The Free Market Foundation warned that an attempt to reduce the number of provinces to six, as suggested by the ANC, would be an affront to democracy. File picture: Sizwe Ndingane

Johannesburg - The Free Market Foundation (FMF) on Thursday warned that any attempt to reduce the number of provinces from nine to six, as suggested by the African National Congress (ANC), would be against the law and an affront to democracy.

The ANC first mooted the reduction of the number of provinces in 2007. At the party policy conference last month the ruling party reiterated its intention and called for a presidential commission to be set up carry out related work before its elective conference in December. 

Reacting to the ANC suggestion, FMF said it was fortunate "our constitution and the rule of law do not make abusing the levers of power that easy".
 
In a statement, FMF legal researcher, Martin van Staden, said: "It would be unfair to the ANC to imply that this is simply corruption and cheap gerrymandering to avoid losing Gauteng in 2019, as this policy was adopted back in 2007 before the Western Cape fell into the Democratic Alliance’s hands."

"But the ANC, the oldest and perhaps most experienced democratic political party on the African continent, must surely be aware that wanting to reduce the number of provinces and thereby rob the official opposition of its democratic mandate in the Western Cape, would be perceived as an outright attack on our constitutional democracy."
 
The FMF said a postulate of the constitutional principle of the rule of law is that "the law and policy must be certain and predictable" insofar as it is practically possible. 

"With the electoral – indeed, political – uncertainty currently facing South Africa, it would be reckless to fiddle with the configuration of provinces or municipalities at this stage in our history. This conduct invites uncertainty and unpredictability and is thus arguably a violation of the Rule of Law and thus the constitution," said Van Staden. 

For the government to decrease the number of provinces, it would need to amend the constitution. 

"Section 74(3)(ii) provides that two-thirds of the National Assembly and six provinces in the National Council of Provinces must approve alterations to 'provincial boundaries, powers, functions or institutions'; and section 74(8) provides that the provincial legislatures in question will need to approve such alterations," asserted Van Staden. 

He said if the ANC was "truly concerned about a concentration of resources” at provincial level while service delivery ordinarily happens at local government level, more appropriate action might be to ensure efficiency. 

"But the real burdensome ‘middleman’ in this relationship is not the provinces, but the national government, which is the furthest away from the people. Centralisation of power in fewer locales and, at worst, at the national level, does nothing but chip away at real democracy," said Van Staden.

"It assumes all South Africans are alike, live under the same circumstances, and thus have to be governed in the exact same way. While the rule of law does demand equal application of the law, this does not mean all law needs to be the same everywhere. 
 
"Which laws work best under which circumstances can only be determined if South Africa embraces the cooperative federal model as envisioned by the constitution. This would be radical transformation indeed."

African News Agency