Page 15 - Constitutional Model for a Democratic South Africa By Prof Vuyisle Dlova

And that in all cases where the national government legislate on a concurrent issue that has
already been a subject of legislation at regional government level, the national legislation take
precedence and it has the legal effect of suspending regional government legislation on the
matter for so long as the national enactment is in force.

Listing in an article of this nature the issues that could be included in the two lists preferred
above would unnecessarily encumber this text. The list of issues, however, that appear in the
exclusive list for the Federal Government in the 1979 Constitution of Nigeria seem to embrace
most of the issues we have in mind for inclusion. 16 To that long list of 67 items, land tenure
would have to be included. For it is important in the case of South Africa, especially in view of
the systematic dispossession of the indigenous people over centuries, that the land tenure
system that is suggested is a lease hold instead of a free hold system. In this regard, the land
mass of South Africa / Azania and all its natural resources should constitutionally vest in the
people of the country as a whole, and it should be held in trust for them by the state.

However, to protect usufructuary rights and to secure improvements on the land, citizens,
whether natural persons or body corporate, should be granted lease hold rights on the
property they occupy for a limited though not too short a time period. In cases of revocation
of lease hold right, in cases where lawful improvements have been made, proper provisions
for fair compensation would have to be made.

As mentioned above in our model, we reject total compartmentalization of legislative
competence as between the regional and national government. The national government
should be able therefore to legislate in the “national interest” even on matters that are listed in
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the regional government list. To do so, however, the government would need special
majority, for instance, two thirds of either both houses of the federal parliament sitting
together or separately.

Such legislation however should be able to remain in the statute book for a limited time, for
instance a year, but it could be extended by following the same procedure as above. The
question however as to whether something is or is not in the national interest would be a
matter for the legislature and not the courts.

The usual power of derogation in cases where the state of emergency has been proclaimed
should be included. In this case it would have the effect of enabling the national legislature to
legislate on any matter, regional or national, for at least the duration of that emergency.
Again the courts would not be empowered to inquire as to whether the state of emergency in
fact exist or not.

Disputes relating to spheres of legislative competence

The highest court in the land could be made the court of first instance on any issues arising
from the interpretation of any provision in the constitution.

However, no injunction should issue from that court forbidding the federal government from
legislating on any matter which may be a subject of dispute between the national and the
regional government. This provision would be aimed at avoiding delays, that may be caused
by long drawn litigation, on urgent business of state.