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The foremost concern of a constitution – of constitutional arrangements – is to determine where (in which bodies) governmental power and authority are located, how it should be divided or separated, and how it should be exercised. In the present South African context, this question is purported primarily to be provided for by section 40 of the Constitution of 1996, stating:

“In the Republic, government is constituted as national, provincial and local spheres of government which are distinctive, interdependent and interrelated.”

Chapters 4 to 7 of the Constitution proceed to detail the three spheres of government. This is supplemented extensively by legislation. Relevant are, among others, the Intergovernmental Relations Framework Act of 2005 and, of course, the comprehensive legislation on municipal government, especially the Local Government: Municipal Structures Act of 1998, and the Local Government Municipal Systems Act of 2000.

Then the Constitution, of course, postulates, as we all know, that it (the Constitution) may be changed only by (written) amendment of the text carrying the approval of at least two-thirds of the members of the National Assembly.

This is why it is solemnly confessed that the Constitution is supreme. This is also what section 2 – the Constitution's central principle – says.

If you are drawn to trusting in either actual or imagined holy scriptures, the soteriology of the doctrine of constitutional supremacy will be appealing to you. But upholding that trust will doom you to always turn your face away from, and underappreciate, the significance of actual turbulent events, which in South Africa are not in short supply.

Now, many things do, of course, come to pass by virtue of the written Constitution. Just look at how the Constitutional Court delivers judgments, more specifically on the details of parliamentary powers, obligations, and procedure, such as on the steps to be taken for holding our suspected delinquent president to account and, in given circumstances, impeach him. And just listen to how heatedly we debate how to comply with these injunctions.

But while our attention is riveted on this, the constitutional order is undergoing fundamental changes, without Parliament being involved at all, and without the wording of the Constitution being touched – without it being formally amended. And what is more, the order undergoes profound changes precisely on the primary constitutional issues mentioned above: which bodies are vested with governmental power and authority and how powers migrate between them and completely away to new bodies falling beyond the knowledge of the written Constitution itself, that is, on the very matters section 40, and related provisions and legislation, purport to regulate.

Enclaves and micro-republics

Frans Cronjé often speaks about the growing phenomenon of enclavisation in present-day South Africa. This involves communities gathering in specific towns, neighbourhoods, and regions, where they essentially independently and self-sufficiently take care of their own security, access control into their enclave, power generation, education, and the like, and live and work in relative prosperity, largely removed from the upheaval of the crumbling South African state.

Enclavisation is a distinct contemporary manifestation of a "Boer maak ’n plan"; however, by far no longer limited only to Boere!

Enclavisation is made possible by, among other things, readily and affordably available technology, knowledge, and skills, which are a significant stimulus for this growing autonomy of communities.

Further impetus of enclavisation comes from entrepreneurship and ingenuity which, fortunately, are in good supply amid the African National Congress’s struggling welfare and robber-baron state.

Close community ties also buttress these increasingly state-proof, quasi-autonomous domains. These ties often compensate, at least in part, for a lack of individual capital. In consequence, the enclave factor, although more prominent among the wealthy, can also thrive among less affluent people.

And, of course, enclaves are diverse. They come in many shapes and sizes, differing considerably in population composition and size, geographical extent, capital depth and wealth, and so on.

Tools of government

An important difference is the varying range of tools of government, and authority that enclaves have at their disposal. Tools of government refer to the means that a community has to manage or govern the common interests of the enclave community in question.

A comprehensive and high-powered enclave will typically be relatively large geographically, and home to a numerically fairly large community. It will have security services, exercise access control (way better than that of the South African government in relation to the national borders), provide education, maintain roads and streets, enforce traffic rules, maintain sports and recreational facilities, have its own systems for power supply and sewage waste management, and so on.

The material and intellectual capacity to do all these things constitutes the tools of government that enclave communities have at their disposal. There are already many enclave communities that, at least within the boundaries of the enclave in question, have more and better tools of government than the state, enabling them to sustain a safe, free, civilised, prosperous, and pleasant community.

Many other enclaves are less developed, smaller, not so strictly demarcated, and possess fewer tools of government, yet they still manage at least some functions traditionally associated with the state.

Micro-republics

An enclave community with the governing apparatus that enables it to govern itself largely autonomously with regard to the sorts of functions just mentioned are much more than, and qualitatively different from, mere enclaves. They are a community that has constituted itself as a governmental entity (poleis). These are no longer mere enclaves. They are self-constituted micro-republics. This is exactly what we are dealing with in South Africa: enclaves, yes, but more than that – micro-republics.

Thus viewed, emerging enclaves and micro-republics represent a comprehensive constitutional change, notwithstanding no amendment to the text of the written, and supremely paraded, Constitution with its seemingly strict amendment requirements.

Accordingly, the Constitution is an unreliable witness when it speaks of the three spheres – national, provincial, and local – of government in South Africa.

It is common knowledge that governance in all three spheres, especially local, has deteriorated drastically. Local government, which affects the citizenry most intimately, remains, as the auditor-general’s latest report of June 2026 outlines, in a deplorable state.

Actual spheres of government

Where do the mutually complementary phenomena of the decline of government, on the one hand, and the emergence of enclaves and micro-republics on the other, leave us? The answer is that the profile of government in contemporary South Africa is much different from what the Constitution says it is. The actual position is as follows:

1. There is a national sphere of government, often supported by the commercial and civil sectors assisting with their own tools of government where the national government fall short;
2. Where feasible, provincial governments operating in the nine provinces;
3. In some places, where achievable, there are municipal governments trying to fulfil the local government powers outlined in the Constitution and legislation, with funds from the financial sources of the state;
4. Rising, newly constituted civilian government in micro-republics funded from non-state sources, where organised communities are capable of doing so, and with governing functions in accordance with the tools of government garnered in the communities of the domains concerned;
5. Areas of governmental no-man’s lands, that is, of relative absence of governance and structured authority towards the common good, where the state has withdrawn or disappeared, and where no newly constituted enclaves or micro-republics have emerged, and in which government has in some cases been abdicated to structures of organised crime.

This, rather than the written Constitution, sketches a more reliable picture of government in present-day South Africa, reflecting the actual, rapidly changing constitutional conditions.