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[1999] ZACC 2
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Premier, Western Cape v President of the Republic of South Africa and Another (CCT26/98) [1999] ZACC 2; 1999 (3) SA 657 (CC); 1999 (4) BCLR 382 (CC) (29 March 1999)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
                                                                                                                       Â
CaseÂ
CCT
26/98
THE
PREMIER OF THE PROVINCE OF THE WESTERN CAPE
                        Applicant
versus
THE
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA
                   First Respondent
THE MINISTER OF PUBLIC SERVICE AND                                      Second
Respondent
ADMINISTRATION                                                            Â
Heard on         :         Â
23
February 1999
Decided on     :         Â
29
March 1999
JUDGMENT
CHASKALSON P
:
Introduction
[1]       This case arises out of a
dispute between the government of the Western Cape province and the national
government
relating to the constitutional validity of certain amendments to the
Public Service Act, 1994
1
(the 1994 Act) introduced by the
Public Service Laws
Amendment Act, 1998
2
(the 1998 Amendment).   The 1998 Amendment is part of a
legislative scheme aimed at the structural transformation of the public
service.Â
The new scheme to which the
government of the Western Cape objects is set out in the 1994 Act as amended by
the
Public Service Laws Amendment Act, 1997
3
(the 1997 Amendment), the
1998 Amendment, and the
Public Service Commission Act 1997
.
4
  These acts have all been
assented to by the President but have not yet been brought into force.
[2]       The Western Cape government
instituted proceedings in this Court during December 1998.   It sought an order
declaring
certain provisions of the 1998 Amendment to be inconsistent with the
Constitution.
5
  It also claimed urgent interim relief, stating that the
President intended to fix 1 January 1999 as the date on which the new
legislative
scheme would come into force.  If it were obliged to comply with
the disputed provisions of the Amendment Acts on that date, notwithstanding
the
challenge to their constitutionality, wasted expense and other adverse
consequences would ensue should the challenge prove to
be successful.  As the
dispute is one which concerns “the constitutional status, powers or functions”
of organs of state at
the national and provincial sphere only this Court has
jurisdiction to decide the matter.
6
[3]       The claim for interim
relief and the immediate urgency fell away when an undertaking was given that
the implementation
date of the new legislative scheme would be deferred pending
the outcome of this litigation.
Â
The parties were agreed, however, that
the dispute was one which called for speedy resolution, and an early date for
the hearing of
the matter was accordingly allocated.
[4]       The objection raised by the
government of the Western Cape to the new legislative scheme (the new scheme)
is that
it both infringes the executive power vested in the provinces by the
Constitution and detracts from the legitimate autonomy of the
provinces
recognised in the Constitution.
[5]       Prior to the enactment of
the new scheme, the public service was divided into departments of the national
government
and provincial administrations. Provincial administrations, but not
provincial departments, were listed as “departments” in the
unamended
1994 Act.
7
Provincial
administrations were, in turn, subdivided into departments. Administrative
responsibility for, and control over, a provincial
administration, including
all its departments, vested in the head of the provincial administration, the
provincial Director-General
(DG).
8
  The essential changes to the
existing scheme to which objection is raised in these proceedings, derive from
the 1998 Amendment.Â
The changes can be summarised as follows:
(a)       provincial
departments are included in the definition of “department”. A “department” is
now defined to mean
“a national department, a provincial administration or a
provincial department”;
9
 Â
(b)       provincial heads of departments are accorded the same broad
functions and responsibilities as heads of national departments
and no longer
fall under the administrative control of the provincial DG;
1
0
Â
(c)       amongst other powers and duties, a provincial DG becomes the
Secretary to the Executive Council of the province concerned
and is responsible
for the administration of the Office of the Premier, intergovernmental
relationships, and intragovernmental cooperation
between the various
departments of the provincial administration, including coordination of their
actions and legislation;
1
1
(d)       a provincial head of department is now directly accountable to
the “executing authority” concerned, who is the
member of the Executive Council
(the MEC) responsible for such portfolio;
1
2
(e)       a premier may request the President to establish or abolish any
provincial department.  The President shall give
effect to such request if he
is satisfied that such steps are consistent with the provisions of the
Constitution and the Act;
1
3
(f)        the Minister of Public Service and Administration (the
Minister) may, after consulting with the relevant executing
authority, make
determinations regarding the allocation or abolition of any function of any
department or the transfer of any function
from a department to another body.
1
4
[6]       The main contention of the
Western Cape government is that it is part of the executive power of a province
to structure
its own administration, and that national legislation which seeks
to impose such a structure on the provinces infringes this provincial
power.
[7]     Â
Much of the evidence placed before
this Court was addressed to the question whether the provisions of the newÂ
scheme dealing with
the structure and functioning of the public service in the
provinces, and specifically in the Western Cape, is likely to be better
or
worse than the existing scheme according to which control of provincial
administrations is centralized and vested in the DGs of
the provinces.  In the
circumstances of the present case, that, however, is not a question that has to
be addressed in dealing with
this issue.  The question is not which scheme is
better suited to the conditions in the Western Cape in the circumstances of the
present case; it is whether Parliament has the competence to prescribe how
provincial administrations in the public service are to
be structured.Â
A further contention that
the new scheme falls foul of the cooperative government provisions of section
41 of the Constitution is
dealt with later in this judgment.
1
5
The executive power of the provinces
[8]       The executive authority of
provinces is set out in section 125 of the Constitution which provides:
            “(1)      The executive authority of a province is vested in
the Premier of that province.
(2)        The Premier exercises the executive authority, together with
the other members of the Executive Council, by -
(a)        implementing provincial legislation in the province;
(b)        implementing all national legislation within the functional
areas listed in schedule 4 or 5 except where the Constitution
or an Act of
Parliament provides otherwise;
                        (c)        administering in the province,
national legislation outside the functional
areas listed in schedules 4 and 5,
the administration of which has been assigned to the provincial executive in
terms of an Act of
Parliament;
                        (d)        developing and implementing provincial
policy;
                        (e)        co-ordinating the functions of the
provincial administration and its
departments;
                        (f)        preparing and initiating provincial
legislation; and
                        (g)        performing any other function assigned
to the provincial executive
in terms of the Constitution or an Act of
Parliament.
(3)        A province has executive authority in terms of subsection 2(b)
only to the extent that the province has the administrative
capacity to assume
effective responsibility.   The national government, by legislative and other
measures, must assist provinces
to develop the administrative capacity required
for the effective exercise of their powers and performance of their functions referred
in subsection (2).
            (4)        ....
(5)        ....
(6)        The provincial executive must act in accordance with -
(a)        the Constitution; and
(b)        the provincial constitution, if a constitution has been passed
for the province.”
[9]      Â
Section 125 does not specifically
include as an executive power of a province, the power to establish and
structure a public service
administration for the province.Â
The Western Cape
government contended, however, that such a power is implicit in the executive
power of a province.
Section 197 of the Constitution
[10]     The only provision of the
Constitution dealing with the structuring of the public service is section 197
which provides:
“(1)      Within public administration there is a public service for the
Republic, which must function, and be structured,
in terms of national
legislation, and which must loyally execute the lawful policies of the
government of the day.
(2)        The terms and conditions of employment in the public service
must be regulated by national legislation.  Employees
are entitled to a fair
pension as regulated by national legislation.
(3)        No employee of the public service may be favoured or
prejudiced only because that person supports a particular political
party or
cause.
(4)        Provincial governments are responsible for the recruitment,
appointment, promotion, transfer and dismissal of members
of the public service
in their administrations within a framework of uniform norms and standards
applying to the public service.”
[11]   Â
Section 197(1) requires national
legislation to address the structure of the public service (the framework
within which it will be
organized), and the functioning of the public service
(how duties will be carried out).  A law making provision for the public
service
to be organized in departments and prescribing the line and reporting
functions of heads of departments and other officers and employees
would
ordinarily be within the purview of such a power.Â
[12]     A power cannot be implied if it contradicts an
express provision of the Constitution.  To meet this difficulty the government
of the Western Cape contended that section 197(1) should be construed narrowly
as dealing only with the regulation or structuring
of the public service corps,
and not with the structuring of the provincial administration within which such
corps is to function.Â
According to this contention:
(a)       the
national legislation sanctioned by section 197(1) is confined to public service
matters such as (i) the setting
up and regulating of the personnel corps which
comprises the public service, (ii) the identifying of provincial
administrations which
are to be further structured and organised by the
provincial executives, and (iii) establishing norms and standards in accordance
with which provincial governments must recruit, appoint, transfer and dismiss
members of the public service in their administrations;
            (b)       the
1998 Amendment requires that the public service in the provinces be organised
in departments
and prescribes the responsibilities attached to the posts of DGs
and heads of departments, and deals with the structuring of public
administration, not the structuring of the public service.
[13]    Â
On the construction of
section 197(1) contended for by the Western Cape government,
the first of the three competences
said to be contemplated by the section is covered by section 197(2), which
provides that national
legislation must regulate the terms and conditions of
employment in the public service.  The third competence is covered by section
197(4) which states that  recruitment
etc.
must be within a framework of
uniform norms and standards applying to the public service as a whole.  That
leaves only the second
of the suggested competences, namely the power to
identify provincial administrations which are to be further structured and
organised
by provincial executives.  In effect, what the contention implies is
that section 197(1) should be construed as having no application
to the
provincial administrations within which the public service corps is to
function.
The certification proceedings
[14]     It was contended, however,
by the Western Cape government that its construction of section 197(1) was
correct in the
light of the two judgments of this Court dealing with the
certification of the new constitutional text. I will refer to these as
the
First Certification Judgment
1
6
and the Second Certification Judgment.
1
7
[15]     The certification
proceedings were held to determine whether or not the new constitutional text
adopted by the Constitutional
Assembly in 1996 to replace the interim
Constitution
1
8
was consistent with the 34 Constitutional Principles
1
9
(CPs) by which the
Constitutional Assembly was bound.   In the first certification proceedings
this Court held that certain provisions
of the new constitutional text did not
comply with all the CPs and accordingly declined to certify the text.  The text
was referred
back to the Constitutional Assembly which considered the defects
in the text identified by this Court in its judgment, and amended
the text in
order to deal with them.  In the Second Certification Judgment this Court had
to consider whether the amended text complied
with the CPs.  It concluded that
the defects had been remedied and it accordingly certified that the amended
constitutional text
complied with the CPs.Â
[16]     One of the issues raised in
the first certification proceedings was whether the provisions of  chapter 10
of the  new
constitutional text dealing with the public service and the Public
Service Commission complied with the CPs.
2
0
  This Court held that it was unable
to certify that these provisions met such requirements, and this was one of the
grounds upon
which certification was declined.   In the Second Certification
Judgment, it held that amendments made by the Constitutional Assembly
to the
provisions of chapter 10  were sufficient to remedy such defects.
2
1
Â
[17]     In the First Certification
Judgment, this Court referred to the problem which could arise if the
constitutional text
has more than one permissible meaning, and if on one
construction the text concerned does not comply with the CPs, but on another
it
does.   It held that:
“... a future
court should approach the meaning of the relevant provisions of the NT [New
Constitutional Text] on the basis that
the meaning assigned to it by the
Constitutional Court in the certification process is its correct interpretation
and should not
be departed from save in the most compelling circumstances.”
2
2
[18]     Counsel for the Western Cape
government contended that the construction which they place on the Constitution
in the present
case, in so far as it deals with the executive powers of the
provinces and their legitimate autonomy, is the only construction consistent
with the findings made by this Court in the certification judgments, and that
this Court is accordingly bound to adopt such a construction
in dealing with
the present dispute.
[19]     Because of the contentions
which have been advanced by the Western Cape government it will be necessary in
this judgment
to give consideration to the certification proceedings, and to
compare the provisions of the interim Constitution and the legislative
scheme
according to which the public service was structured and regulated under its
provisions (the existing scheme), with the provisions
of the 1996 Constitution
and the legislative scheme contemplated by the 1997 and 1998 amendments.Â
The interim Constitution and the
existing scheme
[20]     The existing scheme was
established by the 1994 Act which was proclaimed by the President in terms of
section 237(3)
of the interim Constitution.
2
3
  It came into force on 3 June 1994
and made provision for the complicated and difficult task of establishing a
single public service
for the Republic to replace various administrations which
had been established under apartheid.  Prior to the 1997 and 1998 Amendments
it
had been amended on a number of occasions by presidential proclamations and by
national legislation.
2
4
Â
[21]    Â
The rationalisation
contemplated by the interim Constitution was carried out in terms of the 1994
Act.  This Act dealt with the way
in which the “administrations” within the
public service were to be structured at the national and provincial sphere.Â
Provincial
administrations were to be treated as single departments, functions
were assigned to the DGs of the provinces, and provision was
made for the
manner in which decisions were to be taken concerning the establishment,
abolition and control of sub-departments and
the like, and the employment of
personnel.
[22]     The design of the scheme
took account of the provisions of the interim Constitution dealing with the
public service and
Public Service Commissions.  Under that Constitution there
was to be one public service
2
5
and a Public Service Commission at national sphere,
2
6
but provinces that wished
to do so, could establish Provincial Service Commissions.
2
7
  Provincial Service
Commissions had powers similar to those vested in the Public Service
Commission, but had to exercise them “subject
to norms and standards applying
nationally”.
2
8
  The public service had to be structured “to provide effective public
administration.”
2
9
  Provision was also made in the interim Constitution for the principles
according to which the public service was to be conducted
3
0
and the criteria to be taken
into account in the making of appointments.
3
1
[23]     The Public Service
Commissions, national and provincial, had an important role in matters relating
to the structure and
functioning of the public service.  They could make
recommendations concerning such matters and these recommendations had to be
carried out unless rejected by the President or the Premier.
3
2
   As previously
indicated, however,  recommendations of a Provincial Service Commission were
subject to norms and standards applying
nationally.
The new constitutional text
[24]     The 1996 Constitution
certified by this Court changed these provisions.  It requires that there be a
single Public Service
Commission for the Republic,
3
3
consisting of fourteen
commissioners, five of whom have to be recommended by the National Assembly.Â
The remaining nine are to be
appointed on the basis that one commissioner for
each province will be nominated by the Premier of that province.
3
4
   The powers of the
Public Service Commission are different to the powers of the commissions which
existed under the interim Constitution.Â
The new Public Service Commission has
less   control over the public service than its predecessors.  It is empowered
to conduct
investigations, make reports and generally to promote those values
and principles of the public service identified in the Constitution.
3
5
   It has to report to the
National Assembly and also to provincial legislatures in respect of its
activities in a province.
3
6
   It is entitled to investigate complaints and to
monitor the performance of the public service,
3
7
but it is only empowered to give
directions aimed at:
“... ensuring
that personnel procedures relating to recruitment, transfers, promotions and
dismissals comply with the values and
principles set out in section 195 [of the
Constitution].”
3
8
The Constitution does not
say how such directions are to be implemented, but as that issue does not arise
in the present proceedings,
there is no need to deal with it.
[25]     Weight is given to the
functioning of the Public Service Commission by section 196(3) of the
Constitution which provides:
“Other organs of state, through legislative and other measures, must
assist and protect the Commission to ensure the independence,
impartiality,
dignity and effectiveness of the Commission.  No person or organ of state may
interfere with the functioning of the
Commission.” Â
          Â
The new scheme
[26]     The changes to the existing
scheme introduced in 1997 and amended in 1998 have already been referred to.
3
9
  The provincial
administrations are divided into departments, as is the case with the national
administration,  and are required
to function in much the same way as national
departments do.  The provincial administration headed by the DG in the Premier’s
office remains a department for the purposes of the Act.  Provision is,
however, made for each provincial department to have a head
of department.Â
Many responsibilities which previously vested in the DG of the province have
been transferred to the heads of the
provincial departments, and new
responsibilities have been allocated to the DG.  This is reflected in chapter
III of the Act, as
amended, which deals with the organisation and staffing of
the public service.  The principal objection of the government of the
Western
Cape is that the provisions of section 7 of this chapter constitute an
impermissible interference with an executive power
of the provinces to
establish provincial administrations.  The terms of section 7 are dealt with in
more detail later in this judgment.
4
0
 Â
[27]     The constitutionality of the
1994 Act was not challenged by the Western Cape government; on the contrary,
the effective
relief that it seeks is to leave in place the provisions of this
Act dealing with provincial DGs and heads of departments. National
legislation,
so it was contended, was permissible under the interim Constitution in order to
effect the rationalisation.  The position
under the 1996 Constitution is,
however, different. The rationalisation having been effected under the
mechanisms provided by the
interim Constitution, the provinces were now free to
take decisions as to how, if at all, the structures put in place by the 1994
Act should be changed.  That, so it was argued, is part of the executive power
of the provinces and within the ambit of their legitimate
autonomy.
The certification of the new
constitutional text
[28]     In developing this argument
counsel referred to paragraph 276 of the First Certification Judgment dealing
with chapter
10 of the new constitutional text where it was said:
“Under the IC
[interim Constitution] provincial service commissions are bound by norms and
standards set by the national PSC [Public
Service Commission].  The setting of
such norms and standards by an independent body does not detract from the
legitimate autonomy
of the provinces.   What is important to such autonomy,
however, is the ability of the provinces to employ their own public servants. Â
We do not read the NT [New Constitutional Text] as denying the provinces this
power.  Although there is no specific provision dealing
with this, it is a
power implicit in the executive authority of the provinces which is vested in
the Premiers by NT 125(1), and in
the other provisions of NT 125 which
presuppose that the provinces will have an administrative infrastructure
necessary for the implementation
and administration of laws.  The IC does not
specifically empower the provinces
to set up their own administrations and
to employ their own servants
, but this has been done by all the provinces,
and it has never been doubted that the power to do this is inherent in their
executive
authority to implement laws. NT sch 6 annexure D s 6 accepts that
existing provincial administrations will remain in place and that
the process
of rationalisation will be continued with a view to establishing an effective
administration for each province.  The
fact that NT 197 makes provision for ‘a
public service for the Republic’ and not for separate public services for the
various
levels of government does not detract from this.  IC 212 also makes
provision for ‘a public service for the Republic’.  What
is important is who
makes the appointments to the public service in respect of provincial
administrations.” (Italics added).
[29]     Counsel relied in particular
on the passage in this paragraph concerning the inherent power of the provinces
to “set
up their own administrations and to employ their own servants”.  They
contended that this identified two aspects of provincial
power: one to
establish a provincial administration, the other to employ personnel.  Section
197 of the new Constitution makes provision
for national legislation to
regulate the employment of personnel in the public service, but it does not
deal with how the administrations
within each province should be established.Â
And that, so the argument went,  is an exclusive power of the provincial
government.
[30]     In the First Certification
Judgment this Court did not deal directly with the structuring of the public
service in the
provincial administrations. What was of concern then was the
failure of the new constitutional text to identify the powers of the
new Public
Service Commission, and the question whether provincial governments would have
the power to appoint or dismiss employees
in the provincial administrations of
the public service.  The Court held that the new constitutional text did not
address these
issues adequately, and this was one of the reasons why it
declined to certify the text.
[31]     This question was referred
to for the first time in paragraphs 170 - 177 of the First Certification
Judgment, where the
issue under consideration was whether the provisions
relating to  the new Public Service Commission complied with CP XXIX, which
required the independence and impartiality of the Commission to be safeguarded
in the Constitution.  The judgment pointed to the
differences between the
provisions of the interim Constitution and the provisions of the new
constitutional text insofar as the Public
Service Commission was concerned and
indicated that it was impossible for it to certify whether its independence and
impartiality
had been adequately protected, without knowing what the functions
and powers of the commission would be.  In paragraph 177 it concluded
this part
of its judgment as follows:
“It is
sufficient for present purposes to say that we also cannot certify that CP
XVIII.2 and CP XX have been complied with without
knowing what the powers and
functions of the PSC will be and what control the provinces will have over
appointments to and staffing
of provincial administrations
.”
[32]     The judgment dealt again
with this issue when considering the question whether the requirements of CP XX
calling for
“legitimate provincial autonomy” had been complied with.  It held
that:Â
“
The CPs do not contemplate
the creation of sovereign and independent provinces; on the contrary, they
contemplate the creation of
one sovereign state in which the provinces will
have only those powers and functions allocated to them by the NT.  They also
contemplate
that the CA [Constitutional Assembly] will define the
constitutional framework within the limits set and that the national level
of
government will have powers which transcend provincial boundaries and
competences.  Legitimate provincial autonomy does not mean
that the provinces
can ignore that framework or demand to be insulated from the exercise of such
power.”
4
1
[33]     Applying this to the way in
which the single Public Service Commission was dealt with in the new text, the
judgment said:
“If the PSC
has advisory, investigatory and reporting powers which apply  equally to the
national and provincial governments, and
the provinces remain free to take
decisions in regard to the appointment of their own employees within the
framework of uniform norms
and standards, the changes will neither infringe
upon their autonomy nor reduce their powers.   But if the provinces are
deprived
of the ability to take such decisions themselves, that would have a
material bearing on these matters.”
4
2
[34]     The issue was reverted to
when consideration was given to the provisions of CP XVIII.2, which required
that:
“
The powers and functions
of the provinces defined in the Constitution, ... shall not be substantially less
than or substantially inferior
to those provided for in [the interim]
Constitution.”
One of the objections
which had to be considered was whether  provincial powers had been
substantially diminished, because the new
constitutional text failed to repeat
the provision of the interim Constitution, that allowed provinces to establish
their own provincial
service commissions.   In dealing with this objection this
Court said:Â
“We have
previously indicated that we cannot evaluate changes made in the NT in regard
to the PSC without knowing what the powers
and functions of the “single Public
Service Commission” will be.  If such powers interfere with the provinces’
powers to appoint
provincial public servants, subject to national norms and
standards, there will have been a reduction of provincial powers in this
regard.”
4
3
[35]     When the Court came to weigh
the effect of the changes made by the new constitutional text it dealt with the
public service
commission as follows:
“
We cannot assess whether
the powers and functions of the provinces in this area have been diminished
because NT ch 10 does not define
the powers of the PSC.”
4
4
 Â
It accordingly held:
“NT ch 10
therefore has to be ignored at this stage for the purposes of weighing the
baskets because it itself is not in compliance
with the CPs.”
4
5
[36]     I have already mentioned
that in the First Certification Judgment this Court did not deal directly with
section 197(1)
which provides that the public service be structured and
function in accordance with national legislation.  Nor did the Court express
any
opinion on the meaning to be given to such  provision.  In dealing with the
question of framework in a different context, however,
it pointed out in
paragraph 294 of the judgment that the CPs empowered the Constitutional
Assembly to determine the framework within
which the various spheres of
government would function, and said:
“Provincial
governments, like other levels of government, have to conduct their affairs
within the prescribed framework.   As
long as the framework does not constrain
the exercise of provincial powers in ways which would prevent the provinces
from effectively
exercising the powers vested in them by the NT, the framework
is not relevant to provincial autonomy.
”
[37]    Â
In the context of the
judgment as a whole the passage from paragraph 276 relied on by counsel for the
Western Cape government must
be understood as meaning no more than this.  The
executive power of the provinces under the interim Constitution included a
power
to set up a provincial administration within the public service by
employing the personnel who would work in that section of the
public service.Â
All this was to be done within a framework prescribed by national norms and
standards.
The interpretation of section 197(1)
of the Constitution
[38]     In the Second Certification
Judgment, this Court was required to consider whether the changes made to
chapter 10 of the
new constitutional text were sufficient to meet the concerns
raised by it in the First Certification Judgment, and whether the amended
text
complied with the CPs.
[39]     The implications of these
changes are considered in paragraphs 192 and 193 of the Second Certification
Judgment, saying:
“
[192]  Under the IC
provincial governments are entitled to appoint their own employees, but their
powers are constrained in two respects:
(a)        The provincial service commissions can issue mandatory
directives in regard to the establishment and organisation
of departments,
appointments, transfers, promotions, discharge and other career incidents of
provincial employees; and
(b)        The directions of the provincial service commissions have to
conform with national norms and standards.
[193]    Under
the AT [Amended Constitutional Text] provincial governments will be able to
deal with the matters referred to in
subparagraph (a) in the previous paragraph
without reference to the PSC but will have to do so in accordance with uniform
norms and
standards as required by AT 197(4).  An objector contended that there
is a diminution in the powers of provincial governments because
AT 197(1) and
(2) make it clear that the powers of a provincial government under AT 197(4)
are subject to frameworks determined by
national legislation.   In our view,
however, this requirement does not introduce any diminution of the powers of
provinces.Â
Under the IC these powers are exercised by the provincial service
commissions ‘subject to norms and standards applying nationally.’Â
There has
been a shift of power from the provincial service commissions to the provincial
government and from the national PSC to
the national government, but under both
the IC and the AT, appointments, transfers, promotions and discharge of
employees are to
be made by provincial institutions subject to national norms
and standards.   We, therefore, cannot accept that the provisions
of the AT in
this regard diminish the powers of the provinces.”
Â
[40]     It is contended by counsel
for the Western Cape government that paragraph 193 should be read as applying
only to appointments,
transfers, promotions and discharge of employees, and not
to the framework of the administration.   I do not agree.  Paragraph
192 of the
judgment points out that provincial governments were entitled under the interim
Constitution to appoint their own employees,
but their power to do so was
constrained in two respects.  First, because the Provincial Service Commission
could issue mandatory
directives in regard to the establishment and
organisation of departments, appointments, transfers, promotions, discharge and
other
incidents of provincial employees and secondly because the directions of
the Provincial Service Commissions had to conform with national
norms and
standards.
[41]     These constraints applied
both to the establishment and organisation of departments, and to appointments
and other incidents
of employment.  Both had to comply with national norms and
standards, and both are covered by paragraph 193 of the judgment. Â
It was in
this context that the statement was made in that paragraph that the framework
requirements of sections 197(1) and (2) of
the amended constitutional text did
not result in a diminution of provincial powers.
[42]     The executive power of the
provinces includes the power to implement provincial legislation, and in
certain cases national
legislation as well.
4
6
  This has to be done in accordance
with the Constitution
4
7
and in the case of the Western Cape, in accordance
with its provincial constitution as well.
4
8
  The Western Cape Constitution vests
in the executive the same powers concerning the implementation of legislation
as the national
Constitution does.  It also requires the executive to exercise
its powers  “in accordance with the national Constitution”.
4
9
  Chapter 6 of the Western
Cape Constitution deals with  provincial administration and vests in the
provincial government only the
responsibility for recruitment, promotion,
transfer and dismissal of members of the public service in the administration
of the Western
Cape. Nowhere in the Western Cape constitution is the executive
given the power to make laws for the structure and functioning of
the section
of the public service in the Western Cape province.  If there had been such a
provision the constitution may not have
been certified.  But the fact remains
that according to its own constitution the Western Cape government has to
implement legislation
in accordance with the provisions of the national
Constitution, which provides that the public service is to be structured in
accordance
with national legislation. The fact that the structure is determined
in this way does not prevent the province from functioning as
such or from
discharging its powers and duties under the Constitution.
[43]   Â
The sanctioning of nationalÂ
framework legislation is a feature of the Constitution and the system of
cooperative government it prescribes.Â
Such legislation is required for the
raising and division of revenue,
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0
the preparation of budgets at all spheres of government,
5
1
treasury control,
5
2
procurements by organs of
state,
5
3
conditions according to
which governments at all spheres may guarantee loans,
5
4
the remuneration of
public officials at all spheres of government
5
5
and various other matters
5
6
. In the First
Certification Judgment this Court held that such requirements were not
inconsistent with the CPs.
5
7
[44]   Â
In my view the contentions advanced
by counsel for the Western Cape government concerning the proper interpretation
of section 197(1)
of the Constitution must be rejected.  The distinction they
seek to draw between the public service and public administration is
not
supported by the certification judgments: when section 197(1) says “within
public administration there is a public service”
it is not drawing a
distinction between provincial and national competences.  Chapter 10 applies to
all aspects of public administration
prescribing the basic values and
principles that have to be adhered to, making it clear that they apply to “administration
in every
sphere of government”.
5
8
Â
The public service is one of the administrations referred to, but the
administrations of public enterprises and other organs of
state by which “public
goods” are provided, are also subject to the general requirements of  the
chapter.  Special requirements
are laid down for the public service as a
distinct administration, and it is in this context that the public service is
referred
to as being “within public administration”.
[45]   Â
Section 197(1) deals with the way in
which the public service, as a particular  administrative entity within public
administration,
must be structured and function.  This is consistent with the
interim Constitution and the 1994 Act.  If a distinction were to
be made
between the structuring of public administration as a provincial power, and
the  structuring of the public service as a
national power, one would have
expected this to be set out explicitly in the Constitution. This was not done
in the new constitutional
text, submitted to this Court for certification in
the first certification proceedings, and when the provisions of section 197
were
reconsidered by the Constitutional Assembly, the only change made to the
section to accommodate the concerns expressed in the First
Certification
Judgment, was to vest in the provinces the power to “employ, promote, transfer
and dismiss” personnel in  the
provincial administrations of the public
service.  The competence to make laws for the structure and functioning of the
public service
as a whole, vested in the national sphere of government was
retained in the amended text.  Section 197(1) must be given effect to
and
should not be deprived of its content by finding as an implied power, a
provincial legislative competence inconsistent with the
express provisions of
the Constitution.
[46]   Â
The Constitution requires that one
public service be established to implement national and provincial laws.  It is
presumably for
this reason and in order to avoid any dispute thereon that the
competence concerning the structure and functioning of the public
service is
dealt with specifically in the Constitution, and was not left to be dealt with
under the general legislative power conferred
on parliament by section
44(1)(a).  If the Constitution had provided that the structure and control of
all aspects of the public
service would reside solely at national sphere, personnel
would be employed by and answerable to national functionaries, and as was
pointed out in the First Certification Judgment, that would have detracted
materially from the legitimate autonomy of the provinces.Â
On the other hand,
if each province and the national government had the power to structure and
control their respective segments
of the public service, there would in
substance be several public services and the concept of one public service
would be a fiction.Â
The compromise struck by the Constitution is that the
framework for the public service must be set by national legislation, but
employment,
transfers etc. are the responsibility of the various
administrations of which the public service is composed. That compromise was
certified by this Court as being consistent with the CPs.
[47]     Moreover, in regard to the linguistic
construction of section 197(1),  counsel for the Western Cape government could
not refer us to any authority in support of the narrow and very particular
construction which they sought to place on the words “public
service” and I am
unaware of any.  “Public administration” and “public service” are not terms of
art which have such clearly
distinct meanings.  On the contrary, they are
expressions which are often used interchangeably to connote the organisation as
well
as the public officials through which an executive implements that which
it is empowered to implement.
[48]   Â
The main attack on the
constitutionality of the new scheme must accordingly fail.  What remains to be
considered is whether the detailed
provisions of the new scheme infringe the
executive powers of the provinces in any other respect, or whether they “encroach
on
the geographical, functional or institutional integrity” of provincial
governments contrary to the requirements of section 41(1)(g)
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9
of the Constitution.
Cooperative government
[49]     For the purposes of this
part of the judgment it is necessary to consider the provisions of chapter 3 of
the Constitution
which deal with cooperative government.
[50]     The principle of cooperative
government is established in section 40 where all spheres of government are
described as
being “distinctive, inter-dependent and inter-related”.  This is
consistent with the way powers have been allocated between
different spheres of
government. Distinctiveness lies in the provision made for elected governments
at national, provincial and local
levels. The interdependence and
interrelatedness flow from the founding provision that South Africa is “one
sovereign, democratic
state”,
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and a constitutional structure which makes provision
for framework provisions to be set by the national sphere of government.
6
1
These provisions vest
concurrent legislative competences in respect of important matters in the
national and provincial spheres of
government,
6
2
and contemplate that provincial
executives will have responsibility for implementing certain national laws as
well as provincial
laws.
6
3
Â
[51]     Local governments have
legislative and executive authority in respect of certain matters
6
4
but national and
provincial legislatures both have competences in respect of the structuring of
local government,
6
5
and for overseeing its functioning.
6
6
   It is not necessary for
the purposes of this judgment to give details of the legislative and executive
competences of local authorities,
or of the oversight powers of national and provincial
governments.
[52]     The national legislature is
more powerful than other legislatures, having a legislative competence in
respect of any
matter
6
7
including the functional areas referred to in
schedule 4,
6
8
though its competence in respect of functional areas listed in schedule
5 is limited to making laws that are necessary for one of
the purposes referred
to in Section 44(2).
6
9
Â
[53]     The national government is
also given overall responsibility for ensuring that other spheres of government
carry out
their obligations under the Constitution.  In addition to its powers
in respect of local government,
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it may also intervene in the provincial sphere in
circumstances where a provincial government “cannot or does not fulfil an
executive
obligation in terms of legislation or the Constitution”.
7
1
  It is empowered in such circumstances
to take “any appropriate steps to ensure fulfilment” of such obligations.
7
2
[54]     The provisions of chapter 3
of the Constitution are designed to ensure that in fields of common endeavour
the different
spheres of government cooperate with each other to secure the
implementation of legislation in which they all have a common interest.
7
3
  The cooperation  called
for goes so far as to require that every reasonable effort be made to settle
disputes before a court is
approached to do so.
7
4
[55]     Cooperation is of particular
importance in the field of concurrent law-making and implementation of  laws.Â
It is desirable
where  possible to avoid conflicting legislative provisions,Â
to determine the administrations which will implement laws that are
made, and
to ensure that adequate provision is made therefor in the budgets of the
different governments.
7
5
Â
[56]     Principles of cooperative
government and intergovernmental relations are dealt with in section 41 of the
Constitution.Â
In addition to provisions setting common goals for all spheres
of government  requiring cooperation between them in mutual trust
and good
faith, including avoiding legal proceedings against one another,
7
6
section 41(1)(g) requires
that:
“All spheres
of government and all organs of state within each sphere must . . . exercise
their powers and perform their functions
in a manner that does not encroach on
the geographical, functional or institutional integrity of government in
another sphere.”
This provision reflects a
requirement of CP XXII that:
“The national
government shall not exercise its powers (exclusive or concurrent) so as to
encroach upon the geographical, functional
or institutional integrity of the
provinces.”
[57]     Section 41(1)(g) is
concerned with the way power is exercised, not with whether or not a power
exists.  That is determined
by the provisions of the Constitution.  In the
present case what is relevant is that the constitutional power to structure the
public
service vests in the national sphere of government.
[58]     Although the circumstances
in which section 41(1)(g) can be invoked to defeat the exercise of a lawful
power are not
entirely clear, the purpose of the section seems to be to prevent
one sphere of government using its powers in ways which would undermine
other
spheres of government, and prevent them from functioning effectively.
7
7
  The functional and
institutional integrity of the different spheres of government must, however,
be determined with due regard
to their place in the constitutional order, their
powers and functions under the Constitution, and the countervailing powers of
other
spheres of government.
7
8
Â
[59]     I have previously referred
to the finding made by this Court in the First Certification Judgment that the
CPs contemplated
that the national government would have powers that transcend
provincial boundaries and competences and that "legitimate provincial
autonomy does not mean that the provinces can ignore [the constitutional]
framework or demand to be insulated from the exercise of
such power".
7
9
Nor does it mean that
provinces have the right to veto national legislation with which they disagree,
or to prevent the national
sphere of government from exercising its powers in a
manner to which they object.
[60]     The Constitution provides
that provinces shall have exclusive functions as well as functions shared
concurrently with
the national legislature.  The Constitution also requires the
establishment of a single public service and gives the power to structure
that
public service to the national legislature.  This power given to the national
legislature is one which needs to be exercised
carefully in the context of the
demands of section 41(1)(g) to ensure that in exercising its power, the
national legislature does
not encroach on the ability of the provinces to carry
out the functions entrusted to them by the Constitution. Â
[61]     The Western Cape government
contends that the public service in that province functions effectively under
the existing
scheme and that there is no need for it to be reorganised in the
manner contemplated by the amendments to which it objects.  It
contends further
that the reorganisation will hamper rather than assist it in the execution of
its executive functions, and that
in all the circumstances the reorganisation
of the provincial administration of the public service in the Western Cape,
contrary
to its wishes encroaches upon its functional or institutional
integrity.
[62]     Three principal objections
are taken by the Western Cape government to the details of the new scheme.Â
First, that it
assigns functions to the provincial DGs and heads of departments
in a manner that is unacceptable to it; secondly, that it constrains
the
Premier's executive power to establish or abolish departments of government;
and thirdly, that it empowers the Minister to give
directions concerning the
transfer of certain functions to and from the provincial administration and its
departments.
The functions of the provincial
Director-General
[63]     The 1998 Amendment
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0
amends section 7 of the
1994 Act to prescribe new duties for a DG who is to be the head of the Premier’s
office.   Sections 7(3)(a)
to (d) contain the following provisions:
“(3)      (a)        Each department shall have a head of department who
as an officer shall be the incumbent of the
post on a fixed establishment
bearing the designation mentioned in the second column of Schedule 1 or 2
opposite the name of the
relevant department, or the officer who is acting in
that post.
b)                                (Subject
to the provisions of paragraphs (c) and (d), a head of department
shall be
responsible for the efficient management and administration of his or her
department, including the effective utilisation
and training of staff, the
maintenance of discipline, the promotion of sound labour relations and the
proper use and care of State
property, and he or she shall perform the
functions that may be prescribed.         Â
c)                                (In
addition to any power or duty entrusted or assigned by or under
the Act or any
other law to the head of a provincial administration, the said head shall -
                        (i)         be the Secretary to the Executive
Council of the province concerned;
                        (ii)        subject to the provisions of sections
85(2)(c) and 125(2)(e) of
the Constitution, be responsible for
intergovernmental relations between the relevant provincial administration and
other provincial
administrations as well as national departments and for the
intra-governmental co-operation between the relevant provincial administration
and its various provincial departments, including co-ordination of their
actions and legislation; and
                        (iii)       subject to the provisions of
paragraph (d), be responsible for the
giving of strategic direction on any
matter referred to in section 3(2)(a).
(d)        The head of a provincial administration shall in respect of a
provincial department exercise no power or perform
no duty which is entrusted
or assigned by or under this Act or any other law to the head of the provincial
department.
”
Sections 85(2)(c) and
125(2)(e) of the Constitution referred to in section 7(3)(c)(ii) deal with the
executive power of the President
to coordinate the functions of state departments
and administrations, and the power of a Premier to coordinate the functions of
the
provincial administration and its departments.  Section 3(2)(a) of the Act
referred to in section 7(3)(c)(iii) deals with policy
concerning the functions
and organisational arrangements of the public service and employment
practices. Â
[64]     As head of the Premier’s
office, the DG is responsible for the efficient management and administration
of that office,
and for the functions assigned to such office by the Premier,
in terms of section 3A of the Act.
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1
  In addition, the amended section
7(3) requires the provinces to appoint DGs as Secretaries to the Executive
Councils and prescribes
other duties for them, including the responsibility for
intergovernmental relations, intragovernmental cooperation, including the
coordination of the legislation and actions of the separate provincial
departments, and the giving of strategic directions concerning
policy matters.
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2
  What has to be decided
is whether national legislation can determine that the DG should perform these
functions.
[65]     There are good reasons why
there should be a functionary in the public service of each provincial
administration charged
with the responsibility of coordinating
intergovernmental relations.    Provinces are required to implement national
legislation
and in areas of concurrent competences ongoing cooperation is
clearly a necessity.
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3
Such functions are consistent with the principles of
good governance and cooperative government.  Section 41(2) of the Constitution
specifically enjoins Parliament to enact legislation that facilitates
intergovernmental relations.  The subsection provides that:
“An Act of
Parliament must -
(a)        establish or provide for structures and institutions to
promote and facilitate intergovernmental relations; and
(b)        provide for appropriate mechanisms and procedures to
facilitate settlement of intergovernmental disputes.”
[66]     The establishment of a post
within the public service for the discharge of such functions does not infringe
any provincial
power or encroach upon provincial autonomy.  The functionary is
not a representative of the national government.  He or she is
appointed by the
Premier, is required to act under the Premier’s directions and instructions,
and is answerable to the Premier
and the Executive Council of the province.Â
The same applies to the position of Secretary to the Executive Council. These
are necessary
functions which have to be assigned to a particular post in the
public service.
[67]     The crisp issue raised by
the objection to section 7(3)(c) is whether provinces can be compelled by
national legislation
to have these essential functions carried out by the DG
and not have the freedom to appoint another functionary or functionaries
to
attend to such duties. Â
[68]     If it is correct that the
structuring and functioning of the public service involves the creation of
particular posts
for the performance of particular functions, and the
determination of functions to be carried out by each post, the fact that
particular
functions are assigned to the post of DG would not be inconsistent
with the legislative competence vested in Parliament by section
197(1).
[69]     It may be argued that at the
highest sphere of the provincial administration in the public service, and in
view of the
sensitivity attaching to functions of Secretary to the Executive
Council and intergovernmental relations, the provincial government
should be
free to assign such functions to whomever it chooses, including to persons
other than the DG.  Such a contention is not
without substance, but in the
light of the provisions of section 197(1) of the Constitution, there seems to
me to be no basis on
which it can be held that the determinations made by the
1998 Amendment fall outside the scope of the legislative power conferred
upon
the national Parliament.  Nor can it be said that this encroaches on the
functional or institutional integrity of the provinces.Â
[70]       The national executive
does not determine the structure of the public service.  Under the Constitution
that is a
matter to be determined by national legislation. The executive at
national as well as the provincial sphere must comply with that
legislation,
and no member of any executive in any sphere of government can ignore it.Â
[71]     It cannot be said that the
provincial government will not be able to carry out its functions effectively
under the new
scheme.  There has been a shift of certain powers from the DG to
heads of departments, but apart from this, the structure of a provincial
administration remains substantially the same as it is under the existing
scheme.  The administration was and will be divided into
departments.  What
will change is that the heads of departments, including the DG of the Premier’s
office, will now have responsibility
for the efficient management and
administration, and certain supervisory and training functions in their
departments, whereas under
the existing scheme the DG has this responsibility
and heads of departments act under delegations from the DG.Â
[72]     In the First Certification
Judgment what this Court required as protection for the limited “autonomy” of
provinces
within the larger framework prescribed by the Constitution, was that
they should have the ability to employ the personnel in the
provincial
administrations of the public service.  The determination of posts and
functions to be performed by the personnel in
such posts, provides the
framework within which the appointments are to be made.  According to the
Constitution, as certified, that
framework must be determined by national
legislation.  One of the posts in the framework is that of DG in the Premier’s
office
who, in addition to the administration of that office, is now required
to assume responsibility as secretary to the Executive Council,
the coordinator
of intergovernmental and intragovernmental relations and other functions. These
functions are of considerable importance
and are not inconsistent with the post
of the most senior person in the administration.  The province has the
competence to appoint
the functionary who is to occupy this post, and that is
all that the Constitution requires. It cannot be said that there are not
valid
reasons for having included such functions within the duties of the DG, or that
to do so, would prevent the provincial government
from carrying out its
constitutional duties effectively.Â
[73]     The same applies to the
requirement that the DG should not exercise powers or perform duties entrusted
or assigned by
the legislative framework to heads of provincial departments.Â
That is a perfectly reasonable provision in the light of the structure
which
has now been determined, and ensures that the heads of departments take
responsibility themselves for the functions assigned
to them.  The provision
does not prevent the MECs as executing officers from giving instructions to the
heads of departments, nor
does it prevent the Premier from seeking advice from
the DG in regard to any department within the provincial administration, or
from requiring important issues arising from such reports to be referred to the
Executive Council for its consideration.Â
[74]     It follows that the
provisions of the 1998 Amendment dealing with the powers and functions of the
DG are not inconsistent
with the executive power of the province.  It has also
not been established that such provisions infringe section 41(1)(g) of the
Constitution.
Establishment and abolition of
departmentsÂ
[75]     Section 7(2) of the 1994 Act
as amended
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4
provides that the public service shall be administered in national
departments, provincial administrations, provincial departments
and
organisational components, as set out in schedules 1, 2 and 3.  Provincial
departments are dealt with in schedule 2.Â
[76]     The establishment and
abolition of provincial departments is dealt with in Section 3A(a)
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5
which provides:
“The Premier
of a province may -Â
(a)        subject to the provisions of section 7(5), establish or
abolish any department of the provincial administration
concerned.”
Â
[77]     This must be read with
section 7(5)(a)(ii)
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6
which provides:
“The President
may - at the request of the Premier of a province for the establishment or
abolition of any department of the provincial
administration concerned, or
their designation of any such department or the head thereof, amend schedule 2
by proclamation in the
gazette.”
The President is required
to amend the schedule by Proclamation
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7
to give effect to such a request if he or she “is satisfied that it is
consistent with the provisions of the Constitution or this
Act”.
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8
[78]     Whether or not a request is
consistent with the Constitution or an Act of Parliament is a question which
ultimately only
a court can decide.  Section 7(5)(b) should not be construed as
vesting such power in the President.  It should be construed, rather,
as
recognising that the President cannot be obliged to amend the schedule if it
would be unconstitutional or otherwise unlawful for
him to do so.  It must be
assumed that the Premier and the President will both act in good faith.  The
former will not ask for
an amendment which would be unlawful; the latter would
not refuse to act on a lawful request.  Disputes as to the legality of a
request are therefore likely to occur only in cases of doubt.
[79]     If the President declines a
request in circumstances when as a matter of law the request is in accordance
with the provisions
of the Constitution and the Act, there is no basis on which
the President could be “satisfied” that this is not so.  If the
President is
wrongly advised on such an issue, a decision to withhold consent would be
subject to judicial review.  Counsel on both
sides of this litigation correctly
accepted that this was so.Â
[80]     In substance, the premier
has the power to establish or abolish provincial departments.  This power is
limited only
to the extent that it must be exercised by way of a request
directed to the President.  The Premier has no right to demand that
the request
be implemented with retrospective effect, though the President may do so if he
or she considers this necessary.
8
9
  This means that the implementation of a request may
be delayed pending the President's decision. Where there is a dispute as to
legality, that dispute may have to be resolved by the courts before the
decision is implemented. Â
[81]     The constitutionality of
these provisions were challenged on the grounds that the constraints upon the
power of the premier
detracted from his or her executive authority and
constituted an invasion of the “functional or institutional integrity” of
provincial
governments.Â
[82]     The argument as to the
executive power of the Premier is no different to the argument concerning the
interpretation of
section 197 of the Constitution. The structuring and
functioning of the public service into departments is not part of the executive
power of the provinces.  It is a power vested by section 197(1) of the
Constitution in the national sphere of government.  If the
Premier had no say
in the establishment or abolition of departments it may well be that this would
infringe section 41(1)(g).  But
this is not the case.  The effective power
rests with the Premier and the constraints upon that power are of a very
limited nature.Â
The reorganisation of departments is not ordinarily an issue
which calls for immediate decision, nor, as this case exemplifies, is
it
necessarily appropriate to undertake such reorganisation until disputes as to
its legality have been resolved. Â
[83]     A procedure requiring the
President and the Premier to seek agreement concerning the legality of a
proposed restructuring
of the public service within a provincial
administration, is entirely consistent with the system of cooperative
government prescribed
by the Constitution, and cannot be said to invade either
the executive power vested in the Premier by the Constitution, or the “functional
or institutional” integrity of provincial governments.
Transfer of functions between
departments and between different spheres of government
[84]     Sections 3(3)(b) and 3A make
provision for the allocation and transfer of functions to and from departments
of government,
which by definition include provincial departments.
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0
  Section 3(b)
9
1
provides:
“The
Minister may -                            Â
(b)        after consultation with the relevant executing authority or
executing authorities, as the case may be, make determinations
regarding the allocation
of any function to, or the abolition of any function of, any department or the
transfer of any function
from one department to another or from a department to
any other body or from any other body to a department: provided that the
provisions
of this paragraph shall not be construed so as to empower the
Minister-
(i)         to allocate any function to, or abolish any function of, any
provincial administration or provincial department
except in consultation with
the Premier of the province concerned; or
(ii)        to transfer any function from one provincial administration
or provincial department to another or from a provincial
administration or
provincial department to any body established by or under any provincial law or
from any such body to a provincial
administration or provincial department.”
It was contended that this
provision infringes the executive powers of the provinces.
[85]     For reasons which are not
entirely clear, transfers of functions to and from provincial administrations
and departments
on the one hand, and national departments and other bodies not
established by or under provincial law on the other, are dealt with
differently
to transfers between provincial departments and between them and other
provincial bodies.  In respect of the latter,
the Premier has the authority to
allocate functions to a department or abolish any function of a department and
to determine whether
or not such transfers should be effected.
9
2
  But in regard to the
former, the Minister has such power, and is entitled to exercise it after
consultation with the appropriate
provincial MEC.
9
3
   The result is that the Minister
must have regard to the views of the MEC concerned, but is not bound by them,
and can direct
that such transfers take place against the wishes of the
provincial government.
9
4
Â
[86]     Sections 125(2)(b) and (c)
of the Constitution
9
5
which deal with the implementation by the provinces
of national laws, contemplate that determinations as to whether or not such a
law will be implemented by provincial governments will be made in terms of Acts
of Parliament, and not by an executive direction
from a Minister.  Moreover,
section 3(3)(b) permits the Minister to direct that the administration of
provincial laws be transferred
from a provincial department to a national
department or other body.  The vesting of such a power in the Minister, without
qualification,
would clearly infringe the executive authority of the province
to administer its own laws.Â
[87]     Counsel for the Minister
correctly did not dispute that this was so.
9
6
  He argued that section 3(3)(b)
should be construed purposively so as to avoid such a conclusion. Counsel
contended, that this could
be done by construing section 3(3)(b)(i) as applying
to transfers as well as allocations.  If subsection (i) had stood alone, the
reference in that subsection to the allocation of a function might possibly
have been construed as including an allocation made by
way of a transfer.  But
subsection (i) does not stand alone.  It must be read with subsection (ii)
which deals specifically with
transfers. The distinction between allocations
and transfers is also made in section 3A.Â
[88]     The problem lies with the
provisions of subsection (ii) and that problem cannot be solved by giving a
wide meaning to
subsection (i).  The flaw in subsection (ii) is that in dealing
with transfers it specifically limits the proviso to intraprovincial
transfers
and makes no mention of transfers between provincial spheres and national
spheres of government.  To that extent, it is
inconsistent with the
Constitution.  No reading of subsection (i) can solve that problem.  I will
deal later with the appropriate
order to be made to address this defect in the
statute.
Does the new scheme contravene
section 41 of the Constitution?
[89]     With the exception of
section 3(3)(b) which infringes the executive power and autonomy of the
provinces to the extent
referred to in paragraph 86 above, none of the other
provisions to which objection is taken can be said on their own to infringe
section 41.  What remains to be considered is whether, apart from section
3(3)(b), the new scheme as a whole can be said to infringe
the functional and
institutional integrity of the provinces. Â
[90]     The new scheme was adopted
after comprehensive investigations undertaken to determine the most appropriate
structure
for the public service in South Africa.  The Western Cape government
had the opportunity of making its views known on the relevant
issues and of
making representations concerning draft legislation.  Indeed, the 1998 Amendment
reflects changes to the original
proposals to accommodate some of the
objections raised by the Western Cape government.Â
[91]     The Western Cape government
has not been deprived of any power vested in it under the Constitution or the
Western Cape
Constitution.  The Premier of the province has the power to
appoint the members of the executive council, to determine what departments
should be established within the provincial government, to allocate functions
to departments and transfer functions from one department
to another.Â
Functionaries in the provincial administration of the public service are
appointed by the provincial government, are
answerable to it, and can be
promoted, transferred or discharged by it. The right of the Premier and
Executive Council to coordinate
the functions of the provincial administration
and its departments has been preserved. Â
[92]     Political direction and
executive responsibility for the functions of provincial governments remain
firmly in the hands
of the Premier and Executive Council.  The Executive
Council is appointed by the Premier in terms of section 42 of the Western Cape
Constitution, and in terms of section 132 of the Constitution in the case of
the other provinces which have not adopted their own
Constitutions.  The
national sphere of government has no say in such appointments.  Functions are
assigned to the Executive Council
by the Premier as required by sections 42 and
43 of the Western Cape Constitution and sections 132 and 133 of the
Constitution.Â
Members of the Executive Council appoint the functionaries to
the posts established in the public service, and are also entitled
to give
instructions necessary to ensure that provincial governmental policy is
implemented, and that the department is administered
efficiently. Â
[93]     The new scheme is rational
and it cannot be said that it has been enacted arbitrarily or for a purpose not
sanctioned
by section 197, or that it is inconsistent with the structure of
government contemplated by the Constitution.  It requires the public
service to
be organised in a particular way, making provision for proper reporting between
the public service and the executive sphere
of government, and ensuring that
the heads of departments, including the DG as head of the Premier’s office,
have clear responsibilities
both in relation to the administration of their own
offices and in reporting to the executive sphere of government.Â
[94]     In the circumstances, and
subject to what has been said concerning section 3(3)(b), the provisions of the
1998 Amendment
to which objection is taken, seen alone or cumulatively, do not
detract from the executive power of the provinces, nor do they infringe
their
functional or institutional integrity.
The order
[95]     What remains is to determine
the order to be made in the light of the finding that section 3(3)(b) is
inconsistent with
the Constitution.  The inconsistency lies in the fact that
proviso (ii), dealing with the transfer of functions, is framed too narrowly
and permits the Minister without the consent of the Premier to direct that
transfers be made from provincial administrations or provincial
departments to
national departments or bodies not established by or under provincial law, and
that transfers be made to provincial
administrations or departments from such
bodies.
[96]     Section 3(3)(b) contains
other provisions dealing with transfers between administrations in the national
sphere of government.
If it were declared to be inconsistent with the Constitution
only to the extent that it applies to directions given without the consent
of
the Premier, its other provisions would remain in force and serve an important
function.  The result of an order in such terms
would leave a workable
structure in place and enable transfers between provincial and national spheres
of government to take place
in accordance with the provisions of the
Constitution.Â
[97]     The parties were in
agreement that this was a case in which it would be appropriate to make an
order for costs, and that
the costs should follow the result.  In the
correspondence dealing with the objections to the proposed legislation the
major cause
of concern was identified as the provisions which would place
provincial departments on the same footing as national departments,
and the
consequent “unbundling” of the provincial administration.  Prior to the 1998
Amendment there were also objections to
the power vested by the draft
legislation in the President to establish and abolish provincial departments on
the advice of the Minister,
without provision being made for consultation with
the Premier.  A further objection related to the power of the Minister to
determine
the functions of the provincial departments to the exclusion of the
provincial DGs and MECs and to transfer functions between provincial
departments and between different spheres of government.  After the 1998
Amendment the focus of the dispute was in respect of the
changes affecting the
DGs and heads of departments, and the involvement of the President in the
scheduling of departments.Â
[98]     The basis for the objection
to the envisaged amendments was dealt with in the founding affidavit as
follows:
“I have been
advised that in the following respects the latest envisaged amendments to the
Act are unconstitutional and cannot bind
a provincial executive to the
implementation thereof:
98.1      The inclusion in national legislation of provisions concerning
the establishment, abolition and scheduling of provincial
departments.
98.2      The involvement of the President in the establishment,
abolition and scheduling of provincial departments.
98.3      The description, qualification and restriction of the duties of
the Directors-General of the Provincial Administrations
in relation to the
activities of the Administrations and their constituent departments.   The
Director-General is stripped of all
powers relating to personnel administration
and organisation matters in respect of provincial departments and re-deployed
as head
of the Office of the Premier.   Although the Director-General will
still be formally designated as head of the Provincial Administration,
and is
given certain tasks to perform concerning the administration as a whole, these
are of a secretarial, liaison, co-ordinating
and advisory nature, devoid of
decision-making powers.  He will be the accounting officer in respect of the
Office of the Premier,
but will relinquish accountability for the
Administration as a whole.  This will result in a serious impairment of the
exercise
of executive authority.
98.4      All attempts at regulating powers inherent in the executive
authority of the Provincial Cabinet.”
[99]     The Western Cape government
has failed on its main arguments but has succeeded in its contention that the
proviso to
section 3(3)(b) is not wide enough to protect its legitimate
interests.  This was not highlighted as an issue in the correspondence
and
negotiations that took place concerning the 1998 Amendment.  If this had been
the only issue between the parties, and it had
been raised pertinently prior to
the commencement of the proceedings, it might well have been resolved without
litigation.  Neither
party can be said to have been entirely successful, and in
the circumstances it seems to me that it would be appropriate to make
no order
as to costs.Â
[100]   The following order is made:
1.                     Section
3(3)(b) of the Public Service Act, 1994, as amended by
section 2(b)
of the
Public Service Laws Amendment Act, 1998
, is declared to be inconsistent with
the Constitution and invalid to the extent that it empowers the Minister,
without the consent
of the Premier concerned, to make determinations regarding
the transfer of functions of a provincial administration or a provincial
department to a national department or any body not established by or under a
provincial law, or the transfer of functions to a provincial
administration or
a provincial department from a national department or any such body.
2.         Save as set out in paragraph 1 of this order, the applicant's
claims are dismissed.
3.          No order is made as to costs. Â
Langa DP, Ackermann J,
Goldstone J, Kriegler J, Madala J, Mokgoro J, O’Regan J, Sachs J and Yacoob J
concur in the judgment of Chaskalson
P.
For the Applicant:                                                     JC
Heunis
SC and AM Breytenbach instructed by Marais Muller Inc.
For the Respondents:                                                KS
Tip SC and NJ
Motata instructed by The State Attorney (Johannesburg).
1
         Â
Act 103
of 1994.
[1811] EngR 362
;
2
         Â
Act 86
of 1998.
3
         Â
Act 47
of 1997.
4
         Â
Act 46
of 1997.
5
         Â
Constitution
of the Republic of South Africa, 1996.
6
         Â
Section 167(4)(a)
of the Constitution provides:
                “Only
the Constitutional Court may -
a)                                             decide
disputes between organs of state
in the national or provincial sphere
concerning the constitutional status, powers or functions of any of those
organs of state.”
7
         Â
Section
1(1) of the 1994 Act.
8
         Â
Section
7(3)(b) of the 1994 Act.
9
         Â
Sections 1(a) and (f) and 4(a) of the 1998 Amendment Act.  (New sections 1 and
7(2) of the 1994 Act).
10
        Â
Sections 4(a)-(d) of the 1998
Amendment Act.  (New section 7(2) - (4) of the 1994 Act).Â
11
        Â
Section 4(c) of the 1998 Amendment
Act.  (New section 7(3)(c) read with schedule 1 of the 1994 Act).
12
        Â
Section 1(b) read with section 4(b)
of the 1998 Amendment Act.  (New section 1(f) read with section 7(3)(a) of the
1994 Act).
13
        Â
Section 4(d)(ii) of the 1998
Amendment Act.  (New section 7(5) of the 1994 Act).
14
        Â
Section 2(b) of the 1998 Amendment
Act.  (New section 3(b) of the 1994 Act).
15
        Â
Paras
49-62.Â
16
        Â
Ex parte Chairperson of
the Constitutional Assembly: In Re Certification of the Constitution of the
Republic of South Africa,
[1996] ZACC 26
;
1996
  1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC).
17
        Â
Ex
parte Chairperson of  the Constitutional Assembly:
In
Re Certification of the Amended Text of the Constitution of Republic of South
Africa,
[1996] ZACC 24
;
1996
  1997 (2) SA 97
(CC);
1997 (1) BCLR 1
(CC).
18
        Â
Act 200
of 1993.
19
        Â
Set out
in schedule 4 to the interim Constitution.
20
        Â
Chapter
10 is dealt with in paras 273 - 278 of the judgment.
21
        Â
Paras 183
- 198 of the judgment.
22
        Â
At para 43.
23
        Â
See
Proclamation 103 of 1994 published in
Government Gazette
15791 of 3 June
1994.
24
        Â
See
Proclamation 105 of 1994, Proclamation 134 of 1994, Proclamation R171 of 1994,
Proclamation R175 of 1994,
Intelligence Services Act 38 of 1994
,
Public Service
Amendment Act 13 of 1996
,
Public Service Second Amendment Act 67 of 1996
,
Proclamation 82 of 1998.
25
        Â
Section
212.
26
        Â
Section
209.
27
        Â
The
Western Cape government established such a commission.
28
        Â
Section
213.
29
        Â
Section
212(1).
30
        Â
Section
212(2).
31
        Â
Section
212(4).
32
        Â
Section
210(3)
and
section 213(2)
of the interim Constitution.
33
        Â
Section
196(1).
34
        Â
Section
196(7).
35
        Â
Section
196(4) (a) and (b).
36
        Â
Section
196(6).
37
        Â
Section
196(4)(f).
38
        Â
Section 196(4)(d).
39
        Â
See para
5 above.
40
        Â
See paras
63-83 below.
41
        Â
Para 259 of the First Certification
Judgment.
42
        Â
Para 278 of the First Certification
Judgment.
43
        Â
Para 390, First Certification
Judgment.
44
        Â
Para 453, First Certification
Judgment.
45
        Â
Para 454, First Certification
Judgment.
46
        Â
Section
125(2)(a), (b) and (c).
47
        Â
Section
125(6)(a).
48
        Â
Section
125(6)(b).
49
        Â
Section
35(3).
50
        Â
Section 214(1)
requires national legislation to set a framework for the equitable division of
revenue raised nationally.
51
        Â
Section
215 requires national legislation to prescribe the form in which national,
provincial and municipal budgets must be prepared,
when they are to be tabled
and how they are to be presented.
52
        Â
Section
216 requires national legislation to prescribe accounting practices, uniform
expenditure classifications, and uniform treasury
norms and standards to be
applied by the national and provincial spheres of government.
53
        Â
Section
217 requires national legislation to prescribe a framework applicable at
national and provincial spheres of government, for
a fair procurement system.
54
        Â
Section
218.
55
        Â
Section
219.
56
        Â
See the
discussion of the legislative framework  in paragraph 293 of the First
Certification Judgment where details of such matters
are set out.
57
        Â
See paras
259-260 and paras 293-4.
58
        Â
Section 195(2)(a).
59
        Â
Section 44(1)(g) provides:
“All spheres of
government and all organs of state within each sphere must exercise their
powers and perform their functions in
a manner that does not encroach on the
geographical, functional or institutional integrity of government in another
sphere.”
60
        Â
Section
1.
61
        Â
See para
43 above.
62
        Â
National
and provincial legislatures have concurrent powers in respect of the 33
functional areas referred to in schedule 4.  These
includes matters as
important to day-to-day living as education at all but tertiary level, the
environment, health services, housing,
industrial promotion, public transport,
trade, urban and rural development and welfare services.  The manner in which
conflicts
between national and provincial laws are to be resolved is not
relevant to this judgment.  It is dealt with in sections 146 to 150
of the
Constitution.
63
        Â
Section
125(2)(a), (b) and (c).
64
        Â
Section
156.
65
        Â
National
legislative competences are referred to in section 155(1), (2), (3) and (4).Â
Provincial legislatures have competence in
respect of the matters referred to
in section 155(5) and (6).Â
66
        Â
Section
155(7).
67
        Â
Section
44(1)(a)(ii).
68
        Â
Id.
69
        Â
In terms of section
44(2) the purposes are:
“to maintain
national security; to maintain economic unity; to maintain essential national
standards; to establish minimum standards
required for the rendering of
services; or to prevent unreasonable action taken by a province which is
prejudicial to the interests
of another province or to the country as a whole.”
70
        Â
Above para
51.
71
        Â
Section
100.
72
        Â
Id
.
73
        Â
This is
also reflected in section 154(1) of the Constitution which requires the
national and provincial governments to support and
strengthen the capacity of
municipalities, and section 125(3) which requires the national government to
assist provinces to develop
their administrative capacity.
74
        Â
Section
41(3) and (4).
75
        Â
In re:
The National Education Policy Bill No. 83 of
[1996] ZACC 3
;
1995
,
1996 (3) SA 289
(CC);
1996 (4) BCLR 518
CC.
76
        Â
Section
41(1)(h)(iv).  Section 41 goes on to provide:
“(2)         An Act of Parliament must 
(a)           establish or provide for structures and
institutions to promote and facilitate intergovernmental relations;
and
(b)           provide for appropriate mechanisms and
procedures to facilitate settlement of intergovernmental disputes.
(3)           An organ of state involved in an
intergovernmental dispute must make every reasonable effort to settle the
dispute by means of mechanisms and procedures provided for that purpose, and
must exhaust all other remedies before it approaches
a court to resolve the
dispute.”
Matters such as the
present, which are essentially administrative and political in nature, lend
themselves to good faith negotiations,
using if necessary, the machinery
contemplated by section 41.  The courts would then serve as a last resort in
the event of the
machinery failing.  Parliament, however, has not as yet passed
the necessary legislation, and in the present case it was not suggested
that
the Western Cape government had not attempted to resolve the dispute before
resorting to litigation.
77
        Â
See CP
XXII referred to in para 56 above.
78
        Â
See paras
32 and 36 above.
79
        Â
See para
32 above.
80
        Â
Section
4(c).
81
        Â
The
provisions of Section 3A are referred to in para 76 below.
82
        Â
Section
7(3)(c).
83
        Â
In re:
The National Education Policy Bill No. 83 of 1995
,
above n 75.
84
        Â
Section 4
of the 1998 Amendment introduced provincial departments into the structure.Â
85
        Â
Section
3A was introduced by section 3 of the 1998 Amendment.
86
        Â
Introduced
by section 4(d) of the 1998 Amendment.
87
        Â
It was not contended that this power
is inconsistent with the Constitution on any of the grounds referred to in the
judgment of this
Court in
Executive Council of the Western Cape Legislature
v President of the RSA
[1995] ZACC 8
;
1995 (4) SA 877
(CC);
1995 (10) BCLR 1289.
88
        Â
Section 7(5)(b) of the Act as
amended.
89
        Â
Section
7(5)(a).
90
        Â
Section
1.  A new definition of department was introduced by Section 1(a) of the 1998
Amendment.
91
        Â
Section
3(b) was introduced by section 2(b) of the 1998 Amendment.
92
        Â
Section
3A(b).
93
        Â
Section
3(b).
94
        Â
Section 233(3) of
the interim Constitution provided:
“Where in this Constitution any functionary is required to take a
decision in consultation with another functionary, such decision
shall require
the concurrence of such other functionary: Provided that if such other
functionary is a body of persons it shall express
its concurrence in accordance
with its own decision-making procedures.”Â
Section 233(4) of the interim Constitution provided: Â
“Where in this Constitution any functionary is required to take a
decision after consulting with another functionary, such decision
shall be
taken in good faith after consulting and giving serious consideration to the
views of such other functionary.”Â
Although there are no comparable provisions in the 1996
Constitution, it was correctly accepted by counsel in the present case that
the
distinction between “in consultation with” and “after consultation with” is
that the former calls for concurrence, whilst
the latter does not.
95
        Â
“The Premier
exercises the executive authority, together with the other members of the
Executive Council, by 
(a)           ....
(b)           implementing all national legislation
within the functional areas listed in Schedule 4 or 5 except where the
Constitution or an Act of Parliament provides otherwise;
(c)           administering in the province, national legislation
outside the functional areas listed in Schedules 4 and
5, the administration of
which has been assigned to the provincial executive in terms of an Act of
Parliament;
”
96
        Â
This is
so whether the legislation was based on section 197(1) or the plenary powers
contained in  section 44.  In view of counsel’s
concession, this aspect was not
canvassed during argument.