The National Council of Provinces and Provincial Intervention in Local Government

• Jurisdiction: South Africa
• Published date: 27 May 2019
• Citation: (2007) 18 Stell LR 7
• Date: 27 May 2019
• Author: Christina Murray
• Pages: 7-30

THE NATIONAL COUNCIL OF PROVINCES AND

PROVINCIAL INTERVENTION IN LOCAL

GOVERNMENT

*

Christina Murray

BA LLB LLM

Professor of Constitutional and Human Rights Law, University of Cape Town

Yonina Hoffman-Wanderer

LLB LLM

Senior Researcher, Centre for Socio-Legal Research, University of Cape Town

1 Introduction

The Constitution of the Republic of South Africa, 1996 is bold in the

responsibilities that it confers on municipalities. However, it is also alert

to the challenges of transforming government. Under apartheid, local

government consisted largely of administrative structures to control

urban areas. The Constitution requires an accountable and responsive

democratic institution driven by real needs. Accordingly, it seeks to

balance municipal autonomy with provincial and national obligations to

support and regulate the young municipal governments. The Constitu-

tional Court’s first Certification Judgment describes this aspect of the

constitutional framework for local government in the following way:

‘‘What the [Constitution] seeks . . . to realise is a structure for LG that, on the one hand,

reveals a concern for the autonomy and integrity of LG and prescribes a hands-off relationship

between LG and other levels of government and, on the other, acknowledges the requirement

that higher levels of government monitor LG functioning and intervene where such functioning

is deficient or defective in a manner that compromises this autonomy. This is the necessary

hands-on component of the relationship.’’

1

The authority of a province to intervene in a municipality that is not

fulfilling its functions is the most drastic measure that the Constitution

provides for managing the new system of municipal government. But, the

Constitution makers did not leave the power of a province to intervene in

a municipality unchecked. Instead, as part of an overall system in which

the National Council of Provinces (NCOP) plays a role in intergovern-

mental relations, it gave the NCOP considerable power over interven-

tions. This article is concerned with the role of the NCOP when a

* We wish to thank Rebecca Rosenberg and Paula Youens for excellent research assistance. Part of the

research for this article was done when the authors conducted a review of the performance of the

NCOP for the NCOP (Murray, Hoffman-Wanderer & Saller NCOP Second Term 1999-2004: A Review

(2004)). In the course of that research and later, in writing this article, we interviewed delegates and

staff of the NCOP and members and staff of provincial legislatures.

1

Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the

Republic of South Africa, 1996 1996 4 SA 744 (CC) par 373.

7

(2007) 18 Stell LR 7

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province intervenes in a municipality under section 139 of the

Constitution.

South Africa’s system of multi-level government, which establishes

three ‘‘interdependent’’ levels is complex – more so than the traditional

federal systems in which powers are more separated.

2

The demanding

nature of the intricate relationships of dependency and shared

responsibilities established by the Constitution is recognised in section

41, which provides a set of principles to govern them. However, the

Constitution does not rely entirely on the mutual trust and good faith

mandated by section 41 to maintain the balance of powers in the system.

The NCOP, in which provinces participate in the national sphere of

government, is expected to be a powerful institution of legislative

intergovernmental relations. This is the role that it fulfils when overseeing

interventions under sections 100 and 139.

The idea that the NCOP might be influential, let alone powerful, will

sound strange to observers of its current role in South African politics.

That it might have a role in intergovernmental relations will sound

particularly implausible in the light of the new Intergovernmental

Relations Framework Act,

3

which places intergovernmental relations

firmly in the control of the national executive. Nevertheless, the

responsibility of the NCOP under sections 100 and 139 demonstrates

that the Constitution clearly anticipates that it has a part to play in

maintaining the balance of power among the national, provincial and

local spheres of government. By requiring NCOP approval of interven-

tions, sections 100(2) and 139(2) and (3) provide a check on the power of

the national and provincial executives.

Part 2 of this article provides the constitutional context for a discussion

of the NCOP’s role in overseeing interventions by introducing section 139

and its national counterpart, section 100, and by discussing the changes

to these sections made by the 2003 amendments to the Constitution. Part

3 in turn sketches the practical context in which section 139 is currently

used by describing some of the problems that South Africa’s munici-

palities face. Parts 4 and 5 then discuss the role of the NCOP under the

new section 139 and some legal questions concerning that role.

4

2

The complexity is evident in the Constitution in provisions concerning the adoption of national laws,

the division of revenue, the ‘‘single’’ public service and the role that the national government has in

supporting provinces and that provinces have in supporting and monitoring municipalities. In practice,

the complexity of these relationships is evident every day when questions are asked about the

performance of government departments in each sphere responsible for, eg, the delivery of houses,

water and social services.

3

13 of 2005.

4

This paper focuses on the role of the NCOP in relation to s 139 interventions. For a broader discussion

of provincial intervention in municipalities, see De Visser Developmental Local Government: A Case

Study of South Africa (2005) 170-208, particularly 185-200.

8 STELL LR 2007 1

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