
not only wish the baby to be thrown out with the bathwater, but the bath itself trucked
away. However, most readers, I believe, will welcome these thoughtful, nuanced and
wide-ranging reflections by academics, most of whom have themselves been deeply
engaged in the constitutional project.
Thus, Edwin Cameron writes bravely and memorably about starting life as a
youth in a poor and fractured white family, glad to be white and ashamed of being
gay, and going on to become a Justice of the Constitutional Court defending the
fundamental rights of all. On a completely different tack, Sanele Sibanda shows
critical spirit within the realms of critical thinking – while many of his colleagues
forcefully denounce Parliament as an ineffectual lapdog of the Executive, he
advances considerable detail to demonstrate that, for all its limitations, Parliament
has in fact been the site of vigorous contestation that has led to meaningful outcomes.
Readers will have their own favourite topics and writers. Of special interest for
me was to see how people who a couple of decades ago spoke with the sharpness and
eagerness of new critical voices, have now emerged as seasoned stalwarts conveying
ideas of mature constitutionalism with ingrained poise. So, anyone seeking an
authoritative overview of the development of administrative law in the past twenty
years, could do no better than to read the observations of Cora Hoexter. Similarly, Tom
Bennett provides an authoritative retrospective of the evolution of customary law.
Finally, it should be noted that a unique feature of this volume is that it is the product
of collaboration between Italian and South African scholars. (Interestingly, the editors
have never met each other in person. I believe I am the only one who knows them
all!) Not too long ago, South Africa was the subject of world-wide condemnation
and the recipient of universal advice on how to move forward. Today, South Africa
has remarkably become a universal donor as far as human rights jurisprudence
is concerned. This volume is accordingly not only a tribute to the sagacity and
determination of committed legal scholars as well as to modern technology. It is
testimony to the richness of South African legal discourse. Its publication is proof of
the existence of a trans-continental cohort of lively legal scholars willing to speak out
about what they see with their eyes and hear with their ears. It is a paradox that the
more trenchant and powerful the quality of scholarly critique, the more likely is it that
the legal system under scrutiny will have health and vitality.
One of the pillars of constitutional democracy is an engaged and critical academia.
As this book shows, South African scholars can hold their own with any in the world.
And the collaboration with noted Italian jurists only adds lustre to their work.

Albie Sachs
Cape Town
 Acknowledgements

This publishing project has been in production for almost twenty months. As is
almost inevitable given the substantial number of authors whose work appears
here and the various conflicting demands on the editors, the process has taken
longer than we anticipated, but the manuscript has been finalised well before the
twentieth anniversary of the advent of constitutional democracy in South Africa.
We are indebted to all the authors for their good humour and patience in this
process, and to Alison Kirk and her colleagues at Ashgate, for agreeing to publish
this book, and then for waiting while several deadlines passed.
We are greatly indebted to Mervyn Bennun, University of Cape Town law
graduate (1960) and honorary research associate (2000–2009), participant in the
Congress of the People which adopted the Freedom Charter in 1955, retired law
teacher from Exeter University (UK), anti-apartheid activist and dedicated South
African democrat, for all his assistance in the final process of editing. Without his
help, the production process would have been further delayed. We also greatly
appreciate Tanya Barben’s work in compiling the Index and Table of Cases.
Hugh Corder would like to record his appreciation of the tolerance of Catherine,
Daniel, Juliet, James, Joanna and Lauren while he disappeared frequently to
snatch time at the computer to pursue this project, and his gratitude to Veronica
and Romano for their role in initiating and bringing this publication to fruition.
Veronica Federico is grateful to Hugh and Romano, their sapience has been a
particular inspiration, and working with them a real pleasure; thanks also to Simone,
Maddalena and Rocco who have patiently shared her South African passion, and to
Carlo Fusaro and Ginevra Cerrina Feroni, for the wisdom and understanding with
which they have guided Veronica’s studies and work in the past two decades.
Romano Orrù wishes to thank Hugh and Veronica: Hugh for having
enthusiastically accepted editorial involvement in this book and for his competence
and total commitment; Veronica for her helpfulness and proficiency during all the
phases of this project. Special thanks to his family – Carlotta, Matteo, Chiara and
Andrea – who became intensely implicated in the Rainbow Nation affairs; and finally
his gratitude to Giuseppe Franco Ferrari, Director of the review Diritto Pubblico
Comparato ed Euorpeo, which was the incubator of the idea of this volume.

Hugh Corder, Cape Town; Veronica Federico, Parma; Romano Orrù, Teramo
21 March 2014 – Human Rights Day (South Africa)/UNO Anti-Racism Day
– commemorating the Sharpeville killings of 1960
This page has been left blank intentionally
 Introduction
Veronica Federico, Hugh Corder and Romano Orrù

The multi-party negotiating conference mandated to write a constitution which

would facilitate the transition from apartheid to democracy approved such
an instrument in mid-November twenty years ago. On 22 December 1993, the
Constitution of the Republic of South Africa (Act 200) was enacted almost
without debate by the race-based tricameral Parliament, thus formally preserving
constitutional continuity. The most significant product of the first step of a long
constitution-making process, the interim Constitution (as it came to be known),
opened the way for democratic elections in the country. For the first time in
its history, South Africa was ruled by a fundamental law deeply imbued with
constitutionalism, whose aim was to pursue ‘a better life for all’. The entering into
force of the interim Constitution and the elections of April 1994 were described
as an historic turning-point for the entire world, a ‘bridge away from a culture of
authority’ leading to ‘a culture of justification’, with the new Bill of Rights as its
‘chief strut’ (Mureinik 1994: 32). The final 1996 Constitution of the Republic of
South Africa (Act 108), symbolically signed by President Nelson Mandela on 10
December 1996 in Sharpeville, marked the accomplishment of the constitutional
and democratic transition.
Few claimed that the road to democracy, equality, freedom and social justice
for South Africans was to be an easy or short one. And so it has proved. The
consolidation of the democratic system, that is the ‘democratic institutionalisation’
(Mezzetti 2003), has turned out being a much longer and more difficult process
than the already complex and demanding democratic transition, as it requires
democratic values to permeate society as a whole, as well as democratic institutions
and mechanisms acquiring a wide and deep social and political legitimacy.
The purpose of this volume is to contribute to a debate on what constitutionalism
has meant for South Africa as a consolidating democratic state, for South Africans
as citizens of the ‘rainbow nation’, and for the global impact of the constitutional
democracy adopted for South Africa. The social project that the constitution-makers
were dreaming about during the transition remains unfulfilled. The realisation of
the values of the final 1996 Constitution remains unattained. The multifaceted
analysis of this volume seeks to explore whether the path South African society is
navigating will lead the country and its people to the full accomplishment of that
social project.
Including the 1994 elections that marked the transition from the apartheid
regime to democracy, South Africans have been to the polls five times to vote in
2 The Quest for Constitutionalism

national and provincial elections, including those in May 2014. In addition, local
authority elections have been held four times, with the next round due in 2016.
According to Dahl’s (1971) widely accepted criteria for identifying a country
as a democracy, fair, competitive, and inclusive elections are a crucial element,
and South Africa can be regarded as a democracy in this sense. However, the
African National Congress has remained the dominant party throughout the first
two decades, so that the system of governance has not experimented with the
alternation in power at national level that some scholars consider a milestone in
the democratic consolidation process (Schedler 1998). While few would argue
that South Africa is not a democracy, as several of Dahl’s other criteria (civil
and political rights and freedoms, inclusiveness, enlightened understanding of
the choices, and so on) characterise the new political and constitutional system,
an in-depth scrutiny of the salience of these elements, through an analysis of
the constitutional and socio-political framework, will contribute to a better
understanding of South Africa’s “long march” to democracy.
Two motivations inspire the volume. Firstly, the analysis is concerned with
the impact of laws and the salience of their existence and enforcement (or non-
enforcement) for South Africans. We intend to situate the importance of the
legal phenomenon in the broader context of the socio-political, economic and
cultural democratisation process. Without consciously seeking to measure the
achievements of the new democratic system, the volume asks what a constitution
does, using Sunstein’s approach, through the prism of South African experience.
In Sunstein’s words, in fact, ‘the central goal of a constitution is the pre-conditions
for a well-functioning democratic order, in which citizens are genuinely able to
govern themselves’ (2001: 6). To understand the impact of the new constitutional
dispensation, borrowing from Roscoe Pound’s famous formulas, on the one hand,
we take into account the ‘law in the books’ and, on the other, we consider the ‘law
in action’. This means that, from the formal constitutional perspective based on an
analysis of the importance of the framework of the constitutional provisions and
of the evolution of the legal system, we move to an inquiry about the interaction of
the legal phenomenon with the complex network of interwoven social institutions
that constitute South African society. Beyond the ‘universal ideal, the ideal of
law as a body of precepts of universal authority, universal content and universal
applicability’ (Pound 1958: 16), we intend to focus on the ideal of law as a body of
rules concerning relations and flowing from or attaching to relations. In short, we
aspire to inquire into the social dimension of the law.
The second motivation inspiring the volume speaks to the issue of
acknowledging the importance of the South African constitutional provisions
for transnational or even globalised constitutionalism. We aim to discuss the
innovative character of South African constitutional and legal provisions in terms
of both the constitution-making process and the process of implementation of the
Constitution, against the background of the heavy legacy of apartheid, the reality
of everyday life, and finally against the hope and enthusiasm and civil, political
and academic interest stimulated by the transition two decades ago.
 Introduction 3

Remarkably, full expression of the rule of law was first introduced to South
Africa only through the interim Constitution, as the apartheid legal system was
based on the sovereignty of Parliament. Since 1994, for the first time in the history
of South Africa as a modern state, the legal system has been strongly anchored in
a culture of justification (Van Der Walt and Botha 2000), which means that there
are some limitations on governmental power that cannot be altered by means of
ordinary legislation (Bobbio 1991). But South African constitutionalism goes far
beyond the formal recognition of the rule of law. Indeed, the most conservative
tradition of constitutionalism, with its essential distinction and balance between
iurisdictio and gubernaculum, dates back centuries (McIlwain 1969). Nonetheless,
we do not intend constitutionalism as a simple set of formal proceedings nor as
an aseptic separation and balance of opposing powers and interests. As Habermas
states, it finds its justification in certain normative principles, from the public
welfare or public goods to human rights, from moral beliefs to the principle
of deliberation amongst the citizenry. Constitutionalism entails the ideas of an
open and democratic society and of social justice. This principle presupposes,
furthermore, a framework of individual rights, which grants private autonomy
and allows each citizen the capacity to exercise their equal right of political
participation (Habermas 1996).
Indeed, the post-apartheid South African constitutions do regulate all the
different state institutions in detail, providing for the separation of powers and
all formal requirements of contemporary democracies. But they also contain
normative and moral principles, they express the ‘soul of the nation’ (Ebrahim
1998). Dignity, equality, freedom, non-racialism and non-sexism have replaced
racism, arbitrariness and inequality as the guiding principles of the very structure
of the legal order.
The Constitution is not imbued with mere constitutionalism, but with
‘transformative constitutionalism’, that is,

… a long-term project of constitutional enactment, interpretation, and

enforcement committed to transforming a country’s political and social
institutions and power relationships in a democratic, participatory, and
egalitarian direction. Transformative constitutionalism connotes an enterprise
of inducing large-scale social change through nonviolent political processes
grounded in law. (Klare 1998: 152)

The former Chief Justice, Pius Langa, described transformative constitutionalism as

… a permanent ideal, a way of looking at the world that creates a space in which
dialogue and contestation is truly possible, in which new ways of being are
constantly explored and created, accepted and rejected and in which change is
unpredictable but the idea of change is constant … This is a perspective that sees
the Constitution as not transformative because of its peculiar historical position
or its particular socio-economic goals but because it envisions a society that will
4 The Quest for Constitutionalism

always be open to change and contestation, a society that will always be defined
by transformation. (Langa 2006: 354)

Few doubt that the constitution-making process has played a pivotal role in the
South African democratic transition, and that the country has become the symbol
of what constitutions and constitutionalism can achieve. It is equally true that the
law is ‘the primary means available to a democratic state to intervene in society’.
What remains to be debated is ‘the effectiveness of law as mechanism for social
change’ (Klug 2000: 7).
In the passage from the transition to the consolidation of the democratic
system, much of the emphasis of two decades ago has now gone. Disenchantment
has frequently replaced enthusiasm and the accounts of the heroic struggle
against apartheid have been substituted by a critical analysis of the workings
of the different aspects of the democratic system. And yet, despite all the ‘dark
sides’ of South African democracy, the debates and analysis must not forget what
apartheid was, and how deeply it scarred South African society. As the famous
novelist Andre Brink stated in 1995, ‘we have to expect a number of excesses and
abuses: those who are now in power are not supermen, they are ordinary human
beings. The issue is not to excuse the abuses. Nonetheless, whatever obstacle and
deception, it is always exciting to feel history in the making’ (1995: 35).
We need, now, to ground our discussion in the concrete South African reality.
The importance of South Africa in the geopolitical arena (as powerful political
actor in the African continent and more generally as representative of the requests
and demands of countries of the South), in the field of legal innovation and of the
circulation of legal models, and finally as moral reference point in the international
community, asserts itself. As Johnston, Shezi and Bradshaw wrote at the time: ‘in
the absence of any very compelling single system of ethical agreement … South
Africa had the merit of providing an area of substantial agreement between East
and West, of what constituted acceptable and unacceptable political behaviour.
Standing aside was not enough’ (1993: 255).
With a population of 51.8 million people in 2011, South Africa is the fifth most
populated country in Africa. According to World Bank assessments, the country
is ranked as an upper-middle income economy, with the national GDP in 2012 at
US$384.312 billion, which makes an average GDP per capita of US$7,508. On
the other hand, given the extremely unequal distribution of wealth and of access to
resources (measured by a Gini coefficient1 of 0.63 according to 2012 Word Bank
data), the average GDP per capita may be a misleading datum, if we consider that
almost one-quarter of the population is unemployed and lives under the poverty
line (that is, on less than US$1.25 a day). The newly released UNDP Human
Development Report of 2012 ranks South Africa at 121, among the medium human

1 The Gini coefficient is the most commonly used measure of inequality. The
coefficient varies between 0, which reflects complete equality and 1, which indicates
complete inequality (one person has all the income or consumption, all others have none).
 Introduction 5

development countries (which makes South Africa the sixth ranked country for
human development in sub-Saharan Africa).
South Africa is a typically divided society, where segregation first and apartheid
later have separated the population according to ethno-racial factors.
Until 1994, South Africans were not one people in one country: the organisation
of the state combined the typical division of the territory along geographically
coherent lines with an ethno-racial division of the population, creating different
communities of individuals with their own forms of government and differentiated
rights and duties. Since 1950, the Population Registration Act and the Group Areas
Act had classified the population into four racial groups (White, Coloured, Black
and Indian), and assigned these groups to different residential and business zones.
Civil, political and socio-economic rights and educational, cultural, occupational
and social opportunities and economic status were determined for each individual
by virtue of the group to which they were deemed to belong.
But other cleavages have built on the racial element. During apartheid, class,
more or less artificially, coincided with race. Urban segregation, differentiated
education policies, and the principle of separation were applied to every aspect
of social, cultural, economic and even private life, and strongly contributed to
strengthening the existing cleavages. About three centuries of colonial domination
based on the principle of segregation and 50 years of apartheid have left scars that
are difficult to eradicate. In the first decades of democracy, the inequalities of the
past have not been fully redressed, and South Africa needs much more time to
rebalance its social fabric, should this remain a goal to be pursued in the policy-
makers’ agenda.
This unequal wealth distribution is mirrored in deeply differentiated living
standards, so that the richest part of the population enjoys Western consumption
patterns, high standard education and health systems, and very good cultural
opportunities, whereas the largest and poorest part of the population still lives
in informal settlements, with no running water and little sanitation, very poor
services, almost no access to higher education, an infant mortality rate four
times higher than that of the richest part of the population, an extremely high
unemployment rate and a much larger share of unskilled employment, where it
exists. If it is true that richness and well-being are no longer formally reserved
for ‘net blankes – whites only’ (the typical notice that after the Reservation of
Separate Amenities Act of 1953 was to be found everywhere: from the benches
in the parks to the beach entrances), the poorest part of the population remains
black. The neo-liberal political economy which the South African government has
adopted and implemented, especially during the presidency of Thabo Mbeki, has
stirred up strong social criticism, but undeniably has allowed for the control of
inflation and consistent economic growth.
With the highest number of infections in the world, South Africa is one of
the countries most severely affected by the HIV/AIDS epidemic (which remains
indeed a terrible plague in several other African countries, especially in the
southern part of the continent). The epidemic, that is considered to be generalised
6 The Quest for Constitutionalism

and hyper-endemic, has an obviously strong impact on both the economic and the
socio-cultural structure of society. Without anticipating the analysis of Heywood
and Hodgson in this volume, it is impossible not to consider this phenomenon
while analysing, for example: the progressive enforcement of socio-economic
rights; its impact on economic growth; the challenges the infection poses to local
government, and its corrosive effect on the inter-generational pact which the
Constitution assumes as crucial for the process of nation-building, just to mention
a few crucial consequences of the problem.
Nevertheless, South Africa’s importance in the geopolitical arena has been
growing since the democratic transition. After having been suspended in 1974
from participating in the work of the UN General Assembly due to international
opposition to apartheid, South Africa was re-admitted to the UN in 1994. In 2007–
2008, endorsed by the African Union, South Africa was elected as a non-permanent
member of the UN Security Council. Again in 2011, the country was re-elected for
a second two-year mandate in the UN Security Council. Very active in regional
and sub-regional organisations, South Africa is a leading member of the African
Union, the Southern African Customs Union (SACU), and the Southern African
Development Community (SADC).
South Africa is the European Union’s largest trading partner in Africa.
Although it is also a member of the African, Caribbean and Pacific (ACP) group
of countries, it is by far the strongest of sub-Saharan Africa’s economies, and
has a Free Trade Agreement with the EU, which was signed in Pretoria in 1999
after a long negotiating process. Indeed, South Africa was not party to the same
preferential trade arrangements granted to the ACP under the Cotonou Agreement
(2000). For the Economic Partnership Agreements (EPAs), which are the trade
pillar of the Cotonou Agreement, South Africa joined the negotiations with
the SADC EPA Group in February 2007; however, while Botswana, Lesotho,
Swaziland and Mozambique signed an interim EPA in 2009, South Africa has
opted not to join at this stage as its trade relations with the EU remain governed
by the Free Trade Agreement. South Africa’s exports to the EU are growing and
their composition is becoming more diverse. This is an important signal of South
Africa’s economic and political strength.
Vis-à-vis the rest of the world, in the aftermath of the G-8 meeting in Evian,
France, in 2003, South Africa, Brazil and India, three of the most important
emerging economies, decided to intensify the quantity and quality of their political
and economic relationships. They launched the IBSA initiative, a trilateral
developmental initiative, to promote South-South cooperation and exchange. South
Africa’s becoming the ‘S’ in the BRICS group (Brazil, Russia, India and China) in
2011 makes even clearer the importance of the country in the international arena,
as Scaffardi discusses below. In Goldman Sachs’s words, these countries are not
any more simply emerging economies, but real growing economies.
It is thus clear that the functioning of the constitutional system as well as the
quality of democracy of one of the most important African countries is a matter of
 Introduction 7

interest for African, European and international scholars and policy-makers, and
not simply for theoretical reasons.
During the transition and in the first years of democracy, the South African
miracle captured the attention of both the political and academic international
community, and much was written on many aspects of the social, political and legal
system, and of the economic, cultural and historical framework of the transition. Two
decades later, South Africa is no longer so much in the limelight, and comprehensive
studies on the development of the legal system and of the implications for the social
configuration of power are not commonly found. We do not intend to provide a
comprehensive and exhaustive analysis of the South African legal system, but to
offer several standpoints and perspectives for further analysis.
Each chapter, under its specific perspective (from land reform to political
rights, from local government to the green economy, and so on), will contribute
to unveiling a segment of the complex general picture. Digging beneath the
surface of the constitutional and legal provisions and practices, the purpose is to
understand the deeper historical, political, social, cultural and economic reasons
for them, and to interrogate them in order to grasp, on the one hand, the underlying
logics that motivated the adoption of those provisions and practices, and, on the
other hand, the real impact of those provisions and practices in deconstructing and
reconstructing different social ties, that is, in transforming society.
The chapter authors are mainly South African scholars; nonetheless, the
presence of foreign scholars as editors and contributors brings in new analytical
angles, adding a specific comparative dimension.
The volume is organised around five general topics: the structure of the State;
rights, equality and the courts; political rights and the party system; transformative
constitutionalism; and the international context. As pieces of a single puzzle, each
chapter is focused on a very specific topic (federalism, local government, structure
of government, Parliament, equality, socio-economic rights, HIV/AIDS, the
judiciary, administrative justice, political rights, land reform, the green economy,
constitutional changes, legal pluralism, the right to information, the party system,
constitutional case-law, the BRICS, and so on). Combining the chapters allows for
an overall, and yet multifaceted, understanding of the contemporary South African
constitutional system, and of how the Constitution works.
Against the segmentation of both national territory and population carried out
under the apartheid regime, the democratic transition has reunited South Africa as a
country and as a people. The new structure of the State, as illustrated in Federico’s
chapter, whether it should be considered as a federal, semi- or quasi-federal, or
a centralised state with some forms of decentralisation, together with the new
system of government (the quasi-parliamentarianism described by Orrù) provide
the frame for the analysis of more specific aspects of South African legal order and
society. Unveiling the gap between the constitutional models in theory, which are
the product of a delicate and sophisticated exercise of constitutional design, and
the real enforcement of those models, the first two chapters open the discussion
8 The Quest for Constitutionalism

on whether such a gap should be considered physiological and inevitable, or an

alarming drift from what it should have been.
Starting from Venter’s discussion of the ‘completely new, consolidated,
theoretically autonomous and decentralised sphere of constitutionally structured
local government … in a precarious balance between a subsidiarity-like autonomy
on the one hand, and the dependence on the other hand on national and provincial
oversight and financing’, as well as Sibanda’s inquiry into the role of Parliament in
a single-party-dominant system, the discourse moves to the analysis of fundamental
rights and the role of the judiciary in the enforcement and protection of rights.
Justice Edwin Cameron’s reflection on the relevance of dignity and equality in
Constitutional Court jurisprudence opens the way for a broader discussion on the
role of law in the process of social change that South African society is undergoing
since the democratic transition, to rebalance the inequalities of the past and to
recognise the intrinsic human dignity of every person.
Since the Grootboom case in 2000, much has been written on the South African
approach to the enforcement of socio-economic rights. The Constitutional Court
maintained that ‘our Constitution entrenches both civil and political rights and
social and economic rights. All the rights in our Bill of Rights are inter-related and
mutually supporting’ and

… there can be no doubt that human dignity, freedom and equality, the
foundational values of our society, are denied to those who have no food,
clothing or shelter. Affording socio-economic rights to all people therefore
enables them to enjoy the other rights enshrined in Chapter 2. The realisation of
these rights is also key to the advancement of race and gender equality and the
evolution of a society in which men and women are equally able to achieve their
full potential. (The Government of the Republic of South Africa & others v Irene
Grootboom and others, para 23)

In a critical approach, Stewart’s chapter points to the progressive technicisation

and proceduralisation of needs-talk in the socio-economic rights adjudication of
the judiciary, which leads to depoliticising these rights, whereas ‘one possible
way for courts to meaningfully contribute to the socio-economic transformation
as envisioned by the transformative mandate of the Constitution is to also focus
on facilitating meaningful public reasoning and dialogue in the form of political
discourse and participation.’
The role of the judiciary in any legal system is never neutral, and in South
Africa, this is even more evident than elsewhere. In the words of one of South
Africa’s most famous lawyers:

Why is it that in this courtroom I am facing a white magistrate, confronted by a

white prosecutor, escorted by white orderlies? Can anybody honestly and seriously
suggest that [in] this type of atmosphere the scales of justice are evenly balanced?
Why is it that no African in the history of the country has ever had the honour of
 Introduction 9

being tried by his own kith and kin? … The real purpose of this rigid colour bar is
to ensure that justice dispensed by the courts should conform to the policy of the
country, however much that policy might be in conflict with the norms of justice
accepted in judiciaries throughout the civilised world. (Mandela 1994: 312–13)

Nelson Mandela’s initial address to the court during his trial in October 1962 was
highly confrontational: much has changed since then, but, as Olivier’s chapter
underlines, the role of the judiciary remains a ‘contested and controversial matter’
in contemporary South Africa.
During the apartheid era, administrative law, as well as criminal law, were
sources of oppression for the majority of South Africans. The democratisation
process has liberated administrative law, together with all other facets of state
institutions, and the 1996 Constitution has entrenched the right to just administrative
action (s 33). In her chapter, Hoexter underlines how the inclusion of this right is
remarkable, and how this might play a fundamental role in the overall enforcement
of the democratic system but, ‘notwithstanding what has been achieved in theory,
problems such as endemic corruption and non-compliance with court orders are
placing the entire constitutional project at risk.’
The relevance of political rights, and of the right to vote, may appear obvious in
contemporary consolidated democracy, but the universal suffrage in South Africa
was finally obtained only in 1994. Thus the right to vote occupies a special place
in the framework of the Bill of Rights, and ‘the constitutional judges have pushed
towards a wide enfranchisement rather than disenfranchisement’ as illustrated in
Dau’s chapter, as an instrument of nation-building. Together with the ‘proper’
political rights, it is interesting to follow Currie in his inquiry into the freedom
of information rights, which are crucial in the structuring of the public sphere.
Under the spotlight in 2012 and 2013 during the harsh debate on the Protection
of State Information Bill, the implementation of freedom of information rights
is ambiguous. On the one hand, these ‘rights are routinely, though unevenly,
invoked and relied upon. In a number of high-profile court decisions, information
activists and journalists have secured important victories’, but on the other hand,
they are ‘frequently ignored or maladministered by public bodies’, so that the
general picture is not as bright as it may appear. The political outcome of this
involved frame is what Southall in his chapter calls the ‘contradictions of party
dominance’, with ‘the ANC that has become a victim of its own dominance, and
the principal party of opposition, as presently constituted, which is constrained by
its own legacy, its own constituency, and its chosen ideology’.
Within such a legal, social and political framework, the discourse moves to
analyse some of the most interesting reform processes which contribute to make
South African constitutionalism a ‘transformative’ constitutionalism. The picture
becomes variegated: Corder’s review of constitutional reforms in South African
history ‘emphasising the enormity of the shift in the basic norm which underlies
the current Constitution’ and ‘speculating on likely pressures for further reform’;
as well as the critical inquiry into the land-reform projects in which Olivier, Olivier
10 The Quest for Constitutionalism

and Williams highlight a number of key challenges and possible options to ensure
that the constitutional imperative of bringing about sustainable land reform will
be realised, provide different angles of analysis. In turn, Murombo’s discussion
of green economy policies and environmental rights adds new elements to the
debate. Here, ‘little has changed in how the government and industry manage
natural resources … partly due to the complex nature of the task required in
promoting sustainability in a social, economic, cultural and political atmosphere
full of intractable ideological contradictions.’ Finally, the frame appears even
more intricate, taking into consideration Bennett’s discussion of the position of
indigenous customary law in the democratic legal system, which offers the author
the opportunity of underlining that the South African legal system has had to
contend with a problem that is common to most post-colonial states: a significant
gap between social classes that are marked by culture and ethnicity. Law may all
too easily become a marker of cultural resistance to the interference of the central
state, and, without education, income and opportunity, the disadvantaged class is
less likely to accept and act on reforms promulgated by the state.
The reader should not, nonetheless, be induced to underestimate the magnitude
of the South African democratisation process and the relevance of the new
constitutional system in action. As well as its weight in the international arena,
illustrated by the case-study of the BRICS group in Scaffardi’s chapter, the impact
of South African constitutional jurisprudence is remarkable. Lollini’s chapter, in
fact, illustrates how the South African CC’s decisions are ‘gradually becoming
a source of inspiration for other constitutional cultures, specifically for the
complexity of the issues it deals with in terms of enforcing fundamental and social
rights, fighting against inequality and harmonising a multicultural society’.
Nelson Mandela’s death in late 2013 marks another turning-point in South
Africa’s long walk to democracy. He was an immense source of value for his
country and for the whole world. The new challenge is now to decide from which
spring to draw inspiration for the strenuous struggle for an open, democratic and
equitable society. But we remain confident. In a country where the ‘constitutional
vision’ is ‘anchored in the architectonic value of human dignity’ (Eberle 2008:
3) in its special, South African meaning, the idea of Ubuntu, ‘Ubuntu ungamntu
ngabanye abantu’ – ‘people are people through other people’ – we believe there is
hope for more radical social change.

References

Books, book chapters, articles

Bobbio, N. 1991. Il Futuro della Democrazia. Torino: Einaudi.

Brink, A. 1995. ‘Lendemain du miracle’, Les temps modernes, 585: 24–40.
Dahl, R. 1971. Polyarchy: Participation and Opposition. New Haven: Yale
University Press.
 Introduction 11

Eberle, E.J. 2008. ‘The German Idea of Freedom’, Oregon Review of International
Law, 10: 1–76.
Ebrahim, H. 1998. The Soul of a Nation. Cape Town: Oxford University Press.
Habermas, J. 1996. Between Facts and Norms: contributions to a discourse of law
and democracy. Cambridge, MA: MIT Press.
Johnston, A., S. Shezi and G. Bradshaw, 1993. Constitution-making in the new
South Africa. London: Leicester University Press.
Klare, K.E. 1998. ‘Legal culture and transformative constitutionalism’, South
African Journal on Human Rights, 14(Part I): 146–88.
Klug, H. 2000. Constituting Democracy. Law, Globalism and South Africa’s
Political Reconstruction. Cambridge: Cambridge University Press.
Langa, P. 2006. ‘Transformative Constitutionalism’, Stellenbosch Law Review,
17(3): 351–60.
Mandela, N. 1994. Long Walk to Freedom. London: Little, Brown & Company.
McIlwain, C.H. 1969. Constitutionalism and the Changing World. Cambridge:
Cambridge University Press.
Mezzetti, L. 2003. Teoria e prassi delle transizioni costituzionali e del
consolidamento democratico. Padova: CEDAM.
Mureinik, E. 1994. ‘A Bridge to Where? Introducing the Interim Bill of Rights’,
South African Journal of Human Rights, 10: 31–48.
Pound, R. 1958. The Ideal Element in Law. Calcutta: University of Calcutta Press.
Schedler, A. 1998. ‘What is Democratic Consolidation?’ Journal of Democracy,
9(2): 91–107.
Sunstein, C. 2001. Designing Democracy: What Constitutions do. Oxford: Oxford
University Press.
Van Der Walt, J. and H. Botha, 2000. ‘Democracy and Rights in South Africa:
Beyond a Constitutional Culture of Justification’, Constellations, 7(3): 341–62.

Case

Government of the Republic of South Africa & others v Irene Grootboom and
others, CCT/11/00.
Map of South Africa and its Provinces. © bogdanserban / iStock / Thinkstock
 Part I
The Structure of the State
This page has been left blank intentionally
 Chapter 1
South African Quasi-Federalism
Veronica Federico

Introduction

Decentralisation does not necessarily increase the autonomy, power and functions
of sub-national governments. Rather, the relevance of sub-national governments
depends upon the interrelation between the form of the state and the system of
government, on the political and socio-economic background, and on the social
history of the country, as well as on the party system and institutional framework.
Since the early 1990s, decentralisation has often been a strategic element
in democratisation processes and development policies in Southern Africa, and
became a leitmotiv in international democratisation and developmental plans. Two
decades later, it would be very interesting to embark on a discussion of the success
of these policies, but the scope of this chapter is much narrower: to employ one of
the typical continental European comparative public law analytical categories and
tools (that is, the study of the structure of the state) to describe the contemporary
South African legal system.
Indeed, much has been written on the structure of the South African State
(including whether it should be described as a federal, semi-federal, provincial,
decentralised, or hybrid state) by both South African and international scholars,
especially during the democratic transition, and our aim is neither to provide
the reader with an overview of such a broad literature, nor to suggest a new,
insightful theory. Instead, we intend to focus on a few aspects of the provincial
system’s evolution and of the centre-periphery relations which may prove to be
an interesting perspective for an analysis of the state’s capacity to provide an
institutional accommodation capable of responding to the needs of the people.
Without detailing here the core of our analysis, whether South Africa should
be considered as a federal, semi- or quasi-federal, or centralised state with
some forms of decentralisation is not simply a theoretical issue. The questions
concerning what tier of government (national, provincial, or local) is responsible
for relevant political choices and what tier of government should be accountable
for them, reveal the very nature, and quality, of the new democratic system. We
believe that these also have an important impact in terms of the implementation
of policies, for example in the field of service delivery, education, health care, etc.
16 The Quest for Constitutionalism

Structure of the State before 1994

South Africa has never been a homogeneous state, either from a socio-political
and cultural perspective or from an economic one, and especially not if we
consider its structure.
According to the most recent demographic data referring to 2011,1 79.6 per
cent of the 51,770,560 South Africans define themselves as African, 9 per cent
Coloured, 2.5 per cent Asian/Indian, and 8.9 per cent White. South Africa is a
typically divided society, where segregation first and apartheid later have separated
the population according to ethno-racial factors. However, other cleavages have
been built upon the racial element. During the apartheid years, class, more or
less artificially, coincided with race. From urban segregation to differentiated
education policies, the principle of separation applied to every aspect of social,
cultural, economic and even private life, and strongly contributed to strengthening
the existing cleavages.
The structure of the new state has been a crucial issue in the South African
transition. Twenty years later, it remains an important element in terms of
governance, democratisation, and, of course, service delivery and the amelioration
of the quality of life of the most disadvantaged segments of South African
contemporary society.
Indeed, decentralisation and local governance are relevant issues in the
present development discourse. Since the early 1990s, decentralisation has been
increasingly connected to the process of democratisation (with the assumption
that a decentralised country can achieve an improved level of democratic quality),
to the strategies of the fight against poverty (with the assumption that poverty
reduction is positively related to decentralisation), and, in general, to the positive
resolution of development problems.

Three vantage points are especially relevant to debates about federalism: the
link between federalism and democracy; the link between federalism and
what we might call effective government, or policy-making capacity; and the
link between federalism and the ability to manage territorially concentrated
ethno-national divisions, or between federalism and varying conceptions of
communities. (Simeon 1998: 3–4)

The organisation of the South African State from 1910 to 1994 combined two
different principles: the typical division of the country along geographical lines,
creating territorially homogeneous entities – provinces and municipalities –
which enjoyed some degree of power (both legislative and executive) depending
on the level of decentralisation, and an ethno-racial principle, creating different
communities of individuals (perceived to be homogeneous) with their own forms

1 The latest census was held in 2011 and the basic data can be easily accessed at
<http://www.statssa.gov.za/Census2011/Products/Census_2011_Fact_sheet.pdf>.
 South African Quasi-Federalism 17

of government and differentiated rights and duties. The two principles overlapped,
and produced a very confused and intertwined power structure on a twin-track
decentralisation logic, in which the central power of national government remained
the dominant element in almost every process of policy-making. As an informed
analyst has concluded:

The decentralisation experiments of the apartheid state were, paradoxically,

grounded in an attempt to maintain central control. Decentralisation was
designed to achieve at least two objectives: first to fragment the opposition
by creating a set of regional and ethnic interests which would impede African
nationalism; and secondly to relinquish sovereignty over parts of the space in
order to satisfy the political aspiration of the majority. (Wittenberg, 2003: 24)

The idea of creating ‘native reserves’ where the African population could be
confined dates back to early colonial times and reached its peak with the so-called
‘grand apartheid’ that led to the creation of the homelands, or bantustans. In the
words of C.P. Mulder, Minister of Bantu Administration and Development in 1978:

If our policy is taken to its full logical conclusion as far as the black people are
concerned, there will be not one black man with South African citizenship …
Every black man in South Africa will eventually be accommodated in some
independent new state in this honourable way and there will no longer be a
moral obligation on this Parliament to accommodate these people politically.
(Rogers 1980: 17)

This form of divide et impera policy carried out by the apartheid government
had a very negative impact on later discussions regarding decentralisation. Any
form of decentralised/federal distribution of power had to prove itself to be
different in both theoretical and empirical terms to the system of apartheid. The
result was that despite the advice of the international community and of experts
who engaged globally in reflections and debates on the advantages of some form
of federalism for the new post-apartheid South African State, the democratic
constitutions (transitional and final) opted for a unitary state, with some forms of
decentralisation.

Decentralisation in the Democratic State

The creation of the new South African State was characterised by a double,
partially conflicting movement: on the one hand, the process of reunification of
what had previously been separated by the apartheid state (the territory of the
state, its population, the government structure, the vast majority of public policies
– education, health, employment, the security forces, and so on); on the other
hand, the process of decentralisation, which implied a complete reformulation of
18 The Quest for Constitutionalism

the country’s geography both in terms of physical geography and power. This was
in a country where geography has always been highly politically contested.
The final 1996 Constitution (s 40) establishes three separate, but interdependent
and interrelated, spheres of government: a national government, nine provincial
governments and 284 local governments, all within the general frame of a
cooperative government.
The provincial sphere of government consists of legislative and executive
competences, but provinces are not endowed with judicial authority. As is typical
of decentralised but not federal state structures, the administration of justice
remains the prerogative of the national power and is vested in the courts, which
may have a provincial organisation (as is the case with South Africa), but do not
depend on the provincial sphere of government either for their internal organisation
(judges’ recruitment, establishment of courts’ seats) nor for the granting of their
independence, and not even for their financial resources. Following the same
principle, regional governments do not have regional/provincial police and
security forces.
The legislative authority of the provinces is vested in the provincial legislature,
which consists of between 30 and 80 members depending on the size of the
provincial population. As with the national Parliament (Southall 2014), provincial
legislatures are elected through a proportional electoral system, based on closed
party-lists at the national and provincial level.
Interestingly, the first draft of the Constitution of the Western Cape was
rejected by the Constitutional Court (CC) because it provided for multiple-
member geographical constituencies, as opposed to the party-list proportional
representation prescribed by the national Constitution. The Court judged this
provision to be inconsistent with the national Constitution, as an electoral system
cannot be considered to be a ‘legislative nor an executive structure’ (which
provincial constitutions are entitled to regulate). Also, the province did not have
the power to alter the electoral system (Certification of the Constitution of the
Western Cape).
Following a ruling at the national level, Members of Provincial Legislatures
(MPLs) are forced to follow a rigid party discipline by the ‘anti-defection’
clause, which does not allow MPLs to vote differently from their party and/or
to change political affiliation during their mandate (the sanction for this is the
loss of their legislative seat). Thus, MPLs are accountable in the first instance
to their party rather than directly to the electorate. The legislative authority of
provincial legislatures consists in passing legislation for its province in any matter
of exclusive or concurrent competences (in respect to the general framework
of existing national legislation), and in adopting, and eventually amending, the
provincial constitution.
Despite the exclusive competences of provincial legislatures, the national
Parliament can still enact legislation concerning provincial functional areas
(Constitution, s 44(2)). In a comparative perspective, this provision is not
unusual, as it is considered a type of guarantee for national unity even in highly
 South African Quasi-Federalism 19

decentralised states. If narrowly interpreted, it is simply a guarantee. However, if

broadly interpreted – as is the case with South Africa – it considerably enlarges
the legislative prerogatives of the national Parliament, to the detriment of
provincial exclusive competences. In fact, in Ex parte President of the RSA: In
re Constitutionality of the Liquor Bill, the CC underlined that ‘Our constitutional
structure does not contemplate that provinces will compete with each other.
It is one in which there is to be a single economy and in which all levels of
government are to co-operate with one another’ (para 75). And ‘where provinces
are accorded exclusive powers these should be interpreted as applying primarily
to matters which may appropriately be regulated intra-provincially’ (para 51).
That is to say, exclusive competences need to be interpreted in the context of
those matters which can be effectively regulated in one province alone (Currie
and de Waal 2001: 121).
Functional areas of concurrent national and provincial legislative competence,
listed in Part A of Schedule 4 of the Constitution, cover very important aspects
concerning the socio-economic development of the country and its citizens.
Agriculture, education, environment, health services, housing, language policy,
public transport, tourism, trade, urban and rural development and welfare services,
for example, are crucial areas in order to promote a new social order, based on
those democratic and egalitarian principles upon which the new South Africa
should be established.
Notwithstanding provincial prerogatives, what has happened until now is
that national framework legislation tends to be very detailed, regulating almost
every aspect of the most sensitive issues, leaving little if any space for the
provinces to perform their law-making duties effectively. This phenomenon
has three different, and serious, consequences: first of all, it narrows the
specific role of the provincial legislatures which is to provide provincial laws
that better accommodate provincial and local needs, and which better fit the
socio-economic and cultural environment. Secondly, it reduces institutional
accountability and transparency, as it becomes more and more difficult to
understand which legislative body is responsible for what type of legislation.
Thirdly, this phenomenon fosters institutional competition (to the detriment of
the principle of cooperative government for which it has been established), and
intensifies institutional conflicts for the attribution of powers (Venter 2014).
Finally, when considering concurrent legislative competences, we should not
forget the indirect provincial participation in the national law-making process
through the National Council of Provinces, the second House of the national
Parliament, explicitly designed to represent provincial interests at the national
level (Sibanda 2014).
Provincial executive authority is vested in the Premier, who is elected by the
members of the provincial legislature of which she or he is also a member. The
Premier exercises executive authority together with the members of the Executive
Council, who number between five and ten and are appointed by the Premier
from among the members of the provincial legislature. Indeed, the Constitution
20 The Quest for Constitutionalism

does not provide for provincial departments, which are created by s 7(2) of the
Public Service Act of 1994, and these do not have legal personality. As noted by
Woolman, ‘Departments do not only exist to serve the Premier. The departments
are, at their most basic level, merely different manifestations of the Premier’
(2009: 68). Within the provincial borders, the Premier and the Executive Council
have the responsibility of implementing both provincial and national laws at the
provincial level.

Provincial Constitutions

The possibility of granting provinces the capacity to adopt provincial constitutions

was a much-debated issue during the constitutional negotiations, with two
provinces (Western Cape and KwaZulu Natal) and some minority parties strongly
advocating in its favour. Section 142 of the 1996 Constitution attributes to
provinces the authority for passing provincial constitutions, within the framework
of the Constitution, which must be certified by the Constitutional Court. Still,
provinces enjoy quite a broad level of self-determination, as their constitutions

… may provide for –

(a) provincial legislative or executive structures and proceedings that differ from
those provided for in the Constitution; or
(b) the institution, role, authority and status of a traditional monarch, where
applicable. (Constitution, s 143(1))

As a matter of fact, the Western Cape is the only province that has succeeded
in adopting its own constitution, whereas KwaZulu Natal, the other province
which ‘embarked on a constitution drafting exercise, was unsuccessful since the
constitutional text was not certified by the Constitutional Court’ (Brand 2008: 15).
All other provinces still operate under the provisions of the national Constitution.
Following a relatively long and complex constitution-making process, with
an initial rejection of a number of clauses by the CC, the Western Cape provincial
constitution came into effect in January 1998. Many of the provisions of this
constitution restate the homologous provisions of the national Constitution,
with a few distinctive elements concerning official languages, the size of the
provincial legislature, the establishment of specific provincial institutions such
as ‘cultural councils’ to represent cultural and linguistic communities within
the province, the Commissioner for the Environment and the Commissioner
for Children, the development of provincial symbols, and a series of directive
principles of provincial policy.
In KwaZulu Natal (KZN), one of the provinces which vigorously sought
more autonomy for provinces during the national constitution-making process,
the provincial constitution-drafting was unsuccessful: ‘South Africa’s successful
transition to democracy reveals two advantages of sub-national constitution
 South African Quasi-Federalism 21

making for transitional federal states. Firstly, sub-national constitutions can be

effective instruments in conflict management during periods of political instability.’
Secondly, they ‘can facilitate necessary political socialization’ (Marshfield 2008:
588–9). In fact, the inclusion in the national Constitution of a provision allowing
for provincial constitutions that would recognize the Zulu monarch was crucial in
reaching the compromise which opened the way for the Inkatha Freedom Party
(IFP) to participate in the 1994 elections (Spitz and Chaskalson 2000).
Soon after the elections, once the national Constitutional Assembly had started
work, the IFP ‘employed the process of negotiating a provincial constitution
for the province of KZN as surrogate for its participation in the constitutional
deliberations of the Constitutional Assembly’ (Devenish 1999: 505). Even before
the final national Constitution was approved, the KZN’s provincial legislature
unanimously approved its provincial constitution in March 1996. The CC,
however, declined to certify the KZN constitution. In its judgment, the Court
found that various provisions ‘appear to have been passed by the KZN legislature
under a misapprehension that it enjoyed a relationship of co-supremacy with the
national legislature and even the Constitutional Assembly’ (Certification of the
Constitution of the Province of KwaZulu-Natal, para. 15). It took the provincial
legislature about a decade to issue a second draft, for which the approval and
enactment process is still pending. In the meanwhile, the provincial legislature
approved the KwaZulu Natal Provincial Leadership and Governance Act (2005),
to provide formal recognition for traditional leaders, including the Zulu king, and
to establish roles, responsibilities and functions. Supplying a legal framework for
the most crucial political, cultural and identity issues, with a strong mobilizing
potential, seems to have greatly reduced the pressure for the adoption of a
provincial constitution.
Therefore, what is the relevance of provincial constitutions? As stated by the
CC, the national Constitution ‘provides a complete blueprint for the regulation
of government within provinces which provides adequately for the establishment
and functioning of provincial legislatures and executives’ (In re Certification of
the Constitution of the Western Cape, 1997, at 15). This asserts that provinces
have been designed to function effectively even without provincial constitutions.
Indeed, scholars have noted that ‘provincial constitutions will never amount
to more than window dressing’ (Woolman 2005: 21), meaning that they have
very little importance as a source of substantive law. However, from a political
angle, ‘it is noteworthy that the only two provinces which embarked on the
provincial constitutional development road are the two provinces where political
parties other than the ANC played a significant role since 1994’ (Brand 2008:
16). Furthermore, provincial constitutions have played an important role in the
transition process. As the KwaZulu Natal case demonstrates, a ‘subnational
constitution-making process can induce dynamic political interaction between
national and regional polities, which in turn can strengthen unstable federal
systems’ (Marshfield 2008: 590).
22 The Quest for Constitutionalism

The Federal System in Action

The analysis of provincial constitutions seems to validate the thesis of a positive

link between federalism (or decentralisation) and ‘the ability to manage territorially
concentrated ethno-national divisions’ (Simeon 1998). What we will now discuss
is whether in South Africa, the first two decades of this hybrid structure of the state
demonstrates a positive interrelation between federalism and effective governance.
From an electoral perspective, it is noteworthy that since 1994 the ANC has
won all elections for provincial legislatures except in the Western Cape (where the
New National Party won the 1994 round of elections and the Democratic Alliance
was victorious in 2009 and in 2014) and KwaZulu Natal (where the IFP won the
1994 elections and have since then remained the second strongest political party
of the province). A discussion of these electoral results and their implications is
beyond the scope of this chapter; nonetheless, it is clear that such homogeneity
between national and provincial spheres of government, together with the
very strict party discipline of the ANC, leaves little space for independent and
differentiated provincial policy-making initiatives. Moreover, research highlights
the lack of accountability of provincial governments to their provincial electorates
as one of the reasons for poor provincial performance. National and provincial
elections are held contemporaneously, and party lists are delivered nationally,
thus ‘there is no mechanism for provincial electorates to hold their provincial
governments directly accountable for the choices they make on social spending’
(Van Niekerk 2012: 633).
From a service-delivery angle, ‘the Big 5 areas of government performance
– education, health, welfare, housing and agriculture – are either within the
exclusive or concurrent powers of the provinces’ (De Villiers 2007: 15). Thus
provinces should, to some extent, significantly contribute towards ameliorating
the quality of life standards of the population. Nonetheless, three main obstacles
prevent provincial governments being effective in the process of delivering a
better quality of life. The first is the central dominance granted by the Constitution
and the political system to the national government, which thus maintains a very
close degree of control over the legislative and executive policies of the provinces
(Steytler 2005). Secondly, the skills and capacity shortages, which are evident at
the provincial level, result in poor governance, inability to deliver basic services,
and major inequalities between provinces. Thirdly, ‘an additional, and perhaps
more significant, limitation on the competency of the provinces is their ability to
tax’ (Marshfield 2008: 594). Provinces are precluded from imposing ‘income tax,
value-added tax, general sales tax, rates on property or custom duties’ (s 228),
which are the most important revenue sources. They are, however, ‘entitled to an
equitable share … to provide basic services and perform the functions allocated to
them’. Each year, the Division of Revenue Act establishes the division of nationally
raised revenue across the three spheres of government. The Intergovernmental
Fiscal Relations Act of 1997 prescribes the process for determining the equitable
share and allocation of revenue raised nationally. A redistributive formula is
 South African Quasi-Federalism 23

used to divide the equitable share among provinces, that is, to balance the simple
principle of proportionality with the population. The equitable share, however,
takes into consideration functions allocated to provinces by national legislation
only, thus ‘the provinces are not entitled to additional funding for expenses created
by provincial law, and they do not have the authority to raise independent revenue’
(Marshfield 2008: 594–5). This process results in a severe contraction of effective
provincial autonomy.
In December 2011, the national government took direct control (invoking
s 100(1) of the Constitution) of Limpopo, Free State and Gauteng provincial
governments to address ‘underspending, overspending, and challenges with
supply chain management’ (Government of South Africa 2011). In Limpopo,
the provincial departments that were taken over (where provincial civil servants
were replaced by central government officials) included the provincial treasury,
education, transport and roads, health, and public works; in Free State, the
departments included the provincial treasury, police, roads and transport. In
Gauteng, the ‘Ministers of Health and Finance will assist the Premier and the
Members of the Executive Council with: finance management issues and supply
chain management issues’.
The debate surrounding the very existence of the provinces and their future
is a longstanding one, which has regularly gained momentum, and then been set
aside. In 2007, the Department of Provincial and Local Government (DPLG) itself
initiated a policy review process with the ‘task of assessing whether existing forms
of governance remain appropriate to meeting the changing demands that have
become routine in developed and developing countries alike’ (DPLG 2007: 3).
This revival of interest, which has catalysed political and academic attention for
some time, has not led to significant institutional reform. The vast inequalities in
education, health and basic infrastructure, such as access to safe water, sanitation
and housing which was inherited from the apartheid regime, still maintain a strong
provincial element (Ozler 2007: 487), as extensively demonstrated by scientific
literature in very different fields.
In education, Sayed and Soudien, for example, illustrate how ‘policies of
educational decentralisation may exacerbate rather than reduce inequities in
society; they may exclude more than include’ (2005: 115). Moreover, ‘weak
capacity in provincial education departments hinders the translation of policy
from the national level down to the school level; and without any adjustment
in the provincial equitable share [of national revenues], poorer provinces will
continue to struggle to fund the many schools falling into no fee poverty quintiles’
(Sayed and Motala 2012: 685). If we consider access to basic services, and in
particular access to water, major provincial inequalities continue to persist, and
they are only partially explained by the urban/rural factor (Federico 2012: 567).
Furthermore, ‘recent figures reported on healthcare in the Eastern Cape indicated
an infant mortality rate of 60 compared to the South African average of 45’ (Van
Niekerk 2012: 631). This is the consequence of the existence of significant health
needs but poor administrative capacities: ‘Combined with the poor governance
24 The Quest for Constitutionalism

systems characteristic of provinces with a bantustan legacy, the health system in

the Eastern Cape failed to deliver adequate health services to the citizens of the
province’ (ibid.: 632).
The decentralised structure of the state seems therefore to be ineffective in
delivering positive governance. The combination of public commitment to
decentralisation (during the transition from apartheid) and constitutional provisions
supporting the provinces makes overt re-centralisation difficult (Dickovick 2007:
7). Nevertheless, the debate on the future of the provinces remains open: the
functions, powers, and even the number of provinces, are under scrutiny. At the
53rd ANC national policy conference, held in December 2012, it was resolved
to establish an independent presidential commission to review the role of the
provinces. At this stage, the re-interrogation of the state’s structure seems to be
having little impact on people’s lives.

Conclusion

Decentralisation has played an important role in the South African democratisation

process: ‘Given their presumptive success in the provinces [of Western Cape and
KwaZulu Natal] and expected defeat at the national level, the National Party
and the Inkatha Freedom Party championed federalism and conditioned their
support for democratisation to … guarantees for provinces’ (Dickovick 2007: 6).
Accommodating requests from minorities for political guarantees through a form
of federalism was part of the negotiated democratic transition. Furthermore,
constitutional engineering offered a safe riverbed for the negotiations, as it provided
the adequate institutional embankments (in this case, the different decentralisation
patterns) that made it possible for different people to reach agreement when
agreement was necessary (Sunstein 2001: 243). Therefore, federal arrangements
were in fact a type of ‘peacemaking device’ (Steytler and Mettler 2001: 93).
The constitution-makers, through the complex, two-stage constitution-
making process, drew up a fairly sophisticated hybrid system, creating a complex
mixture of opposite centrifugal and centripetal forces. Democratic constitutions,
however, should not be mere documents, but pragmatic instruments, designed to
solve concrete problems and to make political life run more smoothly (Sunstein
2001: 244).
Inevitably, the system-in-action has highly simplified the structure in fact,
with centripetal forces, mainly derived from the strong dominant party system,
prevailing. It is probably too early to judge whether or not this is harming the
quality of South African democracy, but it is not too early to affirm that South
African quasi-federalism has not provided a viable solution for enhancing
governance and bridging socio-economic inequalities.
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skrækkelige reise
jeg just hadde
gjort, og da jeg bestandig har været en udmerket svømmer,
behøvde jeg ikke at frygte.
Jeg speidet rundt omkring i alle retninger, men kunde ikke se
andet end vand. Forskjellen mellem det klimat hvor jeg nu var, og
det som jeg var vant til hos Vulkan, begyndte ogsaa at bli
ubehagelig. Tilsidst fik jeg langt borte øie paa en gjenstand som saa
ut som en uhyre klippe og som øiensynlig kom imot mig. Jeg saa
snart, at det var et isberg. Jeg undersøkte længe førend jeg fandt en
revne, ved hvis hjelp jeg kunde komme op. Tilsidst lykkedes det mig
dog, og jeg klatret op paa dets top, men til min store ærgrelse
kunde jeg her heller ikke opdage land paa nogen kant.
 Endelig ved aftenens frembrud fik jeg øie
paa et fartøi som holdt ned paa mit isberg.
Saasnart det var kommet nær nok, praiet jeg
og fik svar tilbake paa hollandsk. Jeg hoppet i
sjøen og svømte til skibet, hvor jeg blev halt
ombord. Det første jeg spurte om var, hvor vi
befandt os.
«I Sydhavet,» blev svaret.
Dette svar forklarte alt. Det var tydelig at jeg
hadde faldt fra Etna tversigjennem jordens
midtpunkt og ut i Sydhavet, hvilken vei er
meget kortere end at seile rundt. Ingen før mig
har reist denne vei, og skulde jeg forsøke det
en gang til, saa skal jeg nok passe paa at gjøre
iagttagelser underveis, som maa bli av den
største vigtighet for videnskapen.
Jeg fik noget at spise og gik saa tilkøis for at
hvile mig ut. Hvilket uopdragent folkefærd er
ikke hollænderne, mine herrer! Da jeg den
følgende morgen fortalte officererne min
historie paa samme likefremme og ukunstlede maate som nu, saa
flere av dem og da især kapteinen ut som om de tvilte paa mine ord.
Men da de hadde tat gjæstfrit imot mig, og jeg levde aldeles paa
deres bekostning, var jeg nødt til at stikke denne fornærmelse i
lommen uten at ta til gjenmæle.
Jeg spurte hvilken plads de var bestemt til, og fik det svar at de
var paa en opdagelsesreise, og at reisens maal var naadd, hvis min
fortælling var sand. Vi fulgte nøiagtig samme vei som kaptein Cook
og ankret næste dag i Botany bay. Jeg maa si at det var bedre om
den engelske regjering vilde belønne ærlige og fortjente folk ved at
sende dem hit istedetfor at sende sine kjeltringer, saa vakkert er
landet og saa rikt er det utstyrt av naturen.
Vi laa bare tre dager her. Den fjerde dag efter vor avreise blev vi
overfaldt av en frygtelig storm, som rev alle seil i filler, feide væk
baugsprydet og kastet ned bramstangen som faldt ned paa dækket
og i faldet knuste vort kompas. Enhver som kjender noget til sjølivet
ved hvad en slik ulykke vil si. Vi visste ikke mer, hverken hvor vi var
eller hvorhen vi skulde styre. Tilsidst løiet vinden og blev efterfulgt
av fint veir og gunstig vind. Vi seilte nu i tre maaneder og maatte ha
tilbakelagt et anselig stykke vei, da vi med engang iagttok en
merkværdig forandring i alting. Vi blev saa oprømte og glade i hu,
vore næsebor blev fyldt med de deiligste dufte, og havet skiftet
ogsaa farve og blev aldeles hvitt istedetfor graat.
 Snart efter denne vidunderlige forandring fik vi land isigte og det
varte ikke længe før vi løp ind i en havn som var baade god og
rummelig. I stedet for vand var den fyldt med udmerket melk. Vi gik

iland og fandt at hele øen bare bestod av en eneste umaadelig ost.

Vi skulde sandsynligvis ikke ha opdaget dette, hvis ikke en løierlig
begivenhet hadde bragt os til at se efter. En av matrosene hadde
nemlig en medfødt modbydelighet for ost og besvimte i det øieblik
han satte foten paa land.
Da han kom til sig selv igjen, bad han os at ta væk den ost som
hadde klæbet sig fast ved hans støvler. Vi undersøkte tingen
nærmere og fandt at han hadde fuldstændig ret, hele øen var
hverken mere eller mindre end som jeg just fortalte, en uhyre ost.
Øens indvaanere levde av denne ost, og det som blev spist op i
dagens løp, vokste ut igjen om natten.

Vi saa likeledes en mængde vinranker, belæsset med svære

drueklaser som istedetfor vin gav melk, naar de blev krystet.
De indfødte var slanke og vakre folk og i regelen ni fot høie. De
hadde tre ben, men bare en arm, og de voksne mænd hadde midt i
panden et horn, som de anvendte med beundringsværdig færdighet.
De holder kapløp paa melkehavet og gaar paa det likesaa let som vi
paa marken.
 Der vokser likeledes paa øen eller rettere sagt osten en mængde
korn, hvis skjælformige frugt indeholder et helt brød, fuldstændig
bakt og stekt, færdig til at spises.
Paa vor reise tvers over øen traf vi paa ni elver, syv med melk og
to med vin. Reisen varte seksten dager før vi kom til den motsatte
strand. I denne del av øen fandt vi store sletter av ost, som var
aldeles blaa av alder, hvilket jo av skjønnere sættes over alt andet.
Men istedetfor at være fulde av mark, vokste de deiligste frugter her,
saasom kirsebær, ferskener, aprikoser og vist tyve andre sorter, som
vi aldrig hadde set før. I disse trær som er overordentlig store og
tykke, var der en mængde fuglereder. Vi saa saaledes en fiskeørns
rede, som var likesaa stort som St. Pauluskirkens kuppel i London.
Det var meget kunstfærdig bygget og indeholdt — vent litt, til jeg
faar tænkt mig om — det indeholdt 500 egg og ethvert av disse var
mindst saa stort som et oksehode.
Vi kunde ikke se ungerne, men hørte dem pipe inde i eggene. Da
vi efter mange forgjæves forsøk tilslut fik aapnet et av eggene, kom
der ut en fjerløs fugleunge, som vistnok var tyve ganger saa stor
som en voksen høk.

Neppe hadde ungen krøpet ut av egget, før den gamle kom til ved
dens pipen, slog ned paa kapteinen og fløi tre mil op i luften med
ham, saa basket den ham dygtig med vingerne og lot ham falde ned
i vandet.
Hollænderne svømmer alle som vandrotter, saa det varte ikke
længe før kapteinen naadde os igjen, og saa indskibet vi os. Vi reiste
dog ikke samme vei for at gjøre nye iagttagelser. Blandt det vildt
som vi hadde fanget paa vor overlandsreise, var ogsaa to bøfler av
et eget slags med bare et horn, som de hadde midt imellem begge
øinene. Vi angret siden at vi hadde dræbt dem, da vi fik vite at de
indfødte dresserer dem og bruker dem som træk- og ridedyr.
 Vi fandt deres kjøt overordentlig velsmakende, men det er jo
aldeles uten værd for et folk som bare lever av ost og melk.
To dager før vi kom ombord igjen, saa vi tre personer indlaast i
nogen bur, som hang høit op i trærne. Jeg spurte da, hvilken
forbrydelse de hadde begaat, som blev straffet saa strengt, og det
blev mig da fortalt, at de hadde reist utenlands og efter sin
tilbakekomst hadde villet slaa en hel del løgne i sine landsmænd,
idet de hadde beskrevet stæder som de aldrig hadde set og fortalt
om hændelser som de aldrig hadde oplevd. Jeg synes ikke andet
end at deres straf var vel fortjent, for enhver reisendes første pligt er
at holde sig strengt paa sandhetens vei.
Da vi alle var ombord igjen, lettet vi anker og sa farvel til dette
besynderlige land. Alle trærne paa strandbredden, av hvilke mange
var meget høie og tykke, bøide sig i takt to ganger for at hilse paa
os, hvorefter de indtok sin forrige stilling. Det var meget smigrende
for os og tok sig meget godt ut.
Efter nogen dages seilas, Gud ved i hvad retning, for vi var
fremdeles uten kompas, blev vandet rundt omkring os aldeles sort;
da vi undersøkte det nøiere, blev vi behagelig overrasket ved at
finde at det var den deiligste vin istedetfor skiddent vand, som vi
hadde trodd. Det var med største møie vi kunde avholde vort
mandskap fra at drikke sig rent fordærvet. Men vor glæde varte ikke
længe, for nogen timer efter fandt vi os paa alle kanter omringet av
hvaler og andre uhyre store fisker, hvorav en især var saa stor at vi
ikke med den allerbedste kikkert kunde se dens hale. Ulykkeligvis
opdaget vi ikke uhyret, før vi var like ind paa det, da den med
engang drog vort fartøi med fulde seil ind i sit aapne gap.
 Da vi hadde været en stund i gapet, aapnet den kjæften paa nyt,
slukte en skrækkelig vandmasse, og skylte vort skib med vandet ned
i maven, hvor det var saa stille som om vi laa tilankers i en dam.
Luften maa jeg rigtignok tilstaa var noget kvalm og tung. Vi traf her
nede i fiskens mave fuldt op av fartøier, nogen fuldlastet og andre
tomme, og som alle hadde lidt samme skjæbne som os. Alt hvad vi
foretok os, maatte gjøres ved fakkelskin, da vi jo hverken hadde sol,
maane eller stjerner til at lyse for os. Vi hadde sædvanligvis to
ganger om dagen høit vand, og to ganger stod vi paa grund. Naar
uhyret drak, blev det flod, og ebbe naar den sprøitet ut, hvad den
hadde drukket. Vi gjorde en nøiagtig beregning over det kvantum
vand, den drak, og fandt at det var nok til at fylde Genfersjøen, som
er 30 mil i omkreds. Den anden dag av vort fangeskap i dette
mørkets rike vovet jeg at gjøre en utflugt, mens det var lavt vand,
som vi pleide at si.
Vi hadde forsynt os med fakler og møtte omtrent 10000 sjømænd
av alle folkeslag. De stod just i begrep med at forhandle om den
bedste maate til at faa sin frihet igjen. En del av dem hadde tilbragt
flere aar i uhyrets mave.
En formand og to sekretærer blev valgt og den førstnævnte skulde
just til at tale til folket, da den fordømte fisk blev tørstig og begyndte
at drikke, og vandet strømte ind med slik voldsomhet at det var med
nød og neppe vi naadde vore skibe, ja enkelte som var mindre rappe
paa foten, maatte svømme for at redde sit liv.
Da fisken sprøitet vandet ut igjen, forsamlet vi os paany, og jeg
blev nu valgt til formand. Jeg fremsatte da det forslag at vi skulde
fæste de største og sterkeste skibsmaster sammen, og naar saa
uhyret aapnet gapet, plante dem mellem kjæverne og saaledes
hindre fisken fra at kunne lukke sit gap igjen. Dette forslag blev
mottat med enstemmig bifald, og hundrede av de sterkeste mænd
blev straks sat i arbeide med at utføre det. De to master var neppe
blit sammenføiet efter min anvisning, før et gunstig tilfælde frembød
sig, da uhyret nemlig begyndte at gape. I samme øieblik reiste vi
masterne paa den maate, at den ene ende stak tversigjennem
tungen, mens den anden tørnet imot ganen, saa det var aldeles
umulig for den at faa sine kjæver til at møtes. Saasnart skibene var
flot, bemandet vi baatene og bukserte skibene ut i verden igjen. Det
var med ubeskrivelig glæde at vi igjen saa solens lys efter vort
fjorten dages mørke fængsel. Da alle var kommet ut av uhyrets
mave, fandt vi at vi var en flaate paa 35 skibe av alle nationer. Vi lot
de to master bli sittende i bæstets gap, for at andre skibe ikke
skulde lide samme skjæbne som vi.
 Vort første ønske da vi var kommet ut, var at faa vite, hvor i
verden vi befandt os. Det varte en god stund før vi kom til visshet
om dette. Tilsidst opdaget jeg ved hjælp av nogen tidligere
iagttagelser at vi fandt os i det Kaspiske hav. Da dette jo paa alle
sider er omgit av land og ikke staar i forbindelse med havet ved
nogen elv, kunde vi ikke forstaa hvordan vi var kommet dit. En
indbygger av osteøen, som vi hadde tat med, forklarte saken paa en
maate som ser høist sandsynlig ut. Efter hans mening hadde uhyret
naadd sjøen gjennem en underjordisk kanal. La det nu være som
det vil, der var vi, og meget lykkelige var vi ved at befinde os der. Vi
satte alle seil til og naadde snart land. Jeg var den første som steg
iland, men neppe hadde jeg sat foten paa stranden før jeg blev
angrepet av en uhyre bjørn.
«Oho,» tænkte jeg, «du kommer i rette tid.»
 Jeg tok saa fat i dens forlabber med mine hænder og trykket dem
med slik hjertelighet at den hylte av smerte; men jeg brød mig ikke

om dens klage, men holdt den fast i denne stilling til den døde av
sult.
Takket være denne bedrift, har siden alle bjørner hat en saadan
respekt for mig at ikke en eneste har vovet at binde an med mig.
Jeg reiste derpaa til St. Petersburg, hvor jeg av en gammel ven fik
en gave, som jeg satte stor pris paa. Det var nemlig en jagthund,
som nedstammet fra hin berømte tispe, der bragte til verden et kuld
med hvalper, mens den jaget en hare. Ulykkeligvis blev denne hund
skutt av en klodset jæger, som skjøt paa den istedetfor paa haren.
Av dens skind har jeg latt gjøre denne vest, som jeg nu bærer, og
som bestandig fører mig til det sted hvor vildtet findes, naar jeg er
ute paa jagt. Er jeg indenfor skudvidde, flyver en knap av vesten
henimot det sted hvor vildtet ligger, og da jeg altid bærer geværet
ladet og i helspænd, bringer jeg bestandig noget hjem i jagtvæsken.
Jeg har nu bare tre knapper igjen, men saa snart jagttiden begynder,
skal jeg faa sydd paa to nye rader. Kom og besøk mig da, og De kan
være sikker paa at vi nok skal faa os en god jagt.
Jeg tar mig nu den frihet at trække mig tilbake og ønsker eder
allesammen en god nat.
 Transcriber’s Notes

The original spelling was mostly preserved. Obvious errors were

silently corrected. Additional changes are listed below (before/after):

... digteren Burger, hvorfor denne ofte med urette er blevet antat
for dens ...
... digteren Bürger, hvorfor denne ofte med urette er blevet antat
for dens ...
... Det var ingen utsigt for mig til at at slippe fra den, ...
... Det var ingen utsigt for mig til at slippe fra den, ...
... det stakkars dyr var saa magert og utsultet, at de knapt ...
... det stakkars dyr var saa magert og utsultet, at det knapt ...
... kjørende forbi, med to vakre damer indi. Min hest lot sig ...
... kjørende forbi, med to vakre damer ind i. Min hest lot sig ...
 *** END OF THE PROJECT GUTENBERG EBOOK BARON VON
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