n South African Law Journal - 'Tagging' bills in Parliament : section 75 or section 76?

Volume 123, Issue 2
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



The Constitution provides two procedures for passing ordinary bills in Parliament. Under the s 76 procedure, the provinces have real influence through their participation the NCOP. Under the s 75 procedure, provincial influence is very limited. The Constitution stipulates that bills that fall within an area of concurrent provincial/national competence must follow the s 76 process, but does not set out criteria to determine whether a bill should be 'tagged' as a s 76 or s 75 matter. Currently Parliament uses a Canadian test to 'tag' Bills. However, that approach fails to recognize the constitutional role of the NCOP. It is also designed to decide whether or not laws fall within the jurisdiction of provinces, an issue irrelevant to the tagging decision. This article argues that tagging decisions should be guided by South Africa's constitutional principles establishing the relationship between provinces and the national government, and suggests some criteria to ensure that those bills that most affect provinces are properly considered in the NCOP.

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