I am agnostic about, but quite sympathetic to, Western Cape independence. On occasion, I help their more free-spirited formations with legal matters. Indeed, my primary concern will always be the establishment and maintenance of individual freedom, rather than collective self-determination, which can sometimes be a secondary concern.
At this time, I am unsure whether Western Cape independence will be better or worse for liberal values, in the Western Cape and South Africa. What I am sure of is that the Western Cape independence movement is South Africa’s best catalyst for political decentralization – which in turn is a necessary condition for secure freedom.
The Referendum Party launched on 9 November 2023 is a single issue party dedicated to forcing the Western Cape provincial government, particularly Prime Minister Alan Winde, to call a referendum on the issue of Western Cape independence.
A referendum on the issue of Western Cape independence can of course go either in favor of independence or against it – and this is where the controversy must lie. Now, however, the controversy is focused on the issue of holding a referendum per se rather than the issues the referendum would be about, which seems quite ridiculous.
What is clear is that there must be significant political decentralization – whether in the form of devolution, federalism or devolution – and the Referendum Party has an opportunity to promote this. The specific kind of political decentralization I am referring to here is provincial initiative when it comes to provincial referenda.
The Referendum Party should be unambiguous, unequivocal in what it wants: it wants the prime minister of the Western Cape to call a referendum. Not the president of South Africa. And the party wants the referendum to be called now – as the South African Constitution allows – rather than waiting for parliament to adopt new, probably existing, referendum legislation.
Inadequate legal advice
The DA’s approach to political decentralization remains one of meek pleas to the central government, specifically to voluntarily assign responsibilities to the Western Cape provincial government. It is a devolution approach that puts the ball in Pretoria’s court, whereas South Africa is a federation where provinces have original constitutional authority.
The DA unfortunately unconsciously views the provinces as satellite offices of the central government rather than semi-independent constitutional units.
I know – in fact, I insist – that the DA means well, but I also know that the DA has absolutely terrible legal advice, which it receives from lawyers who are not steeped in the party’s normative stance on public policy. These lawyers may nominally share the DA’s values, but they have not allowed those values to influence their approach to the law. They are generally in private practice and see the DA as just another client.
So, the legal scholars read the Constitution and the Constitutional Court’s judgments through so-called “establishment” lenses. As a result, their advice to the DA is “this is what the law is”, rather than reading the Constitution and judgments through liberal lenses, and advising the DA “this is what you read the law to be”.
The DA’s lawyers approach the questions put to them in the same way as a family or corporate lawyer would approach the legal issues they face. It is a conservative, private law approach in a creative, public law context.
If one’s primary concern is what is right (the empty lata), rather than what the right should be (the empty ferenda), there is no sense for litigation and legal development of public interest. The DA somehow finds itself in an extremely conservative legal position. One where he attempts to push virtually no boundaries to develop jurisprudence in a direction more conducive to decentralization – while he considers himself South Africa’s leading federalist party.
The referendum issue
In this case, it is clear that the Constitution envisages (and must be read to envisage) provincial initiative when it comes to provincial referenda.
Article 127(1)(f) of the Constitution states that a provincial premier has the power to call “a referendum in the province in accordance with national legislation”. The “national legislation” referred to in this context is the Referendums Act of 1983.
The Referendums Act empowers the former office of the State President to call referendums and sets out how this can be done.
However, the fact that it does not refer to provincial premiers is not significant. Why? Because despite some imperfections, South African constitutional law is remarkably coherent.
Section 3(2)(b) of annex 6 of the Constitution states: “Unless contrary to the context or clearly inappropriate, a reference in any remaining old order legislation to a state president (…) must be interpreted as a reference to the prime minister of a province under the new Constitution, if the administration of that legislation was assigned or assigned in terms of the previous Constitution or this appendix to a provincial executive authority.”
In turn, article 147(1)(f) of “the previous Constitution”, the interim Constitution of 1993, states: “The premier of a province (…) shall be competent to exercise and perform the following powers and functions, namely to announce referenda and plebiscites in terms of this Constitution or a provincial law.”
In other words, the current Constitution provides unequivocally for a provincial prime minister to call a referendum in their province in accordance with national legislation. The national legislation in question, the Referendums Act, is old-order legislation that refers to the state president, not to a prime minister. The Constitution then further states that if the interim Constitution which gave prime ministers the power to call a referendum – which it did – then the Referendum Act’s reference to “the state president” must be read as a reference to “the prime minister” .
Furthermore, Schedule 6 of the Constitution does not consider the courts exclusively when it indicates how old order legislation “must be interpreted”. This schedule applies to everyone who has to give effect to constitutional provisions – which in this case includes provincial premiers.
Not to put too fine a point on it: section 3(2)(b) of schedule 6 imposes a requirement on the premier of the Western Cape, in the person of Alan Winde, to read the Referendums Act as a law that gives him and his office the powers to call a provincial referendum.
It would be completely unconstitutional and incongruent with the text of the Constitution and the spirit of subsidiarity, which according to the Constitutional Court is underlying the Constitution, to read section 127(1)(f) of the Constitution as provincial subordination to the central government.
Even though schedule 6, in my opinion, places a clear obligation on the prime minister to take the initiative, South African citizens tend to have a very unhealthy preoccupation with the courts – so much so that some believe that unless there is a Constitutional Court ruling is about a matter, it does not amount to law.
This is of course nonsense, but an aspect of public discourse that must be taken into account.
The Prime Minister of the Western Cape must read the Constitution that it allows him to call a referendum in accordance with the old Referendum Act. The DA and others’ argument is that the parliament must first fix the old legislation and bring the text expressly in line with what the Constitution provides – an argument that I have now refuted.
(As an aside, it seems clear to me that the DA prefers this argument – not because it is convinced that it is jurisprudentially correct, but because it is concerned about what the outcome of a referendum on Western Cape independence would be, and they know that the national parliament will not amend the old law soon.)
But the direct response to this argument is this: Because parliament and national legislation are subordinate to the Constitution, a failure by parliament, or a failure by national legislation, cannot be used as an argument to ignore the constitutional imperative. The prime minister must therefore give effect to what the Constitution requires, rather than heeding the failures of parliament. In this case, the Constitution empowers prime ministers to call provincial referenda.
Of course if the prime minister does call a referendum, someone will litigate against that decision. During this litigation, the prime minister must argue that the courts must read the requirements of the Constitution into the existing legislation, the Referendums Act. This is a normal and completely appropriate judicial remedy – so-called “reading in” – which has existed for a long time.
Conscientious courts will then simply follow the process I have outlined above: they will consider section 127(1)(f) of the Constitution together with the old Referendum Act, apply section 3(2)(b) of schedule 6 of the Constitution, which in turn will refer them to section 147(1)(f) of the interim Constitution. This produces only one outcome: the prime minister may call a referendum on his own initiative. He can decide not to, but this is largely a political rather than a legal one.
The Referendum Party must advocate and base their election campaign on that provincial governments, specifically the Western Cape, take ownership of the abundant authority granted to them in the federal South African Constitution. This rather than continuing the trend of going hat in hand to Pretoria, to a clearly malicious government for permission. This authority may or may not eventually lead to secession, but it will certainly produce more decentralization.