The Western Cape provincial parliament is finalizing new legislation aimed at giving Cape Town more autonomy in functions such as policing, managing Cape Town's ports and railways, power generation and trade.
With the Provincial Powers Bill, first proposed by DA leader John Steenhuisen and formally tabled in May 2023, the DA-led Western Cape government hopes to assert existing provincial powers and It also aims to have the government allocate more powers to the state. .
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Western Cape Premier Alan Winde said the bill could provide a framework for the province to define “what to do” if the central government does not agree to requests for certain powers.
“For example, we could declare a conflict between governments.” [like the province did with last year’s medium-term budget]If that doesn't work, you can also go to the Constitutional Court. ”
push the limits
Winde hopes the bill will give states more room to “expand their boundaries even further.”
“We can't write a law that gives you powers as a state that don't already exist within your mandate. But we can say, 'The people are not getting the services they need.' This law will therefore create a framework for us to request certain powers. ”
Article 237 of the Constitution states that the executive realm must carry out its constitutional duties “diligently and without delay”, a clause the state government wants to propose when seeking further powers.
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Article 99 of the Constitution also applies and states that the central government or ministers may allocate powers to other areas of government. “This article says that central government agencies can assign responsibilities to states through ministers. I hope they apply section 99. But even if it is [Constitutional] It is a court decision,” Winde said.
The bill is “not about acquiring new state powers.”
Dirk Kotze, a professor of political science at Unisa University, said the Western Cape Provincial Powers Bill was not about acquiring new provincial powers, but rather facilitating the exercise of provincial powers by the provinces as enshrined in the Constitution of the Republic of SA. Stated.
Schedule 4 of the Constitution lists several concurrent powers, including police, education, health, and trade. However, the objective of seeking more delegation and decentralization of powers from national governments to local governments is more problematic.
Bernard Bekink, Distinguished Professor of Public Law at the University of Pretoria, said there were provisions for the “downward” transfer or distribution of powers, but only if they were constitutionally permitted and in accordance with constitutional requirements.
“There are certain constitutional requirements and processes that must be met before certain powers can be assigned from the national realm to the local realm.”
He also pointed out that South Africa still largely resembles a unitary state form, with the central government often holding supreme constitutional power.
“If there is a national law relating to a functional area listed in Schedule 4 of the Constitution that conflicts with a state law on the same subject, the national law will prevail over the state law, provided the requirements of article 146 of the Constitution are met . We met. It's important to keep that in mind,” says Bekink.
“A state agency can assign powers and functions to another executive agency, but it is “can'', not “must'', and there are certain requirements. If states do not have the means or the budget, they cannot force the delegation of powers downward. It could be considered an unfunded mandate. ”
States can “prove” themselves.
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But Winde is adamant that through this bill, the state can and will prove able to address police-like powers.
“I would like to be able to say to the Constitutional Court, 'Now that 4,000 people have been murdered in my state, we need to make further decisions about how to make our state safer.' can be used to show what to do.”
(Winde is referring to the Law Enforcement Sophistication Program, a joint initiative between the City of Cape Town and the Western Cape Government. More law enforcement officers will be deployed to priority hotspot areas in the Cape). )
He argues that powers like police should be federalized. “We have to bring it closer to people.”
The provincial government is also appealing to the national government for more say over the Port of Cape Town, which performed dismally at the height of last year's fruit export season. Fruit farmers are losing an estimated R2 billion in exports due to bottlenecks and low productivity levels.
Read/Listen: Export disaster looms for Cape Town, a port full of fruit
“We have been asking for devolution of ports and railways,” Winde said. “If something fails and we don’t fail; [have] If it is an obligation, we would like to be able to apply for such an obligation. ”
“The Constitution must be amended”
Mr. Bekink points out that during the pre-democratization negotiations, the ANC had strongly insisted that it wanted a centralized government, while the former National Party and others were trying to negotiate for a more federal system and decentralization of power. He said it remains.
“The agreed and signed constitution is one of the unitary state forms in which the national territory remains the supreme authority in many cases.
“If this structure were to be changed and amended to allow for further devolution of powers to regions different from what is currently provided for, the Constitution would need to be amended.”
He further added: “Local requests for additional powers as stated in this document [Provincial Powers] The bill probably won't survive a constitutional convention. ”
* The Western Cape Powers Bill will soon have its second public hearing in Cape Town, and all comments will be taken into account before it can be brought to a vote in the Western Cape Parliament. If adopted, it will be asked to be signed by the Premier of the Western Cape.
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