Mr Daryl Swanepoel
Inclusive Society Institute
Cape Town
Western Cape
South Africa
8001
BY EMAIL: info@inclusivesociety.org.za
6 June 2026
OPEN LETTER ADDRESSINGTHE ETHICS AND CONSTITUTIONAL FEASIBILITY OF CAPE INDEPENDENCE
Dear Mr Swanepoel,
(1) Background
The Cape Independence Advocacy Group (CIAG) welcomes your recent article published in IOL on 4 June 2026, which challenges the constitutional basis for Cape Independence. It raises seminal questions about peoples' rights and the inter-relationship between International Law and South Africa's Constitution.
Before responding to the substance of your argument, I note that the Inclusive Society Institute's board includes Mr Keith Khoza — Acting Spokesperson to Deputy President Paul Mashatile — Ms Buyelwa Sonjica, a former ANC Cabinet Minister, and Ms Karensa Millard, a current member of the ANC National Disciplinary Committee. Your Advisory Council includes Mr Roelf Meyer, a principal architect of the Constitution you invoke. The public is entitled to understand the political context in which constitutional arguments of this nature are advanced.
Your argument is founded upon one overriding premise which you then weave throughout the rest of your reasoning — and you state it directly and unquestioningly: South Africa is "one, sovereign, democratic state". This is not in dispute, but to define the legal basis for secession solely through the lens of statehood is fundamentally and fatally flawed.
At the heart of any legal debate on secession, in the Western Cape or elsewhere in the world, is the contest between two competing rights. The right of all states to territorial integrity, and the right of all peoples to self-determination.
(2) Self-determination & International Law
In South Africa it has become legally trite that territorial integrity trumps self-determination, and you make exactly this assertion when you argue that section 235 of the Constitution limits the right to self-determination to a specific set of circumstances. Circumstances which, as a consequence of South Africa's 'unassailable right' to territorial integrity, the state can determine at its absolute discretion. You are wrong.
The right to self-determination does not arise in the South African Constitution; it is simply accommodated there, and not just in section 235. The right to self-determination is established in international law, and as a peremptory norm (jus cogens), it is binding upon all states and non-derogable. Section 235 cannot — and importantly, does not — limit it.
Many scholars have completely failed to comprehend the full legal and moral significance of jus cogens. The International Law Commission currently lists eight rights as having jus cogens status, the highest designation possible in international law, and self-determination is one of them. The others include the prohibition of genocide, slavery, and apartheid.
It is self-evident that no state can grant itself the legal authority to commit genocide, regardless of whatever its constitution might state, and regardless of whatever laws its parliament may pass. In the context of genocide, therefore, the non-derogable nature of jus cogens is easy to understand. The implications are profound. Given that the right to self-determination also carries jus cogens status, South Africa has no more legal authority to deny self-determination than it would to sanction genocide, slavery, or apartheid.
In fairness to South Africa, on paper at least, it has fully lived up to this obligation. Since 1994, it has signed and ratified the International Covenants on Civil and Political Rights (ICCPR), Economic, Social and Cultural Rights (ICESCR), and the African Charter on Human and Peoples Rights (ACHPR). All of these guarantee "All Peoples" the right to self-determination — far broader than the phrasing of s235 — and all now form part of South African law, courtesy of sections 39, 231, 232, and 233 of the Constitution. South Africa has also been an outspoken proponent of external territorial self-determination, for the Palestinians, the Sahrawis (Western Sahara), and the heterogeneous South Sudanese peoples.
(3) A Western Cape People
South Africa is regularly referred to as a 'Unitary State', but it is not.
The 1994 interim Constitution and the 1996 Constitution created provinces and assigned them powers, thus establishing a federal rather than unitary structure. As a result, in the Western Cape and elsewhere, a clearly defined community was established. The Western Cape became a defined territory, with a defined population, and its own voter's roll, parliament, and political authority — the Western Cape Government. In doing so, it fulfilled the requirements for potential statehood set out in the Montevideo Convention of 1933.
The Constitution empowered the Western Cape to pass its own Constitution, which it did, and in doing so, it elected to explicitly identify the existence of a Western Cape people. Its preamble reads, 'In humble submission to Almighty God, We, the people of the Western Cape.' The Constitutional Court certified it. There can be little debate — a Western Cape people exist, and, by virtue of that, they have in the words of the African Charter (Article 20) the "unquestionable and inalienable right to self-determination" and can "freely determine their political status" and "pursue their economic and social development according to the policy they have freely chosen".
It should now be clear that the legal argument around Cape Independence cannot be reduced to 'South Africa is one, sovereign, democratic state' — it is significantly more nuanced than that. States do have a fundamental right to territorial integrity, but it is not absolute, and it explicitly cannot be used to deny the right of self-determination to peoples within that state. If anyone still doubts this conclusion, I would refer them to the so-called 'safeguard clause' in UN resolution 2625 (1970), which clarifies that territorial integrity is conditional upon complying with the right of all peoples to self-determination.
It is important to note that the default application of the right to self-determination is within the state — internal self-determination, i.e., not secession. I think we have done South Africans a great disservice by perceiving self-determination as an all or nothing solution, when in fact it is a fundamental element of modern constitutional democracies. Devolved powers, cultural autonomy, and communal tribal lands are all valuable and legitimate expressions of self-determination. The defining feature of self-determination is the ability of communities to make their own decisions as opposed to having those decisions forced onto them by a political authority with whom the majority of them disagree. Secession becomes a legally viable option when states are unwilling to countenance these less disruptive forms of autonomy. South Africa is on precisely this path, with no better example than the Western Cape's pursuit of devolved policy and the National Government's blanket refusals to even consider it.
Your challenge, however, was specific to Cape Independence, so I will respond narrowly on that point.
(4) Authority & Purpose of Referendums
Organisations like the CIAG operate domestically, within the Constitution, and, as you assert, do bear an ethical obligation to show how Cape Independence is constitutionally possible.
You concede that it is legitimate to campaign for constitutional and structural change, and that referendums are a legitimate means by which to establish the democratic will of a people. You assert that referendums in South Africa are non-binding and we do not disagree. Their purpose, here and internationally, is not to give effect to the outcome but to establish what people want. The Supreme Courts of both Canada and the UK have considered this issue carefully and found that the power of referendums lies not in their legal consequences, but in their democratic ones. The Supreme Court of Canada expressed it bluntly: "The continued existence and operation of the Canadian constitutional order cannot remain indifferent to the clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada."
In section 127(2)(f), the South African Constitution makes clear provision for Premiers, including in the Western Cape, to call a referendum. This includes a referendum on Cape Independence. Should the Western Cape Premier hold such a referendum, and a majority of Western Cape voters express their desire for Cape Independence, a legitimate democratic and constitutional mandate will exist.
The question then becomes, "what then?" Here, Canada and the UK's interpretation of international law aligns precisely with the South African Constitutional Court's certification of s235. The parties, in this case the Western Cape Government representing the Western Cape people, and the South African Government representing the South African people, are required to negotiate — in good faith.
'Good faith' is particularly significant — South Africa has domesticated the 'unquestionable and inalienable' nature of self-determination. Negotiations cannot be illusory, and self-determination must be the outcome. Critically, at the conclusion of these negotiations, the obligation to pass the enacting legislation — which may include amending the Constitution — does not lie with the Western Cape but with the national Government. Again, the Constitutional Court's certification of s235 established this when it clarified the greatly misunderstood phrase, "determined by national legislation". Parliament is not the gatekeeper of claims to self-determination, and it would create a profound constitutional crisis were it to attempt to play this role.
(5) Understanding Section 235
This brings us back, once again, to s235. Whilst we have clarified that s235 is neither the source of the right to self-determination, nor the only place in which the Constitution accommodates the right, it is the primary lens through which it is viewed domestically. It is therefore worth examining exactly what s235 does and does not do.
To do this, we first need to read s233: "When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law." S235 is, in many parts, vague, ambiguous, and open-ended. The Constitution itself instructs us how to interpret those vagaries.
Section 235 then reads: "The right of the South African people as a whole to self-determination, as manifested in this Constitution, does not preclude, within the framework of this right, recognition of the notion of the right of self-determination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way, determined by national legislation."
It is permissive, it provides for the notion of self-determination without asserting how. It is intentionally open-ended in its formulation when it states that self-determination can occur "in any other way". It explicitly anticipates that this self-determination will be exercised by a community other than the "South African people as a whole", and by implication, that such a community need not be homogeneous — the South African people aren't, and the section refers to their right to self-determination. All of this is entirely consistent with South Africa's obligations under international law.
Read at face value, the reference to "a common cultural and language heritage" offers you an opportunity to attempt to disqualify the Western Cape, but this interpretation cannot withstand the scrutiny of international law and s233. The very best that proponents of this argument can achieve is to drive the Western Cape's claim to self-determination outside of the framework of s235 and into the arms of s231 and s232 — where it exists without any domestic guardrails.
In conclusion, there is a clear constitutional path to Cape Independence premised upon the clearly established democratic will of the Western Cape people, determined in a referendum called under s127, asserted under s235, or alternatively s231/232, negotiated in good faith, and with the outcome given effect to in legislation tabled by the national government in accordance with the Constitutional Court's certification judgement.
(6) A Question of Ethics
With the law settled, you raise the spectre of ethics and so must I.
If your departure point on the question of Cape Independence is to muster the strongest legal argument at your disposal to deny seven million people their democratic will and the right to determine for themselves how and by whom they are governed, then it is your own ethics which require introspection. We must never forget that Apartheid was legal and constitutional, whilst those who sought to undermine it and build a more just dispensation were acting illegally and unconstitutionally.
The simplicity of international law belies a profound wisdom: "All peoples have the right to self-determination."
Yours faithfully,
Phil Craig
For and on behalf of the Cape Independence Advocacy Group (CIAG)
(NB: Section headings were added for ease of reference when publishing the letter on our website. They did not appear in the letter itself which was submitted to Mr. Daryl Swanepoel at the Inclusive Society Institute)
