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Functions of the Provincial Legislatures: – As parliament does ATA national level, provincial legislatures fulfils four functions at the provincial level: I) forum for public discussion Of issues at rivaling 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. – The provincial legislatures derive their authority to make law from S 1 04 of he 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: repeal its own laws ; TO make and amend its own constitution ; TO amend and ; To legislate, subject to parliament power to intervene under SIS (2), in the functional areas listed in schedule 5. ; TO legislate With regard to any mater here the constitution envisages the enactment of provincial legislation. 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 Game into force. – provincial constitutions: A provincial legislature may adopt a constitution for the province with the support to at least two-thirds of the members of the provincial legislature, hut a provincial institution 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 rower to amend the constitution, to any legislative body in another sphere Of – Constitutionally envisaged provincial legislation: When the government. institution 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. Con current competence: Schedule 4 lists the concurrent popRSI 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 for, The court will focus on the true purpose and effect and not only on its form. – In the Liquor Bill Case the C stated that this scheme accords parliament extensive lawmaking power encompassing 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 extinct from, and excluding the very specific Schedule 5 exclusive provincial com tenses.
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 be,even the laws eased 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 the NCO in respect of the national law. – The Noon’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, t does not mean that the provincial legislation becomes invalid.