Co-operative Government

Co-operative Government in South Africa

Introduction

The South African constitutional dispensation under the Constitution of the Republic of South Africa, 1996, has developed into a multi-tiered governmental order.
This system is likely to face similar circumstances as those faced by federations like the USA, Germany, and Australia.
Co-operative government and inter-governmental relations became part of the South African constitutional and political scene with the commencement of the Interim Constitution in 1994.
Before 1994, the concept was foreign; lower levels of government were largely controlled by the central national government.
There was a lack of integration, co-ordination, and participation in policy matters.
During multi-party negotiations leading to the Interim Constitution, substantial consideration was not given to facilitating inter-governmental relations and the principles of co-operative government.
Reasons for this neglect included:
- Lack of information regarding multi-tiered dispensations in other parts of the world.
- Parties were engrossed in a federal-unitary debate, neglecting the practical management of a three-tiered system.
Conflicting approaches arose during constitutional negotiations regarding the future relationship between government spheres.
- Centralists advocated for provincial and local governments to be subordinate to the national government.
- Federalists argued for specified and entrenched powers for each government sphere.

Shift Towards Pragmatism

Since the implementation of the Interim Constitution, pragmatism has replaced dogmatic viewpoints, especially in inter-governmental co-operation.
The Interim Constitution was neither a classical federal system nor a traditionally centralized or unitary state.
The principles of co-operative government in the 1996 Constitution are new and unusual within the South African constitutional framework.
The aim is to emphasize inter-governmental co-operation and co-ordination between all levels of government, rather than competitive political conduct.
The term "sphere" is used instead of "level" to enhance the relationship between governmental institutions, regulated by the Constitution.
The system of co-operative government enhances features of federalism.
The need for separate spheres of government has not disappeared. Multi-tiered government is essential in ethnically or politically divided societies to ensure public participation and democratic societies.

Development of Co-operative Government

The development of the 21st-century state necessitated the establishment of co-operative government and inter-governmental relations.
Constitutional developments from the 18th century onwards, especially the principle of federalism, laid the foundation for inter-governmental co-operation and co-ordination.
The complexities of the modern state require co-operation between spheres/levels.
Normal functioning of a state requires basic principles of co-operative government.
Co-operative government is closely linked to the development of federalism.

Models of Federalism

Divided Model:
- Separate sets of political institutions interact through bargaining and negotiations.
- Clear division between powers and functions of national and regional governments.
- Regions/provinces can impose taxes independently.
- Provincial/regional interests are not directly represented on the national level.
- No formal mechanisms of co-operation between the levels of government.
Integrated Model:
- Aims at integrating and co-ordinating national and provincial political interests.
- Provides for exclusive and concurrent powers between levels of government.
- Proper division of State revenue.
- Specific procedures for levels of government to co-operate.
- Participation of lower levels in the highest level of government.

Dual Federalism

Describes the unco-ordinated co-existence between the federal government and the participating states.
The national government and the states viewed each other as competitors.
Each institution acted in a separate sphere with its own powers and functions.
A good example was the early governmental system of the USA.
The drafters of the Constitution of the United States of America paid little attention to inter-governmental relations, co-ordination, and co-operation.
Little effort was made in the USA system to provide a constitutional framework or formal institutions to facilitate the development of such attributes.
Only since the early 1930s has reference been made to co-operative federalism and inter-governmental relations.
The US system, like Germany, has developed various legal methods to facilitate co-operation between the different levels of government within a particular state.

The German Model of Federal Trust (Bundestreue)

After the Second World War, co-operative federalism became an integral part of the functioning of the German federal dispensation.
The principle of co-operative federalism provides for various instruments and institutions that are aimed at achieving more effective governmental processes.
National and sub-national institutions are united to achieve co-operation.
Main characteristics of co-operative federalism:
- Horizontal and vertical co-operation between the various levels of government.
- Bilateral and multilateral co-operation.
- The involvement of the legislative, executive, and judicial branches of government.
- A combination of voluntary and obligatory co-operation.
Since the early 1950s, the constitutional practices of the Federal Republic of Germany are an example of a system that has formally constitutionalized the duty of national and sub-national governmental structures to co-operate with each other.
A specific framework and procedures have been established to facilitate such co-operation.
The German system also establishes a comprehensive network of structures and institutions, some provided for by the German federal Constitution, and some by other laws or conventions.
All methods are aimed at facilitating and encouraging closer inter-governmental relations.

The Principle of Federal Trust (Bundestreue)

The fundamental principle on which the partnership between the German national government (Bund) and the various regions (Länder) is based.
It is a uniquely German concept based on mutual trust, respect, and the obligation of the federal government and the regional governments to co-operate.
According to the German Constitutional Court, Bundestreue encapsulates the constitutional obligation of trust and friendship between the national and regional governments.
It is regulated by the unwritten constitutional norm of Bundestreue.
The principle of Bundestreue is a dynamic and important concept that has to be given fuller meaning and content by judicial interpretation.
Under the German system, the principle of Bundestreue affords a simultaneous constitutional obligation and enforceable right for both the national and regional governments.
Both levels of government are treated equally, and each has clearly defined areas of jurisdiction that are guaranteed by the law.
Within such an equal relationship, both levels of government have an obligation to consult, co-operate, co-ordinate, and communicate with each other.
National government is not prevented from consulting with the regions, and the regions can also not circumvent co-operation and consultation by arguing that certain areas fall under their exclusive jurisdiction.
Federal trust requires open, constructive, and co-ordinated interaction between the levels of government in order to ensure an effective and efficient governmental system.
In instances where the obligations of Bundestreue are not adhered to, both levels of government have the right to legal recourse.
The main function of Bundestreue is to ensure close co-operation between the levels of government, and to ensure that actions are taken in the interests of the government as a whole.
There is no exact checklist to measure compliance with the principle of Bundestreue; it is an attitude of trust and partnership that is given content as specific circumstances may require.
The principle of Bundestreue forms the foundation of inter-governmental relations as it represents a philosophical but enforceable legal basis from which to evaluate the conduct of activities of government institutions in a multi-tiered governmental system.

South Africa's Move Toward Integrated Federalism

The Constitution of the Republic of South Africa, 1996, has moved South Africa's constitutional model closer to an integrated model of federalism.
- Chapter 3 specifically provides for and protects the principles of co-operative government.
- The Constitution refers to spheres of government and not levels of government, which is a move away from a hierarchical division between the national and regional spheres of government.
- Spheres of government are partners rather than opponents within the governmental system.
- Schedules 4 and 5 specifically provide for concurrent and exclusive legislative competencies for the national and provincial governments.
- According to section 228 of the Constitution, the authority of the provinces to levy taxes is significantly limited.
- Section 41 requires an Act of Parliament to establish structures and institutions to promote and facilitate inter-governmental relations, and mechanisms and procedures to settle disputes.
- The interests of the provinces are protected in the national sphere by the National Council of Provinces (NCOP), which is the upper house of Parliament.
The principles of a co-operative government require all spheres of government to co-operate with one another.
Co-operation refers to the harmonization of the administration of all spheres of government.
The focus is on pragmatic considerations rather than political interests.
Provinces should benefit from co-operation by having a direct say and input in national legislation and policy.
Political tension and uncertainty between national government and the provinces will be reduced.
National government should benefit because the whole system of government and administration should be more politically stable through the involvement of all.
Co-operation will also enable national government to be better informed about the needs of the people of the country.
The Constitutional Court (CC) stated that the constitutional distribution of powers requires co-operation between the various levels of government.
Chapter 3 of the Constitution expressly provides for this principle of co-operative government.

Co-operative Government in the 1996 Constitution

The principles of co-operative government and inter-governmental relations are derived mainly from German constitutional law and more so from the principle of Bundestreue.
These principles found their way into the South African constitutional debate under the notion of co-operative governance.
Far more attention was given to such aspects in the negotiations that led up to the commencement of the Constitution of 1996.
The Constitution contains far more detailed directives and requirements regarding co-operative government and the principles of inter-governmental relations.
Co-operative government emphasizes pragmatic considerations rather than ideological and party political objectives.
Co-operative government should enable lower spheres of government to influence the policy decisions and political directions of the higher spheres.
Chapter 3 of the Constitution is designed to promote co-operative federalism rather than competitive federalism.
Spheres of government share functions and responsibilities.
Such a system should create security, uniformity, political stability, interdependence, and support for the ultimate benefit of the government and nation as a whole.
The Constitution was adopted in a spirit of co-operation and reconciliation which signaled a radical shift away from the dominance of a supreme parliament, as was the case under the Westminster system pre-1994.
Modern states are dynamic entities, and the way in which government authority is distributed among the spheres of government contributes to the complex nature of the system in general.
Chapter 3 introduces the principles of co-operative government, which determine the relationship between the different spheres of government.
The relationship is one of close co-operation, consultation, co-ordination, and mutual support.
Section 40 of the Constitution: $<br />\newline$

"40. (1) In the Republic, government is constituted as national, provincial and local spheres of government, which are distinctive, interdependent and interrelated.

(2) All spheres of government must observe and adhere to the principles in this Chapter and must conduct their activities within the parameters that the Chapter provides."

Division of Government

In Fedsure Life Assurance v Greater Johannesburg TMC, the Court confirmed that the Interim Constitution recognized and provided for three levels of government: national, provincial, and local.
Each level of government derived its powers from the Interim Constitution.
In Government of the RSA v Grootboom, the CC confirmed that the Constitution created different spheres of government and allocated powers and functions to each of these spheres, emphasizing their obligation to co-operate with one another in carrying out their constitutional tasks.
In Western Cape Provincial Government: In re: DVB Behuising (Pty) Ltd v North West Provincial Government, it was held that the functional areas of concurrent legislative authority had to be interpreted in a manner which would enable national parliament and the provincial legislatures to exercise their respective legislative powers fully and effectively.
Chapter 3 of the Constitution has been hailed as the 'new philosophy' of the South African constitutional law system.
This philosophy requires co-operation between the spheres of government and the commitment to resolve disputes among the spheres amicably, rather than opposing one another as adversaries in the courts of law.
Co-operative government requires conflict resolution through positive co-operative, co-ordinated support and encouragement.
The principles of co-operative government and inter-governmental relations as set out in section 41 of the Constitution are the constitutional embodiment of the philosophy of Bundestreue and federal partnership found in the German and other federal systems.
The principles recognize the interdependence of the three spheres of government and place a duty on them to respect each other's powers, functions, and institutions, to co-operate with one another, and to co-ordinate their activities in good faith and mutual trust.
The three spheres should inform each other of new policy measures, assist each other, and avoid legal proceedings against one another.
Section 41:

"41. (1) All spheres of government and all organs of state within each sphere must

(a) preserve the peace, national unity and the indivisibility of the Republic;

(b) secure the well-being of the people of the Republic;

(d) be loyal to the Constitution, the Republic and its people;

(e) respect the constitutional status, institutions, powers and functions of government in the other spheres;

(f) not assume any power or function except those conferred on them in terms of the Constitution;

(g) exercise their powers and perform their functions in a manner that does not encroach on the geographical, functional or institutional integrity of government in another sphere; and

(h) co-operate with one another in mutual trust and good faith by

(i) fostering friendly relations;

(ii) assisting and supporting one another;

(iii) informing one another of, and consulting one another on, matters of common interest;

(iv) co-ordinating their actions and legislation with one another;

(v) adhering to agreed procedures; and

(vi) avoiding legal proceedings against one another."

Legislative Requirements

"(2) An Act of Parliament must-

(a) establish or provide for structures and institutions to promote and facilitate inter-governmental relations; and

(b) provide for appropriate mechanisms and procedures to facilitate settlement of inter-governmental disputes."

"(3) An organ of state involved in an inter-governmental dispute must make every reasonable effort to settle the dispute by means of mechanisms and procedures provided for that purpose, and must exhaust all other remedies before it approaches a court to resolve the dispute."

"(4) If a court is not satisfied that the requirements of subsection (3) have been met, it may refer a dispute back to the organs of state involved."

Close Co-operative Relationship

Due to the idea of a close co-operative relationship between the spheres of government, there is no distinct separation between the spheres of government and their powers and functions.
The CC has held that the principle of co-operative government does not encroach on provincial autonomy.
Some of the principles of co-operative government appear to be mere guidelines of conduct - for example, to foster friendly relations with one another - but, as a whole, they constitute a framework for the conduct of the various spheres of government which conduct can further be tested against the Constitution.

Important Case Law

In Speaker, National Assembly: In re: National Education Policy Bill, the Court held that Parliament was indeed entitled to make provisions for such co-operation and the co-ordination of activities as set out in Schedule 6. It held further that the objection to such provisions on the grounds that they encroached upon the executive competence of the provinces could not be sustained.
With reference to the principles of co-operative government, the CC, in the First Certification Judgment, held that section 41(1)(g), which provided that all spheres of government had to exercise their powers and functions in a manner that did not encroach on the geographic, functional, or institutional integrity of another sphere of government, was in compliance with Constitutional Principle XXII.
It was also held, as to the system of co-operative government chosen by the Constitutional Assembly, that sections 40 and 41 of the final Constitution were not invasive of the autonomy of a province and did not contravene Constitutional Principle XX, which required sufficient power to be devolved to provinces to allow them to function effectively.
The Court stated that inter-governmental co-operation was implicit in any system where powers had been allocated concurrently to different levels of government and that it was consistent with the requirements of Constitutional Principle XX that national unity be recognised and promoted.
Furthermore, the Court held that section 41(1) and (4), which provided that the different spheres of government should avoid legal proceedings against one another, was consistent with the system of co-operative government and that it did not override/remove the jurisdiction of the courts or deprive any organ of government of the powers vested in it under the Constitution.
The Court also confirmed that mechanisms to maintain oversight of any organ of state, which would include a department of a provincial government, were not in conflict with Constitutional Principle XX. Such mechanisms would be subject to constitutional control and the use thereof was a legitimate power vested in the national government in the context of the system of co-operative government.
In Premier, Western Cape v President of the Republic of South Africa, the CC held that the provisions of Chapter 3 of the Constitution were designed to ensure that in fields of common endeavour, the different spheres of government co-operated with each other to secure the implementation of legislation in which they all had a common interest.
In the context of co-operative government, the purpose of section 41(1) was to prevent one sphere of government from using its powers in ways which could undermine other spheres of government.
The national legislature's constitutional power to establish and structure a single public service had to be exercised so as not to encroach on the ability of the provinces to carry out the functions that are constitutionally entrusted to them.
The Court further held that a procedure requiring agreement between the president and the premier on the legality of a proposed restructuring of the public service within a provincial administration, was entirely consistent with the system of co-operative government.
The Court held that section 3(3)(b) of the amended Public Service Act, was inconsistent with the Constitution to the extent that it empowered the Minister to make the determination without the consent of the Premier concerned.
In National Gambling Board v Premier, KwaZulu-Natal, the Court held that organs of state were specifically obliged by section 41 of the Constitution to avoid litigation against one another.
The Court went on and held further that section 41(1)(b)(vi) of the Constitution entailed much more than just an effort to settle a pending court case. The obligation to avoid litigation required each organ of state to re-evaluate its position fundamentally.
In MEC for Health, KZN v Premier of KZN: In re Minister of Health Treatment Action Campaign, the CC confirmed that it will rarely grant direct access to organs of state that have not duly performed their obligations in terms of the principles of co-operative government.
In Uthukela District Municipality v President of the RSA, the CC held that organs of state have a constitutional duty to foster co-operative government as provided for in Chapter 3 of the Constitution and that courts must ensure that the duty under the section is duly performed.
The Court may further, if it is not satisfied that the duty has been performed, refer a dispute back to the organs of state that are involved in the matter.
In the matter of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others, it was held that subsection 41(1) of the Constitution confirms the autonomy of each sphere of government by stipulating that one sphere may not assume any power or function of another sphere except those conferred on them in terms of the Constitution.
In the matter of Habitat Council v Provincial Minister of Local Government it was again confirmed that under Schedules 4 and 5 of the Constitution, municipalities are authorised to handle 'municipal planning' while provincial governments are authorised to handle 'regional planning' and also 'urban and rural development'.
Furthermore, the Constitution provides for three distinct and interdependent spheres (tiers) of government. Although the functional areas allocated to each sphere were not hermetically sealed from each other, no sphere could assume a power or function that was not allocated to it by the Constitution.
In the matter of Minister of Local Government, WC v Habitat Council,It was confirmed that section 44 of the Land Use Planning Ordinance 15 of 1985 is unconstitutional.
The provincial government had powers which were against the constitutional scheme provided for under the Constitution.
There are various examples of instances where co-operative government is facilitated under the new constitutional scheme.
These include the role and establishment of the NCOP, which represents the provinces on the national level, the creation of organised local government institutions on both national and provincial levels, the Commission on Provincial Government, the Financial and Fiscal Commission, inter-governmental forums, MINMECS, premiers' forums and technical inter-governmental committees.
Through its composition, the NCOP is representative of all the provincial governments in South Africa.
Provinces thus have direct representation and participation in national governmental processes.
Representatives of organised local government are entitled to participate in the proceedings of the NCOP.
The constitutional provisions mentioned above make it clear that all spheres of government are constitutionally obliged to assist one another.
Government must assist the provinces, through legislation and other measures, to develop the administrative capacity necessary for the effective exercise of their functions, powers and duties.
National and provincial governments have a similar obligation to assist local governments throughout the country.
National legislative and executive authority are vested in Parliament and the President respectively.
Provincial legislative and executive authority vest respectively in the provincial legislatures and Premiers of the various provinces.

Organs of State

In IEC Langeberg Municipality, it was held that the Independent Electoral Commission (IEC) is not an organ of state within the national sphere of government and the dispute between the local authority and the IEC concerning voting stations could therefore not be classified as an inter-governmental dispute.
In Minister of Education, WC v Governing Body, Mikro School, the Court held, inter alia, that in terms of the definition of organ of state in the Constitution, any institution that exercises a public power or performs a public function in terms of any legislation is an organ of state.
Neither institution is subject to executive control at any level of government and could therefore, insofar as the performance of such functions was concerned, not be said to form part of any sphere of government which the Constitution required to co-operate with other spheres and to avoid legal proceedings against one another.
Disputes involving such bodies/institutions are therefore not regarded as inter-governmental disputes under the Constitution.

Conclusion

The South African constitutional paradigm calls for a system of co-operative federalism as opposed to competitive federalism.
Co-operation should be developed and facilitated in all branches of government and over all spheres of government.
Executive, legislative, judicial and administrative co-operations are needed between spheres.
Successful implementation of co-operative government requires commitment.
Co-operation and co-ordination between the spheres of government will ultimately result in the public good/benefit and should thus be strongly supported and protected.
The principle of co-operative government is often regarded as a difficult concept and there are many uncertainties with regard to the application of such principles in practice.
There is a culture of independence rather than a 'team' mentality.