OP-ED: ‘Western’ Cape: Stop Asking, Start Asserting

The Western Cape Government and the South African Government do not share a vision of how South Africa should be run. To the contrary, each represents a fundamentally different ideology, each of which has been emphatically endorsed by their respective electorates.

The South African Government, still dominated by the ANC, is determined to concentrate and centralise power in the state. As it does so, it progressively enacts its ‘National Democratic Revolution (NDR)’. Over the last three decades, it has used its control of the Judicial Services Commission (JSC) to load the Constitutional Court with ideologically aligned judges, it has introduced and continually strengthened race-based policies to pursue its goal of demographic representivity (as opposed to merit), it has weakened property rights, it has effectively merged party and state through the policy of cadre deployment, and it has maintained state monopolies and enterprises regardless of its appalling record at running them. Currently, it is strengthening its grip on schools and hospitals, with pensions and generational wealth next on the agenda.

The ANC is keeping its junior GNU partners in line with the threat that should they leave the government, they will simply be replaced by the EFF and MK parties who will then essentially pursue the same policies, just far more radically.

The Western Cape Government, which has been dominated by the DA for the last 16 years, wants to decentralise power and believes in the principle of subsidiarity - devolving power to the lowest practical level. It opposes race-based policy and the principle of demographic representivity, favouring merit. It believes the party and state must be kept separate. It opposes loss making state monopolies and envisages a far greater role for the private sector. Property rights, law and order, and an independent judiciary are essential tenets of its ideology. 

It might not be popular, or even politically correct, but I am going to call these values what they are, ‘Western’. 

The key question for the ‘Western’ Cape Government and the people it represents is, is there any reasonable prospect of this status quo changing in the foreseeable future? 

The answer is, only for the worse.

‍Western values facing defeat‍

The 2024 elections confirmed what we should already have known, there is no possible prospect of a government espousing western values coming to power in South Africa. Even when all of the western leaning opposition parties agreed to put aside their differences and to work together, they could barely muster 30% of the vote. Instead of removing the ANC which was their primary objective, they ended up actively facilitating its return to power.

Worse still, ANC national policy is systematically and irreparably changing the demographics of the Western Cape in a manner which will inevitably result in the eventual demise of the DA-led government and the defeat of Western values. The PIE Act has enabled approximately one million migrants to illegally set up home in the Western Cape, whilst race-based policy has encouraged them to do so.

In a Constitutional Court judgment, Judge Nugent wrote, “I see no rationality in restricting almost half the population of the Western Cape to 8.8% of employment opportunities ….. in the Western Cape nine of each 100 opportunities are made accessible to some 2.8 million Coloured people while 1.9 million Black African people have access to 73.”

In 2024, according to Gareth van Onselen’s research, only 4% of black voters voted DA, whilst research by the Social Research Foundation (SRF) found that provincial migrants from the Eastern Cape were actively voting to remove the DA (and with it, Western values). 

The Western Cape Government is thus faced with an existential choice. It has by default become the primary guardian of Western values in South Africa, and its response will determine whether South Africa’s Western populations retains a foothold in government and with it, some control over their own destiny. Its opponents have firmly nailed their colours to the mast. The Western Cape must be subservient to the central government and enact the will of the national majority regardless of the wishes of the Western Cape majority.

To date, the Western Cape Government has pursued a policy of supplication which has not only failed to bear any significant fruit, but has also helped neutralise the only viable alternative by creating the impression that an amiable compromise is possible to deliver when it is not. 

Central control is the core tenet of ANC ideology. The Constitutional status quo grants it to them. The DA-led Western Cape Government’s supplication strategy is based upon the national government voluntarily seceding power to them over key areas of government, something which is an anathema to the ANC. The DA believe they can reason their way to success. The stark evidence of 16 years in power clearly demonstrates their error.

If the Western Cape Government wants the additional powers which will allow it to enact the democratic will of the Western Cape people, then it is going to have to take them without the consent of the ANC.

‍Self-determination the solution‍

The legal means by which to do so was placed on the table in 2023, the Western Cape Peoples Bill.

The Western Cape Peoples Bill is the silver bullet that solves all of the Western Cape Government’s jurisdictional problems and turns the constitutional tables on the ANC. 

So far, the DA has refused to support the Bill, but with each successive skirmish that the Western Cape Government loses to the National Government, the foolishness of this decision becomes increasingly apparent. 

The ANC’s argument is simple. The Constitution assigns the powers you wish to assume to the national government, which we control. If you want this to change, you must either get elected as the national government (not going to happen), or change the constitution which requires our consent (not going to happen). 

The WC Peoples Bill broadens the scope of the legal argument, and in doing so, fundamentally changes its dynamics.  

Most legal experts will quickly tell you that the Constitution is the supreme law of the Republic (and it is), but asking whether South Africa can opt out of international law often causes them discomfort. The answer is also unequivocally, No.

Thereafter, the potential for conflict between the two becomes apparent. On the rare occasions when Constitutional Courts have been called to adjudicate between the two, they have trodden extremely carefully, often being at great pains to emphasise that they were not denying rights derived under international law.

Self-determination is a jus cogens right of international law, and one that South Africa has explicitly and repeatedly sworn to uphold. It is a right to which all peoples, without exception, are entitled. This includes the Western Cape people, whose existence is recorded in the Western Cape Constitution. 

The right of self-determination has been relatively well defined in international law. It means that peoples should be in control of their own destiny, that they should be able to pursue their own policies including on the economy and social development, and that they can potentially do so through regional autonomy, federalism, or sovereign independence.

This presents a gilt-edged opportunity to the Western Cape Government. Assert your right to self-determination, which cannot be denied, clearly state the policies which you wish to pursue based upon your democratic mandate from the Western Cape people, and insist upon the national government upholding your right and honouring your wishes. 

This single action will turn the South African constitutional order on its head, and effectively deliver instant federalism, which is supposedly a DA policy.

‍Western Cape’s smoking gun‍

Should the ANC-led national government resist, the Western Cape will have a number of options. It can pursue legal remedies through the international courts, just as South Africa itself is currently doing, or it can simply act unilaterally as the City of Cape Town has already done on electricity. It will have a firm legal basis from which to do so.

Western Cape Premier Alan Winde can only moan for so long. He believes the Western Cape people are being underfunded, under-educated, under-employed, and under-policed. He believes that national government policy is the root cause of these problems, and he has a clear mandate to pursue alternative policies. His policy of asking has comprehensively failed. It is time for him to start asserting the Western Cape people’s rights.

Ironically, the Western Cape Provincial Parliament’s legal advisor has handed him a smoking gun. In his legal opinion on the Western Cape Peoples Bill, Adv. André le Roux informed the Western Cape Parliament that it can record its desire for self-determination by simply passing a resolution saying so.

What possible reason could there be for not pursuing this course of action?

This article was first published on Politicsweb: https://www.politicsweb.co.za/opinion/western-cape-stop-asking-start-asserting

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