South Africa: Is Section 100 Intervention Normative or Prerogative?

Published on 22nd May 2018

The announcement by the South African National Cabinet that it will be invoking Section 100 (1) (b) of the Constitution of South Africa to address the ‘apparent crisis’ in the North West Province, particularly in the health sector, has brought the use of the section onto the sharp edge of the analysis sword; governance speaking. This is further complicated by the fact that Cabinet indicates the main objective of the intervention as; ‘to restore trust and confidence between labour and government’; ‘assist the province to upgrade its systems and capabilities to a normality’; ‘ensure compliance with the legislative and regulatory framework of government’; ‘stabilise the labour environment’; ‘restore sustainable service delivery’; ‘ensure security of staff’ and ‘improve financial management.’

The objectives of the intervention are indicative of what constitutes the ‘apparent crisis’ from the vintage point of ‘analyses’ that served as the primal input into Cabinet processes and thus generated the decision. It is always expected that the National Executive of a country like South Africa will take a decision of this magnitude on the basis of a thorough process that valorises the audi alteram partem principle. The Constitution entrenches section 100 as one of the instruments to facilitate ‘national supervision of intervention in provincial administration’ in the circumstance ‘a province cannot or does not fulfil an executive obligation in terms of the Constitution or legislation’. It is thus premised on the performance of the provincial administration and not the ‘politics’ instructing to the system.

A closer look at the constitutional provision reveals a necessity for process before the invoking of section 100. The invoking of section 100 is in fact an intergovernmental relations intervention mechanism provided for in the Constitution. It flows from co-operative governance principles which are the basis of South Africa’s intergovernmental relations philosophy and governance, and is based on a reciprocal obligation of spheres of government to trust, support and assist one another in co-coordinating service delivery.  This includes a legal, political and moral obligation to inform and consult one another as well as co-operating with and co-ordinating efforts on matters of common concern and joint projects, thus patterning intergovernmental collaboration and co-operation to ensure the success of the national development project. 

 ‘Executive obligations’ mentioned in the constitution, unless otherwise explained in another legislation, are understood to be specified in section 125 of the constitution dealing with the Executive Authority of provinces. Pyramiding this authority is it being vested in the Premier exercising it together with members of the Executive Council, and subject to provisions of section 100. The discretion of section 100 implementation looms therefore large in the absence of further circumscription by section 100 (3) of the constitution. It can thus be concluded that executive obligations are those in legislations promulgated in terms of the constitution, and anything outside that is either exogenous to them or discretionary to the extent the nature of politics dictate or allow.

The provisions dealing with conditions that necessitate assuming responsibility for the ‘obligation’ where ‘failure is observed, reported and/or perceived’ are specified as being ‘invokable’ to the extent necessary to inter alia maintain essential national standards for the rendering of a service; maintain economic unity and national security; and to prevent a province from taking action that is prejudicial to the interests of the country, or another province. In respect of the North West Province, this exigency existed and it was acute in the department of health as a result of then and ongoing strike by NEHAWU and the absence of leadership to deal with the strike itself, whence Cabinet had the objective of ‘restoring trust and confidence between labour and government.’

Section 100 actually directs the national executive to amongst others ‘issue a directive to the provincial executive it is intervening at, describing ‘the extent of the failure’ to fulfil its obligations and stating any steps required to meet its obligations. The description , and as the constitution provides, assumes the existence of a process to investigate before actual intervention occurs. The constitution does not provide for a process to deal with exigencies emanating for circumstances that are ‘political’ and/or exogenous to those that relate to ‘failure to fulfil an executive obligation’; save to implore of the national executive through Parliament, to establish such a process through legislation envisaged in section 100 (3). Except for the court ruling induced Intergovernmental Relations Framework Act, Act 13 of 2005 ,which in itself is silent on a section 100 process, there is no legislation that regulates supervision and intervention in sub-national governments in the event of conditions similar to those that obtained in the North West when Cabinet intervened; this leaves the intervention process in a prerogative realm of state governance and management.

Without vitiating the absence of legislation envisaged in section 100 (3), the Corporative governance principles provide a conceptual sieve within which executive overreach in the invoking of this section can be regulated or circumscribed. The focus of section 100 on failure to fulfil an executive obligation posits the invoking of the section within the normative realm that most constitutions in democracies seek to aspire to. The wisdom of constitution drafters, which included the person of President Cyril Ramaphosa, in establishing a normative framework as reflected in chapter 3 of the constitution whilst making provision for the section 100 interventions, would have been focused or targeted the repugnancy threat that is inherent in democracies that have sub-national jurisdictions with ‘executive authority powers’. The application of section 100 can therefore not be exercised within the prerogative realm often reserved for the ‘political’ in the administration of the state.

In invoking section 100 in the North West, the National Executive made reference to an ‘apparent crisis’ that was either existing or developing. The ‘apparent’ nature of the crisis would have only been the to the purview of the arguments and background provided as input to the Cabinet meeting of 24th April 2018. Save for the media-inspired information on the ‘apparent crisis’ and matters posited as the objective of the intervention, there is or was no answering information and or affidavit from the provincial government. A casual investigation of accounts of the Auditor-General, one of the key indicators of performance of various administrative units of the state, indicates that the office of the Premier had been on an upward trajectory performance and compliance wise. In respect of other departments in the North West, reports from the AG office indicate that there were noticeable improvements since the 5th Administration took over and consequence management processes were in place when the ‘intervention’ occurred.

The absence therefore, of section 100(3) legislation to regulate the process established by section 100 creates a lacuna in the intervention procedure. In its current format the intervention process makes the entire section 100 vulnerable to a ‘settling of scores’ circumstance where national government may descend on a provincial government for non-administrative reasons or in the parlance of the constitution, for reasons of non-fulfilment of an ‘executive’ obligation. In his seminal work on the legacies of law, Meierhrnrich submits that laws should carry structures and systems of society through time; laws should insert the common interest of society into the behaviour of society-members; laws should establish the futures for society in accordance to what norms that society . In a society that apexes its constitution as the supreme law of the land and espouses the rule of law as the fundamental guide to its jurisprudence, any abolition of the inviolability of the law becomes a recipe for the establishment of a prerogative state and thus puts into question the very significance of the law.

The rule of law positions laws of the state as legal innovations that enable democracies to coordinate activities within society efficiently, they are a form of power. In fact, established orthodoxies in society are best abstracted in the legal order established, whence the ‘establishment’ in society is anchored on how it manipulates its ways through what the law provides. Politics being the outcome of interest management, the negotiation of interests, and the aggregation of information instructing the diversity of such interests within a context that creates in a society a habit of legality requires from those charged with the dispensing of State Power a normative sensitivity when invoking sub-national intervention provisions of the constitution. The manner in which such invoking occurs creates in society continuity patterns that may settle as a socialisation of the ‘political community’ and thus mutating into a ‘school of thought’ deserving of acquisition by future generations.

Once settled, the idea of invoking the intervention in sub-national government intervention clause without a normatively created process that propels the habit of legality, will entrench a government that ‘exercises unlimited arbitrariness and viciousness (mostly political), and unrestrained by any legal guarantees. The evaporation of established legal norms such as the audi alteram partem rule becomes the first indicators of the development of ‘the power of doing public good without rules’ which is the very first step towards despotic power; the sovereignty of the individual in law becomes thus the greatest casualty as focus is on the public good at whatever cost. The dictatorial authority that accompanies most sub-national interventions in democracies that don’t have a regulatory mechanism of the process, often occur when there is an overinflated perception of benevolence in the incumbent leadership.

The experience of past section 100 interventions such as that in the Limpopo Province of South Africa, with striking coincidences of the service delivery departments that spearheaded the intervention creates a further sieve of the dangers in the currency of perceived benevolence. The then narrative behind the intervention was the ‘apparent brankruptcy’ of the provincial administration. The result was the usurping of executive powers in selected departments with the outcome being the removal of the Premier, and thus facilitated the ultimate dismissal of the ANC Youth League President, who was then the political prize of the intervention. The contestations for the control of executive discretion that accompanied the executive authority of the premier muddied the ‘nobility’ of the intents in intervening. In a normative state where the idea of the law as a constraint is the fulcrum upon which all state decisions are based, the section 100 (3) legislation would have by now been promulgated and an intervention process would have been defined already.

The idea of intervention is one of the hallmarks of the South African intergovernmental relations system. It provides the necessary checks and balances for a democracy that procures for its political mandate in sub-national jurisdictions thus creating a potential for an ideological discord between the centre and the periphery of government. In coordinating this efficiency, the system has the potential of creating inefficiencies that may manifest themselves in in-party factional tensions being a greater motivation for intervention, when there is no regulatory framework governing the process. The preponderance of regime change tendencies may be exploited into creation chaotic environments that create a perception of failure to fulfil an executive obligation thus triggering a domino that procures for section 100 intervention outside a section 100 (3) legislation. The jury remains out on the correctness of the Limpopo and North West interventions respectively. It is the extent to which that intervention was normative or prerogative that will pronounce on the despotic or otherwise of the ruling centre. 

Whilst section 100 is a necessary clause in the architecture of the South African intergovernmental relations system, it remains a prerogative state building provision unless it is somehow regulated by further legislation. The context at which it was drafted, like many legislations in South Africa, assumes the continued existence of the Mandela benevolence and does not anticipate a possible despotic environment that may be created by successors of Mandela. The repugnancy provisions that are designed to keep national economic unity and national interest remain the pillars with which the section 100 provisions would always be justified with. However, the political reasons often perceived to be at play when the section is invoked, makes the nobility of its intents to be profoundly compromised. The question is therefore, is the section promoting a prerogative way of running a state or a normative way of dealing with sub-national challenges. The question is, can this section be applied in a jurisdiction governed by an opposition party; in there lies its normativity or otherwise.  

By Dr. FM Lucky Mathebula

Th!nc Foundation, Research Associate TUT.

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