The DA and ANC are both South African political parties that have both played a part in a continuous cycle of rivalry. The tension between the two parties was once again revived when the ANC put forth the suggestion of changing the governance in the City of Cape Town in 2000, which translated to altering the DA’s influence and involvement in matters concerning the City of Cape Town.

The principles of cooperative governance as outlined in Chapter 3 of the Constitution, 1996

According to the Republic of South Africa’s Constitution (1996), (1) All spheres of government and all organs of state within each sphere must – 

1. preserve the peace, national unity and he individuality of the Republic;
2. secure the well-being of the people of the Republic;
3. provide effective, transparent, accountable and coherent government for the Republic as a whole;
4. be loyal to the Constitution, the Republic and its people;
5. respect the constitutional status, institutions, powers and functions of government in the other spheres;
6. not assume any power or function except those conferred on them in terms of the Constitution
7. exercise their powers and perform their functions in a manner that does not encroach on the geographical, functional or institutional integrity of government in another sphere; and
8. cooperate with one another in mutual trust and good faith by –
9. fostering friendly relations;

(ii) assisting and supporting one another;

(iii) informing one another of, and consulting one another on, matters of common interest;

(iv) coordinating their actions and legislation with one another;

(v) adhering to agreed procedures; and

(vi) avoiding legal proceedings against one another.

(2) An Act of Parliament must –

(a) establish or provide for structures and institutions to promote and facilitate intergovernmental relations; and

(b) provide for appropriate mechanisms and procedures to facilitate settlement of intergovernmental disputes

(3) An organ of state involved in an intergovernmental dispute must make every reasonable effort to settle the dispute by means of mechanisms and procedures provided for that purpose, and must exhaust all other remedies before it approaches a court to resolve the dispute.

(4) If a court is not satisfied that the requirements of subsection (3) have been met, it may refer a dispute back to the organs of state involved.

The underlying values presented by “Ubuntu” & “Batho Pele”

Ubuntu can be defined within two contexts, the first being in an intergovernmental relations context, which translates to the responsibility of the various organs of the State to respect each other and work together towards a mutual objective. The second is in the context of the Constitutional Court, which it is considered to be a term that summarizes traditional values of the African society such as collectivism, human cohesion and reciprocated respect.

Batho Pele can be described as a governance viewpoint implemented by government that encourages the principle of “people first” as the motivation of all governmental action.

Analysis of the dispute resolution mechanisms as it appears in the Intergovernmental Relations Framework Act, 13 of 2005

Step 1: Obligation to avoid intergovernmental disputes

Intergovernmental disputes can be avoided between the various organs of state exerting their authority by remaining in the set framework functions that have been established and assigned to these organs. In the case of an intergovernmental dispute occurring, effort must be made by all groups involved to resolve the disagreement without the assistance of judicial services. In addition, all formal agreements that are made among the various organs of state in different governments regarding the management of the exercise of legal powers, performances or purposes must be complemented by dispute resolution procedures that are context specific regarding the type of agreement and possible difficulties that could manifest.

Step 2: Announcing disputes as formal intergovernmental disputes

Prior to this declaration, it must be taken into consideration whether or not all possible effort was made in order to resolve the disagreement without having to utilize the judicial system. If the party in question feels that these efforts have been made and have proven to be ineffective, the declaring party must notify the other party/parties of this event in writing.

Step 3: Implications of declaring formal intergovernmental disputes

A gathering must be organised among the parties involved in the dispute so that the problems that need to be addressed can be identified and the nature of the dispute can be determined. Consideration of all possible means, excluding judicial proceedings, of solving the problems at hand must be made. Thereafter, an applicable resolution method must be agreed upon as well as an individual who will serve as the facilitator. If the chosen resolution method includes a prior formal agreement between the parties or concerns other legislation, that method must be utilised to the best of the parties’ abilities. 

How these mechanisms assisted in resolving disputes

These mechanisms assist in resolving disputes because they opt for processes that stay exclude the public sphere (for example, the media). This makes it easier for the parties involved to resolve disagreements, because no external pressure or influence is present. The mechanisms that are used also encourage cooperation as well as attentive listening and comprehending, which can result in the more functional and understanding relationships between the various parties involved. Choosing to adopt these mechanisms also encompasses one of democracy’s main principles: free will. Parties are in a position to solve their own problems and come to their own conclusions rather than having a resolution appointed to the issue. Without the input of the parties that are directly associated with the dispute, there will be no true understanding of the problem and the incorrect resolution method could be chosen that could result more problems to arising.

The constitutional framework that underpins the Intergovernmental Relations Framework Act, (IGR), 13 of 2005

According to Malan (2014), intergovernmental relations can be defined as the set of numerous formal and informal processes, structures and institutional provisions that ensures multidimensional interaction within and between spheres or levels of government. The purpose of the Intergovernmental Relations Framework Act, (IGR), 13 of 2005 is to provide a framework the national government and provincial and local governments along with all organs of the state within those governments so as to aid co-ordination concerning the application of policy and legislation. In Chapter 3 of the Constitution, 1996, an appropriate description of the various spheres of government as well as a definition of the nature of cooperative governance is given. According to Malan (2014), cooperative governance is the collaboration of the 3 spheres of government that requires each government to fulfill their duties. In Chapter 3 of the Constitution, the nature of cooperative governance is given as the parameters within which spheres are obligated to exercise their powers and perform their functions. Chapter 3 of the Constitution, 1996, underpins the Intergovernmental Relations Framework Act, 13 of 2005 because it establishes that cooperation between the spheres of government is necessary for the intergovernmental relations to become a reality and therefore can be seen as the foundation on which the act is built on.

The different stages in the dispute resolution process and the steps that characterise each of these stages as it is documented in this case study

The nature of the dispute was characterised by a change in governance in the City of Cape Town. After the contrasting arguments between the ANC and DA had become an apparent issue, negotiations started to take place between the two parties, with Minister Mufamadi as intermediary. They followed the requirements set out in the IGR Framework Act since there were no other resolution mechanisms that were set in place prior to this dispute. These negotiations proved to be ineffective and poorly executed. Eventually, a consensus was made between the two parties, in which the ANC would dissolve their proposal for a change of governance in Cape Town. Mayor Helen Zille of the DA did manage to classify this dispute formally, but the matter was resolved before judicial proceedings took place.

Comparison of these stages and the steps that are written in Chapter 3 of Public Management and Administration: A Developmental Perspective

Step 1: Determine the nature of the dispute

Decide whether the dispute meets the criteria to be classified as an intergovernmental dispute

Step 2: Negotiate

Discuss, either directly or indirectly, through a mediator 

Step 3: Declare a dispute

If all sensible efforts have been made to resolve the difference through negotiations 

Step 4: Organize a meeting

Soon after the declaration has been made, all parties involved in the dispute must organize a meeting.

Step 5: Isolate the dispute and identify any existing dispute resolution mechanisms

At the meeting, parties must cooperatively determine the nature of the disagreement, the specific issue and any other material problems that are not directly involved in the dispute.

Step 6: Appoint a facilitator and determine their role

The facilitator, who needs to be appointed according to the IRFA, must assist in resolving the conflict through dispute clarification as well as providing mediation, conciliation or arbitration. The facilitator is responsible for presenting an initial report to the Minister accountable for cooperative governance.   

Step 7: Participate in good faith in the dispute resolution process

Parties should put meaningful and useful effort into being prepared, having authority to settle and properly considering offers as well as making them.

Step 8: Ask for assistance of Minister or Member of the Executive Council

This step can be used if there are any problems with access to specific documents or if expert advice is needed.

Step 9: Implement and monitor the agreement/going to court

If no consensus is reached, judicial proceedings may follow. Otherwise, parties must monitor the successes and failures of the agreement.

For the most part, the steps that had to be followed were indeed followed, but the quality of effort that took place concerning informal negotiations was poor. This is evident in the refusal from both the ANC and DA to consult on at least two occasions. Furthermore, the fact that a formal dispute was declared so early on is an indication that there was no real incentive to resolve the conflict in a reasonable manner and this undermines the IGR Framework Act to an extent.

Because the IGR Framework Act is a new process that still needs to be extensively tested in reality, it is understandable to the steps and guidelines outlined in the act were not precisely followed. Although, it can also be argued that there was no real attempt to test the effectiveness of the act because of the effort, or lack thereof, that was invested in investigating the act’s usefulness and applicability. 

REFERENCE LIST:

Constitution see South Africa

South Africa.  1996. Constitution of the Republic of South Africa.

Intergovernmental Dispute Resolution in Focus: The Cape Storm

Malan, L.  2014. The Intergovernmental Structure of the State: National, Regional and Local.  (In Paulse, T., ed.Public Administration & Management in South Africa: A Developmental Perspective.  South Africa: Sage.  p. 54-72)

South Africa.  2005. Intergovernmental Relations Framework Act 13 of 2005.