Reconciling Regulation or Confronting Inconsistency? Conflict Between National and Provincial Legislation

Abstract

What is an appropriate test for determining whether there is conflict between provincial and national legislation in the areas listed in Schedule 4 of the Constitution of the Republic of South Africa, 1996? Although the direct conflict test seems to resonate with s 150 of the Constitution in that it minimises legislative conflict, it is crudely onedimensional in its attitude to legislation and it conduces to unconsidered overregulation. Pre-emption, which counters some of these problems in other legal systems, is ill-suited to the South African constitutional design. There is another way. Legal interpreters should see legislative silence as deliberate in appropriate circumstances which includes being open to finding conflict when ‘limits are shifted’. This approach coheres with the Constitution’s design for legislative conflict which has s 146 of the Constitution at its centre. It also protects regulatory space and prevents random overregulation. The courts have a dual role in relation to conflict. They need to continue to support and be respectful of the provinces. On the other hand national unity and indivisibility of the Republic need to be unequivocally protected. As part of the principle of co-operative governance, courts have residual power to invalidate protectionist provincial legislation in the absence of conflicting national legislation.