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Putting the 18 th Amendment into effect. Dr Christina Murray University of Cape Town. Formal implementation Transfer of functions Restructuring institutions/new institutions Ongoing work Maintaining and developing the system Changing mindsets. 1: Formal implementation. Examples

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putting the 18 th amendment into effect

Putting the 18th Amendment into effect

Dr Christina Murray

University of Cape Town


Formal implementation

    • Transfer of functions
    • Restructuring institutions/new institutions
  • Ongoing work
    • Maintaining and developing the system
  • Changing mindsets
1 formal implementation
1: Formal implementation
  • Examples
    • Regulation of labour and mine safety
    • Curriculum, centres of excellence, education standards
    • Environment
formal implementation tools article 267a
Formal implementation: ToolsArticle 267A
  • By 30 June 2011
  • Implementation Commission
  • Removal of difficulties
power to remove difficulties
Power to remove difficulties
  • Concern that something in the Amendment doesn’t work – or can’t be implemented immediately as intended
  • Joint sitting of Parliament –
    • By resolution
    • Adapt (refine) provisions
    • Limited period
  • Only available for a year
  • Federal laws on concurrent matters that give functions to Federal Government:
    • Laws remain in force
    • Technically Federal Government no longer has executive power over them
  • Amendments needed to shift responsibilities to Provinces

Options include:

  • “Agency” agreements between individual provinces and Fed Govt (tax collection?)
  • Use of Arts 144 and 147
    • Provincial assembly gives Parliament power to legislate and administer
civil servants
Civil Servants
  • On contracts
  • With skills
  • Based in provinces
  • Transfer of staff to provincial governments
  • Implication
    • Slow process for province to redesign civil service and make it its own
    • Discretionary budget of provinces likely to be small
  • Offices
  • Records
  • Equipment
politics and practicalities
Politics and practicalities

South Africa’s experience

  • National commitment that new Constitution should improve things
  • Provinces did not have institutions or skills
  • Wide differences in capacity between provinces

Constitution delayed establishment of new municipalities

  • Provision for asymmetrical devolution to provinces –
    • Provinces to demonstrate capacity
    • National government given obligation to support them and help develop capacity


  • Political pressure for immediate transfer of powers


  • Deterioration of existing infrastructure
  • National government lost confidence in provincial system
  • Particular problem with over hasty fiscal equalization
2 ongoing work
2: Ongoing work

Need for coordination of exclusively provincial matters

Need to deal with overlap between federal and provincial matters


Environment – doesn’t respect boundaries

  • Duties in respect of succession to property (removed from Federal Legislative List)
  • External affairs – may overlap with provincial matters

Interprovincial matters and coordination

Federal Legislative List Part II (13)

  • Directions to Provinces – Art 149
    • Provinces shall not impede Federal Government’s exercise of executive authority
    • Fed Govt may give directions
intergovernmental institutions
Intergovernmental institutions
  • Council of Common Interests
  • Federal ministry OR institution outside Federal government
  • Meetings of ministers concerned with specific issues?
    • Provincial environment ministers?
    • Technical meetings?
  • Meetings of Chief Ministers?
3 mindset
3: Mindset


  • Dismantle various federal institutions
  • Learn art of joint decision making
    • NFC
    • Council of Common Interests
  • Support provincial governments
    • Don’t over-extend Interprovincial matters power
    • Don’t overuse directions under Art 149

Institutions and their operation

Increased budget and deletion of concurrent list

means –

  • Increased functions and responsibilities
  • Shift to planning development
  • Realism about what can be done
  • Understand the need for cooperation in Federations
    • Competitive
    • Cooperative
    • Combination
  • Interpretation of ambit of Federal list
  • Art 157 – electricity - consultation of concerned province
  • Federal legislative list Part II: Interprovincial matters and cooperation
    • Narrow (Canadian Peace Order and Good Governance provision)
    • Broader (South African concern for national standards)
    • Federal dominance
what should guide courts
What should guide courts?
  • Commitment to federal system – protect devolution of power
  • Commitment to certain national values – draw from Preamble, Bill of Rights, Principles of Policy
what can be done to change mindset
What can be done to change mindset?
  • Vision of what is possible
    • Offered new ways of doing things
  • Citizen expectations
  • Teaching