Provincial and Local Government in South African Law

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Intervention
Provincial and local government
National government intervening in provincial government
* The national government is given overall responsibility for ensuring that other spheres of government carry out their obligations under the constitution * Where a province cannot or does not fulfil an executive obligation in terms of legislation or the constitution, the national executive can intervene by taking appropriate steps to ensure the fulfilment of that obligation including a) Issuing a directive to the provincial executive, describing the extent of the failure to fulfil its obligations and stating any steps required to meet its obligations b) Assuming responsibility for the relevant obligation in that province to the extent necessary to maintain essential national standards, or to meet established minimum standards for the rendering of a service or to maintain economic unity, or to maintain national security or to prevent the province from taking unreasonable action that is prejudicial to the interests of another province or to the country as a whole * if the national executive intervenes in a province, notice of the intervention must be tabled in the National Council of Provinces within 14 days of the NCoP’s first sitting after the intervention first began * the intervention must end unless it is approved by the NCoP within 30 days and the NCoP must review the intervention regularly and may make appropriate recommendations to the national exective * national legislation may further regulate the process of intervention * s100 (1) is subject to the constitution’s provisions relating to co-operative government * s100 (1) also does not allow the national government to interfere where a province properly carries out its executive obligations. It serves the limited purpose of enabling the national government to take appropriate executive action in circumstances where this is required because a provincial government is unable or unwilling to do so itself. Any attempt to intervene for other purposes would be justiciable and could be declared unconstitutional and invalid *

Provincial supervision of local government
* The provincial executive may intervene to fulfil municipal obligations in more or less the same way as national executive may intervene to ensure that the provinces fulfil their obligations * The grounds are somewhat narrower in that there is no reference to national security as a ground for justifying intervention * The requirements are also stricter in that the (national) minister responsible for local government and the NCoP must approve of the intervention * These provisions are further concretised by s119 and s120 of the Municipal systems Bill which impose a duty on the provinces to monitor local government to monitor local government and empowers them and the national government to request certain information from the local authority * In addition, the national government is permitted to establish essential and minimum standard for the delivery of services and the performance . Failure to comply with these is of course a ground for intervention * Further in terms of s155 (7) of the constitution, the national government and the provinces have the legislative and executive competence to see to the effective performance by municipalities of their functions in respect of the matters listed in schedules 4 and 5, by regulating the exercise of the executive authority of the municipalities * This provision is further fleshed out in the municipal structures act which provides that the MEC for local government may transfer the functions from a collapsing local or district council to another healthier one.

Premier Western Cape v President of the Republic of South Africa Co-operative government
[49] For the purposes of this part of the judgment it is necessary to consider the provisions of chap 3 of the Constitution which deal with co-operative...
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