In these circumstances, section 76(3) of the Constitution determined that the Bill should have been passed in accordance with section 76(1) of the Constitution. 49 The third respondent is THE PREMIER OF THE EASTERN CAPE, care of the State Attorney, 8th Floor 167 Andries Street, Pretoria. 50 The fourth respondent is THE PREMIER OF THE FREE STATE, care of the State Attorney, 8th Floor 167 Andries Street, Pretoria.
51 The fifth respondent is THE PREMIER OF GAUTENG, care of the State Attorney, 8th Floor 167 Andries Street, Pretoria. 52 The sixth respondent is THE PREMIER OF KWAZULU-NATAL, care of the State Attorney, 8th Floor 167 Andries Street, Pretoria. 53 The seventh respondent is THE PREMIER OF MPUMALANGA, care of the State Attorney, 8th Floor 167 Andries Street, Pretoria.
54 The eighth respondent is THE PREMIER OF THE NORTHERN CAPE, care of the State Attorney, 8th Floor 167 Andries Street, Pretoria. 55 The ninth respondent is THE PREMIER OF LIMPOPO, care of the State Attorney, 8th Floor 167 Andries Street, Pretoria. 56 The tenth respondent is THE PREMIER OF NORTH WEST, care of the State Attorney, 8th Floor 167 Andries Street, Pretoria.
57 The eleventh respondent is THE PREMIER OF THE WESTERN CAPE, care of the State Attorney, 8th Floor 167 Andries Street, Pretoria.
If a matter falls outside of the areas listed in these two schedules, then it is a functional area of exclusive national legislative competence. 70 Where a law deals with more than one subject matter and one of those subjects is not within the legislative competence of the legislature concerned, this Court has held that the substance of the law must be determined. If the substance of the law is a matter which is within the areas of legislative competence of the legislature concerned, the Bill is.
This was the approach adopted in Ex Parte Speaker of the KwaZulu-Natal Provincial Legislature : in re KwaZulu-Natal Amakhosi &. 73 On the other hand if the legislation does not affect the provinces, then it may be enacted in accordance with the ordinary procedure under section 75 of the Constitution, which affords the NCOP a significantly lesser role. This difference is reflected in the headings of the respective sections - section 75 is headed “Ordinary Bills not affecting provinces” and section 76 is headed “Ordinary Bills affecting provinces”.
74 I elaborate below on the enhanced role of the NCOP in the case of a section 76 Bill. 75 In interpreting this provision, this Court in Ex Parte President of the Republic of South Africa : in re Constitutionality of the Liquor Bill4 said the following. Cameron AJ, writing for the Court, said: “Whatever the proper characterisation of the [Liquor] Bill – a question to which I return below”, it had to be enacted in terms of section 76 because “a large number of its provisions” fell within a functional area in schedule 4.5.
24]I am well aware of the fact that in this case a less cumbersome procedure was adopted. They did not intend to stop the views of the provinces because the provinces were duly represented and there was a public hearing on the matter. For the reasons set out below, it is submitted that this represents a misreading of paragraph 26 of the judgment of this Court in the Liquor Bill case.
First, the latter gives more weight to the position of the National Council of Provinces. 88 Secondly, the Court only considered the first two differences in procedure mentioned in paragraph 25 of the Liquor Bill judgment to be ones which. Once it is accepted (as the High Court correctly found) that CLARA in substantial measure fell within the functional areas of provincial legislative competence in schedule 4, then in order for it to be validly passed, the NCOP had to be constituted as required by section 65 of the Constitution and had to vote on the basis of one vote per each of the nine provincial delegations.
This will lead to years of further delay to the great detriment of the rural communities for whom section 25(6) was included in the Constitution in 1996. 97 The applicants accordingly ask that prayer (ii) of the order of the Court below be confirmed.
If the legislative process starts afresh without any ruling on the substantive challenge, that process will be conducted in circumstances of complete uncertainty as to what is constitutionally required of the legislature by section 25(6) and a later substantive challenge will be inevitable. 57] The applicants further submit that section 5 and 20 of TLGFA is contrary to the provisions of section 212(1) of the Constitution, in that it also permits delegation of governmental powers by provincial legislation. 102 On this basis, the High Court dismissed the challenge to sections 5 and 20 of the TLGFA.
The challenge to sections of CLARA was upheld, but on the basis of other components of the substantive challenge. 103 The applicants seek leave to appeal against the decision of the High Court to reject the challenge to the constitutionality of sections 5 and 20 of the TLGFA. 104 In doing so, the applicants do not persist in the argument that the quantum of powers conferred upon traditional councils by CLARA and sections 5 and 20 of the TLGFA cumulatively create a fourth sphere of government.
106 confer governmental powers upon traditional councils which exceed the constitutional space for traditional authorities in a republican democracy, afforded them under Chapter 12 of the Constitution; and. 107 provide for the transfer of governmental power in a manner and to an extent which is non-compliant with the mechanism envisaged in section 212(1) of the Constitution. 108 The argument which the applicants advance in support of the application for leave to appeal on the TLGFA challenge may be summarised as follows.
111 Those powers and the statutory structures within which they were exercised formed the building blocks of the apartheid-era homeland system;. 114 In return for the loss of governmental powers suffered by traditional leaders in the process of establishing a constitutional democracy, the IC in section 182 gave traditional leaders a non-governmental role in local government as ex officio members of municipal councils;. 119 That Chapter 12 does not allow for the exercise by traditional authorities of governmental powers was confirmed by this Court in Ex Parte Chairperson of the Constitutional Assembly: in re Certification of the Constitution of the Republic of South Africa 19968;.
120 The only non-customary role provided for in respect of traditional leaders is that envisaged by section 212(1) of the Constitution which provides that. 123 the role does not contemplate the exercise of governmental powers (vide the use of the word “role” as opposed to the word “authority” which is used in the Constitution in allocating power to the legislative and executive institutions established by the Constitution); and. 128 in the case of CLARA and section 20 of the TLGFA, do so outside of the local sphere of government.
131 The role of traditional leadership must be confined to that which is recognised in Chapter 12 of the Constitution, and the judgment fails to deal with the argument that the powers conferred go beyond what is envisaged in Chapter 12; and. 133 Having regard to the fact that this Court is already and necessarily seized of the matter by reason of the referral order of the High Court in terms of section 167(5) on the substantive challenge, it is submitted that it is in the interests of justice that leave be granted to appeal directly to the Constitutional Court in respect of the above applications for leave to appeal on the classification challenge and the TLGFA challenge.
