Federalism Revisited: The South African Paradigm

• Jurisdiction: South Africa
• Pages: 129-164
• Date: 27 May 2019
• Author: George E Devenish
• Published date: 27 May 2019
• Citation: (2006) 17 Stell LR 129

FEDERALISM REVISITED: THE SOUTH AFRICAN

PARADIGM

George E Devenish

BSc LLB THTD LLD LLD

Honorary Research Associate, Law Faculty, University of KwaZulu-Natal (Durban).

1 Introduction

This article revisits the historical, legal and political premises on which

the kind of federal dispensation that operates in South Africa today is

based. It briefly traces the historical roots of the idea of federalism and

the manifestations of it, found in western political and legal thought. The

article then examines the federal experience in South African political and

constitutional history. Although federal ideas of some kind were always

nascent during formative periods in our constitutional and political

history they were never consummated and unitary systems ultimately

emerged until 1994 with the inception of the Interim Constitution, which

introduced a quasi-federal dispensation. Terminology is an important

consideration and this is discussed to facilitate conceptual clarity. The

relevant terms such as federal, quasi-federal, unitary and confederal are

explained with apt examples of each. Different models of federal

government, such as the divided and integrated exemplars are explained

and compared. The negotiation process subsequent to Codesa was

destined, in reaching a political settlement through negotiation and

compromise, to produce a quasi-federal model, which was to find

expression in the Interim Constitution. This model was to be further

developed and refined in the 1996 Constitution, which to a lesser or

greater extent was based on the German exemplar, expressly involving

co-operative federalism.

The Constitution provides for both concurrent and exclusive powers in

schedules 4 and 5 respectively. This gives rise to an authentic quasi-

federal system, rather than one that it is purely unitary or federal, in the

strict sense of the word. The relevant case law is examined to provide

support for the ideas canvassed in the article. The Constitution provides

for three spheres of government, namely national, provincial and local.

The powers of these three spheres are entrenched in the Constitution and

they thereby contribute to the overall federal character of the

Constitution, involving not merely double government, but triple

government, which is not static but dynamic in operation. The financial

viability of each of the spheres also influences the nature of the federal

model that emerges from the Constitution, as it operates in practice.

Federalism is a means whereby the democratic nature of a State is

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(2006) 17 Stell LR 129

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enhanced–it complements certain aspect of the democratic paradigm,

such as the separation of powers and participatory government.

However, as will be explained in this article, the kind of federal

constitutional dispensation emerging in South Africa is ambivalent in

nature, having centripetal and centrifugal forces operating within it.

2 The History of Federalism in Western Philosophy and

Jurisprudence

1

Johannes Althusius

2

is considered to be the father of contemporary

federal jurisprudence.

3

He argued in his book Politica Methodica Digesta

for the autonomy of his native city of Emden, both against its Lutheran

provincial Lord and against the Catholic Emperor.

4

Althusius was

strongly influenced by the Calvinism of the French Huguenots, who

developed a doctrine of resistance as a right and a duty of natural leaders

to resist tyranny. Political federalism has its genesis in a theological

arrangement because, in ‘‘[b]orrowing a term originally used for an

alliance between God and men, Athusius holds that associations enter

into secular agreements — pactum foederis — to live together in mutual

benevolence’’.

5

This idea inherent in pactum foederis is not unlike that of

our indigenous concept of ubuntu,which is discussed below.

The writer and scholar Ludolph Hugo

6

was the first to distinguish

between confederations, based on political alliances between sovereign

States, decentralised unitary States, such as the Roman Empire, and

genuine federations, characterised by ‘‘double governments’’

7

in his book,

Statu Regionum Germanie.

8

The term ‘‘double governments’’, which has a

surprisingly modern ring about it, is actually a very apt and useful

description of what federal government is all about. In South Africa today

with three spheres of government, each with entrenched autonomous

powers, there is, from a federal viewpoint, a system of ‘‘triple government’’.

This train of thought is developed further in this article.

At first the terms ‘‘fede ration’’ and ‘‘confede ration’’ were used

interchangeably. So for instance, Montesquieu,

9

in his epochal book,

The Spirit of Laws,

10

expounded, inter alia, the doctrine of separation of

powers, and argued ‘‘for a confederal arrangement to ensure the ideal

scale of government required for political liberty understood as non-

1

The introduction to this article dealing with a discourse on the philosophy and jurisprudence of

federalism follows that set out in an article by Follesdal Federalism in Zalta (ed) The Stanford

Encyclopedia of Philosoph y (2003) 1, URL (http//plato. stanford.edu/archives/ win 2003/entries/

federalism/.

2

1557-1630.

3

Follesdal Federalism 2.

4

Follesdal Federalism 2.

5

Follesdal Federalism 2.

6

1630-1704.

7

Follesdal Federalism 3.

8

1661.

9

1689-1755.

10

1748.

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domination . . . security against abuse of power’’. A ‘‘conf ederate

republic’’ with separation of powers secures the requisite homogeneity,

identification and self-sacrifice within sufficiently small sub-units where

the common good subdues private interests thus preventing tyranny and

‘‘internal imperfection’’.

11

Montesquieu’s idea of separation of powers is

well known in relation to the three branches of government, but it is

interesting to note that he extrapolated the idea to geography, and did

not merely apply it to governmental functions, in effect giving expression

to the idea central to federalism.

In 18th century Europe, several peace plans recommended a confederal

arrangement.

12

The 1713 Peace Plan of the Abbe Charles de Saint-

Pierre

13

permitted intervention in the regional sub-units to quell rebellion

and wars on non-members to force them to join an established

confederation and it required unanimity for changes to the agreement.

The illustrious philosopher Immanuel Kant

14

defended a confederation

on the basis that it promoted peace in his manuscript On Perpetual

Peace.

15

In this book, his second definite article holds that the right of

nations shall be based on ‘‘a pacific federation among free states rather

than a peace treaty or an international state’’.

16

The difference between

the terms ‘‘federation’’ and ‘‘confederation’’, however, became apparent

when the thirteen former British North American colonies entered into

an alliance by virtue of the Articles of Confederation of 1781, which

established a central authority too weak for law enforcement, defense and

securing inter-state trade.

17

The United States Constitutional Convention

was to give rise to a genuine federal Constitution, in the contemporary

sense of the word, rather than a confederation, which had preceded it.

This development provoked two robust antithetical responses. First,

there were the ‘‘anti-federalists’’ who were profoundly fearful of an over-

centralisation of power. They were concerned that the powers of the

centre were not sufficiently constrain ed by the new constitutional

arrangement. Two of these were John De Witt and Richard Henry

Lee. They proposed a Bill of Rights, which was ultimately ratified in

1791. To support their argument they quoted none other than

Montesquieu.

18

The exact opposite approach was taken by those who

authored the famous Federalist Papers,

19

the chief exponents of which

11

Follesdal Federalism 3.

12

Follesdal Federalism 3.

13

1712-1778.

14

1724-1804.

15

1796. See Follesdal Federalism 3.

16

Follesdal Federalism 4.

17

See Fry North American Federalism, NAFTA, and Foreign Economic Relations in De Villiers (ed)

Evaluating Federal Systems (1994) 393 398.

18

Follesdal Federalism 4.

19

These were a series of 85 essays on the proposed new United States Constitution and the nature of

republican government, published in 1787-1788. They presented a masterly exposition of a new federal

system and of the major departments in the proposed central government. See Britannica Micropaedia,

vol 4 (1993) 713.

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