The ConCourt vs provincial legislatures

The Constitutional Court recently handed down judgment regarding the nature and scope of the powers of provincial legislatures.

The judgment, Premier: Limpopo Province vs Speaker of the Limpopo Provincial Legislature and others, (2011) (Limpopo 1) was a consequence of the Constitutional Court’s finding in Premier: Limpopo Province vs Speaker: Limpopo Provincial Legislature and others, (2012) (Limpopo 2), which the Financial Management of the Limpopo Provincial Legislature Bill, 2009 (Bill) was unconstitutional. These judgments have had a significant impact of the legislative powers of provincial legislatures.

In Limpopo 1 the Limpopo premier referred the Bill to the Constitutional Court for a determination on its constitutionality. The premier argued that the provincial legislature had no power, in terms of national legislation or the Constitution, to pass legislation that ‘dealt with [its] own financial management’. Instead, the premier claimed that it was Parliament that was empowered to legislate on the matters provided for in the Bill and that because Parliament had already done so in the Public Finance Management Act (PFMA) the Bill was in conflict with the PFMA.

In terms of section 104 of the Constitution, provincial legislatures have the power to pass legislation for their provinces where a matter falls within a functional area in Schedules 4 or 5 of the Constitution, where national legislation expressly gives the power to legislate or where the Constitution envisions the enactment of provincial legislation.

The majority judgment, by Ngcobo CJ (as he then was), held that no national legislation had expressly empowered the provincial legislatures to legislate on the financial management matters of the provincial legislatures.

Furthermore, the majority of the court held that no provision in the Constitution envisioned the enactment by provincial legislatures of legislation with respect to its own financial management.

The reasoning of the majority was that when the Constitution envisions the enactment of provincial legislation it does so in clear and express terms. In the course of its reasoning, the majority set out the scheme of the Constitution illustrating that the provincial legislature was entrusted with specific legislative powers while the rest were entrusted to Parliament. As such, the majority held, an expansive reading of the Constitution that gives provincial legislatures implied powers beyond those expressly set out in the Constitution would diminish the residual powers of Parliament. Thus the Bill was found unconstitutional.

Justice Cameron concurred in the minority judgment of Yacoob J which held that although neither national legislation nor Schedules 4 and 5 expressly give the provincial legislatures the power to deal with the subject matter of the Bill the Constitution does envision the enactment of such provincial legislation.

Jacoob J concluded that the Constitution does in fact envisage that provincial legislatures have the power to legislate on their financial matters. The Bill deals with a varying array of matters relating to the financial management of the provincial legislature including budgetary processes, expenditure control and procurement procedures.

Furthermore, the Constitution does not give Parliament the extensive powers to determine the minutiae of the expenditure control of the provincial legislation, it only requires that Parliament create general measures and norms and standards in the PFMA for the proper exercise of these powers. Lastly, he held the PFMA does not have detailed provisions relating to the expenditure control of provincial legislatures and thus any provisions in the Bill that deal with that do not conflict with the PFMA. As a consequence Jacoob J found that the Bill was not unconstitutional.

In Limpopo 2 the Court, in a unanimous judgment by Khampepe J, confirmed the Limpopo 1 judgment. The purpose of this judgment was to consider the implication that the declaration of unconstitutionality of the Bill would have for the provincial statutes dealing with financial management that had already been enacted prior to Limpopo 1.

Khampepe J found that, the statutes for the same reasons that the Bill was declared unconstitutional were also unconstitutional. But this raised interesting questions as to what the most appropriate remedy would be. The court could sever only the provisions in the statutes that were inconsistent with the Constitution preventing the entire statute from being invalidated. The court held the statutes were unconstitutional in their entirety. Another question was whether the order of unconstitutionality should result in the immediate invalidity of the statutes or should the order be suspended until the defect has been corrected. The court decided to suspend the order of invalidity in the interest of good provincial governance, for 18 months, as an immediate invalidation of the statutes would negatively affect the governance of the affected provinces.

These decisions of the Constitutional Court matter because they have shaped the way in which provincial legislatures are entitled to regulate themselves financially. These cases are also particularly interesting as they illustrate the different approaches to adjudication that judges can have. On the one hand there’s the majority’s extremely strict and conservative approach to interpreting the Constitution. On the other the minority stays true to the tradition of giving the Constitution a purposive interpretation in order to give effect to its aims and objects.

The extremely narrow interpretation the majority gives to relatively generous language of the Constitution is unfortunate. It is unfortunate because it sets an undesirable precedent for the interpretation of the Constitution, even where it is clear in its intention the court can deviate.

In contrast, the minority judgment, paid particular attention to the context in which the words appear and recognised that where the Constitution clearly sets two standards these standards must not be conflated.

Yacoob J was of the view that the majority judgment does not acknowledge the semi-federal nature of our system. A semi-federal system means that our system is based on giving the provinces relative autonomy in arranging their day-to-day activities but retaining national government’s monitoring and oversight role to ensure good governance and compliance with the Constitution.

The minority is very aware of the fact that the Constitution recognises, and makes provision for, the reality that, considering the different contexts in which provinces operate, Parliament cannot legislate on the detailed particulars of provincial activities. Therefore, in appropriate circumstances the Constitution gives Parliament broad legislative powers allowing provinces to fill in the details. The aim being efficient and effective governance. This in no way limits the ‘plenary’ legislative powers of Parliament, instead such a reading of the Constitution would ensure better cooperative governance and an efficient and effective functioning of the various spheres of government.

Even though provinces need to be allowed the space to operate, the recent administrative crisis in Limpopo makes it clear that national government still has a major monitoring and oversight role to play. A balance needs to be maintained. Provinces cannot be left to their own devices; national government needs to ensure that standards and legislation made by it are being properly given effect to.

The nature of the system created by the Constitution ensures that where all spheres of government play their respective roles, national creating constitutionally compliant standards and ensuring those standards are complied with and provinces giving effect to the standards under the supervision of national government, a province would never run itself into the ground the way that Limpopo did.

Zenande Booi recently graduated from the University of Cape Town with an LLB and works as a researcher at Ndifuna Ukwazi, a non-government-organisation based in Cape Town.