Chapter 6: Provinces
conflicting laws
Conflicts between national and provincial legislation
146.
(1)
(2)
(3)
(4)
This section applies to a conflict between national legislation and provincial
legislation falling within a functional area listed in Schedule 4.
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.
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.
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.
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