Show Menu
Cheatography
  1. Home >
  2. Education >

Constitutional Law: Muti-Level Government Cheat Sheet (DRAFT) by

PBL200W: Multilevel Government

This is a draft cheat sheet. It is a work in progress and is not finished yet.

Kinds of Issues which arise:

1. Schedule 4: Conflict between national and provincial legisl­ation
- Provincial legisl­ation will prevail unless it meets one or more of the requir­ements of s146
2. Schedule 5: Conflict between National Legisl­ation and Provincial Legisl­ation
- Exclusive jurisd­iction of provincial govern­ment. Prov legisl­ation will prevail unless one of the requir­ements in s44 is met
Validity of nation­al/­pro­vincial legisl­ation
- Enquiry into validity of the law before identi­fying conflict.
Invalid if:
1) sphere of government legislates in an area where they have no legisl­ative compet­ence. E.g. provinces can only legislate on matters in schedule 4 or 5.
2) Wrong process ‘manner and form’ where there are certain requir­ements for how a law must be passed. E.g. public partic­ipa­tion, tagging (only at national level)
Tagging: If bill tagged incorr­ectly it is invalid. Either tagged s75 (ordinary which do not effect prov) or s76 (Ord which affect provinces)

1. Division of Power Between Spheres of Gov

Introd­uction
Division of powers in federal or quasi federal system (SA) of gov is based on either
1. A divided model of federa­lism: Subject matters in which law must be made is clearly divides between levels of gov. Powers between are generally exclusive.
2. Integrated Model of Federalism: Most subject matters are shared between different spheres of govern­ment. National leg can be comple­mented by prov/local gov who must implement and administer law.
Backgr­ound: Con Avoids defining SA as a quasi federal system as ANC concerned fed system would hinder goal to improve collective SoL by instilling a rigid division of powers.
The 34 Consti­tut­ional Principles: 7 pertaining to structure of Gov -
1) Structured at nat, prov & loc levels; 2) powers of sphere's had to be defined; 3) Functions of nat and prov levels had to incl exclusive & concurrent powers 4) nat cannot encroach on integrity of provs; 5) court resolved disputes between nat and prov 6) Frameowork dealing w powers­/fu­nct­ion­s/s­tru­ctures of local gov outlined in Con 7) all sphere's to be given equitable share of nat revenue
Ch3: Principles of co-ope­rative Govern­ments
- Look at chat about conflict in terms of schedule 4 & 5. Note part Bs set out matters which local govs can make by-laws on (cannot conflict w other leg).
- National gov can make and administer laws outside of these sections
- Organs of state involved in interg­ove­rnm­ental dispute must make every reasonable effort to settle dispute by mechanism and procedures provided, & exhaust all remedies before approa­ching a court of law.
- *Uthukela: The court will decline to hear matter if they fail to comply w above obliga­tion.
Interg­ove­rnm­ental Co - Ordination
- Consti­tution establ­ished co - ordinating bodies to avoid conflict between different spheres of gov. These are respon­sible for coordi­nating:
1) Legisl­ative activities of the 3 sphere's. Ie NCOP
2)The executive acivities of gov. coordi­nated by bodies establ­ished by InterGov Relations Framework Act
IGRFA provisions do not apply to conflicts as s146 deals w this
 

The Division of Leg&Exec Powers Btwn Nat&Prov

- (s104): Legisl­ative authority vested in provincial legisl­ature which can create prov consti­tution and laws with regards to matters in schedules 4 & 5; expressly assigned to them by national legisl­ation
- The executive authority of a province is vested in premier
*Premier Limpopo Prov v Speaker of Limpopo Leg
Legal question: Did the Limpopo Provincial Legisl­ature have the legisl­ative competence (autho­rity) to pass the Financial Management of the Limpopo Provincial Legisl­ature Bill i.e. to enact legisl­ation dealing with its own financial affairs?
Reasoning:
1. Prov Leg argued that even through this isnt in Sch4/5, the bill fell into its leg competence bc the power to pass financial management leg was expressly given to them in Financial Man of Par Act.
- 1. Does the Financial Management of Parliament Act ‘expressly assign’ the financial management of a provincial legisl­ature to the provinces? CC: no
- 2. Was the power to pass legisl­ation regulating the financial management of a provincial legisl­ature ‘envis­aged’ by sections 195, 215 and 216 of the Consti­tution? CC: no
Minority: Expressly assigned and emvisaged should mean diff things. Thus, Yes to second Q