PBL 210 Exam - Provincial Government PDF

PBL 210: EXAM THEME 12: PROVINCIAL GOVERNMENT: PROVINCES ________________________________________  In most modern states, government = divided in different level (national, provincial and local)  S 40 & S 43 of C provides for 3 spheres. -  Reasons for existence of ‘provincial level’: Preventio...

PBL 210: EXAM THEME 12: PROVINCIAL GOVERNMENT: PROVINCES ________________________________________  In most modern states, government = divided in different level (national, provincial and local)  S 40 & S 43 of C provides for 3 spheres. -  Reasons for existence of ‘provincial level’: Prevention of a concentration of power. Involvement & participation of electorate is promoted. Better effective rendering of services. Quicker decision-making on issues. Sensitivity on local circumstances are accorded.  Negative side effects of ‘provincial level’: - Provincial level places heavy financial burden on the state. - They often cause conflict + disagreements between levels of government. - Provincial level also has different legal standards. - CHRISTELLE SAMONS PBL 210: EXAM  Legislative authority = power to enact, amend + repeal rules of law.  S 43 of C = legislative authority of 3 levels of government.  S 105 of C = composition of provincial legislature.  After New Movement case, Electoral Amendment Act now allows citizens to be elected to the national and provincial legislatures as independent candidates.  S 106 of C = membership of provincial legislature (similar to membership of NA. See S 47 of C)  S 108 of C = duration of provincial legislature (5 years. Similar to NA (S 49))  S 109 of C = dissolution of provincial legislature before expiry of term (similar to dissolution of NA (S 50). - S 130 provides for term of office + removal of Premiers (S 89 provides for NA) - S 141 provides for motion of no confidence (S 102 provides for NA)  Motion of no confidence is only applicable to the Premier & will not affect provincial legislature, unless they fail to elect a new Premier within 30 days. Need majority vote of provincial legislature for MoNC. - CHRISTELLE SAMONS PBL 210: EXAM  Term + removal of Premier (S130):  Term = 5 years + no Premier may serve more than 2 terms.  Removal of Premier = S 130(3) - Need supporting vote of 2/3 of provincial legislature if Premier if Premier is guilty on grounds of: (a) Serious violation of Constitution or law. (b) Serious misconduct. (c) Inability to perform functions of office.  Removal of Premier will not affect provincial legislature, unless they fail to elect a new Premier within 30 days. DEMARCATION OF PROVINCES:  Interim Constitution (IC) provided for 9 provinces.  Constitution of the Republic of South Africa, 1996 (CRAS) retained demarcation of provinces under IC.  Changing name of province (S 103(1)) or altering of boundaries (S 103(2)) of provinces will be an amendment to the Constitution.  This means that it will be a S 74(3)-Bill. - Need: (a) 2/3 majority vote from NA in favour of change. (b) 6 out 9 provinces in favour of change. - CHRISTELLE SAMONS PBL 210: EXAM  PROVINCIAL NAME CHANGE (S 103(1)):  Provincial name change = constitutional amendment.  Provincial legislature must request Parliament to change name of province.  According to S 104(2), there must be a 2/3 majority support from provincial legislature in favour of name change.  Provincial name change = S 74(3)-bill and thus needs: (a) 2/3 majority vote from NA supporting the name change. (b) 6 out of 9 provinces in NCoP must be in favour of name change.  ALTER PROVINCIAL BOUNDARIES (S 103(2)):  Alternation of provincial boundaries = constitutional amendment.  For alternation of provincial boundaries, you need: (a) 2/3 majority vote from NA supporting alternation. (b) 6 out of 9 provinces in NCoP must be in favour of alternation.  According to S 74(8), NCoP may not pass this bill unless it has been approved by legislatures of provinces concerned. LEGISLATIVE AUTHORITY OF PROVINCES (S 104 OF C):     Legislative authority of provinces is constitutionally entrenched. Legislative authority of province is vested in provincial legislature. Provincial legislatures are bound by Constitution. Functions of provincial legislature: (a) To pass a constitution for its province. (b) To pass legislation for its province with regard to any matter within functional area listen in schedule 4 & 5. (c) To assign any of its legislative powers to a Municipal Council in that province. - CHRISTELLE SAMONS PBL 210: EXAM PROVINCIAL LEGISLATIVE PROCESS:  S 104 gives provincial legislatures authority.  Exclusive legislative authority: - Schedule 5 provides a list of functional areas where provincial legislature has EXCLUSIVE authority. - There is an exception: S 44(2) of the Constitution provides for the intervention of Parliament:  Concurrent legislative authority: - Schedule 4 provides a list of functional areas where provincial legislature has concurrent legislative authority (together with parliament) - Both national & provincial legislatures have authority. - CHRISTELLE SAMONS PBL 210: EXAM What does Schedule 5’s functional areas of exclusive provincial legislative competence mean?  Any legislation of national legislature (parliament) made on exclusive provincial functional areas (schedule 5), is INVALID + UNCONSTITUTIONAL, except if parliament has intervention powers, as stipulates in S 44(2)(a)-(e). Who takes responsibility for legislation?  With functional areas of exclusive provincial competence (schedule 5), the provinces take FULL responsibility.  With functional areas of concurrent national & provincial legislative competence (schedule 4), parliament & provincial legislature share responsibility + power. CONFLICTING NATIONAL & PROVINCIAL LEGISLATION:  S 146 of C provides for conflict between national and provincial legislation.  Schedule 4 provides for concurrent legislative authority between national & provincial legislative competence.  Before applying S 146, one must determine the following: (1) Whether both legislatures have acted within their respective legislative competence. (2) If not, such an Act will be declared unconstitutional + invalid.  Which Act will prevail (S146)?  Ito S 146, national legislation will prevail if national legislation complies with requirements in S 146(1)-(3).  Provincial legislative powers cannot be excluded by parliament ito schedule 4.  That is why S 146 is invoked in cases of conflict between text.  If requirements in S 146(1)-(3) are not met, provincial legislation prevails.  Status of legislation that does not prevail (S149)?  S 149 confirms that S 146 is only invoked in cases of conflict between national & provincial legislation.  If court decides that legislation prevails over the other legislation, does not mean that other legislation is invalidated.  Other legislation becomes inoperative for as long as conflict remains, BUT the pats of legislation that is not in conflict, remains valid.  Conflict can be removed through amendment/repeal and legislation that was suspended will be operative again. - CHRISTELLE SAMONS PBL 210: EXAM CONSTITUTIONAL REQUIREMENTS FOR PROVINCIAL CONSTITUTIONS:  REQUIREMENTS FOR ADOPTION OF PROVINCIAL CONSTITUTIONS:  S 142 of Constitution.  Provincial legislature may pass a constitution for a province, or amend it where applicable, if at least 2/3 of the members vote in favour of the Bill. -  REQUIREMENTS FOR CONTENTS OF PROVINCIAL CONSTITUTION:  S 143 of Constitution.  Constitutional Supremacy = no new law is immune against C.  Ex parte Speaker of the KwaZulu-Natal Provincial Legislature: In re: Certification of the Constitution of the Province of KwaZulu-Natal, 1996: legislature of KwaZulu-Natal unanimously adopted a provincial Constitution. Under S 160(1) of IC, provincial legislatures could pass provincial constitution for their province with certification by CC for compliance with IC. Provinces may not confer greater powers on themselves than those granted by IC. Only national government could provide clauses for regulation of relationship between provinces & national government. Provinces may include a BoR, but it must be consistent with BoR in CRSA. Provisions inconsistent with IC, but applicable to CRSA. - CHRISTELLE SAMONS PBL 210: EXAM  Ex parte Speaker of the Western Cape Provincial Legislature: In re: Certification of the amended text of the Constitution of the Western Cape: - Amended text of WC provincial constitution was passed with majority 2/3 of members, as required by S 142 of C. - Text complied with requirements in S 143.  REQUIREMENTS FOR CERTIFICATION OF PROVINCIAL CONSTITUTION:  S 144 of Constitution.  After provincial legislature passed/amended a constitution for the province, the Speaker must submit text to CC for certification.  REQUIREMENTS FOR SIGNING, PUBLICATION & SAFEKEEPING OF PROVINCIAL CONSTITUTIONS:  S 145 of Constitution.  Premier must assent + sign text that has been certified by CC.  Text will then be published in National Government Gazette + takes effect on date of publication or other date determined in constitution. Provincial constitution may include own BoR for province, BUT BoR must be consistent with BoR in Constitution of the Republic of South Africa. Provincial BoR in provincial constitution may provide for more rights than its national counterpart (CRSA) but may not limit / take rights away from Constitution.  OTHER CONFLICTS:  S 147 of Constitution provides for conflict between national legislation and provincial constitution.  Is handled same way as conflicting provincial & national legislation. - CHRISTELLE SAMONS PBL 210: EXAM - CHRISTELLE SAMONS PBL 210: EXAM  Provincial legislative process (S 121):  Provincial legislature votes on Bill and Bill is then submitted to Premier.  Premier can: (a) Assent & sign the bill. (b) Send Bill back to provincial legislature for reconsideration.  If Bill is assented to & signed by Premier, Bill becomes a Provincial Act.  If Premier sends Bill back, provincial legislature must reconsider and after reconsideration, Bill is AGAIN submitted to Premier.  If Premier approves, he assents & signs bill.  If Premier is still unhappy, Bill is referred to CC to consider constitutionality of Bill.  If CC says Bill is constitutional, Premier must assent & sign.  If CC says Bill is unconstitutional, Bill lapses. - CHRISTELLE SAMONS