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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:Promoting National Government Competence and Co-Operative Government under the South African Constitution: Premier of the Province of the Western Cape v. President of the Republic of South Africa and Others
Author:Mireku, ObengISNI
Year:2000
Periodical:African Journal of International and Comparative Law
Volume:12
Issue:2
Period:June
Pages:370-378
Language:English
Geographic term:South Africa
Subjects:rule of law
central-local government relations
administrative law
Law, Human Rights and Violence
Politics and Government
External link:https://heinonline.org/HOL/Page?handle=hein.journals/afjincol12&id=384&collection=journals&index=journals/afjincol
Abstract:In order to effect a structural transformation of the public service throughout the entire country, the national parliament of South Africa sought to amend the Public Service Act, 103 of 1994, by passing the Public Service Laws Amendment Act, 86 of 1998. The Western Cape provincial government disputed the constitutional validity of the new statutory amendment. To this end, the Western Cape government invoked the abstract review jurisdiction of the Constitutional Court with a prayer for an order declaring certain provisions of the 1998 amendment to be inconsistent with the National Constitution of 1996. Specifically, this constitutional challenge was based on two grounds: namely, that the new legislative scheme violated provincial executive competence and also that it diminished the legitimate autonomy of provinces. Two fundamental issues confronted the court. First, the court had to rule on a larger question whether the constitution empowers the national parliament, rather than provincial legislatures, to structure provincial administrations. Second, the court had to determine whether the new legislative scheme contravened the tenets of cooperative government stipulated in section 41 of the national constitution. This article examines the judgment of the court and concludes that even if the national government may be said to have largely won the case, the court's decision, in addition to expressing a balance between uniform national norms and provincial interests, reinforced the balance between the independence and interdependence of national and provincial governments in relation to each other. The decision marked the first time that the Constitutional Court had cause to invoke provisions of the national constitution in conjunction with an effective provincial constitution. Finally, the court used the case to expound on the new constitutional concept of cooperative government and seems to have signalled its readiness to promote mutual trust in a relationship of interdependence between and among spheres of government. Notes, ref.
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