NATIONAL AND PROVINCIAL POWERS

1
NATIONAL AND PROVINCIAL POWERS

• SEMINAR 4

2
Legislative division

• S 43 legislative authority disperse over three
  spheres
• Question competence power to make a lawful Act
  consistent with the Constitution
• MODELS OF DIVISION
• Exclusive
• US watertight compartment, each sphere with own
  exclusive competencies. Conflicts settled by
  courts.
• Concurrent
• No exclusive competences disputes resolved
  through cooperation. National Education Policy
  Bill
• Residual - Unidentified competencies

3
National legislature

• Plenary power s 44(1)(a)(ii)
• Concurrent power
•  
• Incidental powers s 44(3)
•  
• Intervention power s 44(2)
• Assigning any of its powers to provinces except

4
National legislative power

• Intervention power s 44(2)
• Definition of schedule 5 Liquor Bill
• Conditional in substance criteria
• Necessary for
• national security,
• economic unity,
• minimum standards for rendering of service,
• prevent unreasonable action to another province
  or country as whole
• Procedural requirements s 76(1)
• Application Liquor Bill

5
Other national powers

• Other powers framework legislation s 197 public
  service
• Regulatory power on local government s 229

6
Provincial legislature

• Concurrent powers s 104(1)(b)
• Incidental powers s 104(4)
• Exclusive powers
• Schedule 5
• Drafting a constitution
• Other powers language s 6(3), name, boundaries
• Assigned powers s 44 - Mashavha

7
Legislative competence

• How determine whether a sphere has the
  competence?
• What is the matter of the legislation DBV
  Behuising pith and substance of law
• Is matter covered in schedules 4 / 5?

8
CONFLICTING CONCURRENT LEGISLATION

•  Determining conflict
• Types of conflict direct, indirect,
  implementation, policy
•  
• Test of conflict cannot comply with both laws at
  the same time
•  
• Interpretational devices - s 150

9
0VERRIDES (1)

• How to deal with inconsistent legislation
• National legislation applying uniformly to
  country as a whole prevails if any conditions
  met
• National legislation deals with a matter than
  cannot be regulated effectively by legislation
  enacted by provinces individually
• For a matter to be dealt with effectively,
  requires uniformity across the nation and
  national legislation provides that uniformity by
  establishing norms and standards, frameworks or
  national policies. s 146(2)

10
Override (2)

• National legislation is necessary for
• The maintenance of national security
• The maintenance of economic unity
• The protection of a common market in respect of
  mobility of goods, services, capital and labour
• The promotion of economic activities across
  provincial boundaries
• The promotion of equal opportunity or equal
  access to government services or
• The protection of the environment. s 146(2)(c)

11
Override (3)

• Prevention of unreasonable action by a province
• Is prejudicial to the economic health or security
  interests of another provinces or the country of
  a whole or
• Impedes the implementation of national economic
  policy.

12
Override (4)

• National legislation in terms of s 44(2),
  override in terms of s 148(2)

13
Overrides interpretational rules

• Role of NCOP s 146(4) take due regard to NCOPs
  approval or rejection of legislation
• Conflict cannot be resolved, national legislation
  prevails s 148
• Consequence of override s 149 status of law that
  does not prevail - inoperative

14
Further legislative limitations

• Cooperative government limitations
• S 41(1)(g) organ of state must not exercise
  their powers or functions in a manner that does
  not encroach on the geographical, functional or
  institutional integrity of government in another
  sphere.
• Not whether a power exists but how it is
  exercised qualitative question. Western Cape v
  RSA re Public Service Amendment Act.

15
Further legislative limitations

• BILL OF RIGHTS
• Zondi Pound Ordinance of 1947 violated s 9
  Constitution on basis of race and landownership.
• Weare v Ndebele 2009 (1) SA 600 (CC) is the
  fact that there are differences between provinces
  sufficient to base a unfair discrimination case
  in terms of s 9C?