This article was first published by Daily Friend on 9 November 2023
I am agnostic about, but quite sympathetic towards, Cape independence. On occasion, I assist their more liberally-minded formations with matters of jurisprudence. Indeed, my primary concern will always be the establishment and maintenance of individual freedom, rather than collective self-determination, which might occasionally be a secondary concern.
At this juncture, I am unsure about whether Cape independence will be better or worse for liberal values, in the Cape and South Africa. But what I am sure about, is that the Cape independence movement is South Africa’s best catalyst for political decentralisation, which is in turn a necessary condition for secure liberty.
The Referendum Party, which is launching today, 9 November, is a single-issue party dedicated to forcing the Western Cape provincial government, in particular the Premier, Alan Winde, to call a referendum on the question of Cape independence.
A referendum on the question of Cape independence could, of course, go either in favour of independence or against it, and this is where the contentiousness should lie. Instead, the controversy is currently focused on the question of holding a referendum per se rather than the issues that referendum would deal with, which seems rather ridiculous.
What is clear is that there needs to be significant political decentralisation – whether in the form of secession, federalism, or devolution – and the Referendum Party has an opportunity to advance that. The specific kind of political decentralisation I am referring to here is provincial initiative when it comes to provincial referenda.
The Referendum Party should be – and, to some extent, has been – unequivocal in what it wants: it wants the Premier of the Western Cape to call a referendum. Not the President of South Africa. And it wants the referendum called now – as the South African Constitution allows it to be – rather than waiting for Parliament to adopt new, likely comprised referendum legislation.
The DA’s insufficient legal advice
The approach of Winde’s party, the Democratic Alliance (DA), to political decentralisation remains one of meekly pleading with the central government to voluntarily assign responsibilities to the Western Cape provincial government. This is a ‘devolution’ approach that puts the ball in Pretoria’s court, whereas South Africa is a federation where provinces have original constitutional authority.
The DA, unfortunately, unconsciously regards the provinces as satellite offices of the central government rather than semi-independent constitutional units.
I know – in fact, I insist – that the DA means well, but I also know the DA has absolutely horrendous legal advice, which it receives from lawyers who are not immersed in the party’s normative posture on public policy. These lawyers might nominally share the DA’s values, but they have not let those values influence their approach to law. They are generally in private practice and see the DA as just another client.
So, the lawyers read the Constitution and Constitutional Court judgments through establishment-minded filters, and tell the DA ‘this is what the law is’, rather than reading the Constitution and judgments with liberal filters on, and telling the DA ‘this is what you should read the law to be.’
The DA’s lawyers approach the questions put to them in the same way that a family or corporate lawyer would approach the legal issues they are faced with. It is a conservative, private-law approach in a creative, public-law context.
If one’s primary concern is what the law is (de lege lata), rather than what the law should be (de lege ferenda), there is no point to public-interest litigation and legal development. The DA somehow finds itself in an extremely conservative legal position, where it seeks to push virtually no boundaries to develop jurisprudence in a direction more conducive to decentralisation, while regarding itself as South Africa’s foremost federalist party.
Who gets to call a referendum?
In this case, it is quite evident that the Constitution envisages (and it should be read to envisage) provincial initiative when it comes to provincial referenda.
Section 127(1)(f) of the Constitution provides that a provincial Premier has the power to call ‘a referendum in the province in accordance with national legislation’. The ‘national legislation’ referred to in this context is the Referendums Act of 1983.
The Referendums Act empowers the erstwhile office of the State President to call referenda and sets out how that might be done.
The fact that it does not refer to provincial premiers, however, is of no moment. Why? Because despite some imperfections, South African constitutional law is remarkably coherent.
Section 3(2)(b) of Schedule 6 of the Constitution provides that, ‘Unless inconsistent with the context or clearly inappropriate, a reference in any remaining old order legislation to a State President […] must be construed as a reference to the Premier of a province under the new Constitution, if the administration of that legislation has been allocated or assigned in terms of the previous Constitution or this Schedule to a provincial executive’.
In turn, section 147(1)(f) of ‘the previous Constitution’ – the interim Constitution of 1993 – provides that, ‘The Premier of a province […] shall be competent to exercise and perform the following powers and functions, namely to proclaim referenda and plebiscites in terms of this Constitution or a provincial law.’
In other words, the current Constitution provides unequivocally that a provincial premier may call a referendum in their province in line with national legislation. The national legislation in question, the Referendums Act, is old order legislation that refers to the State President, not to a premier. The Constitution then further provides that if the interim Constitution assigned to premiers the power to call a referendum – which it did – then the Referendums Act’s reference to ‘the State President’ must be read as a reference to ‘the Premier’.
Schedule 6 of the Constitution, furthermore, does not contemplate the courts exclusively when it says how old order legislation ‘must be construed’. This schedule is applicable on everyone who must give effect to constitutional provisions – which in this case includes provincial premiers.
Not to put too fine a point on it, then: section 3(2)(b) of Schedule 6 places a requirement on the Premier of the Western Cape, in the person of Alan Winde, to read the Referendums Act as empowering him and his office to call a provincial referendum.
It would be completely unconstitutional and incongruent with the text of the Constitution and the spirit of subsidiarity, which the Constitutional Court has said underlies the Constitution, to read section 127(1)(f) of the Constitution as meaning provincial subordination to the central government.
Fixing the old Act
Even though Schedule 6 places, in my mind, a clear obligation on the Premier to take the initiative, South Africans tend to have a very unhealthy preoccupation with the courts, to the extent that some believe that unless there is a Constitutional Court judgment on a matter, it cannot amount to law.
This is nonsense, of course, but an aspect of public discourse that must be taken into account.
The Premier of the Western Cape must read the Constitution as allowing him to call a referendum in line with the old Referendums Act. The DA and others’ argument is that Parliament must first fix the old Act and bring its text explicitly in line with what the Constitution provides – an argument I have now rebutted.
(It seems clear to me, as an aside, that the DA prefers this argument not because it is convinced that it is jurisprudentially correct, but because it is worried about what the outcome of a referendum on Cape independence would be, and they know the central Parliament will not fix the old Act any time soon.)
But the direct response to this argument is this: Because Parliament and national legislation are subordinate to the Constitution, a failure by Parliament, or a failure of national legislation, cannot be used as an argument to ignore the constitutional imperative. The Premier must therefore give effect to what the Constitution requires, rather than paying heed to the failures of Parliament. In this case, the Constitution empowers premiers to call provincial referenda.
Of course, if the Premier does call a referendum, someone will litigate against that decision. During this litigation, the Premier should argue that the courts must read the requirements of the Constitution into the existing legislation, the Referendums Act. This is a normal and perfectly appropriate judicial remedy: – so-called ̶ ‘reading in’ that has long existed.
Conscientious courts will then simply follow the process I set out above: they will consider section 127(1)(f) of the Constitution alongside the old Referendums Act, apply section 3(2)(b) of Schedule 6 of the Constitution, which will in turn direct them to section 147(1)(f) of the interim Constitution. This yields only one outcome: the Premier may call a referendum at his own initiative. He may decide not to, but that is largely a political, not a legal, matter.
The Referendum Party must advocate and electioneer for provincial governments, specifically the Western Cape, to take ownership of the plentiful authority granted to them in the federal South African Constitution, rather than continuing the trend of going hat in hand to Pretoria, to ask a patently malicious government for permission. This authority might ultimately yield secession, or it might not, but it will yield more decentralisation.