Maccsand (Pty) Ltd v City of Cape Town and others - a missed opportunity for co-operative governance

Master Thesis


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In the period leading up to the first democratic elections in South Africa and the adoption of the Constitution as the supreme law of the country, there was heated debate and protracted negotiations regarding the form of government that would suit the new democratic South Africa and best protect the interests of all parties concerned. The governance model of the apartheid era had been one of a unitary state, taking its cues from the governance model of the former colonial rulers of the area, the United Kingdom. 'A unitary state is one in which the legislative power is concentrated exclusively in one location. In such a state there is no entrenched division of legislative power between the central government and the regional units of the country'. The unitary state option employed by the previous government of South Africa allowed for power to be devolved to the provincial units, but this power could be revoked at the discretion of national government. In a move to break with the past, a form of federal constitutional governance was chosen for the post-apartheid South Africa. The particular configuration of governance crafted for implementation was 'unique and completely unlike anything that [had] been experienced by the country during the last three centuries'. To understand how the chosen system of governance works, one must have an understanding of the parts that combine to create it, starting with the concept of federalism. Devenish explains that in a federation there is an entrenched legislative division of power between the central government and the regional units, be they called provinces, states or regions. Federalism is in essence a mode of sharing and organising political power. In its broadest sense, it encapsulates a linkage of people and institutions in a lasting but limited union by mutual consent. It guarantees their respective autonomies, but simultaneously advances their mutual interests. 'So-called integrated federal states generally provide for the exercise of both exclusive and concurrent powers by different levels of government and develop procedures designed to enhance co-operation between levels and organs of state.'