THE 3 ARMS OF GOVERNMENT
The Republic of South Africa is a constitutional democracy with a three-tier system of government and an independent judiciary, operating in a nearly unique system that combines aspects of parliamentary and presidential systems. Legislative authority is held by the Parliament of South Africa. Executive authority is vested in the President of South Africa, who is head of state and head of government, and his Cabinet. The president is elected from the Parliament to serve a fixed term. South Africa’s government differs greatly from those of other Commonwealth nations. The national, provincial and local levels of government all have legislative and executive authority in their own spheres, and are defined in the South African Constitution as “distinctive, interdependent and interrelated”.
Operating at both national and provincial levels are advisory bodies drawn from South Africa’s traditional leaders. It is a stated intention in the Constitution that the country be run on a system of co-operative governance.
The government is undertaken by three inter-connected arms of government:
Legislature: The National Assembly and the National Council of Provinces
Executive: The President, who is both Head of State and Head of Government
Judiciary: The Constitutional Court, the Supreme Court of Appeal, and the High Court
All bodies of the South African government are subject to the rule of the Constitution, which is the supreme law in South Africa
PARLIAMENT (NATIONAL LEGISLATURE)
The legislature makes the rules, and supervises the acrafts of the other two governments with permission to changing the laws when appropriate. The bicameral Parliament of South Africa consists of the National Assembly (four-hundred seats; members are selected by a popular vote under a system of proportional representation to serve 5-year terms) and the National Council of Provinces (90 seats, 10 members elected by each of the nine Provincial Legislatures for five-year terms). The National Assembly is elected using a Proportional Representation system with regional multi member constituencies (MMCs) and one national MMC. Parties put up open lists for either both parts of the system or for the regional MMCs only. Half of the members of the National Assembly are chosen from nationwide party lists, the other from party lists for each province.
The National Parliament is tasked to make laws that apply to the whole country, and it is able to make laws dealing with any area that has not been assigned exclusively to the provinces under Schedule 5 of the Constitution.
The National Parliament is made up of two “Houses,” which are known as the “National Assembly” and the “National Council of Provinces” (NCOP). The NCOP was established in the new Constitution to allow provinces to have a direct input in all matters of national concern, and particularly those matters which affect the provinces. The National Council of Provinces is discussed further elsewhere.
The representatives in the National Parliament are called Members of Parliament (MPs). At the national level, there are 400 MPs in the National Assembly, and the NCOP is made up of ten delegates from each province. The National Assembly and the NCOP are collectively called the Houses of Parliament. The person who the presiding officer in the National Assembly or in the North West Provincial Legislature, and who is in charge of the proceedings, is known as the Speaker.
Following the implementation of the new constitution on 3 February 1997 the National Council of Provinces replaced the former Senate of South Africa with essentially no change in membership and party affiliations, although the new institution’s responsibilities have been changed; with the body now having special powers to protect regional interests, including the safeguarding of cultural and linguistic traditions among ethnic minorities. In ordinary legislation, the two chambers have coordinate powers, but all proposals for appropriating revenue or imposing taxes must be introduced in the National Assembly.
The elected representatives of the people, either the MPs or the Members of the North West Provincial Legislature (MPLs), make up the Parliament or the Legislature, respectively. The party that wins the most votes obtains the most seats in the Parliament or legislature, and becomes the “majority party”. The party majority party gets the chance to govern the country or the province for a period of five years.
At the national level, the majority party elects the President, who then appoints Cabinet Ministers from the MPs of the majority party to form the national government.
The parties other than the majority party who have been elected to the Parliament or Legislature are collectively known as the “opposition”, and the opposition party which has won the greatest number of seats is known as the “official opposition” party. The leader of the “official opposition” party is called the “leader of the opposition”. Opposition parties play a vital role in a democracy, which is to ensure that the government does not abuse its position of power in any way, to raise issues, and to express alternative points of view on matters before the
Under the prevailing Westminster system, the leader of the political party or coalition of parties that wins a majority of the seats in the National Assembly is named President. The President and the Ministers are responsible to the Parliament, of which they must be elected members. General elections are held at least once every five years. The voter has one vote only for the National Assembly. The last general election was held the 22nd April 2009.
The second arm of government is the President, Deputy President and the Ministers who make up the executive branch of the South African state. Ministers are Members of Parliament who hold a ministerial warrant to perform certain functions of government.
At the national level, the head of the Executive is the President, who is assisted by the Executive Deputy President. The President is assisted by the Cabinet Ministers. Each Cabinet Minister is given responsibility for a particular government department, and they are answerable to the Parliament for the operation of their department. For example, the Minister of Education heads the National Department of Education, and is answerable to Parliament for the operation of the Department of Education. The President and the Cabinet Ministers are called the “Executive”, because they are responsible for “executing” the laws made by Parliament.
The third arm of the central government is an independent judiciary. The Judiciary interprets the laws, using as a basis the laws as enacted and explanatory statements made in the Legislature during the enactment. The legal system is based on Roman-Dutch law and English common law and accepts compulsory ICJ jurisdiction, with reservations. The constitution’s bill of rights provides for due process including the right to a fair, public trial within a reasonable time of being charged and the right to appeal to a higher court. To achieve this, there are three major tiers of courts:
Magistrates Courts – The court where civil cases involving less than R100 000, and cases involving minor crimes, are heard.
High Courts – The court of appeal for cases from the magistrates courts, as well as the court where major civil and criminal cases are first heard.
Supreme Court – The final court of appeal for matters not pertaining to the constitution.
Constitutional Court – The final court of appeal for matters related to the constitution
In addition provision is made in the constitution for other courts established by or recognised in terms of an Act of Parliament.
The Constitutional Court has exclusive jurisdiction over certain types of matters, in terms of section 167 of the Constitution. The Constitutional Court alone may decide on the following matters:
(a) 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;
(b) the constitutionality of any parliamentary or provincial bill;
(c) applications made by MPs or MPLs regarding the constitutionality of national legislation or a provincial act;
(d) the constitutionality of any amendment to the Constitution;
(e) whether Parliament or the President has failed to fulfill a constitutional obligation; or
(f) certify a provincial constitution.
A High court may decide any constitutional matter, except a matter over which the Constitutional Court has exclusive jurisdiction or a matter assigned by an Act of Parliament to another court of a status to that of the High Court.
The Supreme Court of Appeal may decide appeals in constitutional matters. It is the highest court of appeal in non-constitutional matters.
The Supreme Court of Appeal, a High Court, or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President. However, an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court
3 ARMS OF GOVERNMENT IN THE PROVINCES
The 3 arms of government in the provinces are run along the same lines as those on a national level. There is the legislative, the executive and the judiciary. The legislative arm in the provinces is called the Provincial Legislature.
In South Africa, the Provincial Legislature of a province is the legislative branch of the government of that province. The Provincial Legislatures are unicameral and vary in size from 30 to 80 members depending on the population of the province. In general the Provincial Legislature is made up of only one “House”. MPLs are elected for five years, just as the MPs in Parliament are. At the provincial level, the Premier heads the “executive”. The Premier appoints MPLs from the majority party to be Members of the Executive Council (MECs), and the Premier and the MECs form the “government”.
In addition to the above “Houses”, the new Constitution allows for the formation of additional Houses of traditional leaders, both on a national and provincial level, who may play a role at a local level on matters affecting local communities.
The North West Provincial Legislature currently has 33 MPLs and is situated in Mmabatho, the capital of the North West Province. Currently, there are 25 MPLs for the African National Congress, 3 MPLs for the Democratic Alliance (DA) – official opposition, and 2 MPLs for Congress of the People (COPE) and 2 MPLs for the United Christian Democratic Party (UCDP).
NORTH WEST PROVINCIAL LEGISLATURE
In the North West the Legislature has 33 seats. The Presiding officers in the North West Provincial Legislature are the Speaker, the Honourable Nono Maloyi, the Deputy Speaker, the Honourable Veronica Kekesi and the Chair of Chairs, the Honourable Raymond Elisha.
The current North West Provincial Legislature was established by the 1993 Interim Constitution of South Africa upon the creation of the new nine provinces. The 1993 Constitution came into effect (and the provinces came into existence) on 27 April 1994; the election on the same day elected the first PROVINCIAL Legislatures. For the most part, the PROVINCIAL Legislatures have been controlled by the African National Congress. The exceptions are the KwaZulu-Natal Legislature, which was controlled by the Inkatha Freedom Party from 1994 to 2004; and the Western Cape Provincial Parliament, which was controlled by the (New) National Party from 1994 to 2004 (sometimes in coalition with the Democratic Party) and since 2009 has been controlled by the Democratic Alliance.
HOW ARE MPLS ELECTED?
The Members of the North West Provincial Legislature (MPLs) are elected by party-list proportional representation with a closed list, using the largest remainder method with the Droop quota to allocate any surplus. Elections are run by the Independent Electoral Commission, and are held every five years, simultaneously with the elections to the National Assembly. Elections have been held in 1994, 1999, 2004 and 2009.
WHAT ARE THE POWERS OF THE LEGISLATURE?
The legislature has the power to pass legislation in various fields enumerated in the national constitution; in some fields the legislative power is shared with the National Parliament, while in others it is reserved to the province. The fields include such matters as health, education (except universities), agriculture, housing, environmental protection, and development planning. In fields outside the power of the North West Provincial Legislature, it may recommend legislation to the National Assembly.
The North West Provincial Legislature may also enact a constitution for that province, if two-thirds of the members vote in favour. The powers of the North West Provincial Legislature are bound only by the national constitution and the provincial constitution (if one exists). There is no provincial Constitution in the North West so it is bound by the national Constitution.
The second arm of government, te executive, in the province is headed by the Premier is usually appointed by the President. He/She is supported by ten MECs, each of whom is responsible for a particular provincial department, and is answerable to the Legislature for the functions of that department and they are collectively called EXCO which comprises 10 MECs (Members of the Executive Council) who are each responsible for a provincial department. Certain bills and competencies may only be passed by Parliament and the ministries e.g. money bills and justice.
The function of the Executive is to put the laws made by the Legislature into effect, and to ensure that they are implemented. The Executive must make sure that all of the necessary support systems and structures are in place so that the law can be implemented (for example, to ensure that there are enough schools built, and supplies provided to the schools, so that education can be provided to learners). The Executive is really responsible for running the country or province on a practical level. This is done through the government departments, which is also called the Public Administration or the Public Service.
The legislature can force the Premier to resign by passing a motion of no confidence, or remove them for misconduct or inability. Although the Executive Council (cabinet) is chosen by the Premier, the legislature may pass a motion of no confidence to force the Premier to reconstitute the Council.
A North West Provincial Legislature also appoints that province’s delegates to the National Council of Provinces, allocating delegates to parties in proportion to the number of seats each party holds in the legislature.
The provincial judiciary operates in much the same way as the national judiciary. The judiciary is the branch of government that deals with the administration of justice. The judiciary is responsible for ensuring that the law is upheld, interpreting the law, applying the law to specific cases, and that those citizens who have broken the laws are punished. The courts, the judges and the magistrates comprise the judiciary.
The judicial system is made up of five categories of courts:
• The Constitutional Court, which is the highest court of appeal in constitutional cases. It may also, on rare occasions, act as the court of first instance (where the case is first heard in court) in constitutional cases. It does not have jurisdiction to hear cases which do not involve a constitutional issue.
• The Supreme Court of Appeal is the highest court of appeal in non-constitutional cases. It can also hear appeals in constitutional cases, but the Court’s decision in constitutional matters potentially may be further appealed to the Constitutional Court.
• The High Courts are courts of first instance in certain matters, and they may also act as courts of appeal for magistrates’ courts decisions. An appeal of a decision of a single judge of the High Court potentially also might be appealed to a full bench of the High Court, comprised of three judges.
• Magistrates’ Courts
• Any other court established or recognised in terms of an Act of Parliament. This includes courts similar in status to High Courts or Magistrates’ Courts. Examples include the Labour Court and the Land Claims Court.