Sorry, Siyahleba but SA is indeed a federation

Martin van Staden / Midjourney
Martin van Staden / Midjourney

This article was first published by City Press on 1 February 2024 

Siyahleba recently responded (‘Bushy Maape joins trend of African leaders seeking medical treatment overseas’, 28 January) to an argument I made suggesting the Western Cape appoint its own foreign minister. Siyahleba said that I needed reminding that ‘South Africa is not a federation and will not be’ and therefore only the central government may be involved in foreign affairs.

This response reminded me that most South Africans, unfortunately, rely on political speeches and rhetoric to discover a cookie-cutter version of our political and constitutional arrangements.

South Africa, of course, is a federation, but one can forgive people for thinking otherwise given the superficiality of our political discourse.

The characteristic feature of a unitary state is not ‘centralisation’ nor is ‘decentralisation’ the characterising feature of a federal state. The United Kingdom, after all, which is perhaps the world’s archetypal example of a unitary state, is significantly decentralised. The Federal Republic of Nigeria, which nobody doubts (unlike South Africa) is in fact a federation, is on the other hand quite centralised.

Those who want to claim that Nigeria is a federation because it has the word ‘Federal’ in its official name or in its constitution might be surprised to discover that the word ‘federal’ or ‘federation’ does not appear once in the official name or constitution of the world’s archetypal federation, the United States of America.

Instead, what makes a unitary state unitary and a federal state federal, is whether or not the central government and the subcentral governments have original constitutional authority.

In a unitary state, only the central government has original constitutional authority, which means that any powers or functions held by subcentral units are held at the discretion of the central government. In a federal state, the subcentral governments also have original constitutional authority, meaning they do not require the permission of the central government nor are they subservient to it.

This says nothing about the degree of centralisation or decentralisation, but is instead focused on the source of governmental authority.

Therefore, in the case of South Africa, the source of governmental authority for South Africa’s provinces and (uniquely) municipalities is the Constitution, not the decrees or edicts of the central government based in Pretoria. Sections 40 and 41 of the Constitution are explicit about the fact that the three spheres of government are not subservient to or dominant over one another.

This means that Alan Winde in the Western Cape and Panyaza Lesufi in Gauteng do not have to submit permission forms to Cyril Ramaphosa to do their work. They need only look to the Constitution to see the scope of their authority. Similarly, Geordin Hill-Lewis in Cape Town and Cilliers Brink in Tshwane do not have to submit permission forms to Alan Winde or Panyaza Lesufi to do their work in their municipalities – they need only look to the Constitution.

That our subcentral governments have deferred (too much) to the central government is not a question of legality, but one of political will and obsequity.

Some legal theorists without a clear understanding of these notions have attempted to introduce the idea of ‘quasi-federal’ into our discourse, but this should be rejected for the muddying of the waters that it is. As with many, although not all, things, a state is either federal or it is not. Federation does not exist on a spectrum, whereas the degree of centralisation does.

South Africa is certainly a centralised federal dispensation, wherein the Constitution bestows more scope for governance on the central government than it does on provinces. But it remains a federation. And it will remain a federation for as long as provincial and municipal authority is spelled out in the Constitution and not left to the whim of the central government.


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The views expressed in the article are the author’s and are not necessarily shared by the members of the Foundation. This article may be republished without prior consent but with acknowledgement to the author.




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