THREE-SPHERE FORM OF GOVERNMENT
ND DISPUTE RESOLUTION: COUNCIL OF PROVINCES
The Queen’s Hall, named after Queen Victoria during colonial times. It is now the lobby of the NCOP building.
of the constitution they clearly differ. A simple reading of section 41(1) emphasizes the indivisibility of the republic (see principles a. to d.); principles e. to g. apply to intergovernmental relations, and principle h. defines co-operative government. The spheres are required to
co-operate with each other on matters of common interest, which entails planning together on matters of concurrent competence while at the same time not intervening in each other’s affairs except in circumstances (referred to in sections 100 and 139 of the constitution) which authorize the national government and provincial governments to intervene in provincial and local governments’ affairs respectively. In the case of a dispute, the constitution requires the warring spheres to take all reasonable
measures to resolve the matter before approaching the courts. Although distinctive, interdependent and interrelated, the spheres of government are not autonomous. Each exercises powers to the extent conferred by the constitution. The constitution enjoins co-operation rather than competition. The spheres are required to
co-operate with each other on matters of common interest. This entails planning together on matters of concurrent competence referred to in schedule 4 of the constitution. At the same time the spheres are prohibited from intervening in each other’s affairs except in circumstances referred to in sections 100 and 139 of the constitution which authorize the national government and provincial governments to intervene in provincial and local governments affairs
respectively. To ensure that the courts are
not necessarily drawn into matters of governance and policy-making, the constitution contains a dispute resolution mechanism which compels the spheres involved in a dispute to take all reasonable measures to resolve the dispute before approaching the courts. A court is compelled to refer the matter back if it is not persuaded that the warring spheres exhausted internal remedies before seeking assistance from other arms of the state. Despite the constitution of government in the manner referred to above, South Africa is often defined as a unitary state with federal characteristics. The principles of co-operative government and intergovernmental relations forcefully bring this point home.
Law-making process At the national level within the South African context, legislative authority is vested in the National Council of Provinces (NCOP) and the National Assembly (NA). Whereas the NA was established to represent the people, the NCOP was founded to represent the provinces – to ensure that provincial interests are taken into consideration in the national sphere of government. It achieves this mainly by participating in the national legislative process. Voting on matters affecting
provinces takes place on the basis of the authority conferred by the Provincial Legislatures. Delegates are bound by this authority and cannot go against it. It is this method of voting that
ensures that the interests of the provinces are fully taken into
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