The Cape Navigator

Seaside Community Newspaper

Western Cape

Cape Forum’s Constitutional Challenge Places Pressure on Parliament for Provincial Referendums

Michael Hawthorne

WESTERN CAPE – In a significant legal development, Cape Forum’s Constitutional Court application seeking clarity on the power of premiers to call provincial referendums has intensified pressure on Parliament to enact appropriate legislation for the conduct of such referenda. The organization initially approached the court in May 2023 to resolve the ambiguity surrounding the legal authority of premiers in this matter.

The crux of the issue lies in section 127(1)(f) of the 1996 Constitution, which grants premiers the authority to call for referendums but stipulates that it must be under national legislation. The existing “national legislation,” encompassing the Electoral Commission Act of 1996 and the Referendums Act of 1983, focuses solely on mechanisms for the President to initiate a national referendum. This discrepancy prompted Cape Forum to challenge the constitutionality of the Referendums Act and call on Parliament to enact legislation aligning with section 127 of the Constitution.

In their application, Cape Forum listed various respondents, including the Premier of the Western Cape, President of South Africa, Chairperson of the National Council of Provinces, Speaker of the National Assembly, Electoral Commission, Minister of Home Affairs, and premiers of the other eight provinces.

The Constitutional Court has granted the joinder application of the eight premiers, recognizing their “sufficient interest in the matter to justify their joinder.” The court deems the case as one falling within its exclusive jurisdiction and direct access, emphasizing its significance “both in regard to [the Court’s] exclusive jurisdiction and direct access [to the Court] and in regard to the merits.”

Despite the court’s acknowledgement of the urgency and importance of the matter, it has decided not to proceed with Cape Forum’s application at this time. This decision aligns with the current status of the Electoral Commission Amendment Bill, which is pending before Parliament. The bill, introduced by DA MP Annelie Lotriet as a private member’s bill last June, addresses Parliament’s failure to enact legislation empowering premiers to call referenda, as required by the Constitution.

The court’s order stipulates that Cape Forum “will be entitled to apply for appropriate relief if the said Bill is not enacted within a reasonable time or is enacted in a form that is alleged to be inconsistent with the Constitution.”

Hein Wyngaard, Executive Chairperson of Cape Forum, expressed optimism about the court’s recognition of the issue. He emphasized the importance of civil rights organizations ensuring that residents have the opportunity to express their support through provincial referendums. Wyngaard pledged to closely monitor the parliamentary legislative process, in collaboration with other organizations and political stakeholders, to ensure adherence to the Constitutional Court’s order.

“As South Africa celebrates three decades of democracy, citizens must insist on being granted all constitutionally enshrined rights,” Wyngaard stated, highlighting the pivotal role of the Constitutional Court in shaping the future of democratic processes in the country.


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