Distribution of financial resources and constitutional obligations in decentralised systems a comparison between Germany and South Africa
Thesis (LLD (Public Law))—University of Stellenbosch,
In this dissertation a comparative study is made of the constitutional accommodation of the distribution of financial resources and constitutional obligations to the various spheres of government in Germany and South Africa. Both countries have decentralised or multi-level systems of government and can be classified, in terms of current studies on federalism, as integrated or cooperative federal systems. An overview of the historical developments, the political contexts, the fundamental principles and the constitutional frameworks for government in Germany and South Africa is provided as a basis for the in-depth analysis regarding the financial intergovernmental relations in these countries. This study has shown that economic theory is important in the design of decentralised systems of government and that political and socio-economic considerations, for example, the need for rebuilding Germany after World War II and the need to eliminate severe poverty in South Africa after 1994, often play a dominant role in the design and implementation of decentralised constitutional systems. The economic theory applicable to decentralised systems of government suggests a balanced approach to the distribution of financial resources and constitutional obligations with a view to obtaining the most efficient and equitable solution. In both countries the particular constitutional allocation of obligations and financial resources created a fiscal gap that required some form of revenue sharing or financial equalisation. The German financial equalisation system has been developed over fifty years and is quite complex. It attempts to balance the constitutional aim of reasonable equalisation of the financial disparity of the Länder with the financial autonomy of the Länder as required by the Basic Law. The huge financial and economic demands from the eastern Länder after unification in 1990 placed an additional burden on the available funds and on the financial equalisation system. Germany currently faces reform of its financial equalisation system and possibly also bigger constitutional reform. The South African constitutional system is only a decade old and the financial equalisation system that is less complex than the German system, is functioning reasonably well but needs time to develop to its full potential. The system may however require some adjustment in order to enhance accountability, efficiency and equity. A lack of sufficient skills and administrative capacity at municipal government level and in some provinces hampers service delivery and good governance and places additional pressure on the financial equalisation system. The Bundesverfassungsgericht and the Constitutional Court play important roles in Germany and South Africa in upholding the principle of constitutional supremacy, and make a valuable contribution to the better understanding of the constitutional systems and the further development thereof. This study has shown that clear principles in constitutional texts, for example, such as those contained in the Basic Law, guide the development of applicable financial legislation and add value to the provisions on financial equalisation and how they are implemented. These principles in the Basic Law are justiciable and give the Bundesverfassungsgericht an important tool to adjudicate the financial equalisation legislation. The study of the constitutional accommodation of the distribution of financial resources and constitutional obligations in Germany and South Africa is not an abstract academic exercise and should be seen in the particular political and socio-economic contexts within which the respective constitutions function. The need to give effect to the realisation of socio-economic rights, for example, the right of access to health services, places additional demands on the financial equalisation system. The South African society experienced a major transformation from the apartheid system to a democratic constitutional order that in itself has had a significant influence on financial intergovernmental relations. This dissertation focuses on a distinct part of constitutional law that can be described as financial constitutional law. This comparative analysis of the two countries has provided some lessons for the further development of South Africa’s young democracy, in particular the financial intergovernmental relations system.