NEITHER the word ‘federal’ nor ‘federalism’ appears in the 1996 Constitution of South Africa. Yet Section 40 states that: cIn the Republic, government is constituted as national, provincial and local spheres of government which are distinctive, interdependent and interrelated.' Section 43 vests legislative authority in the national parliament, in the provincial legislatures, and in municipal councils. Under section 104 (3), ‘A provincial legislature is bound only by the Constitution.’ Thus, provinces (and local governments) derive their status directly from the Constitution. They are independently elected, and exercise significant legislative powers. The Constitution also provides for intergovernmental fiscal arrangements, and sets out principles ('co-operative government’) for the conduct of intergovernmental relations. The Constitutional Court is the final arbiter of disputes among the spheres of government. By most definitions, then, South Africa can be considered a federal country, albeit highly centralized.
But federal, or federal-type arrangements, have been and remain deeply problematic in South Africa. During the years of apartheid, the concepts and discourse of federalism and confederalism were used to justify the existence of the Bantustans. Whether or not a democratic South Africa was to be a federal South Africa was deeply contested throughout the transition and the negotiation of the new Constitution. It remains contested, as provinces and municipalities struggle to establish and consolidate entirely new political institutions and processes. Although multi-level government is embedded in the constitutional design, it has yet to become internalized as a basic fact of governance in the eyes of leaders and citizens.
In this chapter we explore the debate on federalism and decentralization as it developed during the South African transition to democracy and the writing of its 1994 Interim and 1996 final Constitutions. We explore the constitutional design of the new system of ‘multi-sphere’ governance and examine its implementation in the ensuing years.