The real power of SA’s municipalities: A case for Federalism – Martin van Staden

Author, Martin Van Staden, argues that, contrary to popular belief, municipalities, not provinces, should be the focus of South Africa’s federalist movement. While South Africa’s constitution created a two-sphere federation with a central government and subnational tier of governments, an additional provincial sphere was given very limited authority. Municipalities, on the other hand, were granted general constitutional authority, which means they may do whatever is necessary to fulfil their constitutional mandate, including the promotion of social and economic development. Municipalities in South Africa should be thought of as the country’s real provinces, and the wide authority granted to them needs to be fully exploited by municipal governments. Read this article below.


Federalists! Embrace South Africa’s mighty municipality

By Martin Van Staden

As I myself have become involved in the rebirth of South Africa’s federalist movement, it has been difficult to have the conversation about where federalists should focus their energy. 

Most federalists simply assume – and understandably so – that if we are talking federalism, we are talking about South Africa’s provinces having more practical authority. Having studied the Constitution, though, it seems quite clear to that the greatest potential for federalism lies at the municipal level.

The South African Constitution’s vertical division of powers can be understood in this way:

The drafters created a two-sphere federation – as federations tend to be – with a central government and a subnational tier of governments. The central government was given wide authority and the subnational governments were given wide authority. At the very last moment, before the Constitution was adopted, an additional sphere of government was wedged between the central government and the subnational governments. This provincial sphere was given very limited authority, and is clearly simply ‘tacked-on’.

Read more: Municipalities to lose slush fund from electricity supply monopoly as High Court rules for PMB, NMB Business Chambers

The real power of municipalities

This is not how it played out, of course, but it is a helpful way to think about how provinces fit into South Africa’s constitutional scheme. As a centralised federation, most governing authority is vested at the centre, but as a federation, the subnational sphere also has a wide scope of authority. This subnational sphere, however, is not the provincial sphere, but the municipal. 

It is counterintuitive, but South Africa’s municipalities are where the residual power that is not vested in Pretoria truly lies.

According to sections 156(4) and, in particular, (5) of the Constitution, municipalities have generalconstitutional authority. This effectively means that they may do whatever is necessary to fulfil their constitutional mandate, which is similarly wide and includes the promotion of ‘social and economic development’ (section 152(1(1)(c)). 

Provinces do not have general constitutional authority. They have a limited, enumerated list of things that they may involve themselves in. Any other functions must be expressly delegated to them from the centre or from municipalities.

And although the Constitution allows provinces to adopt their own provincial constitutions, this is something of a bait-and-switch. A provincial constitution is severely limited in what it can make provision for, and is regarded as of equal status to ordinary legislation from the central Parliament. For municipalities, on the other hand, the central government is under a constitutional obligation to bestow any function upon them if it relates to local government.

The central and provincial governments are also expressly prohibited from ‘[compromising] or [impeding] a municipality’s ability or right to exercise its powers or perform its functions’, by section 151(4) of the Constitution. Outside of a general reading of section 41 of the Constitution which provides for cooperative governance, no similar express provision exists for central government impeding provincial governments.

Even those who understand this tend to have difficulty translating their understanding into practice. There is an overbearing desire to shove the square peg of South African provinces into the round hole of federalism. It is understandable, because in other federations the first and second levels of government division are where authority vests. But the reality is that in South Africa real authority vests in the first and third levels. 

This counterintuitive constitution has made it difficult for federalists and devolutionists to get their priorities straight.

Read more: ANC greed results in failing municipalities

Nomenclature

Everything would make more sense had the Constitution simply referred to municipalities as ‘provinces’ and provinces as, perhaps, ‘departments’ or  ‘regions’. On a terminological level this might have helped, since many federalists and devolutionists do not find the prestige and glory of political decentralisation in the idea of a ‘municipality’, which conjures up an image of a single city or town. The ‘municipality’ is not grand, but the expansive ‘province’ is!

In reality, of course, some of South Africa’s municipalities are the size of small countries. In terms of their surface area, District some district municipalities, in particular, certainly equal the size of provinces in other states, and metropolitan municipal economies like that of Johannesburg are at least as wealthy as . But there is also very little ‘local’ about local municipalities are also less ‘local’ than you might think: they are all larger than typical American cities and are more akin to what the Americans call ‘counties’. 

Something similar happened in what was known as the Central African Federation, or the Federation of Rhodesia and Nyasaland. 

When the colonies of Northern Rhodesia (Zambia), and Southern Rhosdesia (Zimbabwe) Rhodesia and Nyasaland (Malawi) unified into one state in 1953, all the most promising politicians and officials from the colonies sought out and acquired transfers to the federal government. The federal government was grand!  

In reality, the Central African Federation was a confederation, not a federation, which meant the power actually resided with the territories that made up the state, not the central government. This was vividly manifested when the territories tore the confederation apart in 1963 by seceding, lawfully, from the authority of the federal government, despite the latter’s protestations.

The South African municipality is grand, and deserves to be an institution that federalists focus on. Indeed, the wide authority the Constitution formally grants to it has not been fully exploited by municipal governments, and it might take civic pressure to make this grant of authority reality.

Municipalities in South Africa should in fact be thought of as South Africa’s real provinces. The current ‘provinces’ can be conceived of as something of a supervisory intermediary. They are the junior partner to municipalities under normal circumstances. They only become the senior partner when municipalities are unwilling or unable to fulfil their constitutional mandates, allowing provinces to intervene and place the municipalities under administration.

Read more: South Africa’s decentralisation movement: Power to the provinces – Martin van Staden

Provinces are still important

Provinces as they currently exist are important, of course, at least to the extent that control over them must be denied to South Africa’s coalition of destruction, comprising the African National Congress (ANC), Economic Freedom Fighters, Patriotic Alliance, and their tag-alongs.

When Tshwane came under the control of a reformist coalition, the ANC-controlled Gauteng provincial government put it under administration for several months. This was only rolled back through expensive and time-consuming litigation.

Provinces must, at the very least, be neutralised for the damage they could do to autonomous municipalities. If KwaZulu-Natal and Gauteng switch over to opposition government in 2024, it would be something to celebrate, if only because destructive provincial authorities would no longer threaten reformist municipalities with being placed under administration. 

Provinces can also be significant centres of support for municipalities. In a previous article, for instance, I explained how provinces could pool municipal resources and establish specialised law enforcement units that all the municipalities in that province can benefit from. But for as long as federalists and the lawyers of the opposition see provinces not as the support mechanism, but as the very vehicle for decentralisation, the federal agenda will suffer.

The province should therefore not be entirely forgotten in South Africa’s march to federalism, but the preoccupation with it must end.

Local realities

Readers might be thinking that, more than the provinces, most of South Africa’s municipalities have well and truly collapsed. This much is true. This article is written with the handful of holdouts in mind,  where more and more South Africans are moving to escape the collapse. 

Since South Africans are digging their trenches in these holdout municipalities, it is all the more important for those municipalities to start exercising real governing authority to protect their inhabitants from the predations and incompetence of the central government.

If a reformist coalition comes to power in 2024 nationally, or even in some provinces, they should take constitutional subsidiarity seriously and adopt national and/or provincial devolution legislation that delegates even more authority downward. For more detail on this proposal, see my 2021 peer-reviewed article for the Cato Journal.