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(1) Right of self-determination

The Western Cape people exist. This is established in the preamble of the Western Cape Constitution (we, the people of the Western Cape).

All people have the right to self-determination. This is a fundamental principle of international law, and South Africa has sworn to uphold the right of all people to self-determination on three separate occasions since 1994. The South African parliament ratified the African Charter on Peoples and Human Rights (ACHPR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social, and Cultural Rights (ICESCR).

In accordance with Section 231 of the Constitution, these international treaties are now law within the Republic of South Africa.

(2) Right to hold a referendum

In report A/HRC/4737/63 the UN confirms that self-determination can be exercised in four ways: increased autonomy (devolution), federalism, independence, or unification.

In his paper, "The Law on Self-Determination Today" (2017), UN expert Dr Alfred de Zayas confirms that where a people wish to exercise their right to self-determination in the form of independence, the accepted practice is to hold a referendum where the people in question can demonstrate that independence is their collective democratic will.

Section 127(2)(f) of the Constitution, and section 37(2)(f) of the Western Cape Constitution empower the Western Cape premier to call a provincial referendum. The permission of the national government is not required, and only the Western Cape people will be allowed to vote in that referendum.

(3) Outcome of a referendum

The Constitution does not state whether a referendum is binding or not.

Fortunately, two major international courts have already considered whether independence referendums are binding. These are the Supreme Courts of Canada (Quebec independence referendum) and the UK (Scotland independence referendum). Both effectively found that, in a democracy, you cannot ignore the democratic will of the people and therefore you cannot ignore the outcome of a referendum. 

These judgements are legally very significant in South Africa. They are based on international law (which is the same for all countries) and the South African Constitutional Court will have no choice but to consider the precedent these judgements have set. Section 39(1)(b+c) of the Constitution also makes express provision for foreign law to be taken into account.  

(4) Negotiation process

In its judgement, the Supreme Court of Canada explained the process which would follow the Western Cape voting for independence in a referendum.

The Western Cape cannot simply leave the day after the referendum, it still has responsibilities to South Africa. But neither South Africa stop the Western Cape from leaving. The two parties (represented by their respective governments - the WC provincial government and the SA national government) will have to negotiate the terms of partition taking into account the interests of all parties.

Whilst many people may think that one side can take a hardline stance and dictate terms to the other, in practice this is not the case. A ‘hard exit’ would be a disaster for both sides. The Brexit negotiations provide a great example of this. The negotiations started with a lot of political gesturing, but in the end both sides had no choice but to reach a workable compromise.

In the unlikely event that South Africa does refuse to negotiate, the international courts have already provided the Western Cape with a solution. The International Court of Justice confirmed in 2010 (Kosovo judgement), that in the final reckoning, the Western Cape can simply declare itself independent (UDI - Unilateral Declaration of Independence). 

A UDI would be a last resort, but it will also serve as significant leverage for the Western Cape. The last thing South Africa wants is the Western Cape leaving without taking its share of South Africa’s considerable national debt.

(5) Partition and the New Government

Once the terms of partition have been agreed, a date will be set for Cape Independence to take place.

For a short period of time, there will be a transitional government (which will be established as a part of the negotiation process) whilst preparations are made for the Cape of Good Hope’s first elections.

The Cape of Good hope will then elect its inaugural government and our ascent towards a prosperous and successful nation can begin in earnest. 

(6) Logistical Challenges

There are many questions around how the Cape of Good Hope would work practically. Whilst various people and organisations may hold views on what they would like to see, ultimately the final decisions will need to be made by the people themselves, and within the confines of what is practically achievable.

Most of these decisions cannot (and should not) be made ahead of the negotiation process. 

Questions like currency, electricity, borders, and many others are complex and impact on the people of South Africa as well as on the Western Cape people.

The first step in the independence process is to decide whether we want to go it alone as a people and claim the right to make our own decisions for ourselves. This is the purpose of the referendum.

Some degree of uncertainty is unavoidable. We cannot lay out a guaranteed future ahead of discussions which are yet to take place, just as we cannot state with absolute certainty what future awaits us if we leave the decision making to the ANC. In a referendum you will have to decide, in your opinion, which path do you believe will deliver the best future for you and your descendants. We don’t think this is a hard choice to make.

Once we have decided to leave, our Western Cape government, in conjunction with civil society, business, industry experts, and other role players, will need to start mapping out how partition will take place. The negotiations with the South African national government will form an integral part of this process.

What we do already know, because experts have confirmed it, is that the Cape of Good Hope is economically and functionally viable. We also know from polling that three quarters of all Western Cape citizens believe that Cape Independence would significantly improve the quality of their lives.