Protection of Businesses Act, 1978
R 385
Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996)Chapter 6 : ProvincesConflicting Laws146. 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— |
| (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. |
| (3) | 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. |
| (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. |
