The following conclusions may be drawn from the above analysis of the constitutional provisions on conflicting laws:
(i) There is no presumption in favour of national legislation over provincial legislation in the Constitution.
(ii) The legislative authority of provinces is derived from the Constitution and not from Parliament.
(iii) Legislation on the environment and related matters listed in Schedule 4 are areas of concurrent legislative competence and may therefore be competently passed by Parliament as well as provincial legislatures.
(iv) The Constitution anticipates the possibility of overlapping and conflicting national and provincial legislation on concurrent provincial and national legislative competences, and courts will generally attempt to harmonise potentially conflicting statutes.
(v) Where provinces have legislative authority and competence, they can legislate separately and differently. That will necessarily mean that there is no uniformity.399
(vi) The ‘uniformity’ envisaged by the Court in the Second Certification judgment400 clearly would only apply if any of the limited conditions provided for in section 146 (2)(a)(b) and (c) is met. In the absence of the conditions provided for in those
397 KwaZulu-Natal Certification, op cit, para 9.
398 Ibid.
399 See Mashavha, op cit, para 49.
400 Second Certification Judgment, op cit, para 159.
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subsections, the Constitution does not require identical regulatory regimes throughout the country.
(vii) Different provisions in national and provincial legislation are not automatically in conflict with each other, or inconsistent. Provinces do have the power to enact legislation which is different from national legislation, provided that the test laid down in the KwaZulu-Natal Certification judgment is met.401
(viii) The conflict resolution scheme of the Constitution departs from the conventional hierarchy that provincial legislation may not be in conflict with national legislation. Provincial legislation prevails over national legislation,402 except where national legislation applies uniformly countrywide if any of the following limited conditions is met: 1) such a matter cannot be regulated effectively by the respective provinces; or 2) to be dealt with effectively, the matter is listed as requiring uniformity; 3) the national legislation is necessary for the listed purposes.403 National legislation aimed at preventing unreasonable action by a province also prevails.404 Thus, national legislation prevails only in the limited circumstances envisaged by section 146(2) or (3).
(ix) 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.
(x) 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.405
(xi) National legislation intended to prevent unreasonable action by a province should prevail if it is ‘objectively probable’ that it will achieve that end.406
(xii) Approval of national legislation by the NCOP will not create any presumption in favour of the national legislation – but a court is required to have ‘due regard’ to the approval or rejection of the legislation by the NCOP.407
401 See particularly discussion in chapter 4, part I, 4.3 and part II - conflicting laws.
402 Constitution, op cit, section 146(5).
403 Ibid, section 146(2)
404 Ibid, section 146(3).
405 Fedsas, op cit, para 28. See also Constitution, op cit, section 150, 146(5) & 149.
406 Bronstein, chapter 16, op cit,16-29.
407 Second Certification Judgment, op cit, para 155.
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(xiii) National legislation specifically required or envisaged by the Constitution, and national legislation enacted in terms of section 44(2) interventions, are given preference over the provisions of a provincial constitution.408
(xiv) Conflicts between national legislation and provisions of a provincial constitution in the field of concurrent legislative competences are dealt with in the same manner as conflicts in respect of matters between national legislation and provincial legislation.409
(xv) In the event of conflicts between provincial legislation in an area of Schedule 5 exclusive provincial competence national legislation prevails when it is necessary;
and evidence is required to establish whether national legislation is necessary as opposed to merely important, or even desirable.410
Chapter 4 provided a detailed analysis of the constitutional provisions that underpin the authority of provinces to enact legislation for the protection of the environment. This was done in two interrelated but distinct parts which focused on: (a) the constitutional authority of provinces to enact environmental legislation; and (b) the constitutional provisions on conflicting laws, respectively. Part I established that provinces have both the authority and concurrent and exclusive competence to enact legislation in respect of the environment and matters falling within the broad concept ‘environment’, listed in Schedules 4 and 5 of the Constitution. Part II provided insight into the provisions of the Constitution on conflicting laws, as well as how these provisions have been interpretation by scholars and the courts. The latter analysis is intended to guide provincial legislators on what constitutes legislative conflicts, a concept which is often misunderstood, with a view to avoiding true conflicts when enacting legislation for the protection of the environment. This chapter therefore addressed the second objective of this dissertation, namely to determine the original legislative authority of provinces to enact environmental legislation.
I now turn to a discussion on the extent to which provinces are exercising their legislative authority in pursuit of their environmental obligations and possible factors that may constrain them from doing so.
408 See First Certification Judgment, op cit, para 269.
409 First Certification Judgment, op cit, para 269.
410 See Liquor Bill, op cit, para 80.
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