## Facts

- The Speaker of the National Assembly referred a pre-enactment constitutional dispute to the Constitutional Court for an advisory ruling on specified provisions of the National Education Policy Bill No. 83 of 1995.
- The referral was triggered by a petition signed by members of multiple political parties; three parties participated at the hearing, and a provincial education official appeared as amicus.
- The Bill authorized the national Minister of Education to determine “national education policy,” subject to the Constitution and the Bill, and required the Minister to consider provincial legislative competence and relevant provincial education laws.
- The Bill set directive principles for national policy, created consultation mechanisms and consultative bodies, provided for publication and implementation of national policy, and authorized national monitoring and evaluation of education.
- Objectors argued the Bill effectively displaced provincial authority over education (a concurrent competence under the Interim Constitution) by empowering comprehensive national policy-making, supported by monitoring and consultative structures, and by enabling indirect coercion through financial or administrative means.
- Supporters contended the Bill coordinated national standards within constitutional limits, preserved provincial legislative authority, and relied on consultation rather than command.

## Issues

1. Whether empowering the national Minister to determine national education policy, with associated consultative, monitoring, and evaluation mechanisms, was consistent with the Interim Constitution’s allocation of concurrent national–provincial powers over education.
2. Whether the challenged provisions unlawfully enabled national control that would override or displace provincial legislative or executive authority beyond what the Interim Constitution permitted.

## Decision

- The Court held the challenged provisions were not inconsistent with the Interim Constitution.
- The Court concluded that the Bill, properly interpreted, operated within the framework of concurrent competence and did not authorize ministerial policy to override provincial legislation.
- The Court upheld national monitoring, evaluation, and consultative structures as lawful coordination measures rather than mechanisms of impermissible national control.
- The Court declared the Bill could proceed without striking down or invalidating the challenged provisions.

## Legal Principles

- In a system of concurrent competence, national legislation may establish national policy frameworks and coordination mechanisms, so long as they remain subordinate to the Constitution and do not purport to nullify provincial laws outside constitutionally authorized conflict rules.
- “Policy” determined by a national minister is not equivalent to binding legislation; it may guide coordination, standards, and funding-related planning without, by itself, displacing valid provincial enactments.
- National monitoring and evaluation of a nationwide public system can be constitutionally permissible as supervision and coordination, particularly where national authority includes maintaining essential national standards.
- Consultative bodies and processes are constitutionally acceptable when they advise and facilitate intergovernmental coordination rather than create a parallel legislative or executive hierarchy.
- Financial influence associated with national budgeting and conditional allocations is not inherently unconstitutional; it becomes problematic only if exercised contrary to constitutional limits or without valid legal authorization.

## Conclusion

The Court upheld the contested provisions of the National Education Policy Bill, ruling that national policy-setting, consultation, and monitoring measures in education were compatible with concurrent national–provincial powers and did not, as enacted, authorize unlawful displacement of provincial legislative authority.


Ex parte Speaker of the Nat’l Assembly; In re Dispute Concerning the Const. of Certain Provisions of the Nat’l Educ. Pol’y Bill No. 83 of 1995, 1996 (3) S. Afr. L.R. 289 (S. Afr. Const. Ct. 1996)