Why provincial Intra-governmental disputes in South Africa remain ungoverned by the final constitution and the Intergovernmental Relations Framework Act
Stu Woolman notes that for almost a decade government actors and academics have bemoaned a gaping hole in our law: the Final Constitution promised that Parliament would establish a legal regime to mediate and to resolve intergovernmental conflicts. Parliament ultimately produced this super-ordinate legislation in 2005: the Intergovernmental Relations Framework Act. This Act defines intergovernmental relations as “relationships that arise between different governments or between organs of state from different governments in the conduct of their affairs.”
However, the Act is silent as to the problem of how cooperation between provincial departments within any given province should be regulated. The Final Constitution’s provisions on cooperative government are likewise mute regarding the regulation of these “horizontal intra-governmental relations”. The unspoken understanding would appear to be that all provincial departments are mere manifestations of the provincial Premier’s executive authority. However, that understanding still leaves a significant gap in South African law: how are disputes between provincial departments to be avoided, and, if incapable of avoidance, resolved? The author concludes that every provincial Premier has an array of tools at his or her disposal to prevent and resolve such conflicts. Agreements between departments can be crafted in a manner that permits third parties to determine whether the provincial departments in question have discharged their duties. Such intra-governmental agreements are, however, only as good as the penalties that are in place for non-compliance.