Two breakaway bills have been tabled in the Western Cape legislature, both designed to insulate the province’s residents from the national government failures that are plaguing the rest of the country.
The first, introduced in May, is the Western Cape Provincial Powers Bill. Tabled by the DA, which holds an outright majority in the legislature, it instructs the provincial government to pursue autonomy by actively seeking the devolution of additional powers from the national government.
Soon after that bill was introduced, the Freedom Front Plus (FF Plus) tabled the Western Cape Peoples Bill. It affirms that a Western Cape “people” exist as a distinct entity, and formally claims the right to self-determination on their behalf. It’s a right, the bill states, that is affirmed in the constitution and which the country is obliged by international law to grant.
All indications are that the FF Plus is going to vote for both its own and the DA’s bill, while the DA intends to vote in favour of its own bill but against the other one.
The ANC’s Cameron Dugmore, leader of the provincial opposition, has scorned the DA’s bill, saying: “They are clearly trying to usurp the powers and functions of the national government via the back door.”
Likewise, DA deputy provincial leader JP Smith has dismissed the bill of the FF Plus as reflecting “a racial, nationalist view of self-determination” and seeking to turn the Western Cape into an “updated version of the Volkstaat”.
Neither of these views is correct.
Most of what the DA claims the bill may or will do therefore depends on the national minister delegating some or all of these powers to the province — a rather unlikely possibility at this stage
— Pierre de Vos
The Provincial Powers Bill
This bill is a push for the devolution of greater provincial powers in the areas where the DA believes the national government is failing to fulfil its constitutional obligations to the province: policing, energy, trade and ports, and public transport.
The constitution allocates certain powers to each sphere of government — national, provincial and local — with many areas of overlap, including trade, policing and public transport. The first purpose of the bill is to ensure that wherever there is overlap, the province uses any powers it has to the fullest extent possible.
“The bill creates a framework for the province to assert its existing constitutional and legislative powers fully and to get more powers delegated from national government,” explains DA federal leader John Steenhuisen.
“It not only enables, but instructs the provincial government to step in, as far as constitutionally possible, where the national government is failing to perform a function.”
However, Prof Pierre de Vos, who holds a chair in constitutional governance at the University of Cape Town, is fairly dismissive of the bill, saying: “It doesn’t do much at all. It reads more like a policy declaration or a declaration of intent than a law.”
He explains that section 99 of the constitution makes it clear that the assignment of powers must be done by the national government; a province or local authority has no right to do it.
“Most of what the DA claims the bill may or will do therefore depends on the national minister delegating some or all of these powers to the province — a rather unlikely possibility at this stage,” says De Vos.
So, the ANC’s claim that the DA is trying “to usurp” power through the bill is patently false.
So far, the national government has repeatedly refused to devolve additional powers to the province. National police minister Bheki Cele has, for instance, said provincial premier Alan Winde would get additional policing powers only over his dead body.
So it is hard to see what the DA can hope to achieve with the bill — other than score a few political points — as long as the ANC holds the majority in the national legislature.
Two breakaway bills have set the cat among the pigeons in the Western Cape legislature
— What it means:
But Christopher Fry, the DA chair of the provincial standing committee on premier and constitutional matters, says the bill “is definitely not a political gimmick, grandstanding or point scoring. It’s an attempt to bring service delivery, jobs, safety, and wellbeing to the people of the Western Cape.”
Likewise, Steenhuisen sees the bill as “a key step to protecting South African citizens from a failing state”. And the most powerful way to do that, he says, is for capable provincial and local governments to carry out the functions that the national government is failing on, to the fullest extent possible under the constitution.
But the Western Cape is doing that already. Policing is a prime example. The DA believes the South African Police Service in the province is wilfully understaffed. Unable to get more policing resources or powers from the national government, and prohibited from creating its own police force, the province has given more than R1bn over the past few years to the City of Cape Town to train more than 1,100 metropolitan police officers.
Through this joint law enforcement advancement plan (Leap) the province has been able to bring down its year-on-year murder rate by 14%, even as the national figure has gone up.
In the case of passenger rail, too, the metro and the Western Cape government have been pushing for devolved powers. Since the Covid pandemic, when the state cancelled rail security contracts, informal settlements have sprung up across railway lines, paralysing the system.
The national government has finally said a devolution strategy will be gazetted this financial year to enable metros to run passenger rail. But the matter is urgent, as bus and taxi fares are much more expensive than rail tickets. Cape Town’s Rail Feasibility Study has found that an efficient passenger rail service will save lower-income households up to R932m a year.
Steenhuisen has warned the nation about a 2024 doomsday. Proposing a 10- to 15-year plan of creeping federalism to solve a problem which arrives in one year is foolhardy in the extreme
— Phil Craig
The Western Cape Peoples Bill
This bill is an unapologetic push by the Cape Independence Advocacy Group (CIAG) to claim what it sees as the Western Cape people’s constitutional right to self-determination.
CIAG co-founder Phil Craig, who conceived the bill and led the legal team that wrote it, is annoyed by Smith’s “dishonest” characterisation of the bill as an expression of “racial nationalism”. He argues that the bill doesn’t seek to create a racial or ethnic identity for the province; it wants the Western Cape to be governed differently, regardless of its citizens’ race, language or culture.
The bill affirms that the Western Cape people meet the criteria under international law to be described as a distinct people — not on the grounds of language, race, or culture but because the province has distinctly different ideological values to the rest of the country, as evidenced by election results since 1994.
In short, it wants ideological self-determination for the province, not language or cultural self-determination.
The bill asserts that this right to self-determination is enshrined in the constitution and backed by several international treaties that South Africa has ratified. This entitles the Western Cape people to make decisions for themselves, including on how they wish to exercise this right — whether through the DA’s devolution-of-powers approach, by boldly asserting their federal autonomy, or by claiming outright independence.
The latter option is something Craig sees only as “an absolute last resort” — but he is unimpressed by the devolution-of-powers approach, as it depends on the goodwill of the national government and so falls short of constitutional federalism, under which those powers would be assigned by right.
If any bill is exploiting a constitutional back door, it is the Peoples Bill. It does so using international law and, if it succeeds, would open a path to federal autonomy for the Western Cape. However, with the DA refusing to vote for the bill, it would appear to be dead in the water.
The CIAG initially wanted the DA to table the Peoples Bill, but despite working on it together for months through the multiparty Western Cape Devolution Working Group, the two sides just couldn’t agree on the wording.
Craig believes the DA finds the bill “too radical” and is likely afraid of alienating its voters in the rest of the country by being seen to be carving out a special enclave in the Western Cape.
Eventually, he says, the CIAG and the FF Plus, which supported the bill from the outset, agreed that the FF Plus would table it. In response, the DA hastily drew up the politically safer Provincial Powers Bill. But to independence advocates like Craig this is a cop out.
“Steenhuisen has warned the nation about a 2024 doomsday,” he says. “Proposing a 10- to 15-year plan of creeping federalism to solve a problem which arrives in one year is foolhardy in the extreme. The Western Cape Peoples Bill will protect the province from that doomsday.”
But the DA believes the Peoples Bill is based on “a narrow political ideology that just won’t work and isn’t constitutionally sound”, according to Fry. “We’re not about self-determination and secession. We don’t want to create another state or a state-within-a-state. We want powers [to be devolved].”
If the DA votes against the Peoples Bill and refuses to hold a provincial referendum on Cape independence, Craig says the CIAG will encourage people to vote for a party other than the DA in the 2024 elections.
He still holds out hope that the public participation process, which is open until August 7, will influence the DA to support the bill. But that is likely to be one moonshot too far for Steenhuisen.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.