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PROVINCIAL POWERS IN THE "NEW" SOUTH AFRICA: A "QUASI-FEDERAL" POWER BASE? by JOHN HENDRIK POTGIETER submitted in part fulfilment of the requirements for the degree of MASTER OF LAWS at the UNIVERSITY OF SOUTH AFRICA SUPERVISOR: DR M BEUKES NOVEMBER 1996
(i) DECLARATION I declare that Provincial powers in the "new" South Africa: A "quasi-federal" power base? is my own work and that all the sources that I have used or quoted have been indicated and acknowledged by means of complete references.
(ii) SUMMARY This study sets out to examine whether the "new'' provincial governments in South Africa are in practice functioning as "quasi-federal" power bases. The study starts with an appraisal of the core constitutional concepts critical to provincial government as a prelude to the enquiry into the practical status of the provincial governments. An enquiry is made into the application of certain provisions of the interim Constitution pertaining to provincial government. Thereafter certain provisions of the final Constitution pertaining to provincial government are compared with the corresponding provisions of the interim Constitution. The issue of provincial powers in practice and the problems experienced by provincial governments are also dealt with. The study concludes that provincial governments are currently not functioning as "quasi-federal" power bases and that it is even doubtful whether that situation will present itself in the foreseeable future. KEY WORDS: provincial government, democracy, constitutionalism, separation of powers, federalism, autonomy, co-operative governance, Senate, National Council of Provinces and provincial administrations
(iii) TABLE OF CONTENTS PROVINCIAL POWERS IN THE "NEW" SOUTH AFRICA: A "QUASI-FEDERAL" POWER BASE? 1 INTRODUCTION 1 2 CORE CONSTITUTIONAL CONCEPTS CRITICAL TO PROVINCIAL GOVERNMENT 3 (a) Democracy and constitutionalism 3 (b) Separation of powers and checks and balances 5 (c) Federalism 6 3 PROVINCIAL POWERS UNDER THE INTERIM CONSTITUTION 9 (a) Constitutional Principles 10 (b) Sections 36 and 48 - establishment and composition of Senate 11 (c) Sections 61 and 62 - power of provinces to resist certain Bills amending Constitution 11 (d) Section 126 - legislative competences of provinces 12 (e) Section 144 - executive authority of provinces 14 (f) Sections 155 to 158 - provincial finance and fiscal affairs 14 (g) Section 160 - adoption of provincial constitutions 15 (h) Section 235(8) - assignment of administration of laws 17 4 PROVINCIAL POWERS UNDER THE FINAL CONSTITUTION 19 (a) Impact of the Constitutional Principles 19 (b) Sections 42 and 60 - establishment and composition of National Council of Provinces 20 (c) Section 7 4 -power of provinces to resist certain Bills amending Constitution 20 (d) Section 104 - legislative authority of provinces 21 (e) Section 125 - executive authority of provinces 21 (f) Sections 142 and 143 - contents of provincial constitutions 22 (g) Section 214 - equitable share and allocation of revenue 22 (h) "The weighing of the baskets" 23 5 PROVINCIAL POWERS IN PRACTICE: "THE CENTRE CANNOT HOLD" 24 6 CONCLUSION