Concurrent national and provincial legislative competence: Rethinking the relationship between nature reserves and national parks

Abstract

The teleology of concurrent national and provincial legislative competence in South Africa's Constitution has not been adequately investigated, particularly from the perspective of nature conservation and the establishment of protected areas. It is, therefore, questioned whether the concurrent nature conservation competence awarded to the national sphere of government should be equivalent to that awarded to the provinces, or if it precludes the national government from having a greater status than the provinces. It is further questioned whether the provisions of the National Environmental Management: Protected Areas Act (NEMPAA) accurately reflect the constitutional weighting, if any, granted to these two spheres of government by this provision. It is concluded that the concurrent national and provincial legislative competence in respect of nature conservation is most likely to be, at least, equally balanced between the two spheres of government. Contrary to this finding, it is noted that the NEMPAA grants national parks a significantly higher conservation status than nature reserves by diminishing the status and scope the provinces had prior to the promulgation of the Act. It is further concluded that, in this instance, provisions of the NEMPAA are most likely to be unconstitutional. It is recommended that these two kinds of protected areas be consolidated into one category or critically evaluated to correct potentially incorrect categorisation. It is also recommended that the NEMPAA be substantially revised to correct a number of anomalies and illogical provisions.