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Summary of Currie and De Waal

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The Provincial Legislatures:

Composition and election:
– Provincial legislatures consist of 30 to 80 members.
– Election is the same as that of national.

Terms and Dissolution:
– Provincial Legislature is elected for a term of 5 years. – Premier must dissolve legislature if it adopts a resolution to dissolve three years after it was elected. – Premier must dissolve legislature if there is a vacancy in the office of premier and the legislature fails to elect a successor within 30 days. – If dissolved, the premier must by proclamation set dates fr an election within 90 days; therefore it is possible to have a provincial election at a different time form the national election.

Committees and Internal arrangements:
– Constitution contains identical provisions in respect of committees and internal arrangements for the provincial legislatures as for the National Assembly.

Functions of the Provincial Legislatures:

– As parliament does at a national level, provincial legislatures fulfils four functions at the provincial level: 1) forum for public discussion of issues at provincial levels, 2) ensures that the executive organs of the state in the province are accountable to it, 3) oversees provincial legislative action, 4) considers and passes provincial laws. – The power of the provincial legislatures to enact legislation must be viewed within the context of the system of co-operative federalism established by the constitution. The provinces were created by constitution and have only those powers that are specifically conferred on them under the constitution.

Provincial Legislative Authority:

– The provincial legislatures derive their authority to make law from S104 of the constitution. This section grants provinces competence to enact legislation to the exclusion of parliament in certain areas (exclusive competence) and the competence to legislate together with parliament in other areas (concurrent competence).

Exclusive Competence:
A provincial legislature has the following exclusive powers:
• To amend and repeal its own laws
• To make and amend its own constitution
• To legislate, subject to parliament power to intervene under S44 (2), in the functional areas listed in schedule 5. • To legislate with regard to any mater where the constitution envisages the enactment of provincial legislation. • To legislate outside those functional areas if a matter is expressly assigned to the province by national legislation.

– To make and repeal its own laws: provinces now have the exclusive competence to amend or repeal all those laws which became provincial when the 1996 constitution came into force. – Provincial constitutions: A provincial legislature may adopt a constitution for the province with the support of at least two-thirds of the members of the provincial legislature, but a provincial constitution must be consistent with the national constitution. It may provide for provincial legislative or executive structures and procedures that differ from those provided for in the constitution. – Schedule 5 exclusive competence and the power of intervention: functional areas listed in this schedule are exclusive areas of legislation for provinces. Parliament can intervene in line with S 44(2) of the constitution. – Assignment of legislative competence by national legislation: parliament may assign any of its legislative powers, with the exception of the power to amend the constitution, to any legislative body in another sphere of government. – Constitutionally envisaged provincial legislation: When the constitution envisages the passing of provincial legislation, the power to pass the legislation is usually an exclusive provincial competence. Such exclusive legislative competence is not usually subject to the s 44(2) power of intervention.

Concurrent competence:
Schedule 4 lists the concurrent powers shared between parliament and provinces.

How to determine provincial legislative competence:
– Provincial legislative competence must be determined with reference to the ‘main substance’ and ‘purpose and effect’ test. – This test elevates substance over form. The court will focus on the true purpose and effect and not only on its form. – In the Liquor Bill Case the CC stated that this scheme accords parliament extensive lawmaking power encompassing ‘any matter’ excluding only the exclusive competences afforded to provincial legislatures. In the light of this scheme, schedule 4 functional competences should be interpreted from being distinct from, and excluding the very specific Schedule 5 exclusive provincial competences.

Conflict of Laws:

Legislative Competence, manner and form and conflict of laws distinguished: – Competence refers to the authority of the legislature to pass a particular law. A legislature is not competent to pass a law in a functional area where other legislature as exclusive competence. – Constitutions manner and form requirements describe the procedures for passing a law. Determined by the time that the law was passed. – Conflict refers to inconsistency between the laws passed by legislatures in different spheres of government.

General Principles for resolution of conflicts:
– In general courts are reluctant to become involved in conflict of laws disputes. – When confronted with disputes between national and provincial laws, a court will therefore always have regard to the views of [Constitutionthe NCOP in respect of the national law. – The NCOP’s assent after all indicates that the majority of the provinces agree with the national law. – Where a court that there is conflict and a court finds that national legislation ‘prevails’ over provincial legislation, it does not mean that the provincial legislation becomes invalid. The provincial legislation rather becomes inoperative to the extent of the conflict and for as long as the conflict remains. The same applies of course when the provincial law prevails over national law.

Types of Conflict:

a) Conflicts between national and provincial legislation in the schedule 4 areas of concurrent competence: – The constitution lists the sets of circumstances where national legislation prevails over provincial legislation. If these do not apply then provincial legislation prevails over national legislation. – Determined by S146.

b) Conflicts between national and provincial legislation in cases of intervention n schedule 5 areas of exclusive provincial competence: – S 44 (2) states when national legislation prevails over schedule 5 excusive provincial competence.

c) Conflicts between national legislation and provincial constitutions: – The national constitution determines the conflict that might arise in this case. – National legislation, in terms of S44 (2) prevails over provinces of provincial constitutions.

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