- There were reports over the weekend that national ministers are to be deployed to the Covid-19-ravaged Western Cape.
- Cabinet members cannot legally take over provinces’ executive functions, but there is room for intervention.
- The Western Cape government is still in the dark about this intervention.
As the “deployment” of national ministers to the Western Cape is afoot, the oblique nature of the National Coronavirus Command Council (NCCC) muddies the waters in the province hardest hit by Covid-19.
It is also the only province not governed by the ANC, but by the DA. This past weekend, the Sunday Times reported that there were plans under way to deploy national ministers to the Western Cape to assist in the fight against Covid-19.
The publication quoted Minister in the Presidency Jackson Mthembu, who said the NCCC took the decision, which Cabinet approved.
News24 asked two experts on the legal parameters of deploying national ministers to a province, and both expressed concern about uncertainty surrounding the NCCC.
In his weekly newsletter, President Cyril Ramaphosa said the provincial government would need assistance from outside the province ahead of the looming Covid-19 infection peak.
“We must mobilise and deploy all the necessary resources we have in the country. We need an integrated strategy that brings together the national, provincial and local spheres of government,” said Ramaphosa, who visited the Western Cape on Friday and met with Premier Alan Winde.
Police Minister Bheki Cele, Transport Minister Fikile Mbalula, Public Enterprises Minister Pravin Gordhan, Trade, Industry and Competition Minister Ebrahim Patel and Forestry, Fisheries and Environmental Affairs Minister Barbara Creecy are among those who will be deployed.
But what they will do in the province remains unclear.
On Monday, Winde told News24 he was still in the dark about the details of the ANC cadres’ deployment.
Can a member of the national Cabinet assume any executive provincial functions unless a provincial government or department is put under administration?
Western Cape not under administration
Professor Narnia Bohler-Muller, who leads the Human Sciences Research Council’s Developmental, Capable and Ethical State research programme and is an adjunct professor of law at the University of Fort Hare, said it was a requirement that a provincial government or department was placed under administration before a member of the national Cabinet could assume any provincial executive powers.
She referred to Section 100 of the Constitution, which states that “[w]hen a province cannot or does not fulfil an executive obligation in terms of the Constitution or legislation, the national executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation”.
The national executive – the president and his Cabinet – can then take the following steps:
- Issue 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; and
- Assume responsibility for the relevant obligation in that province to the extent necessary to maintain essential national standards or meet established minimum standards for the rendering of a service and prevent that province from taking unreasonable action that is prejudicial to the interests of another province or to the country as a whole.
It should be pointed out for clarity’s sake that the Western Cape is not under administration, nor has it been mooted to place the province under administration. Such a move would have to be approved by the National Council of Provinces first.
However, there are further steps short of assuming executive functions that the national executive can take in a province.
She referred to Section 41 of the Constitution, which requires all spheres of government to “co-operate with one another in mutual trust and good faith by assisting and supporting one another; informing one another of, and consulting one another on, matters of common interest; coordinating their actions and legislation with one another”.
Professor Elmien du Plessis, associate professor of Law at North-West University, pointed to Section 125(3) of the Constitution, in terms of which disaster management and health fall into the functional areas of both the national and provincial spheres.
“So, Section 125(3) says that national must assist the provincial executive to perform its functions if it is not capable [of doing] so,” Du Plessis said.
“If it can be shown that the Western Cape, for instance, cannot fulfil its constitutional obligations in terms of health, then the national executive can intervene.”
‘We need clarity’
How can the NCCC – and its members – legally relate to a provincial government?
Bohler-Muller said the legal status of the NCCC was unclear.
“Is it a sub-committee of the Cabinet or national executive? If so, a national minister could liaise between the NCCC and a provincial government. But the NCCC cannot legally give instructions to the national Cabinet or any of its members, or to a provincial executive,” she said.
Bohler-Muller added:
A national minister may liaise between Cabinet and a provincial government, or between the NCCC and a provincial command council, where the latter exists and where the NCCC and PCCC are sub-committees or advisory bodies of the respective Cabinets.
Du Plessis said: “We need clarity on that.”
She pointed to Section 4 of the National Disaster Management Act, which requires the establishment of an Intergovernmental Committee on Disaster Management and a National Disaster Management Advisory Forum.
The Intergovernmental Committee on Disaster Management must consist of Cabinet members involved in disaster management, MECs of each province involved in disaster management and members of municipal councils, selected by the South African Local Government Association. This committee must be chaired by the minister and it “must give effect to principles of co-operative government”.
It is unclear to which extent this committee exists and functions, while the NCCC’s work is well known to the populace, especially the smokers.
Should one be concerned about the ANC national government “deploying” its ministers to the DA-run Western Cape?
The government has been accused of latent authoritarianism several times during the lockdown; is this a valid concern in this case?
“It might be a concern,” said Bohler-Muller. “It might be a concern, depending on the intention underlying the ‘deployment’ and the extent to which the conduct of the member of the executive exceeds a lawful mandate.”
Du Plessis said: “I think we have a climate of distrust in the country. The DA also proposed a different approach to Covid[-19] from the ANC, and when the ANC then in this climate wants to intervene, it seems ‘authoritarian’.
“It remains important that, should the ANC wish to interfere in the provinces in terms of Section 100, we ensure that they do so in terms of the requirements laid down in the Constitution.”
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