Cape Independence: A Legal Question of Constitutional Compatibility

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Cape Independence Table Mountain

The question of Cape independence, as agitated for by entities such as the Cape Party (among others), is a longed-for dream for some and a potential nightmare for others. Either way, independence needs to be feasible from several perspectives if it is to have a chance of success. Principally, it must be legally possible, and that is the question explored here. The concept of secession as a legal question exists at both a domestic and an international level, and it is arguable that secession is indeed legally possible at both levels.

Section 232 of the Constitution declares customary international law to be law within the Republic, unless inconsistent with the Constitution or an Act of Parliament. Customary international law is restated in the Montevideo Convention of 1933, and article 1 of the Convention declares that a state as a person of international law should possess four characteristics. These characteristics are that there be a permanent population, in a defined territory, with a government, and a capacity to enter into relations with other states. The Western Cape can be definitively said to comply with all of these requirements. While South Africa is not a signatory to the Convention, the Convention’s origins within customary international law are binding on South Africa.

According to the 2011 census there was a population of 5,822,634 people in the Western Cape (it has of course grown somewhat since then). This certainly constitutes a permanent population for the first requirement of Article 1. The demographics of this population for interest sake comprised of 33.4% black, 49.6% coloured, 1.1% Asian, and 16% white at the time, and there is little reason to believe this has substantially changed since 2011.

This permanent population is spread over the territory defined as the Western Cape in the Constitution, and this territory has a provincial government by way of the Democratic Alliance (‘DA’). In the 2019 general election the DA won 55.45% of the provincial vote with the nearest contender being the now in opposition African National Congress (‘ANC’) at 28.63%. At no point since 1994 has the ANC won an outright majority in the province, and since 2009 it has been relegated to no more than 32.89%.

This government has the capacity to enter into limited negotiations with other states while it is subject to the national government, however, should independence occur, this provincial government certainly has the capacity to conduct foreign relations. It features a cabinet of ministers lacking only a minister of foreign affairs, which is an office that can be created through discretion of the Premier.

This brings a new question forward, namely whether this particular customary international law is incompatible with the Constitution. It is submitted that it is not, however other legal minds believe otherwise. Public law professor Pierre de Vos is one such person and addressed the question on his blog ‘Constitutionally Speaking’ in 2010. In this blog piece he argues that secession would not be legally possible because section 1 of the Constitution establishes South Africa as one sovereign and democratic state, and section 3 declares there to be a common South African citizenship and that this citizenship be regulated through law.

The Constitution certainly does say those things, however I fail to see why common citizenship would make secession illegal. If the people of a seceded Western Cape wish to cancel their citizenship, or the government of South Africa decided to revoke it after secession, this is their prerogative if the former South African citizens obtained citizenship of the seceded Western Cape.

De Vos’ argument based on section 1 certainly does present a valid challenge, but I do believe it can be circumvented through the fact that the South African Constitution does not explicitly prohibit secession. Rather, the words of section 1 could be argued to simply declare that South Africa is a single state [as opposed to a federation or confederation of individual states into a union], that is sovereign [with respect to other states], and democratic. If the Western Cape were to secede, South Africa still exists as a sovereign state in its own right and without constituting treason.

This may appear a somewhat questionable argument, but I do believe that De Vos’ own argument is questionable for the same reason. Ultimately, I refer back to the fact that secession is not prohibited. This can be contrasted to the Spanish constitution which states in section 2 that “the Constitution is based on the indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards” (emphasis added). If the Spanish saw fit to make it explicit that secession is impermissible, they certainly succeeded. South Africa’s choice of words is nowhere near the certainty of the Spanish constitution.

De Vos has bolstered his argument by arguing that any efforts to undermine the unitary nature of South Africa would amount to treason. However, when the National Prosecuting Authority was forced to publicly confront the issue of secession in 2010, their response was that it is a “political issue”. The Hawks where more evasive, merely stating they would investigate if a crime was committed. At best, secession is not a topic either have a stomach to confront as a crime, and at worst their answers are ambiguous and conflicting.

I would have to respectfully disagree with De Vos on whether secession would be treason. The dictionary definition of treason is the betrayal of a country or an entity to which a person owes allegiance, especially through attempting to kill or overthrow a government. Practically, secession is not about any of those. I have difficulty conceptualizing how desiring independence somehow betrays the rest of the country. If anything, there is a very cogent argument to be made that the national government has betrayed the Western Cape through its corruption and neglect.

The closest I can come to reconciling the two, is that the national government loses a significant amount of tax revenue. In such a case, it is more of an entitlement issue and political terror at the prospect of losing the revenue which would almost immediately expose the total non-sustainability and imminent collapse of the national government. It must be noted, South Africa has been collapsing for nearly two decades now, and total collapse is nearing as the national government increasingly shows it has no time for reform or basic rules of economics. Why should any responsible provincial administration actively desire to be part of that collapse?

There is virtually no doubt that secession is economically possible; Singapore has no natural resources but is still a wealthy nation. Even if South Africa were to impose a total trade ban on an independent Western Cape, the Western Cape could still thrive. I believe I have argued it as legally possible as well.

Sources not explicitly cited in the text:

Can the abaThembu secede from South Africa?

https://www.iol.co.za/news/south-africa/western-cape/cape-party-to-keep-fighting-1047275

Bongani Mthatha. DispatchLIVE. “AbaThembu plan to secede ‘is not a crime’. 21-01-2010. (article retrieved from offline archived records).