DA’s provincial powers bill is not only unconstitutional, but seeks to win support for a separate, apartheid Western Cape.
When considering any proposed new law, it is critical to try and understand the underling intention. Law is not neutral – it seeks to advance a particular policy and achieve a certain outcome.
As a minimum, however, the proposed law (bill) must be in line with the Constitution of our country.
The DA’s Provincial Powers Bill, in terms of all three legal opinions from within the Western Cape Legislatures, is unconstitutional. It has never happened before that a bill declared unconstitutional by the legal advisers of the legislature, has been introduced.
Despite this, the DA led ad-hoc committee has resolved to continue with public hearings starting at the end of the January. This is not only wasteful expenditure but in our view against the Public Finance Management Act.
Should these public hearings proceed, it is the DA Speaker of the Legislature , Daylin Mitchell, who will be accused number one. Second in the dock will be DA MPLs Christopher Fry and Isaac Seleku, chairpersons of the standing committee and ad-hoc committee, respectively. They will be held financially liable for this unauthorised expenditure.
Why then is the DA so desperate to introduce this bill? What is the underlying intent?
In essence this is motivated by the DA’s deep concern that they are losing support to the Freedom Front Plus and those groupings who want the Western Cape to break away from South Africa and establish an independent Volkstaat.
The DA’s “devolution” is the more palatable word for secession.
The DA knew that the Freedom Front was going to introduce a private member's bill calling for secession, so they hastily put together a DA study group to draft this bill and bring it to the legislature as a “committee” bill.
So, the intention here is for the DA to try and appease the right wing and stop the bleeding of support. There are no principles here. It is naked political expediency at the taxpayer's expense. In addition, it seeks to prove the DA's “federalist” credentials to those in the “Moonshot Pact”.
This is what the provincial legislature legal advisers had to say about the bill introduced by the DA committee chair.
Advocate Maasdorp said: “It is observed that not a single clause (of the proposed bill) discloses a legal or constitutional basis on which any of the attendant provisions are based“, and “It is observed that section 104(5) of the Constitution already provides that a provincial legislature may recommend legislation… concerning any matter outside the authority of that legislature”, and lastly “This, it is submitted, reduces the bill to a mere verbose statement of intent.”
Advocate Le Roux said: “The subject matter of the Powers Bill is not in the legislative competence of the province”, and “The province cannot make a law on the subject matter of the Powers Bill.”
When the members of the ad-hoc committee met (after referral by the Standing Committee on the Premier), the DA chairperson refused to allow members of the committee to discuss these legal opinions! This is unprecedented and against the provisions of the rules with establish the right of freedom of speech.
The bill reads like a DA pamphlet. It has no chance of ever becoming law.
Our Constitution lays out clearly the powers and functions of the three spheres of government. The reality is that the DA provincial government is failing to use the powers that it has. We have seen the inequality in basic education deepen in the province.
The Western Cape is now number three when it comes to matric results. There is clear evidence which shows the failure to appoint sufficient maths and science teachers to public schools located in historically disadvantaged schools.
When it comes to health, another function the province has, the DA closed down Conradie Hospital. A promise was made to rebuild another hospital. Ten years later, nothing has happened.
The DA’s bill will not change the lived reality of the majority in our province. That reality is: Lack of basic service delivery (water, sanitation, roads, infrastructure) on the Cape Flats and in rural towns; ongoing horror of gangsterism, drugs and extortion; gender-based violence.
Only 3% of agricultural land in the Western Cape is owned by black farmers (African, Coloured, and Indian).
Electricity provided by the City is costing more than Eskom-provided power in the City.
The DA’s “not so hidden agenda” is to mobilise and build alliances with fellow right-wing, racist, anti-democratic elements who long for the days of white supremacy and a playground of the wealthy and the elite.
The South African Constitution provides for a clear mechanism (section 99) whereby a member of Cabinet can assign a function to a provincial MEC or Municipal Council. The DA Premier Alan Winde has never submitted a formal request in terms of this provision to the Cabinet.
The ANC calls on the people of the Western Cape to reject this bill. We will write to the Speaker pointing out the breaches of rules of the legislature regarding this unlawfully introduced committee bill.
We will also write to the national Treasury about this breach of the Public Finance Management Act, and also to the Auditor-General requesting an investigation into wasteful expenditure.
It is important that we attend these public hearings on the bill and make our voices heard. We are a united country. Provinces and municipalities have powers set out in the Constitution. There are provisions calling for co-operative governance and managing intergovernmental disputes.
The people of the Western Cape will benefit more from a co-operative approach with national government.
Let us work tirelessly for a united, non-racial, non- sexist and prosperous Western Cape that is proud to be part of a united South Africa.
* Cameron Dugmore is the ANC leader of the Opposition in the Provincial Legislature.
** The views expressed here are not necessarily those of Independent Media.
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