CONFLICT BETWEEN NATIONAL AND PROVINCIAL ENVIRONMENTAL LEGISLATION

CONFLICT BETWEEN NATIONAL AND PROVINCIAL ENVIRONMENTAL LEGISLATION

APPLICABLE LEGISLATION:

The Constitution of the Republic of South Africa, 1996, sections 146, 148 and 150

 

LEGAL OBLIGATIONS:

To interpret environmental legislation correctly where conflict between national and provincial environmental legislation exists.

 

DISCUSSION

Section 146 of the Constitution must be applied when dealing with conflicting environmental legislation. Section 146 states as follow:
(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.

Process of correctly determining whether national or provincial legislation prevails:
1. The first step is to establish whether the Provincial legislation has been accepted by the National Council of Provinces. A provincial act can prevail only if that law has been approved by the National Council of Provinces.
2. The second step is to evaluate the conflict between legislation by establishing the applicability of the conditions in Section 146(2). These conditions need to be met for national legislation to prevail over provincial legislation. In practice, the specific legislation should be evaluated against each of the conditions in section 146(2). Should any one of these conditions be met in a specific situation, national legislation would prevail.
3. The third step is to establish whether the national legislation is aimed at preventing unreasonable action by a province in terms of section 146(3). If the answer is yes, national legislation would prevail.

Reasonableness is key
In terms of section 148 , if a court cannot resolve a dispute, national legislation would prevail. Section 150 states that a court should use a reasonable interpretation of the legislation that avoids a conflict. This is also a guideline as to how the individual should interpret and handle conflict in legislation. Always use a reasonable interpretation when dealing with conflicting legislation.

Circumstances are key
It must be bared in mind that the interpretation of legislation is a subjective process – the outcome of interpretation of legislation will depend on the facts of every situation.

Conclusion
With regards to environmental legislation, section 146(2)(vi) of the Constitution is applicable –national environmental legislation is aimed at protecting the environment. Therefore, national legislation would prevail over provincial legislation. Remember that it is still necessary to determine whether the legislation is constitutional.

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