The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Thursday 22 March 2012, the Constitutional Court gave judgment in a case about the constitutionality of five Provincial Acts (in the Eastern Cape, Free State, Gauteng, Mpumalanga and the North West), which regulate the financial management of the respective provincial legislatures. The Constitutional Court had held in an earlier decision concerning a similar Bill passed in Limpopo that provincial legislatures do not have the constitutional authority to pass legislation with respect to their own financial management.
In a unanimous judgment by Khampepe J, the Court held that all of the Provincial Acts were unconstitutional for the reasons set out in the earlier decision and that provincial legislatures did not have the competence to enact legislation of this kind.
The law in the North West also dealt with matters other than those concerned with financial management and the Constitutional Court had to decide whether the financial management issues could be severed from the rest. The Court found that it could not, because the extent of the severance was not entirely clear and because what was left would no longer give effect to the purpose of the legislative scheme.
All the provincial laws were therefore found to be inconsistent with the Constitution.
The Court suspended the declarations of invalidity for a period of 18 months, because an immediate declaration of invalidity would have resulted in a legislative lacuna which would negatively impact the interests of good government. Moreover, there would be no hardship or harm caused by the continued operation of the laws.
The parties have been ordered to file a report with the Court by Monday, 9 September 2013 to inform the Court as to the steps they have taken to remedy the defect.
This case arises because the Inkatha Freedom Party (IFP) found itself unable to deliver its documentation for participation in the Umzumbe local government elections to the Umzumbe local office of the Commission. The IFP then requested the Durban office to accept the documents. This request was declined.
The Electoral Court held, without hearing submissions from the Commission, that the Commission was obliged, in the circumstances, to accept the documents at its Durban office.
