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Questions and Answers
Provincial legislation always prevails over national legislation regardless of the provisions of the Constitution.
False
Only provincial legislatures have the authority to pass legislation on topics listed in Schedule 5.
False
The principle of federalism restricts each sphere of government from adopting legislation outside of its legislative authority.
True
Legislation can be challenged in court if it is found not to align with the respective legislature's authority.
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A court must determine whether the legislation falls under Schedule 4 or Schedule 5 before assessing the legislature's authority to pass it.
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The Liquor Bill exclusively regulated the production and distribution aspects of the liquor industry.
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The Western Cape government supported the Liquor Bill's approach to retail sales licensing.
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The Constitutional Court recognizes the concept of co-operative government across different levels of governance.
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Section 44(2) of the Constitution allows for provincial matters to be exclusively managed without intervention from the national government.
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The Liquor Bill was primarily characterized by its handling of economic and social welfare issues.
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Study Notes
Legislative Authority in South Africa
- Provincial Legislation: Provincial laws prevail over national ones unless national legislation meets the criteria of section 146 of the Constitution.
- Exclusive Competences: Provincial legislatures usually have exclusive power over matters listed in Schedule 5 of the Constitution.
- National Intervention: National Parliament can intervene and pass legislation listed in Schedule 5 in specific cases outlined in section 44(2) of the Constitution.
- Limits on Legislative Power: Each sphere of government (national, provincial, and local) has limitations on its legislative authority.
- Challenging Legislation: Legislation can be challenged in court on the grounds that it falls outside a legislature's authority.
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Determining Legislative Competence: Courts must determine whether a legislature was competent to pass legislation:
- Schedule 4 or 5: Which Schedule does the legislation fall under (requires a specific test)?
- Authorization: Was the legislature authorized to pass the legislation (either as a matter of course or in terms of section 44(2) or 146 of the Constitution)?
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Liquor Bill Case: The Constitutional Court addressed the question of legislative competence in the Ex Parte President of the Republic of South Africa: In re Constitutionality of the Liquor Bill case.
- Liquor Industry: The Liquor Bill regulated the liquor industry, dividing it into three categories: manufacture, distribution, and retail sales.
- National vs. Provincial: The Bill treated manufacture and distribution as national issues and retail sales as provincial, with detailed mechanisms for provincial licensing.
- Western Cape Challenge: The Western Cape government challenged the constitutionality of the Bill arguing that it overly regulated national issues and limited provincial powers.
- Court's Decision: The Constitutional Court emphasized that governmental power is shared across all spheres under the post-apartheid constitution and that interpretations must promote co-operative government.
- Overlapping Competences: The Court acknowledged that the broad nature of the competencies in Schedules 4 and 5 will inevitably lead to overlap.
- Provincial Exclusivity: The Constitution allows for provincial exclusivity in matters pertaining to Schedule 5, subject to national intervention justified under section 44(2).
Objectives of Local Government
- Democratic and Accountable Local Government: Provision of democratic and accountable local government for local communities.
- Service Provision: Ensuring sustainable provision of services to communities.
- Social and Economic Development: Promotion of social and economic development.
- Safe and Healthy Environment: Promotion of a safe and healthy environment.
- Community Involvement: Encouragement of community involvement in local government matters.
Powers of Municipalities
- Prioritize Basic Needs: Municipalities must prioritize basic needs of communities in their administration and budgeting.
- Promote Social and Economic Development: Structure administration and budgeting to promote community social and economic development.
- National and Provincial Development Programs: Participate in national and provincial development programs.
- Unalterable Powers: These powers are fundamental to local government's institutional integrity and cannot be altered or withdrawn unless the Constitution itself is amended.
Interpretation of Schedule 4 and 5
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Bottom-up Method: Matters listed in Schedule 4 and 5 should be interpreted in a bottom-up manner:
- Specific over Broad: Start with the definition of the more specific matter and then define the broader matter in relation to it.
- Gauteng Development Tribunal Case: Applied the bottom-up method to determine whether the power to approve rezoning applications fell under the broad matter of urban and rural development (Schedule 4A) or the specific matter of municipal planning (Schedule 4B).
Assignment of Executive Powers to Municipalities
- Section 156(4): Sets out circumstances wherein assigning executive powers to municipalities becomes compulsory based on agreements in terms of sections 99 and 126 of the Constitution.
- Assignment of Powers and Functions: Regulated by the Local Government: Municipal Systems Act.
Incidental Municipal Powers
- Section 156(5): Municipalities have the right to exercise power necessary or incidental to the effective performance of their functions.
- Broadening Function Areas: These incidental powers can be seen as broadening a municipality's functional areas of legislative and executive authority.
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Description
Test your knowledge on the legislative authority in South Africa, focusing on the roles of provincial legislation and national intervention. This quiz covers the exclusive competences of provincial legislatures and the limits on legislative power as outlined in the Constitution.
