Co-operative government can be traced back to the German Bundestreue concept, which entails a set of written principles on which relationships between national and regional government are based. The German Constitutional Court ensured that different parts of the German federation act in good faith and mutual trust. It implied that national and sub-national jurisdictions have certain political and legal obligations to support and consult one another on matters of common interest, to co-operate and maintain friendly relations (Edwards, 2008).
Chapter Three, Section 40 of the Constitution of the Republic of South Africa (Act 108 of 1996) outlines the three spheres of government: national, provincial and local. Co- operative governance means that the three spheres of government should work together (co-operate) to provide citizens with a comprehensive package of services. The nature of the relations between the different spheres of government is reflected in Section 40 (1) of the Constitution (1996), which states that the three spheres of government are
“distinctive, interdependent and interrelated”.
48 2.4.1 DISTINCTIVE
Distinctiveness means that the Constitution allocates certain functions and powers to each sphere, which then has final decision-making powers on those matters. The IGR Report (1999) explains distinctiveness as the degree of legislative and executive autonomy entrenched by the Constitution. The spheres of government are distinguished from each other by their power to make and execute laws. Malan and Mathebula (2002) maintain that the distinctiveness of the various spheres of government refers to the degree to which each sphere is autonomous in the legislative and executive sense.
Section 41 (1) (e) of the Constitution dictates that there should be respect for the constitutional status of institutions and the powers and functions of government in other spheres of governance. This suggests that each sphere of government has its own status with a clear mandate. Hence Section 41 (f) adds that spheres must not assume any power or function except those conferred on it in terms of the Constitution. Further to this, Section 41 (e) notes that the spheres must exercise their powers and functions in a manner that does not encroach on the geographical, functional or institutional integrity of government in another sphere. Finally, Section 41 (g) spells out the manner in which this is to be achieved, which is co-operation in mutual trust and good faith.
2.4.2 INTERDEPENDENT
Levy and Tapscott (2001) note that the interdependence of the spheres of government refers to the degree to which one sphere depends on another for the proper fulfilment of its constitutional functions and obligations. The interdependence of spheres emphasises
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the co-relationship between national, provincial and local government and may include aspects such as the duty of the spheres to empower one another, as well as monitoring or intervening in the activities of the dependent sphere. The interdependence of government spheres is reflected in Section 41 (h) of the Constitution which states that if the goals of the nation are to be achieved, the three spheres of government must co- operate with one another through mutual trust and good faith by fostering friendly relations; assisting and supporting one another; informing one another of and consulting one another on matters of common interest; co-ordinating their actions and legislation;
adhering to agreed procedures; and avoiding legal proceedings against one another.
No sphere can operate in isolation; all spheres are inter-reliant, mutually dependent and supportive of one another, especially in terms of capacity support for provincial and local government. The spheres should be closely supervised and monitored to ensure that national objectives are met through effective oversight by the appropriate institutions. Malan (2005) adds that the notion of interrelatedness is therefore about co- operation through joint planning, fostering friendly relations and avoiding conflict.
2.4.3 INTERRELATED
Interrelatedness is reflected in Section 49 (a) of the Constitution, which submits that spheres must preserve the peace, national unity and indivisibility of the Republic through the provision of effective, transparent, accountable and coherent government for the Republic as a whole. Interrelatedness means that the spheres are parts of a holistic system of government and that through these interrelated spheres, a solid and unified government can evolve (Edwards, 2008).This implies that the spheres are
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crucial parts that collectively form the government of the country. If they are parts of a whole, then for the whole to function effectively as required, the parts must relate amicably. Levy and Tapscott (2001) emphasise that the decision to describe the different spheres of government as spheres rather than tiers was a conscious attempt to move away from the notion of hierarchy with its connotations of subordination.
In this regard the White Paper on Local Government (1998) points out that co-operative government assumes the integrity of each sphere of government but also recognises the complex nature of government in modern society. Layman (2003) alludes to the fact that for the government to implement its national priorities and effectively deal with socio-economic challenges such as poverty alleviation, job creation and enhanced service delivery, all spheres of government are required to work together in partnership.
The Constitution states that the three spheres should assist and support one another, share information and co-ordinate their efforts. Malan and Mathebula (2002) define co- operative government as a partnership characterised by national unity, peace, co- operation and co-ordination, effective communication and an infinite conflict-avoidance attitude.
The different spheres of government depend on one another for support in policy, programme and project implementation and regular communication. In many development projects, more than one sphere of government may be involved in implementation. Where necessary, the different spheres may enter into an implementation protocol that describes the role and responsibilities of each organ of
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state. The three spheres may also outline priorities and desired outcomes, and provide for monitoring, evaluation, resource allocation and dispute settlement procedures.
For example, when a municipality proposes the development of a new township in its Integrated Development Plan (IDP), health and education services have to be provided by national government, and funds for housing development have to be transferred from national to provincial government, from where they go to the housing developers approved by the municipality.
Provincial and local government are spheres of government in their own right, and are not a function or administrative implementing arm of national or provincial government.
This implies that the three spheres of government have original powers which are derived from the Constitution, and no sphere of government is subordinate to the other sphere. The IGR Audit Report (1999) explains that in a sphered type of government, organs of state are not subject to one another in any way, and any relationship can only be a product of their joint endeavours, where joint action must be characterised by consensus.
Each sphere of government has distinctive legislative and executive competencies. For example in the national government, legislative authority is vested in the National Assembly and the National Council of Provinces, and executive authority is vested in the Cabinet. At the provincial government level, legislative authority is vested in the nine Provincial Legislatures. Executive authority is vested in the Premier. In 2003 the Municipal Demarcation Board proclaimed 284 municipalities across the country. These are the forms of government closest to the communities and their legislative and
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executive authority is vested in Municipal Councils (Section 151 (1&2) of the Constitution, 1996).