Section 146-150 Constitution of South Africa 1996
Section 146, 147, 148, 149 and 150 of the Constitution of South Africa 1996 (as amended) are under ‘Conflicting Laws‘ of Chapter 6 of the Constitution. Chapter 6 is titled ‘Provinces‘.
Section 146 Constitution of South Africa 1996
Conflicts between national and provincial legislation
1. This section applies to a conflict between national legislation and provincial legislation falling within a functional area listed in Schedule 4.
2. National legislation that applies uniformly with regard to the country as a whole prevails over provincial legislation if any of the following conditions is met:
a. The national legislation deals with a matter that cannot be regulated effectively by legislation enacted by the respective provinces individually.
b. The national legislation deals with a matter that, to be dealt with effectively, requires uniformity across the nation, and the national legislation provides that uniformity by establishing
i. norms and standards;
ii. frameworks; or
iii. national policies.
c. The national legislation is necessary for
i. the maintenance of national security;
ii. the maintenance of economic unity;
iii. the protection of the common market in respect of the mobility of goods, services, capital and labour;
iv. the promotion of economic activities across provincial boundaries;
v. the promotion of equal opportunity or equal access to government services; or
vi. the protection of the environment.
3. National legislation prevails over provincial legislation if the national legislation is aimed at preventing unreasonable action by a province that
a. is prejudicial to the economic, health or security interests of another province or the country as a whole; or
b. impedes the implementation of national economic policy.
4. When there is a dispute concerning whether national legislation is necessary for a purpose set out in subsection (2)(c) and that dispute comes before a court for resolution, the court must have due regard to the approval or the rejection of the legislation by the National Council of Provinces.
5. Provincial legislation prevails over national legislation if subsection (2) or (3) does not apply.
6. A law made in terms of an Act of Parliament or a provincial Act can prevail only if that law has been approved by the National Council of Provinces.
7. If the National Council of Provinces does not reach a decision within 30 days of its first sitting after a law was referred to it, that law must be considered for all purposes to have been approved by the Council.
8. If the National Council of Provinces does not approve a law referred to in subsection (6), it must, within 30 days of its decision, forward reasons for not approving the law to the authority that referred the law to it.
Section 147 Constitution of South Africa 1996
Other conflicts
1. If there is a conflict between national legislation and a provision of a provincial constitution with regard to
a. a matter concerning which this Constitution specifically requires or envisages the enactment of national legislation, the national legislation prevails over the affected provision of the provincial constitution;
b. national legislative intervention in terms of section 44(2), the national legislation prevails over the provision of the provincial constitution; or
c. a matter within a functional area listed in Schedule 4, section 146 applies as if the affected provision of the provincial constitution were provincial legislation referred to in that section.
2. National legislation referred to in section 44(2) prevails over provincial legislation in respect of matters within the functional areas listed in Schedule 5.
Section 148 Constitution of South Africa 1996
Conflicts that cannot be resolved
If a dispute concerning a conflict cannot be resolved by a court, the national legislation prevails over the provincial legislation or provincial constitution.
Section 149 Constitution of South Africa 1996
Status of legislation that does not prevail
A decision by a court that legislation prevails over other legislation does not invalidate that other legislation, but that other legislation becomes inoperative for as long as the conflict remains.
Section 150 Constitution of South Africa 1996
Interpretation of conflicts
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.
