I was surprised to read Martin van Staden’s strained interpretation of the Constitution (‘Constitution is clear: Alan Winde can call a referendum in the Western Cape’) in support of Cape separatism last Thursday.
Van Staden adopts an approach to interpretation that the Constitutional Court has, rightly, often been castigated for: outcome-based reasoning. So badly does he want a legal justification for the secessionist cause that he jettisons all of the canons of legal interpretation in his crusade (hardly the hallmark of someone who is only “agnostic” about, or even “sympathetic” to, the cause).
The truth, as I will demonstrate presently, is that the Democratic Alliance is right to seek an amendment of national legislation before attempting to call for a provincial referendum on Cape independence, however ill-fated.
Van Staden begins with a reading of section 127(2)(f) of the Constitution, which vests in Premiers the power to call for a provincial referendum ‘in accordance with national legislation’. This national legislation, he says, is the Referendums Act of 1983. The Referendums Act in section 2(1)(a) and (b) empowers “the State President” to declare a referendum and to determine where in the country such referendum is to take place. In other words, to decide whether it will be a national or provincial referendum.
That a Premier is not the successor in title to the State President is of no moment, Van Staden says. Instead, the correct interpretation of the Referendums Act involves a reading of section 147(2)(f) of the interim Constitution together with item 3(2)(b) of Schedule 6 to the 1996 Constitution. Such a reading, we are told, can only yield an interpretation in terms of which the Premier of the Western Cape (and presumably any other province) can call for a provincial referendum without the President’s involvement.
Van Staden’s argument rests on faulty premises. The first is his reading of item 3(2)(b) of Schedule 6 of the 1994 Constitution. Curiously, or maybe not so curiously, he omits part of the provision from his quotation, in order to make his interpretation more plausible. It reads, in full:
“Unless inconsistent with the context or clearly inappropriate, a reference in any remaining old order legislation to a State President, Chief Minister, Administrator or other chief executive, Cabinet, Ministers’ Council or executive council of the Republic or of a homeland, must be construed as a reference to—
(i) the President under the new Constitution, if the administration of that legislation has been allocated or assigned in terms of the previous Constitution or this Schedule to the national executive; or
(ii) the Premier of a province under the new Constitution, if the administration of that legislation has been allocated or assigned in terms of the previous Constitution or this Schedule to a provincial executive”.
Clearly, when the provision is read in full, a reference to the “State President” cannot be so readily read as a reference to the Premier of a province because the equivalent of such an office – the “Administrator” – is referenced, as is the Bantustan equivalent of “Chief Minister”. The upshot of item 3(2)(b)(ii) is that only if the administration of particular legislation was assigned in terms of the interim Constitution or Schedule 6 to a province can we read “State President” as a reference to the Premier of a province. But because his reading of the Referendums Act relies on the State President being substitutable for a Premier, Van Staden misses this detail.
Van Staden’s next move is to read section 147(2)(f) of the interim Constitution as empowering a Premier to call for ‘referenda and plebiscites in terms of this Constitution or a provincial law’ and thus, as satisfying the requirement in item 3(2)(b)(ii) of Schedule 6 that the administration of the legislation must either be allocated or assigned by the interim Constitution or Schedule 6 to a province. One problem here is that the interim Constitution sets out how the administration of legislation could be assigned to a province.
Section 235(8) of the interim Constitution provided that:
“The President may, and shall if so requested by the Premier of a province, and provided the province has the administrative capacity to exercise and perform the powers and functions in question, by proclamation in the Gazette assign, within the framework of section 126, the administration of a law referred to in subsection (6)(b) to a competent authority within the jurisdiction of the government of a province, either generally or to the extent specified in the proclamation.”
Section 235(6)(b) in turn provided that all laws that fell within the scope of the legislative competence of a province under Schedule 6 of the interim Constitution – which does not include elections or referenda – would continue to be administered by the national government until they were assigned to a province, or if the administration of that law had previously been assigned to a province, shall continue to be administered by that province. All other laws would continue to be administered by the national government in terms of section 235(6)(a).
Van Staden also curiously neglects to address section 82(1)(j) of the interim Constitution, which empowered the President to “proclaim referenda and plebiscites in accordance with this Constitution or an Act of Parliament”. That Act of Parliament? The Referendums Act.
The upshot of these provisions is that the Referendums Act, being national legislation under the administration of the State President, continued to be administered by the President post-1994 because it was never assigned to any province in terms of the provisions of section 235(8) of the interim Constitution.
Since section 127(2)(f) of the 1996 Constitution requires the power of a Premier to call referenda to be exercised ‘in accordance with national legislation’ in circumstances were said legislation does not empower the Premier to invoke any of its provisions, the only way such a Premier can exercise the powers in the Referendums Act if is the administration of that Act is assigned by the President to the province concerned. That is the only way in which Van Staden’s resort to item 3(2)(b) of Schedule 6 can work.
If this sounds unnecessarily complicated it is because Van Staden has attempted to bring back from the dead provisions of the interim Constitution and attempted to cross-read them into the 1996 Constitution and the Referendums Act, for the sole purpose of giving ostensible intellectual heft to Cape separatism. Ultimately, this attempt at legal necromancy is not only mistaken but also hopelessly moot.
THE DA’S BILL
Although he bemoans the DA’s legal advisors as being too ‘establishment minded’, Van Staden would have benefitted a whole lot from reading the DA’s Electoral Commission Amendment Bill. The Bills seeks to amend the Electoral Commission Act, 1996, as well as to repeal the Referendums Act. And quite rightly so.
For one thing, the Referendums Act is not the legislation referred to in section 127(1)(f) of the 1996 Constitution, as Van Staden contends. Instead, the Electoral Commission Act is. Section 2(2) of the latter Act, empowers the President “notwithstanding anything to the contrary in any other law contained” to, after consultation with the Electoral Commission, proclaim a referendum, determine whether it shall be national or provincial, determine the dates, times, who will be entitled to vote in such a referendum and the question to be put to the voters in such a referendum.
In other words, the Electoral Commission Act covers the entire scope of law previously covered by the Referendums Act. While the Act itself does not explicitly repeal the Referendums Act, Van Staden will no doubt be familiar with the doctrine of implied repeal expressed by the maxim lex posterior derogat [legi] priori (a later statute abrogates an earlier one). The only requirement being that the provisions of the earlier statute must be wholly irreconcilable with the later statute. This is plainly the case with the provisions of the Referendums Act, which vested incredibly wide powers in the State President over matters which now fall within the exclusive jurisdiction of the Electoral Commission.
In sum, the Electoral Commission Act itself does not make provision for the declaration of a referendum by a Premier and the DA seeks to fix that. Without national legislation governing provincial referendums, the section 127(2)(f) power is not exercisable independently of the President’s power under section 2(2) of the Electoral Commission Act to declare a referendum ‘in any part of the Republic’.
Once we eschew Van Staden’s outcome-based reasoning for ideological ends, we are better able to see that what is clear is that the DA is completely correct to seek an amendment of the Electoral Commission Act to enable Premiers to call for referenda unmoored from the President, and that even if, by the dark magic of legal necromancy, one were able to resurrect provisions of the interim Constitution and the Referendums Act, Premier Winde would still not be able call for a provincial referendum without the approval of the President.
Van Staden would do well to embrace more ‘establishment mindedness’. That is where all of the reasonable people are.