5 Federalism. Jonathan Klaaren

Transcription

1 5 Federalism Jonathan Klaaren 5.1 Introduction (a) History (b) Competing models of federalism (c) Competence and conflict distinguished A (d) Legislative and executive competence distinguished (e) Exclusive and concurrent competences (f) A five-part legislative competency and conflict test Competence Existence of conflict (a) Statutory interpretation (b) The approach to conflicts (c) Field pre-emption Degree of conflict: conflict pre-emption (a) Types of conflict (i) Direct conflict (ii) Indirect conflict (iii) Implementation conflict (iv) Policy conflict (b) Constitutionally significant conflict Resolution of conflict: the override clauses (a) General (b) Uniform applicability (c) The national overrides (i) Effective regulation (ii) Uniform norms, standards, frameworks, or policies (iii) Necessity (iv) Material prejudice/unreasonable provincial action (d) Subordinate legislation (e) Consequences of the resolution of conflict [REVISION SERVICE 5, 1999] 5--i

2

3 FEDERALISM 5.1 INTRODUCTION (a) History E 5, While this chapter cannot cover the history of the federalism issue, persons litigating in this area should be aware that questions of federalism and regionalism were a major feature of the negotiations of both the interim Constitution and the final Constitution. Of the various comparative models drawn upon, the German probably had the most profound effect. However, the Constitutional Court has specifically emphasized that comparative case law in the area of federalism should be treated with great caution. 1 The institutional arrangements agreed upon at Kempton Park and the Constitutional Assembly can perhaps best be described as a federal system with unitary features. However, it is clear that the provinces are not sovereign but are subject to the Constitution. In the National Education Policy Bill case, 2 the Constitutional Court declared that the provinces in South Africa are not sovereign states. They were created by the Constitution and have only those powers that are specifically conferred on them under the Constitution. (b) Competing models of federalism While there are many explanations and analyses of federalism, at least three models might be distinguished for present purposes. The first is a juridical model and the second and the third focus on political processes. The first model is rules-based and was perhaps dominant at Kempton Park. It sees federalism as a matter of dividing up spheres of competence and enforcing this division by formal judicial overview of the actions of national and provincial authorities. In this view IC s 126(3) and FC ss provide a judicially enforceable mechanism for resolving conflicts between the national and provincial spheres. The second model bases the implementation of decentralization on the adherence by all within government to a common set of norms. This model became dominant by the passage of the final Constitution and is explicitly embodied in Chapter 3 on Co-operative Government. 3 In this view national and provincial authorities will understand themselves as obligated to stay within certain zones of activity. The norms of co-operative government may be judicially enforceable, but only as a last resort after co-operation and negotiation have run out. The third model bases the implementation of decentralization not on a shared value system but on a self-reinforcing constitutional structure in which the national and provincial authorities adhere to their specified competences as a matter of calculation or political 1 Ex parte Speaker of the National Assembly: In re Dispute Concerning the Constitutionality of Certain Provisions of the National Education Policy Bill No 83 of (3) SA 289 (CC), 1996 (4) BCLR 518 (CC) at paras 21--3, referring to argument based on New York v United States 505 US 144, 112 SCt 2804 (1992). 2 National Education Policy Bill case (supra) at para 23. See also Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, (4) SA 744 (CC), 1996 (10) BCLR 1253 (CC) at para 259; Ex parte Speaker of the Western Cape Legislature: In re Certification of the Consitution of the Province of the Western Cape 1997 (4) SA 795 (CC), 1997 (9) BCLR 1167 (CC). 3 See Certification of the Constitution, 1996 case (supra) at para 287. [REVISION SERVICE 5, 1999] 5--1

4 CONSTITUTIONAL LAW OF SOUTH AFRICA prudence. Here, decentralization is implemented through exchanges of political power and material interest. The participation of the provinces in the national legislative process through the National Council of Provinces in the final Constitution is one feature that is part of such a structure. 1 2 As a matter of interpreting the interim Constitution, the Constitutional Court emphasized the impact of norms of co-operative government in approving of the National Education Policy Bill s scheme of executive implementation of national standards for education. 2 In the court s emerging vision of federalism, co-operation between the provinces and the central government in achieving national standards can be assumed. Thus Parliament can competently require a provincial political head of education to prepare a remedial plan for achieving constitutional standards in education in consultation with the national Department of Education. 3 Where two legislatures have concurrent powers to make laws in respect of the same functional areas, the only reasonable way in which these powers can be implemented is through co-operation. And this applies as much to policy as to any other matter. It cannot therefore be said to be contrary to the Constitution for Parliament to enact legislation that is premised on the assumption that the necessary co-operation will be offered, and which requires a provincial administration to participate in co-operative structures and to provide information or formulate plans that are reasonably required by the Minister and are relevant to finding the best solution to an impasse that has arisen. The Constitutional Court has clearly indicated that it sees this vision of co-operative government as also underpinning the final Constitution. In Premier, Western Cape v President of the Republic of South Africa & another 4 the court expressed its continued support for co-operative government in the following terms: Co-operation is of particular importance in the field of concurrent law-making and implementation of laws. It is desirable where possible to avoid conflicting legislative provisions, to determine the administrations which will implement laws that are made, and to ensure that adequate provision is made therefor in the budgets of the different governments. It should further be noted that this vision of co-operative federalism sees the central government playing a dominant role. For instance, at least until the province legislates otherwise (taking into account the possibility of a national override in terms of IC s 126(3) and FC ss 146 and 147), provincial executive co-operation in achieving national standards may be assumed even where the national standards have been formulated only as a matter of executive policy, not as the subject of parliamentary legislation. 5 Moreover, without deciding the issue, the court seemed to indicate that the offering or withholding of financial incentives to persuade provinces to agree to national policy would be legitimate as long as constitutional procedures were followed and no ulterior motive was pursued. 6 While the 1 See above, Chaskalson & Klaaren National Government 3.3(b). 2 See National Education Policy Bill case (supra) at paras 27 and At para (3) SA 657 (CC), 1999 (4) BCLR 382 (CC) at para 55 (citing National Education Policy Bill case (supra)); see also paras (same) and para 43 (approving of national framework legislation). 5 At para At para [REVISION SERVICE 5, 1999]

5 National Education Policy Bill might have been interpreted not to oblige the province to follow eduction policy, the court clearly sees few, if any, constitutional barriers to a dominant parliamentary role in providing for co-ordination and co-operation among the provinces and the central government in respect of concurrent legislative matters. 1 (c) Competence and conflict distinguished Most often questions of federalism arise in the context of a conflict or potential conflict between two pieces of legislation: one provincial and one national. The interesting question is, for instance, whether a Gauteng law will be overridden by a central government law. However, before one asks the conflict question, concerning which piece of legislation governs, a prior competence question is whether either is in fact validly enacted. 2 To be 2A FEDERALISM 1 At para See National Education Policy Bill case (supra) at para 16. [REVISION SERVICE 5, 1999] 5--2A

6 2B

7 valid the legislative organ (i e Parliament or the provincial legislature) must have had the competence to legislate in an area. Here one must ascertain whether the Constitution in force at the time that the legislation was enacted granted the relevant legislature the competence to legislate in respect of that legislation. 1 Obviously, separate provisions govern legislation passed under the interim Constitution and under the final Constitution, and this chapter thus presents at least the major features of both. (d) FEDERALISM Legislative and executive competence distinguished E 2, The most common application of this step of identifying competence is in the legislative field, but the same analysis was also employed in the executive area in the interim Constitution. In other words, the division of executive competence between the national and provincial governments followed the division of legislative competence along the lines of IC s 126 and related provisions. The executive dimension was an especially important matter, given that the legal necessity upon the creation of the new provinces was not to determine competence to enact new laws 2 or to resolve conflicts between newly enacted laws, but rather to determine the division of old laws and to allocate or to assign to the provinces the provincial portions of such laws under the transitional provisions of the interim Constitution. 3 In this process the rules relating to competence and the resolution of actual conflict between two new pieces of legislation were used to determine the division of old pieces of legislation into spheres of national and provincial executive responsibility. This use in the executive area was not, however, compelled by the interim Constitution, other than in relation to the transitional provisions. 4 Given the possibility of political processes to work out the 1 One must also be assured that the exercise of that legislative competence did not conflict with some other provisions of the relevant Constitution such as the fundamental rights guarantees or the doctrine of separation of powers. See generally above, Chaskalson & Klaaren National Government 3.1(b) and 3.3(e). 2 Of course, for old legislation not repealed by the Constitution the competence inquiry did not apply, except perhaps in so far as one could demonstrate that a particular piece of legislation was invalidly enacted according to the terms of the old legal regime. 3 Section 235 was the transitional provision in this area. In addition to non-schedule 6 matters, s 235(6)(a)(ii) assigned executive authority with respect to all matters falling within the Schedule 6 areas and within the areas of s 126(3)(a)--(e) to the national government. Section 235(6)(b), conversely, subjected Schedule 6 matters which were not referred to in s 126(3)(a)--(e) to (at least potential) devolution to the provinces in terms of s 235(8). Thus the legal regime for devolution was based upon the legal framework for concurrent competence. See above, Chaskalson & Klaaren Provincial Government 4.2(c). See, for example, Executive Council, Western Cape Legislature, & others v President of the Republic of South Africa & others 1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC), where a majority of the Constitutional Court held that matters covered by the Local Government Transition Act 209 of 1993 were not within the legislative competence of the provinces, alternatively were subject to the national government s legislative override in terms of s 126(3). Accordingly, the majority judges held that the executive authority under the Local Government Transition Act could not be assigned to the provinces under s 235(8). Kriegler J stated (at para 186): Section 245 of the Constitution makes clear the national import of the reconstruction of local government. The engine provided by the Transition Act would drive the process along the agreed tracks towards a common destination. Keeping the ultimate brake in the hands of the national government means that it had the final say in determining the process. That being so, it is unthinkable that the executive authority, with regard to the Transition Act, could lawfully be assigned to a province. 4 See contra President of the Republic of Bophuthatswana & another v Milsell Chrome Mines (Pty) Ltd & others 1995 (3) BCLR 354 (B), which is criticized above by Chaskalson & Klaaren Provincial Government 4.2(b) and 4.2(c). [REVISION SERVICE 2, 1998] 5--3

8 division of executive competences between the provinces and the central government, and the different nature of legislative and executive competences, the interim Constitution could have been interpreted to provide different rules for the division of executive competence. Indeed, the final Constitution does precisely that, specifying in s 100 and s 125(2) a set of rules for the assignment of executive competence separate from those of legislative competence. 1 (e) CONSTITUTIONAL LAW OF SOUTH AFRICA Exclusive and concurrent competences 4Most of the provincial legislative competence in the interim Constitution was concurrent, i e shared with Parliament. 2 However, the interim Constitution did provide for substantial areas of exclusive national legislative competence and a limited zone of exclusive provincial legislative competence. A law of the national government purporting to regulate a matter of exclusive provincial competence (or vice versa) would be struck down as constitutionally incompetent. Exclusive legislative competence for the national government under the interim Constitution fell into two categories: express and residual. In the former category certain provisions of the interim Constitution expressly granted powers to the national government, e g s 3 (official languages) and ss 214 and 217 (South African Police Service). In the latter category any power which was not one of the enumerated provincial areas and was not reasonably necessary for or incidental to such an area (in terms of IC s 126(2)) was an exclusively national area of competence. Such exclusive national competence was residual, since it was the set of powers remaining after the provincial areas of concurrent competence had been taken away. Exclusive legislative competence for the provincial government under the interim Constitution included the express competence over provincial official languages (s 3(5)), over the imposition of taxes on casinos and gambling (s 156(1B)), and over the name of the province (s 124(1)). There might also have been a small area of exclusive provincial competence implicit in a scheme of provincial government such as the competence over the location of the capital of the province. The final Constitution adopts a structure which is generally similar to that provided by the interim Constitution. Schedule 4 of the final Constitution, like Schedule 6 of the interim Constitution, enumerates the areas of concurrent legislative competence. Again, however, the final Constitution provides for areas of exclusive legislative competence. For the national government these fall into the categories of express and residual. For instance, the express exclusive competence over the security services of the Republic is granted in s 199. In addition, there is a broad area of residual exclusive national competence. 3 Any power which is not covered by one of the enumerated concurrent functional areas of Schedule 4 of the final Constitution or is not reasonably necessary for or incidental to such an area 4 or is not 1 See Chaskalson & Klaaren above, Provincial Government 4.5(c). 2 Section 126(2A) made it clear that Parliament is also competent to pass legislation in all areas in which the provinces may legislate. See National Education Policy Bill case (supra) at para See Certification of the Constitution, 1996 case (supra) at para 234n163 and para FC s 44(3) [REVISION SERVICE 2, 1998]

9 covered in Schedule 5 is an area of exclusive national competence. It is not clear what matters would fall into this category. 1 Constitutional interpretation and practice will establish the content of this set of residual powers. 5 For the provincial government the scheme of exclusive competences changes significantly under the final Constitution. Schedule 5 expressly identifies a number of areas of exclusive provincial legislative competence. In general the national government is not competent to legislate in such areas. 2 However, s 44(2) does provide the possibility of national legislative intervention into these areas of exclusive provincial competence in special circumstances. 3 Apart from Schedule 5 the final Constitution provides a few other areas of exclusive provincial legislative competence. 4 (f) FEDERALISM A five-part legislative competency and conflict test The legal analysis proposed in this chapter can be reduced to the following five-part test. The first two parts relate to competence and the last three parts relate to conflict: 5 (1) What is the matter with which the challenged legislation deals? (2) Does the matter of the challenged legislation fall within the competence of the originating legislature? (3) Is there any conflict between the challenged piece of legislation and another piece of legislation? (4) If yes, is the degree of conflict between the challenged legislation and the conflicting legislation constitutionally significant? (5) If yes, is the area of conflict one where the national legislature has an override? 5.2 COMPETENCE For a law to be valid Parliament or the provincial legislature must have had the constitutional competence to legislate in the area concerned. In determining whether a piece of legislation has been competently enacted, a court will ask two questions: (1) What is the matter with which the challenged legislation deals? (2) Does the challenged legislation fall within the competence of the originating legislature? In the vast majority of cases the answer to the first question will be straightforward. In the relatively few cases where both exclusive and concurrent competences are potentially 1 Some of the matters obviously falling within this residual legislative competence would be those relating to justice, prisons, foreign affairs, labour, mining, energy, land, water, national public enterprises, broadcasting, and posts and telecommunications. 2 Section 44(1)(a)(ii). 3 See 5.2 below. 4 See Certification of the Constitution, 1996 case (supra) at para A further question is perhaps equally important: what remedy is appropriate? This is where questions of severance and the extent of severance arise. See below, Klaaren Judicial Remedies 9.4. [REVISION SERVICE 2, 1998] 5--5

10 CONSTITUTIONAL LAW OF SOUTH AFRICA in issue 1 one would need to look for the dominant feature of the legislation if the piece of legislation could arguably be characterized in more than one way. When a law deals with two matters a court must judge which is the most significant matter for the purposes of division of competence. For instance, in Bank of Toronto v Lambe a Canadian tax on banks was determined to be about taxation rather than banking. 2 A consideration of the law s social or economic purpose as well as its effect may be helpful in determining what matter it deals with. 3 In one instance where a provincial tax had the effect of making a commodity too expensive to sell in interstate commerce, the tax was held to relate to the Canadian federal power of interprovincial commerce. 4 6 The Constitutional Court has stated that it will consider the purpose and effect of a law in judging whether a provincial legislature had the competence to pass the legislation. In Ex parte Speaker of the KwaZulu-Natal Provincial Legislature: In re KwaZulu-Natal Amakhosi and Iziphakanysiwa Amendment Bill of 1995; In re Payment of Salaries and Allowances and Other Privileges to the Ingonyama Amendment Bill of the court stated that purpose... may be relevant to show that although the legislation purports to deal with a matter within Schedule 6 its true purpose and effect is to achieve a different goal which falls outside the functional areas listed in Schedule 6. In such a case a Court would hold that the province has exceeded its legislative competence. Once the matter of the law has been determined the next step is to determine whether that matter falls within the legislature s competence. Under the interim Constitution, where national legislation was concerned, this was a relatively straightforward exercise. National legislative competence was residual and there were few areas of exclusive provincial legislative competence. However, in relation to national legislation passed under the final Constitution the inquiry is more complicated. With respect to matters falling within Schedule 5 of the final Constitution, Parliament has the power to legislate only in terms of its intervention power conferred by s 44(2), which authorizes the enactment of legislation necessary (a) to maintain national security; (b) to maintain economic unity; (c) to maintain essential national standards; (d) to establish minimum standards required for the rendering of services; or (e) to prevent unreasonable action taken by a province which is prejudicial to the interests of another province or to the country as a whole. The language of s 44(2) of the final Constitution partially tracks that of s 146. Since national intervention legislation deemed to have been competently enacted in terms of s 44(2) prevails over provincial legislation without any further inquiry in terms of s 147(2), it is submitted that a court faced with a competence dispute concerning whether national legislation is necessary for the 1 See for example President of the Republic of Bophuthatswana & another v Milsell Chrome Mines (Pty) Ltd & others 1995 (3) BCLR 354 (B), where the court had to decide whether legislation related to land (a matter outside of the provincial legislative competence) or tribal affairs (a matter within the provincial legislative competence). Aspects of the judgment relating to provincial executive authority and the transitional provisions of the Constitution are criticized above, Chaskalson & Klaaren Provincial Government 4.2(b) and 4.2(c). 2 Bank of Toronto v Lambe (1887) 12 App Cas The administration of a law may also be useful in determining its matter. 4 Texada Mines v AG BC [1960] SCR (4) SA 653 (CC), 1996 (7) BCLR 903 (CC) at para [REVISION SERVICE 2, 1998]

11 FEDERALISM intervention purpose set out in s 44(2) should have due regard to the approval or rejection of the legislation by the National Council of Provinces. 1 7 For provincial legislation the competence inquiry begins with examining the schedule of provincial legislative competences (IC Schedule 6 and FC Schedule 4). This examination is essentially a matter of constitutional interpretation about which reasonable minds may differ. 2 For instance, one of the IC Schedule 6 competences is provincial public media. One interpretation of this competence is that it relates to matters about media whose intended and actual audience lies within a single province. Another interpretation is that it relates to matters about media based in a province which could broadcast to other provinces. Furthermore, IC s 126(2) and FC s 104(4) operate to expand the schedules of concurrent competences. 3 These sections are broadly worded (using the phrase reasonably necessary for or incidental to ), although the use of the term effective exercise may be restrictive. In a scheme of specified provincial powers and residual national power these sections significantly expand the concurrent competence of the provinces. 4 Although there is no explicit incidental competence section in the final Constitution in relation to the exclusive powers of the provinces in Schedule 5, the Constitutional Court has stated that a similar inquiry would be read into the text in relation to those powers. 5 Incidental legislative competence has been given broad recognition in other federal jurisdictions. For instance, although the Canadian provinces do not have the competence to deal with television, provincial legislation dealing with matters within their competence may have an incidental effect on television. Thus in AG Quebec v Kellogg s Co the province of Quebec validly regulated the content of a cartoon television commercial aimed at young children as part of the province s power to control commercial activity within the province EXISTENCE OF CONFLICT (a) Statutory interpretation Given the breadth of the provincial legislative competence and its concurrency with that of national government, some degree of conflict between various pieces of legislation is 1 Cf FC s 146(4). 2 That these areas are capable of differences in interpretation has been demonstrated by differences within the Consitutional Court in construing the local government competence. Compare Executive Council, Western Cape Legislature, & others v President of the Republic of South Africa & others 1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC) at para 93 (Chaskalson P) with para 156 (Ackermann and O Regan JJ) and para 185 (Kriegler J). 3 See for example KwaZulu-Natal Amakhosi case (supra) at para 22, where the Constitutional Court used IC s 126(2) to expand provincial legislative competence over traditional authorities to include matters relating to the payment of salaries to traditional leaders. 4 See McCulloch v Maryland 17 US (4 Wheat) 316 (1819), in which the power to charter a national bank was found to be within the federal legislative competence by reason of the necessary and proper clause of the US Constitution. Two South African cases in point in the context of the original legislative power of the provincial councils are R v Joseph 1953 (3) SA 589 (O) and SA Motor Racing Co Ltd v Peri-Urban Areas Health Board 1955 (1) SA 334 (T). 5 Certification of the Constitution, 1996 case (supra) at para AG Quebec v Kellogg s Company [1978] 2 SCR 211. [REVISION SERVICE 2, 1998] 5--7

12 inevitable. However, as a general rule courts will strive to harmonize potentially conflicting statutes. This is a basic rule of statutory interpretation in a constitutional state and there are general commands to this effect in both the interim and final Constitutions. 1 Potentially conflicting provincial legislation which is found not to conflict at all with national legislation is often termed complementary or supplemental legislation. 2 (b) The approach to conflicts CONSTITUTIONAL LAW OF SOUTH AFRICA 8At least two different interpretations of the operation of the various rules relating to conflicts in the interim and final Constitutions are possible. These differing interpretations flow from the models of federalism identified above. A rules-based model sees such provisions as a legal onus of proof to be enforced by a court. A norms-based model sees them as commands of statutory interpretation, to be enforced by other organs of government initially, and by a court only as a matter of last resort. In the interim Constitution this was a matter of the interpretation of s 126(3), which stated that provincial laws in areas of concurrency would prevail over national laws except in specified instances of override contained in s 126(3)(a)--(e). One possible interpretation of this provision was that the national government bore the onus of proving that the matters dealt with by the national legislation fell within the terms of one of the override provision. Another interpretation was that the presumption was a signal to the judiciary about the proper judicial role in determining the existence of conflict such that it is necessary even to invoke the override provisions. In this interpretation the judiciary is given a rule of statutory interpretation and told to try to harmonize the legislation and to be reluctant to find the existence of conflict (and potentially an override) where national legislation is ambiguous on the matter. 3 It is submitted that this second interpretation is to be preferred. It is crucial not to over-judicialize issues of national--provincial conflict. 4 The proper form of protection for the provinces is political participation through the procedures built into the national structure rather than judicial enforcement of constitutional provisions. In accordance with the norms of co-operative government the interpretation of rules of prevalence as norms of statutory interpretation is the sounder one. Indeed, the final Constitution supports the second interpretation in s 146(4), providing that the judiciary must have due regard to the vote of the National Council of Provinces in resolving whether one of the s 146(2)(c) overrides is engaged. And the Constitutional Court has fully backed up this provision by stating that were such a provision not provided explicitly, the court might well have read into the text in any 1 See IC s 126(5) and FC s See for example Colorado Anti-Discrimination Commission v Continental Air Lines Inc 372 US 714 at , 83 SCt 1022 (1963), where an American state statute barring discriminatory hiring was upheld against a federal pre-emption claim. 3 Indeed, the initial approach of the Technical Committee on Constitutional Issues was that the provisions of the override were preconditions for the parliamentary exercise of its legislative powers. Eleventh Report of 20 August See Garcia v San Antonio Metropolitan Transit Authority 469 US 528, 105 SCt 1005 (1985), in which it was held that state sovereignty is more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power [REVISION SERVICE 2, 1998]

13 event. This presumption can thus be extended to the other categories of override beyond s 146(2)(c). 1 E 5, 1999It 9 is therefore submitted that s 146(4), properly interpreted, has two consequences. First, it reinforces the commands of co-operative government. It indicates that a court and other constitutional organs should strive to interpret potentially conflicting laws co-operatively and consistently. Secondly, it indicates that consideration be given in that process to the action of the National Council of Provinces. According to the court, [t]he obligation to pay due regard means simply that the court has a duty to give to the approval or rejection of the legislation by the NCOP the consideration which it deserves in the circumstances. 2 Where the national political process is speaking clearly and unambiguously (that is with the National Assembly and the National Council of Provinces in agreement), the judiciary will be able to find a national override in terms of s 146(2)(c). Where the NCOP is opposed to the national override legislation, the judiciary should be hesitant to find such an override. As submitted above, these consequences extend to each of the override provisions. However, it should be clear that the judiciary has the power to adjudicate appropriate cases. While there is some deference given to the legislature, ultimately the court has asserted the power of final judgment: The test... is ultimately objective because it is not the subjective belief of the national authority which is the jurisdictional fact allowing the national legislation to prevail over the provincial legislation, but there is inherently some subjective element involved Indeed, the Constitutional Court asserted its power of justiciability of these disputes in both of its certification judgments. 4 (c) Field pre-emption FEDERALISM A special form of conflict is that of field pre-emption. 5 Field pre-emption occurs when a piece of legislation is enacted with the intention to cover the field of the given matter, although it is not comprehensive. This is a form of total jurisdictional veto. The rationale is that Parliament intends to preclude alternative legislation in a particular field. While there would be no immediate substantive conflict, there would be a conflict if a provincial piece of legislation intrudes into the area the central government has marked out for itself. The reasoning behind the field pre-emption doctrine would be that, to the extent that Parliament has not acted within the field, it is intending that the background law (such as the common law or customary law) governs, and not provincial legislation. While not certain, it is likely that South Africa would follow other federal states such as Australia and America in adopting 1 See Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Amended Text of the Constitution of the Republic of South Africa, (2) SA 97 (CC), 1997 (1) BCLR 1 (CC) at para 155. See also Certification of the Constitution, 1996 case (supra) at para 337n Certification of the Amended Text of the Constitution, 1996 case (supra) at para Certification of the Constitution, 1996 case (supra) at para 337n Certification of the Constitution, 1996 case (supra) at para 337n277 and para 246; Certification of the Amended Text of the Constitution, 1996 case (supra) at para The phrase apparently was first used in Australia in Clyde Engineering Company Ltd v Cowburn (1926) 37 CLR 466 at 489. The American expression for the same notion is occupying the field. See Laurence Tribe American Constitutional Law 2 ed (1988) section 6-27 p 497. [REVISION SERVICE 5, 1999] 5--9

14 CONSTITUTIONAL LAW OF SOUTH AFRICA this field pre-emption doctrine. 1 The Court indicated that this was an open question in Ex parte Speaker of the KwaZulu-Natal Provincial Legislature: In re Certification of the Constitution of the Province of KwaZulu-Natal, Like other degrees of conflict pre-emption, field pre-emption can operate in favour of the national government only within the boundaries of the IC s 126(3) and FC s 146(2) and (3) overrides. Field pre-emption would operate in favour of the provincial government outside the limits of the override boundaries. How can one determine whether field pre-emption is intended? It is obviously a matter of legislative intent. Factors pointing in favour of occupation of a field would be the well-defined contours of the field itself (which would depend on the nature of the area of legislation), clear intent, and the comprehensiveness of statutory regulation. A further question concerns the applicability of the notion of field pre-emption to pre-1994 national legislation. Does the intent of the old Parliament simply carry through? While the matter remains open, there is some support for the view that pre-1994 national (but unrepresentative) legislation cannot occupy a field and thereby preclude any new (representative) provincial legislation. 3 First, it can only be absurd to speak of an intent to cover the field to the exclusion of provincial legislation when there were no provinces with concurrent competence to exclude. Secondly, the primary transitional section (IC s 229) makes no distinction between provincial and national legislation existing before the commencement of the interim Constitution. Both are treated on a par with the common law. And the common law would clearly be liable to change by post-1994 provincial legislation. Thus it is open to regard pre-1994 central legislation for purposes of discerning central/provincial conflicts as a type of common law, the basis from which either level of government may legislate. 4 Therefore it is open to a province to enact legislation supplementing pre-1994 legislation and an argument that Parliament had intended to cover the field by pre-1994 national legislation would fail. 1 However, it should be noted that Canada has opted not to follow the covering the field doctrine explicitly, at least without an express statement by Parliament to that effect, although the case law is somewhat contradictory. Peter W Hogg Constitutional Law of Canada 3 ed (1992) vol 1 sec (4) SA 1098 (CC) at para. 17. Although the court used the phrase occupying the field in the KwaZulu-Natal Amakhosi case (supra) at para 36, the use of the term there indicated simply that the province was attempting to legislate as far as it constitutionally could, not that it was attempting to place a jurisdictional veto on other legislation. 3 Note that the distinction between pre- and post-1994 legislation is significant only with respect to the question of covering the field. The position of pre-1994 national legislation does not differ from that of post-1994 national legislation in the determination of legislative intent in relation to the degree of actual conflict because the intent there does not relate to the jurisdictional issue, but rather to the substantive policy choice. The substantive policy choices embodied in legislation existing at the time of the commencement of the interim Constitution are presumptively carried over by s 229. The jurisdictional policy choices, however, must be altered by the new federal structure of the interim Constitution. 4 See Hogg Constitutional Law of Canada sec It is submitted that this question of the status of pre-1994 central legislation should have been considered by the court in Papachristoforou v MEC for Finance and Economic Affairs, North-West Province 1998 (10) BCLR 1237 (B), although the result reached would not have been different. Enjoying a status equivalent to common law, the pre-1994 national gambling legislation at issue in that case was merely a basis upon which the post-1994 provincial legislature could competently legislate, subject to any post-1994 national legislation which would cause s 146(2) or 146(3) to apply. On this resolution of the question of the status of pre-1994 central legislation, there was no need to engage in the FC s 146 conflict analysis as the Papachristoforou court did at 1244D--1246D [REVISION SERVICE 5, 1999]

15 5.4 DEGREE OF CONFLICT: CONFLICT PRE-EMPTION (a) Types of conflict E 2, The degree of conflict will be an important factor in federalism analysis. As ideal types, it may be helpful to point out four categories of conflict. 1 (i) Direct conflict Statutes will occasionally be in direct conflict, such as where one statute requires an act which the other statute prohibits. If a provincial law required an aeroplane to have green safety lights but no lights of any other colour, and a national law required an aeroplane to have yellow safety lights but no other colour, the conflict would be direct. A further example would be the actual or attempted repeal of existing national legislation as well as field pre-emption. (ii) Indirect conflict There is probably also a narrow zone of indirect conflict which should be acknowledged where a form of conduct required by one statute is not prohibited by the second but is merely penalized or perhaps discouraged. If a provincial law required, as an overall matter, adequate safety features to an aeroplane, but counted flashing safety lights as a feature detracting from adequate safety (perhaps because it could restrict the night vision of pilots), an indirect conflict would exist with a national law which required a flashing safety light. (iii) Implementation conflict Where one statute encourages conduct which would impede the implementation of another, a conflict situation exists. If a provincial law were to require that every aeroplane had to be individually checked before it could leave a regional airport, and a national law stated that if one had the necessary safety lights, a national certificate would allow one to leave a national airport without a safety inspection, then the incentive for owners of aeroplanes to fit the safety lights would be lessened (because they would not obviate the need for a safety inspection at some regional airports). This could be an example of implementation conflict. (iv) Policy conflict FEDERALISM Another form of conflict is the situation where an intricate balance has been struck between several elements by one law and a second law upsets that balance by legislating with respect to only one element of the balance. If, for instance, a national piece of legislation introduced a complex safety regime, arrived at after mediation between aeroplane manufacturers, insurers and owners, provincial legislation on one particular element could upset the balance. 1 This discussion follows Tribe American Constitutional Law ch 6. [REVISION SERVICE 2, 1998] 5--11

16 (b) CONSTITUTIONAL LAW OF SOUTH AFRICA Constitutionally significant conflict 12 What level of conflict do the interim and final Constitutions regard as significant enough to take notice of in a judicial proceeding? Good policy and textual arguments exist that conflict must be relatively high under both texts before it is granted such constitutional significance. The policy argument is the primary support for this interpretation. The interim and the final Constitution should be read to recognize that policy and implementation conflicts between the national government and the provincial governments should be worked out through intergovernmental processes rather than through the courts. This argument is perhaps stronger in the final Constitution, with its chapter on co-operative government. 1 However, other jurisdictions have recognized such degrees of conflict as justiciable disputes. 2 The text of the interim Constitution supports limiting the range of constitutionally significant conflict to the categories of direct and indirect conflict. One indicator in the text is s 126(5), which uses the phrase expressly or by necessary implication. Another is s 126(3)(e), which, by referring to policies as a trigger for an override in that section, may indicate that a policy conflict is not constitutionally significant in terms of the other override clauses. The text of the final Constitution likewise supports an interpretation that ordinarily sees only a high degree of conflict as judicially cognizable. Policy conflicts are clearly seen to be constitutionally significant in terms of s 146(2)(b) and in terms of s 146(3)(b), but are, it is submitted, otherwise not significant enough to qualify for judicial resolution and should instead be left to the processes of co-operative government. Where these processes fail, a court may none the less have to resolve such a conflict. 5.5 RESOLUTION OF CONFLICT: THE OVERRIDE CLAUSES (a) General Where it is not possible to reconcile the challenged legislation and the conflicting legislation and the conflict is constitutionally significant, one then turns to the override clauses which exist in both the interim and the final Constitution, but in different form. A national override will be allowed where the national legislation satisfies the requirement of uniform applicability and where the substantive requirements of at least one of the override clauses are met. Unless both these conditions are met the provincial law prevails. 3 1 It could be argued that policy and implementation conflicts are governed in the final Constitution by s 148, which states that conflicts which cannot be resolved by the courts are ones where the national legislation is taken to prevail. 2 See for example Hisquierdo v Hisqueirdo 439 US 572, 99 SCt 802 (1979) (policy conflict) and Jones v Rath Packing Co 430 US 519, 97 SCt 1305 (1977) (implementation conflict). See also the Certification of the Constitution, 1996 case (supra) at para IC s 126(3) and FC s 146(5) [REVISION SERVICE 2, 1998]

17 (b) Uniform applicability E 5, Uniform applicability is a precondition to national override and not to competence to legislate in the first place. Thus, in the absence of a conflicting provincial law, the national legislature may competently enact a valid non-uniform piece of legislation. IC s 126(4) and FC s 146(2) provide that the national legislation must apply uniformly in all the Republic before it may override a provincial law. 1 These sections should be read in substantive rather than formal terms. Thus a law purporting to apply nationally, but crafted to pertain only to a manufacturing process taking place in the Western Cape, may well fail to satisfy the requirement of uniform applicability. Should the province choose to regulate such a matter, its legislation would prevail. (c) The national overrides Uniform applicability being met, a national law in conflict with a provincial law will override the provincial legislation if it meets the substantive requirements of one of the override provisions. In the interim Constitution these overrides were contained in the five paragraphs ((a)--(e)) of s 126(3). In the final Constitution the overrides are contained in s 146(2)(a), (b) and (c), and s 146(3). It is important to note that these subsections are disjunctive in both Constitutions: an Act of Parliament satisfying any one of the override provisions will override a piece of provincial legislation. In both Constitutions the override provisions are vaguely worded and textually capable of varying interpretations. The overrides apparently give broad scope to the power of national government, although each provision also has at least some wording which could be aggressively interpreted in favour of the provinces. (i) Effective regulation FEDERALISM IC s 126(3)(a) and FC s 146(2)(a) grant an override capacity where national legislation deals with a matter that cannot be regulated effectively by legislation enacted by the respective provinces individually. 2 Considering the application of s 235(6) to the Local Government Transition Act 209 of 1993, different members of the Constitutional Court reached contrasting conclusions on the ambit of IC s 126(3)(a). 3 Some looked at the Act in issue, some at other provisions of the Constitution, and some at both. According to Chaskalson P, one could 1 One of the indirect effects of the uniform applicability requirement is that pre-1994 Acts of Parliament will qualify to override provincial legislation only if they have been extended to cover the erstwhile bantustans by an Act of Parliament passed after the commencement of the interim Constitution. (This seems to have been overlooked by the court in Papachristoforou v MEC for Finance and Economic Affairs, North-West Province 1998 (10) BCLR 1237 (B)). Note, however, that the requirement of uniform applicability is dropped for the national override in terms of FC s 146(3). 2 The wording of the interim Constitution is slightly different: a matter that cannot be regulated effectively by provincial legislation. 3 Compare Executive Council, Western Cape Legislature, & others v President of the Republic of South Africa & others 1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC) at para 93 (Chaskalson P) with para 156 (Ackermann and O Regan JJ) and with para 185 (Kriegler J). [REVISION SERVICE 5, 1999] 5--13

18 CONSTITUTIONAL LAW OF SOUTH AFRICA look at the Act of Parliament itself and find that the matter in question could, in part, be regulated effectively by the provinces. Ackermann and O Regan JJ found that another provision of the interim Constitution precluded any regulation of the matter by the provinces. Finally, in Kriegler J s judgment, both the Act and other constitutional provisions indicated a conclusion opposite to that of Chaskalson P. 14 The more usual situation in which to consider the applicability of FC s 146(2)(a) will be in the case of a conflict between national legislation and provincial legislation. In such an instance, Chaskalson P s purposive statutory interpretation approach is fully applicable. This approach implies a distinction between the determination that a matter is within provincial legislative competence and the determination that the matter is one that cannot be regulated by the respective provinces effectively. In the absence of national legislation, ineffective or only partially effective provincial legislation may be preferable to no legislation at all. The simplistic (and obiter) doctrine of Papachristoforou v MEC for Finance and Economic Affairs, North-West Province to the effect that the identification of a matter as a Schedule 4 matter conclusively answers the question as to whether it is a matter that can be regulated effectively by the provinces individually ---- should not be followed. Such a doctrine reads s 146(2)(a) to be a dead letter (except perhaps in a penumbra of incidental competence). The comparative jurisprudence available suggests a process-based interpretation of these subsections. For instance, in Germany the doctrine of effective regulation has been interpreted as a non-justiciable guideline for the Federal legislator. 2 These subsections may also be interpreted to draw upon the notion of subsidiarity from the European Union. This doctrine expresses a preference for governance at the most local level consistent with effectively achieving government s stated purpose. While the doctrine does not have a single settled meaning in the European Union, it is submitted that the principle of subsidiarity should be interpreted procedurally rather than juridically. 3 It should direct the national legislature to engage in some level of inquiry into effectiveness before concluding that action is warranted at the national rather than provincial level. 4 Likewise, a provincial legislature should conduct an inquiry before passing new legislation in an area where there is pre-existing national legislation. In either case, where a court could satisfy itself that such an inquiry had been conducted, it should give the judgment of the legislature considerable deference. 5 Where legislative inquiries of this nature had been conducted at both national and provincial level, the court would have to assess the relative merits of the conclusions reached (10) BCLR 1237 (B) at 1245E--F. 2 Dennis Davis, Matthew Chaskalson & Johan de Waal Democracy and Constitutionalism: The Role of Constitutional Interpretation in D van Wyk, John Dugard, Bertus de Villiers & Dennis Davis (eds) Rights and Constitutionalism: The New South African Legal Order (1994) See above, 5.3(b). 4 See Bermann Taking Subsidiarity Seriously (1994) 94 Columbia LR See above, 5.3(b) [REVISION SERVICE 5, 1999]