4.8 Resolving Conflicts 94
4.8.2 Interpretation of conflicts 95
The interpretation of apparent conflicts between national and provincial legislation is governed by section 150 of the Constitution, which provides as follows –
‘When considering an apparent conflict between national and provincial legislation, or between national legislation and a provincial constitution, every court must prefer any reasonable interpretation of the legislation or constitution that avoids a conflict, over any alternative interpretation that results in a conflict.’
Bronstein, despite being quite critical of the so-called test for direct conflict, states that it does seem to ‘resonate’ with section 150 of the Constitution, which ‘would ensure that the
348 Ibid.
349 Ibid.
350 Ibid.
351 Bronstein, Chapter 16, op cit, 16-5.
352 Ibid, 16-6 - 16-8.
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minimum number of cases would undergo scrutiny’ in terms of section 146.353 She also says that although no coherent rationale for defending the test in South Africa exists, it could be argued that section 150 requires the use of such a test.354 However, Bronstein qualifies this by stating that section 150 cannot be properly understood in isolation and needs to be read with section 146. She foresees that eventually judges will have an opportunity to build a body of jurisprudence that clarifies the meaning of section 146 and its relationship to section 150.355
I now turn to the specific provisions of section 146 and examine them in turn below.
4.8.3 Section 146(1) – conflict between national and provincial legislation
Section 239 of the Constitution defines national and provincial legislation to include subordinate legislation, unless the context indicates otherwise. The general rule is that subordinate legislation validly made in terms of empowering legislation is part of that legislation for the purpose of section 146.356 Section 146 consequently applies to all legislation falling within a functional area listed in Schedule 4, as defined.
4.8.4 Section 146(2) – national legislation that applies uniformly
This section provides that only national legislation that applies uniformly with regard to the country as a whole is capable of prevailing over provincial legislation. However, national legislation can only prevail if any of the conditions envisaged by subsections (a) (b) or (c) is met.357 Bronstein argues that for purposes of deciding which legislation prevails in conflict cases, it is not sufficient to rely on what an Act purports its objects to be – a court needs to examine the content of such legislation carefully in order to establish whether an Act does indeed do what it purports to do. In this regards she points out that the long titles and preambles of national legislation are generally framed in a way that purports to meet the requirements of section 146, very often precisely for that reason.358
353 Ibid.
354 Ibid, 16-11.
355 Ibid, 16-16.
356 Bronstein, op cit, chapter 16, 16-29.
357 Constitution, op cit, section 146(2).
358 Bronstein, op cit, 16-20.
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In the First Certification Judgment, the Court held that the courts would have jurisdiction to determine whether ‘the interests of the country as a whole require a matter to be dealt with uniformly’ for the purposes referred to in section 146(2); and that such an exercise involves both an objective and a subjective element. However:
‘The test in each case is ultimately objective because it is not the subjective belief of the national authority which is the jurisdictional fact allowing the national legislation to prevail over the provincial legislation, but there is inherently some subjective element involved in the assessment of what the interests of the country require or what is necessary. Some deference to the judgment of the national authority in these areas is inevitable.’359
Section 146(2)(a) and (b)
Section 146(2)(a) provides that national legislation prevails in respect of matters that cannot be ‘regulated effectively’ by provinces individually; and section 146 (2)(b) provides that national legislation prevails if it deals with matters that ‘requires uniformity across the nation’. Section 146(2)(b) specifically allows for national legislation to provide uniformity by establishing: 1) norms and standards; 2) frameworks; or 3) national policies. In the Second Certification Judgment, the Court considered these provisions in the AT and the addition of
‘frameworks; or national policies’ to this section, when the IC only allowed for framework legislation that established ‘norms and standards and minimum standards’. The Court responded to the contention that the additional provisions in subsection (2)(b) extended the scope of the corresponding provision in the IC, by stating that:
‘One of the definitions of “uniform” given in the Concise Oxford Dictionary is “conforming to the same standard, rules or pattern”. The achievement of uniformity in the context of AT 146(2)(b) therefore requires the establishment of standards, rules or patterns of conduct which can be applied nationally. As we have stated above, this is an objectively justiciable criterion. Under the IC an override for the purpose of uniformity is permitted where legislation contained norms and standards. Neither of these words is capable of precise definition. The concise Oxford
359 First Certification Judgment, op cit, para 337 (fn 277).
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Dictionary defines “standard” as an “object or quality or measure serving as a basis or example or principle to which others conform or should conform or by which the accuracy or quality of others is judged”. “Norm” is defined as “a standard or pattern or type”. Given the ill-defined import of the words norms and standards, and the governing criterion of uniformity, it is likely that even under the IC, framework legislation and national policies which sought to establish uniformity by establishing standards, rules or patterns of conduct would have been held to fall within the scope of norms and standards.’360
Section 146(2)(c)
In the Second Certification Judgment, the Court made it clear that the conditions that national legislation must meet before it can prevail, set out in this subsection, are objectively justiciable:
‘The issue as to whether or not the particular national legislation dealt with a matter which was necessary for the maintenance of national security or economic unity or the protection of the common market or any of the other factors listed in NT 146(2)(c) is now objectively justiciable in a court without any presumption in favour of such national legislation.’361
The ‘factors’ listed in section 146(2)(c) referred to by the Court were clearly of concern to the legislators when drafting the Constitution, as evidenced by the fact that very similar provisions exist in section 44(2).362 Unlike section 146 which applies to conflicting legislation falling within a functional area listed in Schedule 4, section 44(2) provides for national legislative intervention with regard to matters falling within a functional area of exclusive provincial competence listed in Schedule 5. Both sections give precedence to national legislation which is ‘necessary’ in the circumstances listed in those sections.
Although Cameron J’s comments in the Liquor Bill case regarding one such ‘factor’, i.e. the
360 Second Certification Judgment, op cit, para 159.
361 Ibid, para 155.
362 Constitution, op cit, section 44(2)”: ‘Parliament may intervene, by passing legislation …, when it is necessary-
(a) to maintain national security;
(b) to maintain economic unity;
(c) to maintain essential national standards;
(d) to establish minimum standards for the rendering of services; or
(e) to prevent unreasonable action taken by a province which is prejudicial to the interests of another province or the country as a whole.’
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maintenance of economic unity, were made in respect of section 44(2), they assist in understanding the issues that a court would take into consideration when deciding whether national legislation is necessary:
‘In the context of trade, economic unity must in my view … mean the oneness, as opposed to the fragmentation, of the national economy with regard to the regulation of inter-provincial, as opposed to the intra-provincial, trade. In that context it seems to follow that economic unity must contemplate at least the power to require a single regulatory system for the conduct of trades which are conducted at a national (as opposed to an intra-provincial) level. Given the history of the liquor trade, the need for vertical and horizontal regulation, the need for racial equity, and the need to avoid the possibility of multiple regulatory systems affecting the manufacturing and wholesale trades in different parts of the country, in my view the economic unity requirement of section 44(2) has been satisfied … I am of the view that the Minister has shown, at least in regard to manufacturing and distribution of liquor, that the maintenance of economic unity necessitates for the purposes of section 44(2)(b) the national legislature’s intervention in requiring a national system of registration in these two areas.’363
However, Bronstein suggests that the idea that national regulation of the manufacture and distribution of liquor is necessary for the maintenance of economic unity seems an overstatement;364 and that the drafters of the Constitution could never have anticipated that the promotion of equal opportunity or equal access to government services might require identical treatment between citizens of all provinces in all circumstances.365 She submits that the judiciary has a duty to promote national unity, but that duty does not require ‘identical regulatory regimes throughout the country’. Hence, she cautions that the courts should ‘not advance uniformity for uniformity’s sake’.366 The following pronouncement by the Mashavha Court is instructive in that regard:
363 Liquor Bill, op cit, paras 75-78.
364 Bronstein, chapter 16, op cit, 16-27.
365 Ibid; see also section 146(2)(c)(v).
366 Bronstein, Chapter 16, op cit, 16-21.
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‘It is inherent in our constitutional system, which is a balance between centralised government and federalism, that on matters in respect of which the provinces have legislative powers they can legislate separately and differently. That will necessarily mean that there is no uniformity.’367
I submit that the above cited dictum applies equally to provincial environmental legislation where provinces do have legislative powers.368 The same dictum by the Mashavha Court is cited with approval in FEDSAS,369 a recent case before the Constitutional Court where one of the central issues was whether certain amendments to provincial Regulations370 were in conflict with the South African Schools Act.371 The Federation of Governing Bodies for South African Schools (FEDSAS) contended that provincial legislation that conflicts with national legislation is unconstitutional and is ‘required to be struck out’; and that the amended Regulations caused a conflict between national and provincial legislation.372 Moseneke DCJ responded to this contention by providing a clear exposition of the law governing conflicts between national and provincial legislation:
‘I think not. This contention ignores the provisions of the Constitution and the Schools Act.
Education is a functional area of concurrent national and provincial legislative competence.
Parliament may legislate on education and a province too. …The legislative competence of a province cannot be snuffed out by national legislation without more. The Constitution anticipates the possibility of overlapping and conflicting national and provincial legislation on concurrent provincial and national legislative competences.’373
He goes on to say that for this very reason the Constitution has extensive provisions geared to regulate envisaged conflict between national and provincial legislation; and the ‘conflict resolution scheme of sections 146, 149 and 150 of the Constitution’ departs from the conventional hierarchy that provincial legislation may not be in conflict with national
367 Mashavha v President of the Republic of South Africa & Others 2005 (2) SA 476 (CC), 2004 (12) BCLR 1243 (CC), para 49 (Mashavha).
368 See detailed discussion in chapter 4, part I.
369 Federation of Governing Bodies for South African Schools v Member of the Executive Council for Education, Gauteng and Another [2016] ZACC 14 (FEDSAS), para 26.
370 Gauteng School Education Act 6 of 1995: Regulations Relating to the Admission of Learners to Public Schools, 2012, GN 1160 Provincial Gazette 127, 9 May 2012 (Regulations).
371 84 of 1996, section 5(5).
372 Fedsas, op cit, para 25.
373 Ibid, para 26.
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legislation; and ‘automatic repugnancy between the two classes of legislation does not arise’.
Under the conflict resolution scheme ‘provincial legislation prevails over national legislation except if the national legislation applies uniformly countrywide or the matter cannot be regulated effectively by respective provinces or the matter is one listed in the Constitution as requiring uniformity across the nation’.374 Moreover, Moseneke DCJ held that even if there is conflict, Schedule 4 national and provincial legislation is not rendered invalid – a court must first attempt to avoid the conflict by ‘preferring any reasonable interpretation of the two pieces of legislation which avoids conflict’. And, if the conflict persists, the provincial legislation prevails. National legislation ‘may’ enjoy supremacy over provincial legislation
‘only in accordance with’ the test laid down in sections 146(2) and (3), and in terms of section 148 if section 146 does not apply. This does not mean that such provincial legislation is struck down – it simply becomes inoperative for as long as the conflict remains.375
In concluding this analysis of national legislation that applies uniformly, I would argue that the Court’s pronouncements in Liquor Bill in respect of the requirement of evidence to establish whether a provision is necessary as opposed to important (or even desirable), is of the utmost importance for the enactment of provincial environmental legislation.376 This is so because section 146(2)(c)(vi) specifically lists legislation for the protection of the environment as legislation which prevails over provincial legislation if that legislation is
‘necessary’. The Liquor Bill Court therefore assists provinces in understanding the issues that a court would take into consideration when deciding whether national legislation is necessary and therefore prevails over provincial legislation. This, in turn, will guide provincial legislatures on how to avoid potential conflicts when enacting provincial legislation on the environment.