When provinces fail to deliver on their constitutional obligations, the national government may intervene. The basic rules for such interventions are described in Section 100 of the South African constitution.
The Constitution of the Republic of South Africa allocates powers to three areas of government: national, provincial and local. Generally one area may not usurp the powers of another. However, in exceptional circumstances where a provincial government fails to discharge a constitutional obligation, Section 100 of the constitution empowers the national executive* to intervene in order to remedy the problem.
In this way Section 100 acts as a safeguard. It balances the autonomy of provinces with the recognition that South Africa is a single sovereign state in which all sections of government share a duty to respect, promote and fulfill constitutional rights.
Section 100 enables a two-part process for remedial action. First, under Section 100(1)(a) the national executive may issue a directive to the provincial executive instructing it to comply with its constitutional and other obligations and stating the steps necessary for it to do so. This is expected to be a collaborative process with both national and provincial departments working together to remedy problems.
The Constitutional Court has held that intervention by the national executive is also limited to an approach, “authorised by the Constitution or by legislation enacted in accordance with the Constitution.” This ensures that powers exercised under Section 100(1)(a) are confined to directing the province to comply with an existing statutory or constitutional obligation.
It is under the second step, section 100(1)(b), that the national executive may go further and actually “assume responsibility” for the obligation. This power may only be invoked after attempts to resolve the problem under section 100(1)(a) have failed and the provincial executive has not complied with a directive. Section 100(1)(b) applies where more direct intervention is needed to maintain (i) essential national standards or minimum standards for the provision of a service; (ii) economic unity; (iii) national security, or (iv) to prevent unreasonable or prejudicial action by a province.
Although Section 100 (1)(b) is a discretionary power the national executive may have to use it in order to carry out its own constitutional duties. Once invoked Section 100(1)(b) not only empowers the national executive but also requires it to discharge the obligation itself. This point was recently made clear by J Plasket in The Centre for Child Law and Others v The Minister of Basic Education and Others. Plasket noted: “…in terms of [Section] 100(1)(b) … [the national executive] assumes the powers of the provincial administration, and it also assumes its obligations.”
Although the constitution places a clear responsibility on the national executive this was one of several cases in which litigation became necessary in order to clarify a Section 100 intervention. Indeed the ongoing need to establish through court judgments the extent and nature of the duty placed on the national executive has been challenging. It has further delayed addressing instances where fundamental human rights have already been seriously undermined.
The intervention and suspension of provincial autonomy is intended only to be temporary. It should include building the provincial department’s ability to successfully carry out the obligation itself. However in practice intervention has often been a prolonged, open-ended process. In December 2011, for example, Cabinet invoked Section 100 to address problems in the Limpopo Department of Education. Almost one year later these problems remain unresolved.
Furthermore, the structure of Section 100 often means that by the time Section 100(1)(b) is invoked attempts at cooperation between national and provincial departments will likely have failed. The relationship may therefore have become strained and uncooperative, making it all the more difficult to establish accountability and resolve problems swiftly.
A last resort
In response to these difficulties the South African government has introduced the Monitoring, Support and Intervention Bill. The Bill aims to clarify and regulate Section 100 interventions. As we have discussed, these interventions arise because a province is in breach of one or more of its constitutional obligations. They should therefore be a last resort, used only in cases where serious breaches warrant exceptional steps. Section 100 guarantees a vital power but to be effective it must be exercised in a spirit of cooperation and willingness to assume responsibility.
* The national executive = The President and Deputy President, as well as Ministers and Deputy Ministers in the Cabinet.David McNaught is a researcher with SECTION27.