Understanding South African Government

The Constitution

In order to understand how the South African government functions, we must first understand the significance of the Constitution. Following the 1994 transition from the Apartheid regime to a democratic republic, there was a need to create a body of principles that could enshrine the fundamental human rights of all South Africans while outlining the mandates for state institutions. After two years of public consultation and debate, the Constitution of South Africa was adopted in 1996, and it officially came into effect on 4 February 1997.

Before the adoption of the Constitution, Parliament had supremacy. Since 1997, the Constitution has become the highest law in South Africa. No law can override it and no government institution may contradict it. The Constitution is the basis for South Africa's constitutional democracy.

The Constitution aims to define and protect the inalienable human rights of South Africans while upholding democratic principles such as the rule of law, separation of powers, voting rights and minority rights. The South African Constitution is widely considered to be one of the most progressive constitutions in the world, as it is one of few constitutions to stipulate the right to food, water, housing, healthcare and social security. These rights are further elaborated on in Chapter 2, under the Bill of Rights.

South Africa's Bill of Rights includes some of the following:

  • Children's rights

  • The right to human dignity and equality

  • The right to free speech

  • The right to life and privacy

  • The right to information

  • The right to education

  • Freedom of religion and expression.

  • Freedom of assembly

  • Freedom of association

Branches of the state

To help translate these rights into service delivery, the Constitution tasks three branches of the state each with their own specific mandates. Certain branches and institutions are responsible for policy and law-making, while others are tasked with oversight and law enforcement. The three branches are the Executive, the Legislature and the Judiciary. Separating the three branches of the state creates a system of checks and balances that upholds institutional independence, and prevents the dangerous concentration of power. Chapter 3 of the Constitution on co-operative government details the importance of collaboration and mutual trust between the different branches, while still emphasising their independence.

The Executive

The Executive consists of the Cabinet, led by the President. The President is elected by members of the National Assembly. He appoints the Deputy President, and any number of Ministers from the National Assembly, as well as a maximum of two Ministers from outside of the National Assembly.The Executive is empowered to develop and implement national policy and coordinate the functions of government. The Executive also has the power to propose changes to existing legislation and initiate new policies.

Alongside the national Executive are the nine Provincial Executive Councils - they reflect the national Executive on a provincial level. Much like the national executive is made up of Cabinet and its presidential head, the provincial executive is the Executive Council, which consists of Members of the Executive Council (MECs) and an elected Premier to oversee their functions. The Premier is elected by the Members of the Provincial Legislature.

The Legislature

The legislative arm of the state, known as Parliament, acts as the Executive's watchdog, holding them accountable by maintaining oversight of the Executive. Legislatures scrutinise budgets, annual and quarterly performance and strategic and annual performance plans of government.

Legislatures are empowered to directly question Ministers and MECs at formal sittings and in writing.Legislatures have the power to summon any person to appear before it. Legislatures also consider, pass, amend, create or reject legislation. The legislatures are forums for public debate and facilitate public participation in decision making.

At the national level, the legislature is composed of the National Assembly and the National Council of Provinces (NCOP). At a provincial level, there is a provincial legislature in each province, consisting of 30 to 80 members who are elected according to the proportional representation system.

See the Constitution for more functions of the legislatures

The Judiciary

The Judiciary is tasked with interpreting and applying the laws of the country. While, in the case of South Africa, there is a partial fusion of the Executive and Legislative branches, the Judiciary is completely independent. The judicial branch is comprised of all the courts and is headed by the Chief Justice.

The highest court in the Judiciary is the Constitutional Court. The Constitutional Court is tasked with enforcing the Constitution, and they have the final say when it comes to interpreting the application of its laws.

See the Constitution for the different courts

Institutions Supporting Democracy

In order to ensure that its fundamental democratic values are upheld and strengthened, the Constitution also makes provisions for the mandates of various state institutions. To help citizens enforce their rights, the Constitution has established several independent bodies such as the Human Rights Commission, Public Protector, Electoral Commission (IEC), Auditor-General, Commission for Gender Equality, Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities and Independent Communications Authority of South Africa.

See Chapter 9 of the Constitution for more on these institutions (also known as Chapter 9 institutions)

The Powers and Functions of National, Provincial and Local Government

The Constitution dictates the powers and functions of each sphere of government. There are three spheres of government: national, provincial and local government. The spheres of government are autonomous and should not be seen as hierarchical. The Constitution says: The spheres of government are distinctive, interrelated and interdependent. The spheres work together cooperatively.

National government has exclusive areas of competence for which they are solely responsible e.g. foreign affairs, national transport, national tax, tertiary education, intelligence, and defense.

Schedule 5 of the Constitution lists exclusive areas of competence for provincial government e.g. management of provincial roads, recreational amenities, ambulances, libraries, liquor licences and provincial sport.

Schedule 4 of the Constitution states that national and provincial governments have some shared areas of competence in which they can support each other. They include the management of schools, agriculture, police, health and welfare services, and public transport.

At a smaller scale, local government is the sphere of government closest to the people. Services are delivered to local constituents via ward councilors and local municipalities. Local government provides basic services such as water, garbage removal, sanitation etc, as well as promote a safe and healthy environment, and community development.

Civic Engagement and Public Participation

The Constitution asserts that South Africa is a constitutional democracy that upholds representative and participatory processes. In a representative context, the Members of Parliament/provincial legislatures/local councils represent the views of the electorate whilst in a participatory context, the public is actively involved in decision making processes. The intention of public participation and involvement is to reflect 'the will of the people'.

According to sections 59, 72 and 118 of the Constitution, all citizens must have a say in the decision making of all three spheres of government.

The National Assembly, NCOP and all the provincial legislatures are required to facilitate public involvement. All legislatures are required to conduct their business in an open and transparent manner in order to facilitate engagement. Citizens can get involved in a variety of ways including making submissions to Parliament, drafting petitions and responding to calls for comment. he Constitution states that national Parliament and provincial legislatures are required to host public participation processes, which usually take the form of parliamentary public hearings where citizens can voice their concerns directly to Members of Parliament.

The public also participates by voting for national, provincial and local representatives in national elections, local government elections and by-elections.

A healthy democracy needs the involvement of the public in government decision-making that affects their lives,

Elections and Representation

At a provincial level, voters in each of the nine provinces vote for political parties. Members are elected from provincial lists on the basis of the number of votes received by a political party.

Each provincial Legislature's delegation is made up of ten members. These members contain six permanent delegates from the NCOP and four special delegates including the Premier. These delegates are chosen in proportion to the representation of political parties in each provincial Legislature.

Permanent delegates to the NCOP are chosen either from the Members of the Provincial Legislature (MPLs) or from provincial party lists. If MPLs are chosen they cease to be Members of the Provincial Legislature and have to be replaced from party provincial lists. Some Members of Provincial Legislatures (MPLs) go to Cape Town to represent provincial matters nationally in the National Council of Provinces (NCOP) based at Parliament.

At a local level, municipal residents vote for representatives to govern in municipal councils during local government elections every 5 years. Half of the municipal council are elected as individual candidates, and the other half by proportional representation. The Municipal Councils govern the area and oversee the enforcement of local laws, also known as by-laws. Although elections are a valuable way of participating in government, there are also other channels of participation. Between elections, citizens can monitor their elected representative's performances by attending Parliamentary Committee meetings and National Assembly or NCOP sittings.