The new constitutional dispensation: what type of system?

ABSTRACT

The Constitution is a product of negotiation and compromise. This is a consequence of the nature of the transition (no single victor) and a divided society. Part of the compromise concerns the creation of a new system of provincial government. The provinces’ legislative, executive and financial powers are explained. The precise format of the final dispensation cannot be predicted now, but the basic constitutional framework is known. Some asymmetry may result with respect to the provinces. The constitutional and political reconstruction of South Africa has also not been completed (the final national constitution and 9 provincial constitutions still have to be written). The new political ball game will however take place in terms of the rules drafted at Kempton Park. This includes the provinces. A general concept such as “provincial comity” may be applied as the doctrinal basis for reconciling central and provincial issues. The sovereignty of parliament has been replaced by a supreme and justiciable Constitution. Provincial/central disputes are now justiciable. It is also a value‐oriented document — resulting in new approaches to interpretation. The new Constitutional Court will be of particular importance. The further reconstruction of South Africa requires a game plan and a contract. Peace and stability will depend on the honouring of the contract — together with addressing socio‐economic problems.