Institutional subsidiarity in the South African constitution

Abstract

This article attempted to clarify the role played by section 156(4) of the Constitution by tracing some of the origins and manifestations of the principle of subsidiarity, on which this provision is modelled. It was argued that, although modelled on it, section 156(4) is different from the classic manifestation of subsidiarity, which would have established a principled and automatic bias for local government that only gives way to a reasoned argument in favour of other spheres of government. Section 156(4) works the other way around. It establishes a preference and not an automatic bias for local government. This preference must be substantiated with an argument that the assignment of the power to local government is functional in that it enables such government to achieve its developmental objects. It was further argued that section 156(4) of the Constitution may not be easily enforced separately by the courts, in part because of the deference shown by the courts to political decisions surrounding the configuration of the state. However, the experience of judicial enforcement of the subsidiarity principle in Germany may offer some guidance in this respect. The principle of subsidiarity should play a guiding role in lawmaking and the interpretation of competencies by the courts. A brief review of legislation and court judgments surrounding, for example, local government's role in land use management, indicates that the principle is not given nearly the recognition it deserves.