The Constitutional Court of South Africa: Reinforcing an hourglass system of multi-level government

Abstract

“The supremacy of the constitution and the rule of law” are two foundational values of South Africa’s 1996 Constitution (s. 1(c)). An independent judiciary is thus set to play a major role in interpreting and enforcing the Constitution. With some significant federal elements in the Constitution, such as establishing provincial and local orders of government, the courts, with the Constitutional Court at the apex, are bound to give shape and texture to this system of government. Since 1995, the Constitutional Court as well as the Supreme Court of Appeal and High Court have asserted the supremacy of the Constitution and the separation of powers, establishing a jurisprudence that gives effect to the principle of limited government. However, in interpreting the federal arrangements, the Constitutional Court has not given full effect to the self-rule elements of provincial government. Instead, it has more often enforced local government’s constitutional “right to govern, on its own initiative, the local government affairs of its community” (s. 151(3)). Furthermore, while soft on the substantive content of provincial self-rule, it has scrupulously policed compliance with the procedural rules of intergovernmental relations. The Court’s jurisprudence has given further credence to the hourglass model of multi-level government; provinces are squeezed thin from the top by a dominant national government and from below by powerful metropolitan governments.