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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:Co-operative government in South Africa's post-apartheid constitution: embracing the German model?
Author:Klug, HeinzISNI
Periodical:Verfassung und Recht in Übersee
Geographic term:South Africa
Subjects:administrative reform
central-local government relations
Abstract:This article explores the introduction of the notion of cooperative government in postapartheid South Africa in order to reflect upon the nature of constitutional borrowing and the impact of legal transplants. Introduced to regulate the relationship between national, regional and local levels of government in postapartheid South Africa, the idea of cooperative government and its constitutional form, including the constitutional principles for the distribution of legislative power between different levels of government, were borrowed primarily from the German Basic Law. While the form matches the Basic Law's pre-1994 Article 72(2) criteria, the interpretation of its meaning by the South African Constitutional Court has produced significantly different results, including a greater protection of regional powers. This difference in outcome is explained by adopting a contextual understanding of the role of legal transplants in constitutionmaking processes and under historical and political conditions prevailing in the receiving jurisdiction. The article further provides an example of how a comparative constitutional understanding must be based on a contextual analysis of the process of reception and on the limits implicit in the transfer of any particular model to a new context. Notes, ref., sum. (p. 429).