Adoption of provincial constitutions

A provincial legislature may pass a constitution for the province or, where applicable, amend its constitution, if at least two thirds of its members vote in favour of the Bill.

Contents of provincial constitutions

1. A provincial constitution, or constitutional amendment, must not be inconsistent with this Constitution, but may provide for­
1. provincial legislative or executive structures and procedures that differ from those provided for in this Chapter; or
2. the institution, role, authority and status of a traditional monarch, where applicable.
2. Provisions included in a provincial constitution or constitutional amendment in terms of paragraphs (a) or (b) of subsection (1)
1. must comply with the values in section 1 and with Chapter 3 ; and
2. may not confer on the province any power or function that falls
1. outside the area of provincial competence in terms of Schedules 4 and 5; or
2. outside the powers and functions conferred on the province by other sections of the Constitution.

Certification of provincial constitutions

1. If a provincial legislature has passed or amended a constitution, the Speaker of the legislature must submit the text of the constitution or constitutional amendment to the Constitutional Court for certification.
2. No text of a provincial constitution or constitutional amendment becomes law until the Constitutional Court has certified

a.    that the text has been passed in accordance with section 142; and
b.    that the whole text complies with section 143.

Signing, publication and safekeeping of provincial constitutions

1. The Premier of a province must assent to and sign the text of a provincial constitution or constitutional amendment that has been certified by the Constitutional Court.
2. The text assented to and signed by the Premier must be published in the national Government Gazette and takes effect on publication or on a later date determined in terms of that constitution or amendment.
3. The signed text of a provincial constitution or constitutional amendment is conclusive evidence of its provisions and, after publication, must be entrusted to the Constitutional Court for safekeeping.

Conflicting Laws

Conflicts between national and provincial legislation

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:
1. The national legislation deals with a matter that cannot be regulated effectively by legislation enacted by the respective provinces individually.
2. 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
1. norms and standards;
2. frameworks; or
3. national policies.
3. The national legislation is necessary for
1. the maintenance of national security;
2. the maintenance of economic unity;
3. the protection of the common market in respect of the mobility of goods, services, capital and labour;
4. the promotion of economic activities across provincial boundaries;
5. the promotion of equal opportunity or equal access to government services; or
6. 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
1. is prejudicial to the economic, health or security interests of another province or the country as a whole; or
2. 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.

Other conflicts

1. If there is a conflict between national legislation and a provision of a provincial constitution with regard to
1. a matter concerning which this Constitution specifically requires or envisages the enactment of national legislation, the national legislation prevails over the affected provision of the provincial constitution;
2. national legislative intervention in terms of section 44(2), the national legislation prevails over the provision of the provincial constitution; or
3. a matter within a functional area listed in Schedule 4, section 146 applies as if the affected provision of the provincial constitution were provincial legislation referred to in that section.
2. National legislation referred to in section 44(2) prevails over provincial legislation in respect of matters within the functional areas listed in Schedule 5.

Conflicts that cannot be resolved

If a dispute concerning a conflict cannot be resolved by a court, the national legislation prevails over the provincial legislation or provincial constitution.

Status of legislation that does not prevail

A decision by a court that legislation prevails over other legislation does not invalidate that other legislation, but that other legislation becomes inoperative for as long as the conflict remains.

150. Interpretation of conflicts

When considering an apparent conflict between national and provincial legislation, or between national legislation and a provincial constitution, every court must prefer any reasonable interpretation of the legislation or constitution that avoids a conflict, over any alternative interpretation that results in a conflict.