{ Adopted: 8 May 1996 / Amended: 11 Oct 1996 / In Force: 7 Feb 1997 / Status: 7 Feb 1997 }
Preamble
We, the people
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our
country; and
Believe that South Africa belongs to all who live in it, united in
our diversity.
We therefore, through our freely elected representatives, adopt
this Constitution as the supreme law of the Republic so as to -
Heal the divisions of the past and establish a society based on
democratic values, social justice and
fundamental human rights;
Lay the foundations for a democratic and open society in which
government is based on the will of the people and every citizen
is equally protected by law;
Improve the quality of life of all citizens and free the potential
of each person; and
Build a united and democratic South Africa able to take its
rightful place as a sovereign state in the family of nations.
May God protect our people.
Nkosi Sikelel iAfrika. Morena boloka setjhaba sa heso.
God sen Suid-Afrika. God bless South Africa.
Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.
Section 1 Republic of South Africa
The Republic of South Africa is one sovereign democratic state
founded on the following values:
(a) Human dignity, the achievement of equality and the
advancement of human rights and freedoms.
(b) Non-racialism and non-sexism.
(c) Supremacy of the constitution and the rule of law.
(d) Universal adult suffrage, a national common voters roll,
regular elections and a multi-party system of democratic
government, to ensure accountability, responsiveness and
openness.
Section 2 Supremacy of Constitution
This Constitution is the supreme law of the Republic; law or
conduct inconsistent with it is invalid, and the obligations
imposed by it must be fulfilled.
Section 3 Citizenship
(1) There is a common South African citizenship.
(2) All citizens are -
(a) equally entitled to the rights, privileges and benefits of
citizenship; and
(b) equally subject to the duties and responsibilities of
citizenship.
(3) National legislation must provide for the acquisition, loss
and restoration of citizenship.
Section 4 National anthem
The national anthem of the Republic is determined by the
President by proclamation.
Section 5 National flag
The national flag of the Republic is black, gold, green, white,
red and blue, as described and sketched in Schedule 1.
Section 6 Languages
(1) The official languages of the Republic are Sepedi, Sesotho,
Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English,
isiNdebele, isiXhosa and isiZulu.
(2) Recognising the historically diminished use and status of the
indigenous languages of our people, the state must take
practical and positive measures to elevate the status and advance
the use of these languages.
(3) (a) The national government and provincial governments
may use any particular official languages for the purposes of
government, taking into account usage, practicality, expense,
regional circumstances and the balance of the needs and
preferences of the population as a whole or in the province
concerned; but the national government and each provincial
government must use at least two official languages.
(b) Municipalities must take into account the language usage
and preferences of their residents.
(4) The national government and provincial governments, by
legislative and other measures, must regulate and monitor their
use of official languages. Without detracting from the
provisions of subsection (2), all official languages must enjoy
parity of esteem and must be treated equitably.
(5) A Pan South African Language Board established by
national legislation must -
(a) promote and create conditions for the development and use
of -
(i) all official languages;
(ii) the Khoi, Nama and San languages; and
(iii) sign language ; and
(b) promote and ensure respect for -
(i) all languages commonly used by communities in South
Africa, including German, Greek, Gujarati, Hindi, Portuguese,
Tamil, Telegu and Urdu; and
(ii) Arabic, Hebrew, Sanskrit and other languages used for
religious purposes in South Africa.
Section 7 Rights
(1) This Bill of Rights is a cornerstone of democracy in South
Africa. It enshrines the rights of all people in our country and
affirms the democratic values of human dignity, equality and
freedom.
(2) The state must respect, protect, promote and fulfil the rights
in the Bill of Rights.
(3) The rights in the Bill of Rights are subject to the limitations
contained or referred to in section 36, or elsewhere in the Bill.
Section 8 Application
(1) The Bill of Rights applies to all law, and binds the
legislature, the executive, the judiciary and all organs of state.
(2) A provision of the Bill of Rights binds a natural or a juristic
person if, and to the extent that, it is applicable, taking into
account the nature of the right and the nature of any duty
imposed by the right.
(3) When applying a provision of the Bill of Rights to a natural
or juristic person in terms of subsection (2), a court -
(a) in order to give effect to a right in the Bill, must apply, or
if necessary develop, the common law to the extent that
legislation does not give effect to that right; and
(b) may develop rules of the common law to limit the right,
provided that the limitation is in accordance with section 36(1).
(4) A juristic person is entitled to the rights in the Bill of Rights
to the extent required by the nature of the rights and the nature
of that juristic person.
Section 9 Equality
(1) Everyone is equal
(2) Equality includes the full and equal enjoyment of all rights
and freedoms. To promote the achievement of equality,
legislative and other measures designed to protect or advance
persons, or categories of persons, disadvantaged by unfair
discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly
against anyone on one or more grounds, including race, gender,
sex, pregnancy, marital status, ethnic or social origin, colour,
sexual orientation, age, disability, religion, conscience, belief,
culture, language and birth.
(4) No person may unfairly discriminate directly or indirectly
against anyone on one or more grounds in terms of subsection
(3). National legislation must be enacted to prevent or prohibit
unfair discrimination.
(5) Discrimination on one or more of the grounds listed in
subsection (3) is unfair unless it is established that the
discrimination is fair.
Section 10 Human dignity
Everyone has inherent dignity
Section 11 Life
Everyone has the right to life.
Section 12 Freedom and security of the person
(1) Everyone has the right to freedom and security of the
person, which includes the right -
(a) not to be deprived of freedom arbitrarily or without just
cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or
private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman or
degrading way.
(2) Everyone has the right to bodily and psychological integrity,
which includes the right -
(a) to make decisions concerning reproduction;
(b) to security in and control over their body; and
(c) not to be subjected to medical or scientific experiments
without their informed consent.
Section 13 Slavery, servitude and forced labour
No one may be subjected to slavery, servitude or forced labour.
Section 14 Privacy
Everyone has the right to privacy, which includes the right not to
have -
(a) their person or home searched;
(b) their property searched;
(c) their possessions seized; or
(d) the privacy of their communications infringed.
Section 15 Freedom of religion, belief and opinion
(1) Everyone has the right to freedom of conscience, religion,
thought, belief
(2) Religious observances may be conducted at state or state-aided
institutions, provided that -
(a) those observances follow rules made by the appropriate public
authorities;
(b) they are conducted on an equitable basis; and
(c) attendance at them is free and voluntary.
(3) (a) This section does not prevent legislation recognising -
(i) marriages concluded under any tradition, or a system of
religious, personal or family law; or
(ii) systems of personal and family law under any tradition, or
adhered to by persons professing a particular religion.
(b) Recognition in terms of paragraph (a) must be consistent with
this section and the other provisions of the Constitution.
Section 16 Freedom of expression
(1) Everyone has the right to freedom of expression
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to -
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or
religion, and that constitutes incitement to cause harm.
Section 17 Assembly, demonstration, picket and petition
Everyone has the right, peacefully and unarmed, to assemble, to
demonstrate, to picket and to present petitions.
Section 18 Freedom of association
Everyone has the right to freedom of association.
Section 19 Political rights
(1) Every citizen is free to make political choices, which includes
the right -
(a) to form a political party;
(b) to participate in the activities of, or recruit members for, a
political party; and
(c) to campaign for a political party or cause.
(2) Every citizen has the right to free, fair and regular elections
for any legislative body established in terms of the Constitution.
(3) Every adult citizen has the right -
(a) to vote
(b) to stand for public office and, if elected, to hold office.
Section 20 Citizenship
No citizen may be deprived of citizenship.
Section 21 Freedom of movement and residence
(1) Everyone has the right to freedom of movement.
(2) Everyone has the right to leave the Republic.
(3) Every citizen has the right to enter, to remain in and to reside
anywhere in, the Republic.
(4) Every citizen has the right to a passport.
Section 22 Freedom of trade, occupation and profession
Every citizen has the right to choose their trade, occupation or
profession freely. The practice of a trade, occupation or
profession may be regulated by law.
Section 23 Labour relations
(1) Everyone has the right to fair labour practices.
(2) Every worker has the right -
(a) to form and join a trade union;
(b) to participate in the activities and programmes of a trade
union; and
(c) to strike.
(3) Every employer has the right -
(a) to form and join an employers" organisation; and
(b) to participate in the activities and programmes of an
employers" organisation.
(4) Every trade union and every employers" organisation has the
right -
(a) to determine its own administration, programmes and
activities;
(b) to organise; and
(c) to form and join a federation.
(5) Every trade union, employers" organisation and employer
has the right to engage in collective bargaining. National
legislation may be enacted to regulate collective bargaining. To
the extent that the legislation may limit a right in this Chapter,
the limitation must comply with section 36(1).
(6) National legislation may recognise union security
arrangements contained in collective agreements. To the extent
that the legislation may limit a right in this Chapter, the
limitation must comply with section 36(1).
Section 24 Environment
Everyone has the right -
(a) to an environment that is not harmful to their health or well-
being; and
(b) to have the environment protected, for the benefit of present
and future generations, through reasonable legislative and other
measures that -
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of
natural resources while promoting justifiable economic and
social development.
Section 25 Property
(1) No one may be deprived of property
(2) Property may be expropriated only in terms of law of
general application -
(a) for a public purpose or in the public interest; and
(b) subject to compensation, the amount of which and the time
and manner of payment of which have either been agreed to by
those affected or decided or approved by a court.
(3) The amount of the compensation and the time and manner
of payment must be just and equitable, reflecting an equitable
balance between the public interest and the interests of those
affected, having regard to all relevant circumstances,
including -
(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the
acquisition and beneficial capital improvement of the property;
and
(e) the purpose of the expropriation.
(4) For the purposes of this section -
(a) the public interest includes the nation's commitment to land
reform, and to reforms to bring about equitable access to all
South Africa's natural resources; and
(b) property is not limited to land.
(5) The state must take reasonable legislative and other
measures, within its available resources, to foster conditions
which enable citizens to gain access to land on an equitable
basis.
(6) A person or community whose tenure of land is legally
insecure as a result of past racially discriminatory laws or
practices is entitled, to the extent provided by an Act of
Parliament, either to tenure which is legally secure or to
comparable redress.
(7) A person or community dispossessed of property after 19
June 1913 as a result of past racially discriminatory laws or
practices is entitled, to the extent provided by an Act of
Parliament, either to restitution of that property or to equitable
redress.
(8) No provision of this section may impede the state from
taking legislative and other measures to achieve land, water and
related reform, in order to redress the results of past racial
discrimination, provided that any departure from the provisions
of this section is in accordance with the provisions of section
36(1).
(9) Parliament must enact the legislation referred to in
subsection (6).
Section 26 Housing
(1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other
measures, within its available resources, to achieve the
progressive realisation of this right.
(3) No one may be evicted from their home, or have their home
demolished, without an order of court made after considering
all the relevant circumstances. No legislation may permit
arbitrary evictions.
Section 27 Health care, food, water and social security
(1) Everyone has the right to have access to -
(a) health care services, including reproductive health care;
(b) sufficient food and water; and
(c) social security, including, if they are unable to support
themselves and their dependants, appropriate social assistance.
(2) The state must take reasonable legislative and other measures,
within its available resources, to achieve the progressive
realisation of each of these rights.
(3) No one may be refused emergency medical treatment.
Section 28 Children
(1) Every child has the right -
(a) to a name and a nationality from birth;
(b) to family care or parental care, or to appropriate alternative
care when removed from the family environment;
(c) to basic nutrition, shelter, basic health care services and social
services;
(d) to be protected from maltreatment, neglect, abuse or
degradation;
(e) to be protected from exploitative labour practices;
(f) not to be required or permitted to perform work or provide
services that -
(i) are inappropriate for a person of that child's age; or
(ii) place at risk the child's well-being, education, physical or
mental health or spiritual, moral or social development;
(g) not to be detained except as a measure of last resort, in which
case, in addition to the rights a child enjoys under sections 12 and
35, the child may be detained only for the shortest appropriate
period of time, and has the right to be -
(i) kept separately from detained persons over the age of 18 years;
and
(ii) treated in a manner, and kept in conditions, that take account
of the child's age;
(h) to have a legal practitioner assigned to the child by the state,
and at state expense, in civil proceedings affecting the child, if
substantial injustice would otherwise result; and
(i) not to be used directly in armed conflict, and to be protected
in times of armed conflict.
(2) A child's best interests are of paramount importance in every
matter concerning the child.
(3) In this section "child" means a person under the age of 18
years.
Section 29 Education
(1) Everyone has the right -
(a) to a basic education, including adult basic education; and
(b) to further education, which the state, through reasonable
measures, must make progressively available and accessible.
(2) Everyone has the right to receive education in the official
language or languages of their choice in public educational
institutions where that education is reasonably practicable. In
order to ensure the effective access to, and implementation of, this
right, the state must consider all reasonable educational
alternatives, including single medium institutions, taking into
account -
(a) equity;
(b) practicability; and
(c) the need to redress the results of past racially discriminatory
laws and practices.
(3) Everyone has the right to establish and maintain, at their own
expense, independent educational institutions that -
(a) do not discriminate on the basis of race;
(b) are registered with the state; and
(c) maintain standards that are not inferior to standards at
comparable public educational institutions.
(4) Subsection (3) does not preclude state subsidies for
independent educational institutions.
Section 30 Language and culture
Everyone has the right to use the language and to participate in
the cultural life of their choice, but no one exercising these rights
may do so in a manner inconsistent with any provision of the Bill
of Rights.
Section 31 Cultural, religious and linguistic communities
(1) Persons belonging to a cultural, religious or linguistic
community may not be denied the right, with other members of
that community -
(a) to enjoy their culture, practise their religion and use their
language; and
(b) to form, join and maintain cultural, religious and linguistic
associations and other organs of civil society.
(2) The rights in subsection (1) may not be exercised in a manner
inconsistent with any provision of the Bill of Rights.
Section 32 Access to information
(1) Everyone has the right of access to -
(a) any information held by the state; and
(b) any information that is held by another person and that is
required for the exercise or protection of any rights.
(2) National legislation must be enacted to give effect to this right,
and may provide for reasonable measures to alleviate the
administrative and financial burden on the state.
Section 33 Just administrative action
(1) Everyone has the right to administrative action that is lawful,
reasonable and procedurally fair.
(2) Everyone whose rights have been adversely affected by
administrative action has the right to be given written reasons.
(3) National legislation must be enacted to give effect to these
rights, and must -
(a) provide for the review of administrative action by a court or,
where appropriate, an independent and impartial tribunal;
(b) impose a duty on the state to give effect to the rights in
subsections (1) and (2); and
(c) promote an efficient administration.
Section 34 Access to courts
Everyone has the right to have any dispute that can be resolved by
the application of law decided in a fair public hearing before a
court or, where appropriate, another independent and impartial
tribunal or forum.
Section 35 Arrested, detained and accused persons
(1) Everyone who is arrested for allegedly committing an offence
has the right -
(a) to remain silent;
(b) to be informed promptly -
(i) of the right to remain silent; and
(ii) of the consequences of not remaining silent;
(c) not to be compelled to make any confession or admission that
could be used in evidence against that person;
(d) to be brought before a court as soon as reasonably possible,
but not later than -
(i) 48 hours after the arrest; or
(ii) the end of the first court day after the expiry of the 48 hours,
if the 48 hours expire outside ordinary court hours or on a day
which is not an ordinary court day;
(e) at the first court appearance after being arrested, to be charged
or to be informed of the reason for the detention to continue, or
to be released; and
(f) to be released from detention if the interests of justice permit,
subject to reasonable conditions.
(2) Everyone who is detained, including every sentenced prisoner,
has the right -
(a) to be informed promptly of the reason for being detained;
(b) to choose, and to consult with, a legal practitioner, and to be
informed of this right promptly;
(c) to have a legal practitioner assigned to the detained person by
the state and at state expense, if substantial injustice would
otherwise result, and to be informed of this right promptly;
(d) to challenge the lawfulness of the detention in person before
a court and, if the detention is unlawful, to be released;
(e) to conditions of detention that are consistent with human
dignity, including at least exercise and the provision, at state
expense, of adequate accommodation, nutrition, reading material
and medical treatment; and
(f) to communicate with, and be visited by, that person's -
(i) spouse or partner;
(ii) next of kin;
(iii) chosen religious counsellor; and
(iv) chosen medical practitioner.
(3) Every accused person has a right to a fair trial, which includes
the right -
(a) to be informed of the charge with sufficient detail to answer it;
(b) to have adequate time and facilities to prepare a defence;
(c) to a public trial before an ordinary court;
(d) to have their trial begin and conclude without unreasonable
delay;
(e) to be present when being tried;
(f) to choose, and be represented by, a legal practitioner, and to
be informed of this right promptly;
(g) to have a legal practitioner assigned to the accused person by
the state and at state expense, if substantial injustice would
otherwise result, and to be informed of this right promptly;
(h) to be presumed innocent, to remain silent, and not to testify
during the proceedings;
(i) to adduce and challenge evidence;
(j) not to be compelled to give self-incriminating evidence;
(k) to be tried in a language that the accused person understands
or, if that is not practicable, to have the proceedings interpreted
in that language;
(l) not to be convicted for an act or omission that was not an
offence under either national or international law at the time it was
committed or omitted;
(m) not to be tried for an offence in respect of an act or omission
for which that person has previously been either acquitted or
convicted;
(n) to the benefit of the least severe of the prescribed punishments
if the prescribed punishment for the offence has been changed
between the time that the offence was committed and the time of
sentencing; and
(o) of appeal to, or review by, a higher court.
(4) Whenever this section requires information to be given to a
person, that information must be given in a language that the
person understands.
(5) Evidence obtained in a manner that violates any right in the
Bill of Rights must be excluded if the admission of that evidence
would render the trial unfair or otherwise be detrimental to the
administration of justice.
Section 36 Limitation of rights
(1) The rights in the Bill of Rights may be limited only in terms
of law of general application to the extent that the limitation is
reasonable and justifiable in an open and democratic society based
on human dignity, equality and freedom, taking into account all
relevant factors, including -
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision
of the Constitution, no law may limit any right entrenched in the
Bill of Rights.
Section 37 States of emergency
(1) A state of emergency may be declared only in terms of an Act
of Parliament, and only when -
(a) the life of the nation is threatened by war, invasion, general
insurrection, disorder, natural disaster or other public emergency;
and
(b) the declaration is necessary to restore peace and order.
(2) A declaration of a state of emergency, and any legislation
enacted or other action taken in consequence of that declaration,
may be effective only -
(a) prospectively; and
(b) for no more than 21 days from the date of the declaration,
unless the National Assembly resolves to extend the declaration.
The Assembly may extend a declaration of a state of emergency
for no more than three months at a time. The first extension of the
state of emergency must be by a resolution adopted with a
supporting vote of a majority of the members of the Assembly.
Any subsequent extension must be by a resolution adopted with a
supporting vote of at least 60 per cent of the members of the
Assembly. A resolution in terms of this paragraph may be adopted
only following a public debate in the Assembly.
(3) Any competent court may decide on the validity of -
(a) a declaration of a state of emergency;
(b) any extension of a declaration of a state of emergency; or
(c) any legislation enacted, or other action taken, in consequence
of a declaration of a state of emergency.
(4) Any legislation enacted in consequence of a declaration of a
state of emergency may derogate from the Bill of Rights only to
the extent that -
(a) the derogation is strictly required by the emergency; and
(b) the legislation -
(i) is consistent with the Republic's obligations under international
law applicable to states of emergency;
(ii) conforms to subsection (5); and
(iii) is published in the national Government Gazette as soon as
reasonably possible after being enacted.
(5) No Act of Parliament that authorises a declaration of a state of
emergency, and no legislation enacted or other action taken in
consequence of a declaration, may permit or authorise -
(a) indemnifying the state, or any person, in respect of any
unlawful act;
(b) any derogation from this section; or
(c) any derogation from a section mentioned in column 1 of the
Table of Non-Derogable Rights, to the extent indicated opposite
that section in column 3 of the Table.
Table of Non-Derogable Rights
Section Number | Section Title | Extent to which the right is protected |
9 | Equality | With respect to unfair discrimination solely on the grounds of race, colour, ethnic or social origin, sex religion or language |
10 | Human Dignity | Entirely |
11 | Life | Entirely |
12 | Freedom and Security of the person | With respect to subsections (1)(d) and (e) and (2)(c). |
13 | Slavery, servitude and forced labour | With respect to slavery and servitude |
28 | Children | With respect to: -subsection (1)(d) and (e); -the rights in subparagraphs (i) and (ii) of subsection (1)(g); and -subsection 1(i) in respect of children of 15 years and younger |
35 | Arrested, detained and accused persons | With respect to: -subsections (1)(a), (b) and (c) and (2)(d); -the rights in paragraphs (a) to (o) of subsection (3), excluding paragraph (d) -subsection (4); and -subsection (5) with respect to the exclusion of evidence if the admission of that evidence would render the trial unfair. |
(6) Whenever anyone is detained without trial in consequence of
a derogation of rights resulting from a declaration of a state of
emergency, the following conditions must be observed:
(a) An adult family member or friend of the detainee must be
contacted as soon as reasonably possible, and informed that the
person has been detained.
(b) A notice must be published in the national Government Gazette
within five days of the person being detained, stating the
detainee's name and place of detention and referring to the
emergency measure in terms of which that person has been
detained.
(c) The detainee must be allowed to choose, and be visited at any
reasonable time by, a medical practitioner.
(d) The detainee must be allowed to choose, and be visited at any
reasonable time by, a legal representative.
(e) A court must review the detention as soon as reasonably
possible, but no later than 10 days after the date the person was
detained, and the court must release the detainee unless it is
necessary to continue the detention to restore peace and order.
(f) A detainee who is not released in terms of a review under
paragraph (e), or who is not released in terms of a review under
this paragraph, may apply to a court for a further review of the
detention at any time after 10 days have passed since the previous
review, and the court must release the detainee unless it is still
necessary to continue the detention to restore peace and order.
(g) The detainee must be allowed to appear in person before any
court considering the detention, to be represented by a legal
practitioner at those hearings, and to make representations against
continued detention.
(h) The state must present written reasons to the court to justify
the continued detention of the detainee, and must give a copy of
those reasons to the detainee at least two days before the court
reviews the detention.
(7) If a court releases a detainee, that person may not be detained
again on the same grounds unless the state first shows a court
good cause for re-detaining that person.
(8) Subsections (6) and (7) do not apply to persons who are not
South African citizens and who are detained in consequence of an
international armed conflict. Instead, the state must comply with
the standards binding on the Republic under international
humanitarian law in respect of the detention of such persons.
Section 38 Enforcement of rights
Anyone listed in this section has the right to approach a competent
court, alleging that a right in the Bill of Rights has been infringed
or threatened, and the court may grant appropriate relief,
including a declaration of rights. The persons who may approach
a court are:
(a) Anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in
their own name;
(c) anyone acting as a member of, or in the interest of, a group or
class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members.
Section 39 Interpretation of Bill of Rights
(1) When interpreting the Bill of Rights, a court, tribunal or
forum -
(a) must promote the values that underlie an open and democratic
society based on human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.
(2) When interpreting any legislation, and when developing the
common law or customary law, every court, tribunal or forum
must promote the spirit, purport and objects of the Bill of Rights.
(3)The Bill of Rights does not deny the existence of any other
rights or freedoms that are recognised or conferred by common
law, customary law or legislation, to the extent that they are
consistent with the Bill.
Section 40 Government of the Republic
(1) In the Republic, government is constituted as national,
provincial and local spheres of government, which are distinctive,
interdependent and interrelated.
(2) All spheres of government must observe and adhere to the
principles in this Chapter and must conduct their activities within
the parameters that the Chapter provides.
Section 41 Principles of co-operative government and intergovernmental relations
(1) All spheres of government and all organs of state within each
sphere must -
(a) preserve the peace, national unity and the indivisibility of the
Republic;
(b) secure the well-being of the people of the Republic;
(c) provide effective, transparent, accountable and coherent
government for the Republic as a whole;
(d) be loyal to the Constitution, the Republic and its people;
(e) respect the constitutional status, institutions, powers and
functions of government in the other spheres;
(f) not assume any power or function except those conferred on
them in terms of the Constitution;
(g) exercise their powers and perform their functions in a manner
that does not encroach on the geographical, functional or
institutional integrity of government in another sphere; and
(h) co-operate with one another in mutual trust and good faith by -
(i) fostering friendly relations;
(ii) assisting and supporting one another;
(iii) informing one another of, and consulting one another on,
matters of common interest;
(iv) co-ordinating their actions and legislation with one another;
(v) adhering to agreed procedures; and
(vi) avoiding legal proceedings against one another.
(2) An Act of Parliament must -
(a) establish or provide for structures and institutions to promote
and facilitate intergovernmental relations; and
(b) provide for appropriate mechanisms and procedures to
facilitate settlement of intergovernmental disputes.
(3) An organ of state involved in an intergovernmental dispute
must make every reasonable effort to settle the dispute by means
of mechanisms and procedures provided for that purpose, and
must exhaust all other remedies before it approaches a court to
resolve the dispute.
(4)If a court is not satisfied that the requirements of subsection (3)
have been met, it may refer a dispute back to the organs of state
involved.
Section 42 Composition of Parliament
(1) Parliament
(a) the National Assembly; and
(b) the National Council of Provinces.
(2) The National Assembly and the National Council of Provinces
participate in the legislative process in the manner set out in the
Constitution.
(3) The National Assembly is elected to represent the people and
to ensure government by the people under the Constitution. It does
this by choosing the President, by providing a national forum for
public consideration of issues, by passing legislation and by
scrutinizing and overseeing executive action.
(4) The National Council of Provinces represents the provinces to
ensure that provincial interests are taken into account in the
national sphere of government. It does this mainly by participating
in the national legislative process and by providing a national
forum for public consideration of issues affecting the provinces.
(5) The President may summon Parliament to an extraordinary
sitting at any time to conduct special business.
(6) The seat of Parliament is Cape Town, but an Act of
Parliament, enacted in accordance with section 76(1) and (5), may
determine that the seat of Parliament is elsewhere.
Section 43 Legislative authority of the Republic
In the Republic, the legislative
(a) of the national sphere of government is vested in Parliament,
as set out in section 44;
(b) of the provincial sphere of government is vested in the
provincial legislatures, as set out in section 104; and
(c) of the local sphere of government is vested in the Municipal
Councils, as set out in section 156.
Section 44 National legislative authority
(1) The national legislative authority as vested in Parliament -
(a) confers on the National Assembly the power -
(i) to amend the Constitution;
(ii) to pass legislation with regard to any matter, including a
matter within a functional area listed in Schedule 4, but excluding,
subject to subsection (2), a matter within a functional area listed
in Schedule 5; and
(iii) to assign any of its legislative powers, except the power to
amend the Constitution, to any legislative body in another sphere
of government; and
(b) confers on the National Council of Provinces the power -
(i) to participate in amending the Constitution in accordance with
section 74;
(ii) to pass, in accordance with section 76, legislation with regard
to any matter within a functional area listed in Schedule 4, and
any other matter required by the Constitution to be passed in
accordance with section 76; and
(iii) to consider, in accordance with section 75, any other
legislation passed by the National Assembly.
(2) Parliament may intervene by passing legislation, in accordance
with section 76(1), with regard to a matter falling within a
functional area listed in Schedule 5, when it is necessary -
(a) to maintain national security;
(b) to maintain economic unity;
(c) to maintain essential national standards;
(d) to establish minimum standards required for the rendering of
services; or
(e) to prevent unreasonable action taken by a province which is
prejudicial to the interests of another province or to the country as
a whole.
(3) Legislation with regard to a matter that is reasonably necessary
for, or incidental to, the effective exercise of a power concerning
any matter listed in Schedule 4 is, for all purposes, legislation
with regard to a matter listed in Schedule 4.
(4) When exercising its legislative authority, Parliament is bound
only by the Constitution, and must act in accordance with, and
within the limits of, the Constitution.
Section 45 Joint rules and orders and joint committees
(1) The National Assembly and the National Council of Provinces
must establish a joint rules committee to make rules and orders
concerning the joint business of the Assembly and Council,
including rules and orders -
(a) to determine procedures to facilitate the legislative process,
including setting a time limit for completing any step in the
process;
(b) to establish joint committees composed of representatives from
both the Assembly and the Council to consider and report on Bills
envisaged in sections 74 and 75 that are referred to such a
committee;
(c) to establish a joint committee to review the Constitution at
least annually; and
(d) to regulate the business of -
(i) the joint rules committee;
(ii) the Mediation Committee;
(iii) the constitutional review committee; and
(iv) any joint committees established in terms of paragraph (b).
(2) Cabinet members, members of the National Assembly and
delegates to the National Council of Provinces have the same
privileges and immunities before a joint committee of the
Assembly and the Council as they have before the Assembly or
the Council.
[Title 1] The National Assembly
Section 46 Composition and election
(1) The National Assembly consists of no fewer than 350 and no
more than 400 women and men elected as members in terms of an
electoral system that -
(a) is prescribed by national legislation;
(b) is based on the national common voters roll;
(c) provides for a minimum voting age of 18 years; and
(d) results, in general, in proportional representation.
(2) An Act of Parliament must provide a formula for determining
the number of members of the National Assembly.
Section 47 Membership
(1) Every citizen who is qualified to vote for the National
Assembly is eligible to be a member of the Assembly, except -
(a) anyone who is appointed by, or is in the service of, the state
and receives remuneration for that appointment or service, other
than -
(i) the President, Deputy President, Ministers and Deputy
Ministers; and
(ii) other office-bearers whose functions are compatible with the
functions of a member of the Assembly, and have been declared
compatible with those functions by national legislation;
(b) permanent delegates to the National Council of Provinces or
members of a provincial legislature or a Municipal Council;
(c) unrehabilitated insolvents;
(d) anyone declared to be of unsound mind by a court of the
Republic; or
(e) anyone who, after this section took effect, is convicted of an
offence and sentenced to more than 12 months imprisonment
without the option of a fine, either in the Republic, or outside the
Republic if the conduct constituting the offence would have been
an offence in the Republic, but no one may be regarded as having
been sentenced until an appeal against the conviction or sentence
has been determined, or until the time for an appeal has expired.
A disqualification under this paragraph ends five years after the
sentence has been completed.
(2) A person who is not eligible to be a member of the National
Assembly in terms of subsection (1)(a) or (b) may be a candidate
for the Assembly, subject to any limits or conditions established
by national legislation.
(3) A person loses membership of the National Assembly if that
person -
(a) ceases to be eligible; or
(b) is absent from the Assembly without permission in
circumstances for which the rules and orders of the Assembly
prescribe loss of membership.
(4) Vacancies in the National Assembly must be filled in terms of
national legislation.
Section 48 Oath or affirmation
Before members of the National Assembly begin to perform their
functions in the Assembly, they must swear or affirm faithfulness
to the Republic and obedience to the Constitution, in accordance
with Schedule 2.
Section 49 Duration of National Assembly
(1) The National Assembly is elected for a term of five years.
(2) If the National Assembly is dissolved in terms of section 50,
or when its term expires, the President, by proclamation, must
call and set dates for an election, which must be held within 90
days of the date the Assembly was dissolved or its term expired.
(3) If the result of an election of the National Assembly is not
declared within the period established in terms of section 190, or
if an election is set aside by a court, the President, by
proclamation, must call and set dates for another election, which
must be held within 90 days of the expiry of that period or of the
date on which the election was set aside.
(4) The National Assembly remains competent to function from
the time it is dissolved or its term expires, until the day before the
first day of polling for the next Assembly.
Section 50 Dissolution of National Assembly before expiry of its term
(1) The President must dissolve the National Assembly if -
(a) the Assembly has adopted a resolution to dissolve with a
supporting vote of a majority of its members; and
(b) three years have passed since the Assembly was elected.
(2) The Acting President must dissolve the National Assembly if -
(a) there is a vacancy in the office of President; and
(b) the Assembly fails to elect a new President within 30 days
after the vacancy occurred.
Section 51 Sittings and recess periods
(1) After an election, the first sitting of the National Assembly
must take place at a time and on a date determined by the
President of the Constitutional Court, but not more than 14 days
after the election result has been declared. The National Assembly
may determine the time and duration of its other sittings and its
recess periods.
(2) The President may summon the National Assembly to an
extraordinary sitting at any time to conduct special business.
(3) Sittings of the National Assembly are permitted at places other
than the seat of Parliament only on the grounds of public interest,
security or convenience, and if provided for in the rules and
orders of the Assembly.
Section 52 Speaker and Deputy Speaker
(1) At the first sitting after its election, or when necessary to fill
a vacancy, the National Assembly must elect a Speaker and a
Deputy Speaker from among its members.
(2) The President of the Constitutional Court must preside over
the election of a Speaker, or designate another judge to do so. The
Speaker presides over the election of a Deputy Speaker.
(3) The procedure set out in Part A of Schedule 3 applies to the
election of the Speaker and the Deputy Speaker.
(4) The National Assembly may remove the Speaker or Deputy
Speaker from office by resolution. A majority of the members of
the Assembly must be present when the resolution is adopted.
(5) In terms of its rules and orders, the National Assembly may
elect from among its members other presiding officers to assist the
Speaker and the Deputy Speaker.
Section 53 Decisions
(1) Except where the Constitution provides otherwise -
(a) a majority of the members of the National Assembly must be
present before a vote may be taken on a Bill or an amendment to
a Bill;
(b) at least one third of the members must be present before a vote
may be taken on any other question before the Assembly; and
(c) all questions before the Assembly are decided by a majority of
the votes cast.
(2) The member of the National Assembly presiding at a meeting
of the Assembly has no deliberative vote, but -
(a) must cast a deciding vote when there is an equal number of
votes on each side of a question; and
(b) may cast a deliberative vote when a question must be decided
with a supporting vote of at least two thirds of the members of the
Assembly.
Section 54 Rights of certain Cabinet members in National Assembly
The President and any member of the Cabinet who is not a
member of the National Assembly may attend, and may speak in,
the Assembly, but may not vote.
Section 55 Powers of National Assembly
(1) In exercising its legislative power, the National Assembly
may -
(a) consider, pass, amend or reject any legislation before the
Assembly; and
(b) initiate or prepare legislation, except money Bills.
(2) The National Assembly must provide for mechanisms -
(a) to ensure that all executive organs of state in the national
sphere of government are accountable to it; and
(b) to maintain oversight of -
(i) the exercise of national executive authority, including the
implementation of legislation; and
(ii) any organ of state.
Section 56 Evidence or information before National Assembly
The National Assembly or any of its committees may -
(a) summon any person to appear before it to give evidence on
oath or affirmation, or to produce documents;
(b) require any person or institution to report to it;
(c) compel, in terms of national legislation or the rules and orders,
any person or institution to comply with a summons or
requirement in terms of paragraph (a) or (b); and
(d) receive petitions, representations or submissions from any
interested persons or institutions.
Section 57 Internal arrangements, proceedings and procedures of National Assembly
(1) The National Assembly may -
(a) determine and control its internal arrangements, proceedings
and procedures; and
(b) make rules and orders concerning its business, with due regard
to representative and participatory democracy, accountability,
transparency and public involvement.
(2) The rules and orders of the National Assembly must provide
for -
(a) the establishment, composition, powers, functions, procedures
and duration of its committees;
(b) the participation in the proceedings of the Assembly and its
committees of minority parties represented in the Assembly, in a
manner consistent with democracy;
(c) financial and administrative assistance to each party
represented in the Assembly in proportion to its representation, to
enable the party and its leader to perform their functions in the
Assembly effectively; and
(d) the recognition of the leader of the largest opposition party in
the Assembly as the Leader of the Opposition.
Section 58 Privilege
(1) Cabinet members and members of the National Assembly -
(a) have freedom of speech in the Assembly and in its committees,
subject to its rules and orders; and
(b) are not liable to civil or criminal proceedings, arrest,
imprisonment or damages for -
(i) anything that they have said in, produced before or submitted
to the Assembly or any of its committees; or
(ii) anything revealed as a result of anything that they have said
in, produced before or submitted to the Assembly or any of its
committees.
(2) Other privileges and immunities of the National Assembly,
Cabinet members and members of the Assembly may be
prescribed by national legislation.
(3) Salaries, allowances and benefits payable to members of the
National Assembly are a direct charge against the National
Revenue Fund.
Section 59 Public access to and involvement in National Assembly
(1) The National Assembly must -
(a) facilitate public involvement in the legislative and other
processes of the Assembly and its committees; and
(b) conduct its business in an open manner, and hold its sittings,
and those of its committees, in public, but reasonable measures
may be taken -
(i) to regulate public access, including access of the media, to the
Assembly and its committees; and
(ii) to provide for the searching of any person and,where
appropriate, the refusal of entry to, or the removal of, any person.
(2) The National Assembly may not exclude the public, including
the media, from a sitting of a committee unless it is reasonable
and justifiable to do so in an open and democratic society.
[Title 2] National Council of Provinces
Section 60 Composition of National Council
(1) The National Council of Provinces is composed of a single
delegation from each province consisting of ten delegates.
(2) The ten delegates are -
(a) four special delegates consisting of-
(i) the Premier of the province or, if the Premier is not available,
any member of the provincial legislature designated by the
Premier either generally or for any specific business before the
National Council of Provinces; and
(ii) three other special delegates; and
(b) six permanent delegates appointed in terms of section 61(2).
(3) The Premier of a province, or if the Premier is not available,
a member of the province's delegation designated by the Premier,
heads the delegation.
Section 61 Allocation of delegates
(1) Parties represented in a provincial legislature are entitled to
delegates in the province's delegation in accordance with the
formula set out in Part B of Schedule 3.
(2) Within 30 days after the result of an election of a provincial
legislature is declared, the legislature must -
(a) determine, in accordance with national legislation, how many
of each party's delegates are to be permanent delegates and how
many are to be special delegates; and
(b) appoint the permanent delegates in accordance with the
nominations of the parties.
(3) The national legislation envisaged in subsection (2)(a) must
ensure the participation of minority parties in both the permanent
and special delegates" components of the delegation in a manner
consistent with democracy.
(4) The legislature, with the concurrence of the Premier and the
leaders of the parties entitled to special delegates in the province's
delegation, must designate special delegates, as required from time
to time, from among the members of the legislature.
Section 62 Permanent delegates
(1) A person nominated as a permanent delegate must be eligible
to be a member of the provincial legislature.
(2) If a person who is a member of a provincial legislature is
appointed as a permanent delegate, that person ceases to be a
member of the legislature.
(3) Permanent delegates are appointed for a term that expires
immediately before the first sitting of the provincial legislature
after its next election.
(4) A person ceases to be a permanent delegate if that person -
(a) ceases to be eligible to be a member of the provincial
legislature for any reason other than being appointed as a
permanent delegate;
(b) becomes a member of the Cabinet;
(c) has lost the confidence of the provincial legislature and is
recalled by the party that nominated that person;
(d) ceases to be a member of the party that nominated that person
and is recalled by that party; or
(e) is absent from the National Council of Provinces without
permission in circumstances for which the rules and orders of the
Council prescribe loss of office as a permanent delegate.
(5) Vacancies among the permanent delegates must be filled in
terms of national legislation.
(6) Before permanent delegates begin to perform their functions
in the National Council of Provinces, they must swear or affirm
faithfulness to the Republic and obedience to the Constitution, in
accordance with Schedule 2.
Section 63 Sittings of National Council
(1) The National Council of Provinces may determine the time and
duration of its sittings and its recess periods.
(2) The President may summon the National Council of Provinces
to an extraordinary sitting at any time to conduct special business.
(3) Sittings of the National Council of Provinces are permitted at
places other than the seat of Parliament only on the grounds of
public interest, security or convenience, and if provided for in the
rules and orders of the Council.
Section 64 Chairperson and Deputy Chairpersons
(1) The National Council of Provinces must elect a Chairperson
and two Deputy Chairpersons from among the delegates.
(2) The Chairperson and one of the Deputy Chairpersons are
elected from among the permanent delegates for five years unless
their terms as delegates expire earlier.
(3) The other Deputy Chairperson is elected for a term of one
year, and must be succeeded by a delegate from another province,
so that every province is represented in turn.
(4) The President of the Constitutional Court must preside over
the election of the Chairperson, or designate another judge to do
so. The Chairperson presides over the election of the Deputy
Chairpersons.
(5) The procedure set out in Part A of Schedule 3 applies to the
election of the Chairperson and the Deputy Chairpersons.
(6) The National Council of Provinces may remove the
Chairperson or a Deputy Chairperson from office.
(7) In terms of its rules and orders, the National Council of
Provinces may elect from among the delegates other presiding
officers to assist the Chairperson and Deputy Chairpersons.
Section 65 Decisions
(1) Except where the Constitution provides otherwise -
(a) each province has one vote, which is cast on behalf of the
province by the head of its delegation; and
(b) all questions before the National Council of Provinces are
agreed when at least five provinces vote in favour of the question.
(2) An Act of Parliament, enacted in accordance with the
procedure established by either subsection (1) or subsection (2) of
section 76, must provide for a uniform procedure in terms of
which provincial legislatures confer authority on their delegations
to cast votes on their behalf.
Section 66 Participation by members of national executive
(1) Cabinet members and Deputy Ministers may attend, and may
speak in, the National Council of Provinces, but may not vote.
(2) The National Council of Provinces may require a Cabinet
member, a Deputy Minister or an official in the national executive
or a provincial executive to attend a meeting of the Council or a
committee of the Council.
Section 67 Participation by local government representatives
Not more than ten part-time representatives designated by
organised local government in terms of section 163, to represent
the different categories of municipalities, may participate when
necessary in the proceedings of the National Council of Provinces,
but may not vote.
Section 68 Powers of National Council
In exercising its legislative power, the National Council of
Provinces may -
(a) consider, pass, amend, propose amendments to or reject any
legislation before the Council, in accordance with this Chapter;
and
(b) initiate or prepare legislation falling within a functional area
listed in Schedule 4 or other legislation referred to in section
76(3), but may not initiate or prepare money Bills.
Section 69 Evidence or information before National Council
The National Council of Provinces or any of its committees may -
(a) summon any person to appear before it to give evidence on
oath or affirmation or to produce documents;
(b) require any institution or person to report to it;
(c) compel, in terms of national legislation or the rules and orders,
any person or institution to comply with a summons or
requirement in terms of paragraph (a) or (b); and
(d) receive petitions, representations or submissions from any
interested persons or institutions.
Section 70 Internal arrangements, proceedings and procedures of National Council
(1) The National Council of Provinces may -
(a) determine and control its internal arrangements, proceedings
and procedures; and
(b) make rules and orders concerning its business, with due regard
to representative and participatory democracy, accountability,
transparency and public involvement.
(2) The rules and orders of the National Council of Provinces
must provide for -
(a) the establishment, composition, powers, functions, procedures
and duration of its committees;
(b) the participation of all the provinces in its proceedings in a
manner consistent with democracy; and
(c) the participation in the proceedings of the Council and its
committees of minority parties represented in the Council, in a
manner consistent with democracy, whenever a matter is to be
decided in accordance with section 75.
Section 71 Privilege
(1) Delegates to the National Council of Provinces and the persons
referred to in sections 66 and 67 -
(a) have freedom of speech in the Council and in its committees,
subject to its rules and orders; and
(b) are not liable to civil or criminal proceedings, arrest,
imprisonment or damages for -
(i) anything that they have said in, produced before or submitted
to the Council or any of its committees; or
(ii) anything revealed as a result of anything that they have said
in, produced before or submitted to the Council or any of its
committees.
(2) Other privileges and immunities of the National Council of
Provinces, delegates to the Council and persons referred to in
sections 66 and 67 may be prescribed by national legislation.
(3) Salaries, allowances and benefits payable to permanent
members of the National Council of Provinces are a direct charge
against the National Revenue Fund.
Section 72 Public access to and involvement in National Council
(1) The National Council of Provinces must -
(a) facilitate public involvement in the legislative and other
processes of the Council and its committees; and
(b) conduct its business in an open manner, and hold its sittings,
and those of its committees, in public, but reasonable measures
may be taken -
(i) to regulate public access, including access of the media, to the
Council and its committees; and
(ii) to provide for the searching of any person and, where
appropriate, the refusal of entry to, or the removal of, any person.
(2) The National Council of Provinces may not exclude the public,
including the media, from a sitting of a committee unless it is
reasonable and justifiable to do so in an open and democratic
society.
[Title 3] National Legislative Process
Section 73 All Bills
(1) Any Bill may be introduced in the National Assembly.
(2) Only a Cabinet member or a Deputy Minister, or a member
or committee of the Assembly, may introduce a Bill in the
Assembly; but only the Cabinet member responsible for national
financial matters may introduce a money Bill in the Assembly.
(3) A Bill referred to in section 76(3), except a money Bill, may
be introduced in the National Council of Provinces.
(4) Only a member or committee of the National Council of
Provinces may introduce a Bill in the Council.
(5) A Bill passed by the National Assembly must be referred to
the National Council of Provinces if it must be considered by the
Council. A Bill passed by the Council must be referred to the
Assembly.
Section 74 Bills amending the Constitution
(1) Section 1 and this subsection may be amended by a Bill passed
by -
(a) the National Assembly, with a supporting vote of at least 75
per cent of its members; and
(b) the National Council of Provinces, with a supporting vote of
at least six provinces.
(2) Chapter 2 may be amended by a Bill passed by -
(a) the National Assembly, with a supporting vote of at least two
thirds of its members; and
(b) the National Council of Provinces, with a supporting vote of
at least six provinces.
(3) Any other provision of the Constitution may be amended by
a Bill passed -
(a) by the National Assembly, with a supporting vote of at least
two thirds of its members; and
(b) also by the National Council of Provinces, with a supporting
vote of at least six provinces, if the amendment -
(i) relates to a matter that affects the Council;
(ii) alters provincial boundaries, powers, functions or institutions;
or
(iii) amends a provision that deals specifically with a provincial
matter.
(4) A Bill amending the Constitution may not include provisions
other than constitutional amendments and matters connected with
the amendments.
(5) At least 30 days before a Bill amending the Constitution is
introduced in terms of section 73(2), the person or committee
intending to introduce the Bill must -
(a) publish in the national Government Gazette, and in accordance
with the rules and orders of the National Assembly, particulars of
the proposed amendment for public comment;
(b) submit, in accordance with the rules and orders of the
Assembly, those particulars to the provincial legislatures for their
views; and
(c) submit, in accordance with the rules and orders of the National
Council of Provinces, those particulars to the Council for a public
debate, if the proposed amendment is not an amendment that is
required to be passed by the Council.
(6) When a Bill amending the Constitution is introduced, the
person or committee introducing the Bill must submit any written
comments received from the public and the provincial
legislatures -
(a) to the Speaker for tabling in the National Assembly; and
(b) in respect of amendments referred to in subsection (1), (2), or
(3)(b), to the Chairperson of the National Council of Provinces for
tabling in the Council.
(7) A Bill amending the Constitution may not be put to the vote
in the National Assembly within 30 days of -
(a) its introduction, if the Assembly is sitting when the Bill is
introduced; or
(b) its tabling in the Assembly, if the Assembly is in recess when
the Bill is introduced.
(8) If a Bill referred to in subsection (3)(b), or any part of the
Bill, concerns only a specific province or provinces, the National
Council of Provinces may not pass the Bill or the relevant part
unless it has been approved by the legislature or legislatures of the
province or provinces concerned.
(9) A Bill amending the Constitution that has been passed by the
National Assembly and, where applicable, by the National Council
of Provinces, must be referred to the President for assent.
Section 75 Ordinary Bills not affecting provinces
(1) When the National Assembly passes a Bill other than a Bill to
which the procedure set out in section 74 or 76 applies, the Bill
must be referred to the National Council of Provinces and dealt
with in accordance with the following procedure:
(a) The Council must -
(i) pass the Bill;
(ii) pass the Bill subject to amendments proposed by it; or
(iii) reject the Bill.
(b) If the Council passes the Bill without proposing amendments,
the Bill must be submitted to the President for assent.
(c) If the Council rejects the Bill or passes it subject to
amendments, the Assembly must reconsider the Bill, taking into
account any amendment proposed by the Council, and may -
(i) pass the Bill again, either with or without amendments; or
(ii) decide not to proceed with the Bill.
(d) A Bill passed by the Assembly in terms of paragraph (c) must
be submitted to the President for assent.
(2) When the National Council of Provinces votes on a question
in terms of this section, section 65 does not apply; instead -
(a) each delegate in a provincial delegation has one vote;
(b) at least one third of the delegates must be present before a
vote may be taken on the question; and
(c) the question is decided by a majority of the votes cast, but if
there is an equal number of votes on each side of the question, the
delegate presiding must cast a deciding vote.
Section 76 Ordinary Bills affecting provinces
(1) When the National Assembly passes a Bill referred to in
subsection (3), (4) or (5), the Bill must be referred to the National
Council of Provinces and dealt with in accordance with the
following procedure:
(a) The Council must -
(i) pass the Bill;
(ii) pass an amended Bill; or
(iii) reject the Bill.
(b) If the Council passes the Bill without amendment, the Bill
must be submitted to the President for assent.
(c) If the Council passes an amended Bill, the amended Bill must
be referred to the Assembly, and if the Assembly passes the
amended Bill, it must be submitted to the President for assent.
(d) If the Council rejects the Bill, or if the Assembly refuses to
pass an amended Bill referred to it in terms of paragraph (c), the
Bill and, where applicable, also the amended Bill, must be
referred to the Mediation Committee, which may agree on -
(i) the Bill as passed by the Assembly;
(ii) the amended Bill as passed by the Council; or
(iii) another version of the Bill.
(e) If the Mediation Committee is unable to agree within 30 days
of the Bill's referral to it, the Bill lapses unless the Assembly
again passes the Bill, but with a supporting vote of at least two
thirds of its members.
(f) If the Mediation Committee agrees on the Bill as passed by the
Assembly, the Bill must be referred to the Council, and if the
Council passes the Bill, the Bill must be submitted to the President
for assent.
(g) If the Mediation Committee agrees on the amended Bill as
passed by the Council, the Bill must be referred to the Assembly,
and if it is passed by the Assembly, it must be submitted to the
President for assent.
(h) If the Mediation Committee agrees on another version of the
Bill, that version of the Bill must be referred to both the Assembly
and the Council, and if it is passed by the Assembly and the
Council, it must be submitted to the President for assent.
(i) If a Bill referred to the Council in terms of paragraph (f) or (h)
is not passed by the Council, the Bill lapses unless the Assembly
passes the Bil with a supporting vote of at least two thirds of its
members.
(j) If a Bill referred to the Assembly in terms of paragraph (g) or
(h) is not passed by the Assembly, that Bill lapses, but the Bill as
originally passed by the Assembly may again be passed by the
Assembly, but with a supporting vote of at least two thirds of its
members.
(k) A Bill passed by the Assembly in terms of paragraph (e), (i)
or (j) must be submitted to the President for assent.
(2) When the National Council of Provinces passes a Bill referred
to in subsection (3) the Bill must be referred to the National
Assembly and dealt with in accordance with the following
procedure:
(a) The Assembly must -
(i) pass the Bill;
(ii) pass an amended Bill; or
(iii) reject the Bill.
(b) A Bill passed by the Assembly in terms of paragraph (a)(i)
must be submitted to the President for assent.
(c) If the Assembly passes an amended Bill, the amended Bill
must be referred to the Council, and if the Council passes the
amended Bill, it must be submitted to the President for assent.
(d) If the Assembly rejects the Bill, or if the Council refuses to
pass an amended Bill referred to it in terms of paragraph (c), the
Bill and, where applicable, also the amended Bill must be referred
to the Mediation Committee, which may agree on -
(i) the Bill as passed by the Council;
(ii) the amended Bill as passed by the Assembly; or
(iii) another version of the Bill.
(e) If the Mediation Committee is unable to agree within 30 days
of the Bill's referral to it, the Bill lapses.
(f) If the Mediation Committee agrees on the Bill as passed by the
Council, the Bill must be referred to the Assembly, and if the
Assembly passes the Bill, the Bill must be submitted to the
President for assent.
(g) If the Mediation Committee agrees on the amended Bill as
passed by the Assembly, the Bill must be referred to the Council,
and if it is passed by the Council, it must be submitted to the
President for assent.
(h) If the Mediation Committee agrees on another version of the
Bill, that version of the Bill must be referred to both the Council
and the Assembly, and if it is passed by the Council and the
Assembly, it must be submitted to the President for assent.
(i) If a Bill referred to the Assembly in terms of paragraph (f) or
(h) is not passed by the Assembly, the Bill lapses.
(3) A Bill must be dealt with in accordance with the procedure
established by either subsection (1) or subsection (2) if it falls
within a functional area listed in Schedule 4 or provides for
legislation envisaged in any of the following sections:
(a) Section 65(2);
(b) section 163;
(c) section 182;
(d) section 195(3) and (4);
(e) section 196; and
(f) section 197.
(4) A Bill must be dealt with in accordance with the procedure
established by subsection (1) if it provides for legislation -
(a) envisaged in section 44(2) or 220(3); or
(b) envisaged in Chapter 13, and which affects the financial
interests of the provincial sphere of government.
(5) A Bill envisaged in section 42(6) must be dealt with in
accordance with the procedure established by subsection (1),
except that -
(a) when the National Assembly votes on the Bill, the provisions
of section 53(1) do not apply; instead, the Bill may be passed only
if a majority of the members of the Assembly vote in favour of it;
and
(b) if the Bill is referred to the Mediation Committee, the
following rules apply:
(i) If the National Assembly considers a Bill envisaged in
subsection (1) (g) or (h), that Bill may be passed only if a
majority of the members of the Assembly vote in favour of it.
(ii) If the National Assembly considers or reconsiders a Bill
envisaged in subsection (1)(e), (i) or (j), that Bill may be passed
only if at least two thirds of the members of the Assembly vote in
favour of it.
(6) This section does not apply to money Bills.
Section 77 Money Bills
(1) A Bill that appropriates money or imposes taxes, levies or
duties is a money Bill. A money Bill may not deal with any other
matter except a subordinate matter incidental to the appropriation
of money or the imposition of taxes, levies or duties.
(2) All money Bills must be considered in accordance with the
procedure established by section 75. An Act of Parliament must
provide for a procedure to amend money Bills before Parliament.
Section 78 Mediation Committee
(1) The Mediation Committee consists of -
(a) nine members of the National Assembly elected by the
Assembly in accordance with a procedure that is prescribed by the
rules and orders of the Assembly and results in the representation
of parties in substantially the same proportion that the parties are
represented in the Assembly; and
(b) one delegate from each provincial delegation in the National
Council of Provinces, designated by the delegation.
(2) The Mediation Committee has agreed on a version of a Bill,
or decided a question, when that version, or one side of a
question, is supported by -
(a) at least five of the representatives of the National Assembly;
and
(b) at least five of the representatives of the National Council of
Provinces.
Section 79 Assent to Bills
(1) The President must either assent to and sign a Bill passed in
terms of this Chapter or, if the President has reservations about
the constitutionality of the Bill, refer it back to the National
Assembly for reconsideration.
(2) The joint rules and orders must provide for the procedure for
the reconsideration of a Bill by the National Assembly and the
participation of the National Council of Provinces in the process.
(3) The National Council of Provinces must participate in the
reconsideration of a Bill that the President has referred back to the
National Assembly if -
(a) the President's reservations about the constitutionality of the
Bill relate to a procedural matter that involves the Council; or
(b) section 74(1), (2) or (3)(b) or 76 was applicable in the passing
of the Bill.
(4) If, after reconsideration, a Bill fully accommodates the
President's reservations, the President must assent to and sign the
Bill; if not, the President must either -
(a) assent to and sign the Bill; or
(b) refer it to the Constitutional Court for a decision on its
constitutionality.
(5) If the Constitutional Court decides that the Bill is
constitutional, the President must assent to and sign it.
Section 80 Application by members of National Assembly to Constitutional Court
(1) Members of the National Assembly may apply to the
Constitutional Court for an order declaring that all or part of an
Act of Parliament is unconstitutional.
(2) An application -
(a) must be supported by at least one third of the members of the
Assembly; and
(b) must be made within 30 days of the date on which the
President assented to and signed the Act.
(3) The Constitutional Court may order that all or part of an Act
that is the subject of an application in terms of subsection (1) has
no force until the Court has decided the application if -
(a) the interests of justice require this; and
(b) the application has a reasonable prospect of success.
(4) If an application is unsuccessful, and did not have a reasonable
prospect of success, the Constitutional Court may order the
applicants to pay costs.
Section 81 Publication of Acts
A Bill assented to and signed by the President becomes an Act of
Parliament, must be published promptly, and takes effect when
published or on a date determined in terms of the Act.
Section 82 Safekeeping of Acts of Parliament
The signed copy of an Act of Parliament is conclusive evidence
of the provisions of that Act and, after publication, must be
entrusted to the Constitutional Court for safekeeping.
Section 83 The President
The President
(a) is the Head of State and head of the national executive;
(b) must uphold, defend and respect the Constitution as the
supreme law of the Republic; and
(c) promotes the unity of the nation and that which will advance
the Republic.
Section 84 Powers and functions of President
(1) The President has the powers entrusted by the Constitution and
legislation, including those necessary to perform the functions of
Head of State and head of the national executive.
(2) The President is responsible for -
(a) assenting to and signing Bills;
(b) referring a Bill back to the National Assembly for
reconsideration of the Bill's constitutionality;
(c) referring a Bill to the Constitutional Court for a decision on
the Bill's constitutionality;
(d) summoning the National Assembly, the National Council of
Provinces or Parliament to an extraordinary sitting to conduct
special business;
(e) making any appointments that the Constitution or legislation
requires the President to make, other than as head of the national
executive;
(f) appointing commissions of inquiry;
(g) calling a national referendum in terms of an Act of Parliament;
(h) receiving and recognising foreign diplomatic and consular
representatives;
(i) appointing ambassadors, plenipotentiaries, and diplomatic
and consular representatives;
(j) pardoning or reprieving offenders and remitting any fines,
penalties or forfeitures; and
(k) conferring honours.
Section 85 Executive authority of the Republic
(1) The executive authority of the Republic is vested in the
President.
(2) The President exercises the executive authority, together
with the other members of the Cabinet, by -
(a) implementing national legislation except where the
Constitution or an Act of Parliament provides otherwise;
(b) developing and implementing national policy;
(c) co-ordinating the functions of state departments and
administrations;
(d) preparing and initiating legislation; and
(e) performing any other executive function provided for in the
Constitution or in national legislation.
Section 86 Election of President
(1) At its first sitting after its election, and whenever necessary
to fill a vacancy, the National Assembly must elect a woman or
a man from among its members to be the President.
(2) The President of the Constitutional Court must preside over
the election of the President, or designate another judge to do
so. The procedure set out in Part A of Schedule 3 applies to the
election of the President.
(3) An election to fill a vacancy in the office of President must
be held at a time and on a date determined by the President of
the Constitutional Court, but not more than 30 days after the
vacancy occurs.
Section 87 Assumption of office by President
When elected President, a person ceases to be a member of the
National Assembly and, within five days, must assume office
by swearing or affirming faithfulness to the Republic and
obedience to the Constitution, in accordance with Schedule 2.
Section 88 Term of office of President
(1) The President's term of office begins on assuming office
and ends upon a vacancy occurring or when the person next
elected President assumes office.
(2) No person may hold office as President for more than two
terms, but when a person is elected to fill a vacancy in the
office of President, the period between that election and the
next election of a President is not regarded as a term.
Section 89 Removal of President
(1) The National Assembly, by a resolution adopted with a
supporting vote of at least two thirds of its members, may
remove the President from office only on the grounds of -
(a) a serious violation of the Constitution or the law;
(b) serious misconduct; or
(c) inability to perform the functions of office.
(2) Anyone who has been removed from the office of President
in terms of subsection (1) (a) or (b) may not receive any
benefits of that office, and may not serve in any public office.
Section 90 Acting President
(1) When the President is absent from the Republic or otherwise
unable to fulfil the duties of President, or during a vacancy in
the office of President, an office-bearer in the order below acts
as President:
(a) The Deputy President.
(b) A Minister designated by the President.
(c) A Minister designated by the other members of the Cabinet.
(d) The Speaker, until the National Assembly designates one of
its other members.
(2) An Acting President has the responsibilities, powers and
functions of the President.
(3) Before assuming the responsibilities, powers and functions
of the President, the Acting President must swear or affirm
faithfulness to the Republic and obedience to the Constitution,
in accordance with Schedule 2.
Section 91 Cabinet
(1) The Cabinet
(2) The President appoints the Deputy President and Ministers,
assigns their powers and functions, and may dismiss them.
(3) The President -
(a) must select the Deputy President from among the members
of the National Assembly;
(b) may select any number of Ministers from among the
members of the Assembly; and
(c) may select no more than two Ministers from outside the
Assembly.
(4) The President must appoint a member of the Cabinet to be
the leader of government business in the National Assembly.
(5) The Deputy President must assist the President in the
execution of the functions of government.
Section 92 Accountability and responsibilities
(1) The Deputy President and Ministers are responsible for the
powers and functions of the executive assigned to them by the
President.
(2) Members of the Cabinet are accountable collectively and
individually to Parliament for the exercise of their powers and
the performance of their functions.
(3) Members of the Cabinet must -
(a) act in accordance with the Constitution; and
(b) provide Parliament with full and regular reports concerning
matters under their control.
Section 93 Deputy Ministers
The President may appoint Deputy Ministers from among the
members of the National Assembly to assist the members of the
Cabinet, and may dismiss them.
Section 94 Continuation of Cabinet after elections
When an election of the National Assembly is held, the
Cabinet, the Deputy President, Ministers and any Deputy
Ministers remain competent to function until the person elected
President by the next Assembly assumes office.
Section 95 Oath or affirmation
Before the Deputy President, Ministers and any Deputy
Ministers begin to perform their functions, they must swear or
affirm faithfulness to the Republic and obedience to the
Constitution, in accordance with Schedule 2.
Section 96 Conduct of Cabinet members and Deputy Ministers
(1) Members of the Cabinet and Deputy Ministers must act in
accordance with a code of ethics prescribed by national
legislation.
(2) Members of the Cabinet and Deputy Ministers may not -
(a) undertake any other paid work;
(b) act in any way that is inconsistent with their office, or
expose themselves to any situation involving the risk of a
conflict between their official responsibilities and private
interests; or
(c) use their position or any information entrusted to them, to
enrich themselves or improperly benefit any other person.
Section 97 Transfer of functions
The President by proclamation may transfer to a member of the
Cabinet -
(a) the administration of any legislation entrusted to another
member; or
(b) any power or function entrusted by legislation to another
member.
Section 98 Temporary assignment of functions
The President may assign to a Cabinet member any power or
function of another member who is absent from office or is
unable to exercise that power or perform that function.
Section 99 Assignment of functions
A Cabinet member may assign any power or function that is to
be performed in terms of an Act of Parliament to a member of
a provincial Executive Council or to a Municipal Council. An
assignment -
(a) must be in terms of an agreement between the relevant
Cabinet member and the Executive Council member or
Municipal Council;
(b) must be consistent with that of Parliament in terms of which
the relevant power or function is exercised or performed; and
(c) takes effect upon proclamation by the President.
Section 100 National supervision of provincial administration
(1) When a province cannot or does not fulfil an executive
obligation in terms of legislation or the Constitution, the
national executive may intervene by taking any appropriate
steps to ensure fulfilment of that obligation, including -
(a) issuing a directive to the provincial executive, describing the
extent of the failure to fulfil its obligations and stating any steps
required to meet its obligations; and
(b) assuming responsibility for the relevant obligation in that
province to the extent necessary to -
(i) maintain essential national standards or meet established
minimum standards for the rendering of a service;
(ii) maintain economic unity;
(iii) maintain national security; or
(iv) prevent that province from taking unreasonable action that
is prejudicial to the interests of another province or to the
country as a whole.
(2) If the national executive intervenes in a province in terms of
subsection (1)(b) -
(a) notice of the intervention must be tabled in the National
Council of Provinces within 14 days of its first sitting after the
intervention began;
(b) the intervention must end unless it is approved by the
Council within 30 days of its first sitting after the intervention
began; and
(c) the Council must review the intervention regularly and make
any appropriate recommendations to the national executive.
(3) National legislation may regulate the process established by
this section.
Section 101 Executive decisions
(1) A decision by the President must be in writing if it -
(a) is taken in terms of legislation; or
(b) has legal consequences.
(2) A written decision by the President must be countersigned
by another Cabinet member if that decision concerns a function
assigned to that other Cabinet member.
(3) Proclamations, regulations and other instruments of
subordinate legislation must be accessible to the public.
(4) National legislation may specify the manner in which, and the
extent to which, instruments mentioned in subsection (3) must be -
(a) tabled in Parliament; and
(b) approved by Parliament.
Section 102 Motions of no confidence
(1) If the National Assembly, by a vote supported by a majority
of its members, passes a motion of no confidence in the Cabinet
excluding the President, the President must reconstitute the
Cabinet.
(2)If the National Assembly, by a vote supported by a majority of its
members, passes a motion of no confidence in the President, the
President and the other members of the Cabinet and any Deputy
Ministers must resign.
Section 103 Provinces
(1) The Republic has the following provinces:
(a) Eastern Cape
(b) Free State
(c) Gauteng
(d) KwaZulu-Natal
(e) Mpumalanga
(f) Northern Cape
(g) Northern Province
(h) North West
(i) Western Cape.
(2) The boundaries of the provinces are those that existed when
the Constitution took effect.
[Title 1] Provincial Legislatures
Section 104 Legislative authority of provinces
(1) The legislative authority of a province is vested in its
provincial legislature, and confers on the provincial legislature the
power -
(a) to pass a constitution for its province or to amend any
constitution passed by it in terms of sections 142 and 143;
(b) to pass legislation for its province with regard to -
(i) any matter within a functional area listed in Schedule 4;
(ii) any matter within a functional area listed in Schedule 5;
(iii) any matter outside those functional areas, and that is expressly
assigned to the province by national legislation; and
(iv) any matter for which a provision of the Constitution envisages
the enactment of provincial legislation; and
(c) to assign any of its legislative powers to a Municipal Council
in that province.
(2) The legislature of a province, by a resolution adopted with a
supporting vote of at least two thirds of its members, may request
Parliament to change the name of that province.
(3) A provincial legislature is bound only by the Constitution and,
if it has passed a constitution for its province, also by that
constitution, and must act in accordance with, and within the
limits of, the Constitution and that provincial constitution.
(4) Provincial legislation with regard to a matter that is reasonably
necessary for, or incidental to, the effective exercise of a power
concerning any matter listed in Schedule 4, is for all purposes
legislation with regard to a matter listed in Schedule 4.
(5) A provincial legislature may recommend to the National
Assembly legislation concerning any matter outside the authority
of that legislature, or in respect of which an Act of Parliament
prevails over a provincial law.
Section 105 Composition and election of provincial legislatures
(1) A provincial legislature consists of women and men elected as
members in terms of an electoral system that -
(a) is prescribed by national legislation;
(b) is based on that province's segment of the national common
voters roll;
(c) provides for a minimum voting age of 18 years; and
(d) results, in general, in proportional representation.
(2) A provincial legislature consists of between 30 and 80
members. The number of members, which may differ among the
provinces, must be determined in terms of a formula prescribed
by national legislation.
Section 106 Membership
(1) Every citizen who is qualified to vote for the National
Assembly is eligible to be a member of a provincial legislature,
except -
(a) anyone who is appointed by, or is in the service of, the state
and receives remuneration for that appointment or service, other
than -
(i) the Premier and other members of the Executive Council of a
province; and
(ii) other office-bearers whose functions are compatible with the
functions of a member of a provincial legislature, and have been
declared compatible with those functions by national legislation;
(b) members of the National Assembly, permanent delegates to the
National Council of Provinces or members of a Municipal
Council;
(c) unrehabilitated insolvents;
(d) anyone declared to be of unsound mind by a court of the
Republic; or
(e) anyone who, after this section took effect, is convicted of an
offence and sentenced to more than 12 months" imprisonment
without the option of a fine, either in the Republic, or outside the
Republic if the conduct constituting the offence would have been
an offence in the Republic, but no one may be regarded as having
been sentenced until an appeal against the conviction or sentence
has been determined, or until the time for an appeal has expired.
A disqualification under this paragraph ends five years after the
sentence has been completed.
(2) A person who is not eligible to be a member of a provincial
legislature in terms of subsection (1) (a) or (b) may be a candidate
for the legislature, subject to any limits or conditions established
by national legislation.
(3) A person loses membership of a provincial legislature if that
person -
(a) ceases to be eligible; or
(b) is absent from the legislature without permission in
circumstances for which the rules and orders of the legislature
prescribe loss of membership.
(4) Vacancies in a provincial legislature must be filled in terms of
national legislation.
Section 107 Oath or affirmation
Before members of a provincial legislature begin to perform their
functions in the legislature, they must swear or affirm faithfulness
to the Republic and obedience to the Constitution, in accordance
with Schedule 2.
Section 108 Duration of provincial legislatures
(1) A provincial legislature is elected for a term of five years.
(2) If a provincial legislature is dissolved in terms of section 109,
or when its term expires, the Premier of the province, by
proclamation, must call and set dates for an election, which must
be held within 90 days of the date the legislature was dissolved or
its term expired.
(3) If the result of an election of a provincial legislature is not
declared within the period referred to in section 190, or if an
election is set aside by a court, the President, by proclamation,
must call and set dates for another election, which must be held
within 90 days of the expiry of that period or of the date on
which the election was set aside.
(4) A provincial legislature remains competent to function from
the time it is dissolved or its term expires, until the day before
the first day of polling for the next legislature.
Section 109 Dissolution of provincial legislatures before expiry of term
(1) The Premier of a province must dissolve the provincial
legislature if -
(a) the legislature has adopted a resolution to dissolve with a
supporting vote of a majority of its members; and
(b) three years have passed since the legislature was elected.
(2) An Acting Premier must dissolve the provincial legislature
if -
(a) there is a vacancy in the office of Premier; and
(b) the legislature fails to elect a new Premier within 30 days
after the vacancy occurred.
Section 110 Sittings and recess periods
(1) After an election, the first sitting of a provincial legislature
must take place at a time and on a date determined by a judge
designated by the President of the Constitutional Court, but not
more than 14 days after the election result has been declared. A
provincial legislature may determine the time and duration of its
other sittings and its recess periods.
(2) The Premier of a province may summon the provincial
legislature to an extraordinary sitting at any time to conduct
special business.
(3) A provincial legislature may determine where it ordinarily
will sit.
Section 111 Speakers and Deputy Speakers
(1) At the first sitting after its election, or when necessary to fill
a vacancy, a provincial legislature must elect a Speaker and a
Deputy Speaker from among its members.
(2) A judge designated by the President of the Constitutional
Court must preside over the election of a Speaker. The Speaker
presides over the election of a Deputy Speaker.
(3) The procedure set out in Part A of Schedule 3 applies to the
election of Speakers and Deputy Speakers.
(4) A provincial legislature may remove its Speaker or Deputy
Speaker from office by resolution. A majority of the members
of the legislature must be present when the resolution is
adopted.
(5) In terms of its rules and orders, a provincial legislature may
elect from among its members other presiding officers to assist
the Speaker and the Deputy Speaker.
Section 112 Decisions
(1) Except where the Constitution provides otherwise -
(a) a majority of the members of a provincial legislature must
be present before a vote may be taken on a Bill or an
amendment to a Bill;
(b) at least one third of the members must be present before a
vote may be taken on any other question before the legislature;
and
(c) all questions before a provincial legislature are decided by a
majority of the votes cast.
(2) The member presiding at a meeting of a provincial
legislature has no deliberative vote, but -
(a) must cast a deciding vote when there is an equal number of
votes on each side of a question; and
(b) may cast a deliberative vote when a question must be
decided with a supporting vote of at least two thirds of the
members of the legislature.
Section 113 Permanent delegates" rights in provincial legislatures
A province's permanent delegates to the National Council of
Provinces may attend, and may speak in, their provincial
legislature and its committees, but may not vote. The legislature
may require a permanent delegate to attend the legislature or its
committees.
Section 114 Powers of provincial legislatures
(1) In exercising its legislative power, a provincial legislature
may -
(a) consider, pass, amend or reject any Bill before the
legislature; and
(b) initiate or prepare legislation, except money Bills.
(2) A provincial legislature must provide for mechanisms -
(a) to ensure that all provincial executive organs of state in the
province are accountable to it; and
(b) to maintain oversight of -
(i) the exercise of provincial executive authority in the province,
including the implementation of legislation; and
(ii) any provincial organ of state.
Section 115 Evidence or information before provincial legislatures
A provincial legislature or any of its committees may -
(a) summon any person to appear before it to give evidence on
oath or affirmation, or to produce documents;
(b) require any person or provincial institution to report to it;
(c) compel, in terms of provincial legislation or the rules and
orders, any person or institution to comply with a summons or
requirement in terms of paragraph (a) or (b); and
(d) receive petitions, representations or submissions from any
interested persons or institutions.
Section 116 Internal arrangements, proceedings and procedures of provincial legislatures
(1) A provincial legislature may -
(a) determine and control its internal arrangements, proceedings
and procedures; and
(b) make rules and orders concerning its business, with due
regard to representative and participatory democracy,
accountability, transparency and public involvement.
(2) The rules and orders of a provincial legislature must provide
for -
(a) the establishment, composition, powers, functions,
procedures and duration of its committees;
(b) the participation in the proceedings of the legislature and its
committees of minority parties represented in the legislature, in
a manner consistent with democracy;
(c) financial and administrative assistance to each party
represented in the legislature, in proportion to its
representation, to enable the party and its leader to perform
their functions in the legislature effectively; and
(d) the recognition of the leader of the largest opposition party
in the legislature, as the Leader of the Opposition.
Section 117 Privilege
(1) Members of a provincial legislature and the province's
permanent delegates to the National Council of Provinces -
(a) have freedom of speech in the legislature and in its
committees, subject to its rules and orders; and
(b) are not liable to civil or criminal proceedings, arrest,
imprisonment or damages for -
(i) anything that they have said in, produced before or
submitted to the legislature or any of its committees; or
(ii) anything revealed as a result of anything that they have said
in, produced before or submitted to the legislature or any of its
committees.
(2) Other privileges and immunities of a provincial legislature
and its members may be prescribed by national legislation.
(3) Salaries, allowances and benefits payable to members of a
provincial legislature are a direct charge against the Provincial
Revenue Fund.
Section 118 Public access to and involvement in provincial legislatures
(1) A provincial legislature must -
(a) facilitate public involvement in the legislative and other
processes of the legislature and its committees; and
(b) conduct its business in an open manner, and hold its
sittings, and those of its committees, in public, but reasonable
measures may be taken -
(i) to regulate public access, including access of the media, to
the legislature and its committees; and
(ii) to provide for the searching of any person and, where
appropriate, the refusal of entry to,or the removal of, any
person.
(2) A provincial legislature may not exclude the public,
including the media, from a sitting of a committee unless it is
reasonable and justifiable to do so in an open and democratic
society.
Section 119 Introduction of Bills
Only members of the Executive Council of a province or a
committee or member of a provincial legislature may introduce
a Bill in the legislature; but only the member of the Executive
Council who is responsible for financial matters in the province
may introduce a money Bill in the legislature.
Section 120 Money Bills
(1) A Bill that appropriates money or imposes taxes, levies or
duties is a money Bill. A money Bill may not deal with any
other matter except a subordinate matter incidental to the
appropriation of money or the imposition of taxes, levies or
duties.
(2) A provincial Act must provide for a procedure by which the
province's legislature may amend a money Bill.
Section 121 Assent to Bills
(1) The Premier of a province must either assent to and sign a
Bill passed by the provincial legislature in terms of this Chapter
or, if the Premier has reservations about the constitutionality of
the Bill, refer it back to the legislature for reconsideration.
(2) If, after reconsideration, a Bill fully accommodates the
Premier's reservations, the Premier must assent to and sign the
Bill; if not, the Premier must either -
(a) assent to and sign the Bill; or
(b) refer it to the Constitutional Court for a decision on its
constitutionality.
(3) If the Constitutional Court decides that the Bill is
constitutional, the Premier must assent to and sign it.
Section 122 Application by members to Constitutional Court
(1) Members of a provincial legislature may apply to the
Constitutional Court for an order declaring that all or part of a
provincial Act is unconstitutional.
(2) An application -
(a) must be supported by at least 20 per cent of the members of
the legislature; and
(b) must be made within 30 days of the date on which the
Premier assented to and signed the Act.
(3) The Constitutional Court may order that all or part of an
Act that is the subject of an application in terms of subsection
(1) has no force until the Court has decided the application if -
(a) the interests of justice require this; and
(b) the application has a reasonable prospect of success.
(4) If an application is unsuccessful, and did not have a
reasonable prospect of success, the Constitutional Court may
order the applicants to pay costs.
Section 123 Publication of provincial Acts
A Bill assented to and signed by the Premier of a province
becomes a provincial Act, must be published promptly and
takes effect when published or on a date determined in terms of
the Act.
Section 124 Safekeeping of provincial Acts
The signed copy of a provincial Act is conclusive evidence of
the provisions of that Act and, after publication, must be
entrusted to the Constitutional Court for safekeeping .
[Title 2] Provincial Executives
Section 125 Executive authority of provinces
(1) The executive authority of a province is vested in the
Premier of that province.
(2) The Premier exercises the executive authority, together with
the other members of the Executive Council, by -
(a) implementing provincial legislation in the province;
(b) implementing all national legislation within the functional
areas listed in Schedule 4 or 5 except where the Constitution or
an Act of Parliament provides otherwise;
(c) administering in the province, national legislation outside the
functional areas listed in Schedules 4 and 5, the administration
of which has been assigned to the provincial executive in terms
of an Act of Parliament;
(d) developing and implementing provincial policy;
(e) co-ordinating the functions of the provincial administration
and its departments;
(f) preparing and initiating provincial legislation; and
(g) performing any other function assigned to the provincial
executive in terms of the Constitution or an Act of Parliament.
(3) A province has executive authority in terms of subsection
(2) (b) only to the extent that the province has the
administrative capacity to assume effective responsibility. The
national government, by legislative and other measures, must
assist provinces to develop the administrative capacity required
for the effective exercise of their powers and performance of
their functions referred to in subsection (2).
(4) Any dispute concerning the administrative capacity of a
province in regard to any function must be referred to the
National Council of Provinces for resolution within 30 days of
the date of the referral to the Council.
(5) Subject to section 100, the implementation of provincial
legislation in a province is an exclusive provincial executive
power.
(6) The provincial executive must act in accordance with -
(a) the Constitution; and
(b) the provincial constitution, if a constitution has been passed
for the province.
Section 126 Assignment of functions
A member of the Executive Council of a province may assign
any power or function that is to be exercised or performed in
terms of an Act of Parliament or a provincial Act, to a
Municipal Council. An assignment -
(a) must be in terms of an agreement between the relevant
Executive Council member and the Municipal Council;
(b) must be consistent with the Act in terms of which the
relevant power or function is exercised or performed; and
(c) takes effect upon proclamation by the Premier.
Section 127 Powers and functions of Premiers
(1) The Premier of a province has the powers and functions
entrusted to that office by the Constitution and any legislation.
(2) The Premier of a province is responsible for -
(a) assenting to and signing Bills;
(b) referring a Bill back to the provincial legislature for
reconsideration of the Bill's constitutionality;
(c) referring a Bill to the Constitutional Court for a decision on
the Bill's constitutionality;
(d) summoning the legislature to an extraordinary sitting to
conduct special business;
(e) appointing commissions of inquiry; and
(f) calling a referendum in the province in accordance with
national legislation.
Section 128 Election of Premiers
(1) At its first sitting after its election, and whenever necessary
to fill a vacancy, a provincial legislature must elect a woman or
a man from among its members to be the Premier of the
province.
(2) A judge designated by the President of the Constitutional
Court must preside over the election of the Premier. The
procedure set out in Part A of Schedule 3 applies to the election
of the Premier.
(3) An election to fill a vacancy in the office of Premier must
be held at a time and on a date determined by the President of
the Constitutional Court, but not later than 30 days after the
vacancy occurs.
Section 129 Assumption of office by Premiers
A Premier-elect must assume office within five days of being
elected, by swearing or affirming faithfulness to the Republic
and obedience to the Constitution, in accordance with Schedule
2.
Section 130 Term of office and removal of Premiers
(1) A Premier's term of office begins when the Premier
assumes office and ends upon a vacancy occurring or when the
person next elected Premier assumes office.
(2) No person may hold office as Premier for more than two
terms, but when a person is elected to fill a vacancy in the
office of Premier, the period between that election and the next
election of a Premier is not regarded as a term.
(3) The legislature of a province, by a resolution adopted with a
supporting vote of at least two thirds of its members, may
remove the Premier from office only on the grounds of -
(a) a serious violation of the Constitution or the law;
(b) serious misconduct; or
(c) inability to perform the functions of office.
(4) Anyone who has been removed from the office of Premier
in terms of subsection (3) (a) or (b) may not receive any
benefits of that office, and may not serve in any public office.
Section 131 Acting Premiers
(1) When the Premier is absent or otherwise unable to fulfil the
duties of the office of Premier, or during a vacancy in the
office of Premier, an office-bearer in the order below acts as
the Premier:
(a) A member of the Executive Council designated by the
Premier.
(b) A member of the Executive Council designated by the other
members of the Council.
(c) The Speaker, until the legislature designates one of its other
members.
(2) An Acting Premier has the responsibilities, powers and
functions of the Premier.
(3) Before assuming the responsibilities, powers and, functions
of the Premier, the Acting Premier must swear or affirm
faithfulness to the Republic and obedience to the Constitution,
in accordance with Schedule 2.
Section 132 Executive Councils
(1) The Executive Council of a province consists of the
Premier, as head of the Council, and no fewer than five and no
more than ten members appointed by the Premier from among
the members of the provincial legislature.
(2) The Premier of a province appoints the members of the
Executive Council, assigns their powers and functions, and may
dismiss them.
Section 133 Accountability and responsibilities
(1) The members of the Executive Council of a province are
responsible for the functions of the executive assigned to them by
the Premier.
(2) Members of the Executive Council of a province are
accountable collectively and individually to the legislature for the
exercise of their powers and the performance of their functions.
(3) Members of the Executive Council of a province must -
(a) act in accordance with the Constitution and, if a provincial
consitution has been passed for the province, also that
constitution; and
(b) provide the legislature with full and regular reports concerning
matters under their control.
Section 134 Continuation of Executive Councils after elections
When an election of a provincial legislature is held, the Executive
Council and its members remain competent to function until the
person elected Premier by the next legislature assumes office.
Section 135 Oath or affirmation
Before members of the Executive Council of a province begin to
perform their functions, they must swear or affirm faithfulness to
the Republic and obedience to the Constitution, in accordance with
Schedule 2.
Section 136 Conduct of members of Executive Councils
(1) Members of the Executive Council of a province must act in
accordance with a code of ethics prescribed by national
legislation.
(2) Members of the Executive Council of a province may not -
(a) undertake any other paid work;
(b) act in any way that is inconsistent with their office, or expose
themselves to any situation involving the risk of a conflict between
their official responsibilities and private interests; or
(c) use their position or any information entrusted to them, to
enrich themselves or improperly benefit any other person.
Section 137 Transfer of functions
The Premier by proclamation may transfer to a member of the
Executive Council -
(a) the administration of any legislation entrusted to another
member; or
(b) any power or function entrusted by legislation to another
member.
Section 138 Temporary assignment of functions
The Premier of a province may assign to a member of the
Executive Council any power or function of another member who
is absent from office or is unable to exercise that power or
perform that function.
Section 139 Provincial supervision of local government
(1) When a municipality cannot or does not fulfil an executive
obligation in terms of legislation, the relevant provincial executive
may intervene by taking any appropriate steps to ensure fulfilment
of that obligation, including -
(a) issuing a directive to the Municipal Council, describing the
extent of the failure to fulfil its obligations and stating any steps
required to meet its obligations; and
(b) assuming responsibility for the relevant obligation in that
municipality to the extent necessary -
(i) to maintain essential national standards or meet established
minimum standards for the rendering of a service;
(ii) to prevent that Municipal Council from taking unreasonable
action that is prejudicial to the interests of another municipality
or to the province as a whole; or
(iii) to maintain economic unity.
(2) If a provincial executive intervenes in a municipality in
terms of subsection (1)(b) -
(a) the intervention must end unless it is approved by the
Cabinet member responsible for local government affairs within
14 days of the intervention;
(b) notice of the intervention must be tabled in the provincial
legislature and in the National Council of Provinces within 14
days of their respective first sittings after the intervention began;
(c) the intervention must end unless it is approved by the
Council within 30 days of its first sitting after the intervention
began; and
(d) the Council must review the intervention regularly and make
any appropriate recommendations to the provincial executive.
(3) National legislation may regulate the process established by
this section.
Section 140 Executive decisions
(1) A decision by the Premier of a province must be in writing
if it -
(a) is taken in terms of legislation; or
(b) has legal consequences.
(2) A written decision by the Premier must be countersigned by
another Executive Council member if that decision concerns a
function assigned to that other member.
(3) Proclamations, regulations and other instruments of
subordinate legislation of a province must be accessible to the
public.
(4) Provincial legislation may specify the manner in which, and
the extent to which, instruments mentioned in subsection (3)
must
be -
(a) tabled in the provincial legislature; and
(b) approved by the provincial legislature.
Section 141 Motions of no confidence
(1) If a provincial legislature, by a vote supported by a majority
of its members, passes a motion of no confidence in the
province's Executive Council excluding the Premier, the
Premier must reconstitute the Council.
(2) If a provincial legislature, by a vote supported by a majority
of its members, passes a motion of no confidence in the Premier,
the Premier and the other members of the Executive Council must
resign.
[Title 3] Provincial Constitutions
Section 142 Adoption of provincial constitutions
A provincial legislature may pass a constitution for the province
or, where applicable, amend its constitution, if at least two thirds
of its members vote in favour of the Bill.
Section 143 Contents of provincial constitutions
(1) A provincial constitution, or constitutional amendment, must
not be inconsistent with this Constitution, but may provide for -
(a) provincial legislative or executive structures and procedures
that differ from those provided for in this Chapter; or
(b) the institution, role, authority and status of a traditional
monarch, where applicable.
(2) Provisions included in a provincial constitution or
constitutional amendment in terms of paragraphs (a) or (b) of
subsection (1) -
(a) must comply with the values in section 1 and with Chapter 3
; and
(b) may not confer on the province any power or function that
falls -
(i) outside the area of provincial competence in terms of Schedules
4 and 5; or
(ii) outside the powers and functions conferred on the province by
other sections of the Constitution.
Section 144 Certification of provincial constitutions
(1) If a provincial legislature has passed or amended a
constitution, the Speaker of the legislature must submit the text of
the constitution or constitutional amendment to the Constitutional
Court for certification.
(2) No text of a provincial constitution or constitutional
amendment becomes law until the Constitutional Court has
certified -
(a) that the text has been passed in accordance with section 142;
and
(b) that the whole text complies with section 143.
Section 145 Signing, publication and safekeeping of provincial constitutions
(1) The Premier of a province must assent to and sign the text of
a provincial constitution or constitutional amendment that has been
certified by the Constitutional Court.
(2) The text assented to and signed by the Premier must be
published in the national Government Gazette and takes effect on
publication or on a later date determined in terms of that
constitution or amendment.
(3) The signed text of a provincial constitution or constitutional
amendment is conclusive evidence of its provisions and, after
publication, must be entrusted to the Constitutional Court for
safekeeping.
Section 146 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.
Section 147 Other conflicts
(1) If there is a conflict between national legislation and a
provision of a provincial constitution with regard to -
(a) a matter, concerning which this Constitution specifically
requires or envisages the enactment of national legislation, the
national legislation prevails over the affected provision of the
provincial constitution;
(b) national legislative intervention in terms of section 44(2), the
national legislation prevails over the provision of the provincial
constitution; or
(c) a matter within a functional area listed in Schedule 4, section
146 applies as if the affected provision of the provincial
constitution were provincial legislation referred to in that section.
(2) National legislation referred to in section 44(2) prevails over
provincial legislation in respect of matters within the functional
areas listed in Schedule 5.
Section 148 Conflicts that cannot be resolved
If a dispute concerning a conflict cannot be resolved by a court,
the national legislation prevails over the provincial legislation or
provincial constitution.
Section 149 Status of legislation that does not prevail
A decision by a court that legislation prevails over other
legislation does not invalidate that other legislation, but that other
legislation becomes inoperative for as long as the conflict remains.
Section 150 Interpretation of conflicts
When considering an apparent conflict between national and
provincial legislation, or between national legislation and a
provincial constitution, every court must prefer any reasonable
interpretation of the legislation or constitution that avoids a
conflict, over any alternative interpretation that results in a
conflict.
Section 151 Status of municipalities
(1) The local sphere of government
(2) The executive and legislative authority of a municipality is
vested in its Municipal Council.
(3) A municipality has the right to govern, on its own initiative,
the local government affairs of its community, subject to national
and provincial legislation, as provided for in the Constitution.
(4) The national or a provincial government may not compromise
or impede a municipality's ability or right to exercise its powers
or perform its functions.
Section 152 Objects of local government
(1) The objects of local government are:
(a) To provide democratic and accountable government for local
communities;
(b) to ensure the provision of services to communities in a
sustainable manner;
(c) to promote social and economic development;
(d) to promote a safe and healthy environment; and
(e) to encourage the involvement of communities and community
organisations in the matters of local government.
(2) A municipality must strive, within its financial and
administrative capacity, to achieve the objects set out in subsection
(1).
Section 153 Developmental duties of municipalities
A municipality must -
(a) structure and manage its administration, and budgeting and
planning processes to give priority to the basic needs of the
community, and to promote the social and economic development
of the community; and
(b) participate in national and provincial development
programmes.
Section 154 Municipalities in co-operative government
(1) The national government and provincial governments, by
legislative and other measures, must support and strengthen the
capacity of municipalities to manage their own affairs, to exercise
their powers and to perform their functions.
(2) Draft national or provincial legislation that affects the status,
institutions, powers or functions of local government must be
published for public comment before it is introduced in Parliament
or a provincial legislature, in a manner that allows organised local
government, municipalities and other interested persons an
opportunity to make representations with regard to the draft
legislation.
Section 155 Establishment of municipalities
(1) There are the following categories of municipality:
(a) Category A: A municipality that has exclusive municipal
executive and legislative authority in its area.
(b) Category B: A municipality that shares municipal executive
and legislative authority in its area with a category C municipality
within whose area it falls.
(c) Category C: A municipality that has municipal executive and
legislative authority in an area that includes more than one
municipality.
(2) National legislation must define the different types of
municipality that may be established within each category.
(3) National legislation must -
(a) establish the criteria for determining when an area should have
a single category A municipality or when it should have
municipalities of both category B and category C;
(b) establish criteria and procedures for the determination of
municipal boundaries by an independent authority; and
(c) subject to section 229, make provision for an appropriate
division of powers and functions between municipalities when an
area has municipalities of both category B and category C. A
division of powers and functions between a category B
municipality and a category C municipality may differ from the
division of powers and functions between another category B
municipality and that category C municipality.
(4) The legislation referred to in subsection (3) must take into
account the need to provide municipal services in an equitable and
sustainable manner.
(5) Provincial legislation must determine the different types of
municipality to be established in the province.
(6) Each provincial government must establish municipalities in its
province in a manner consistent with the legislation enacted in
terms of subsections (2) and (3) and, by legislative or other
measures, must -
(a) provide for the monitoring and support of local government in
the province; and
(b) promote the development of local government capacity to
enable municipalities to perform their functions and manage their
own affairs.
(7) The national government, subject to section 44, and the
provincial governments have the legislative and executive
authority to see to the effective performance by municipalities of
their functions in respect of matters listed in Schedules 4 and 5,
by regulating the exercise by municipalities of their executive
authority referred to in section 156(1).
Section 156 Powers and functions of municipalities
(1) A municipality has executive authority in respect of, and has
the right to administer -
(a) the local government matters listed in Part B of Schedule 4 and
Part B of Schedule 5; and
(b) any other matter assigned to it by national or provincial
legislation.
(2) A municipality may make and administer by-laws for the
effective administration of the matters which it has the right to
administer.
(3) Subject to section 151(4), a by-law that conflicts with national
or provincial legislation is invalid. If there is a conflict between
a by-law and national or provincial legislation that is inoperative
because of a conflict referred to in section 149, the by-law must
be regarded as valid for as long as that legislation is inoperative.
(4) The national government and provincial governments must
assign to a municipality, by agreement and subject to any
conditions, the administration of a matter listed in Part A of
Schedule 4 or Part A of Schedule 5 which necessarily relates to
local government, if -
(a) that matter would most effectively be administered locally; and
(b) the municipality has the capacity to administer it.
(5) A municipality has the right to exercise any power concerning
a matter reasonably necessary for, or incidental to, the effective
performance of its functions.
Section 157 Composition and election of Municipal Councils
(1) A Municipal Council consists of -
(a) members elected in accordance with subsections (2), (3), (4)
and (5); or
(b) if provided for by national legislation -
(i) members appointed by other Municipal Councils to represent
those other Councils; or
(ii) both members elected in accordance with paragraph (a) and
members appointed in accordance with subparagraph (i) of this
paragraph.
(2) The election of members to a Municipal Council as anticipated
in subsection (1)(a) must be in accordance with national
legislation, which must prescribe a system -
(a) of proportional representation based on that municipality's
segment of the national common voters roll, and which provides
for the election of members from lists of party candidates drawn
up in a party's order of preference; or
(b) of proportional representation as described in paragraph (a)
combined with a system of ward representation based on that
municipality's segment of the national common voters roll.
(3) An electoral system in terms of subsection (2) must ensure that
the total number of members elected from each party reflects the
total proportion of the votes recorded for those parties.
(4) If the electoral system includes ward representation, the
delimitation of wards must be done by an independent authority
appointed in terms of, and operating according to, procedures and
criteria prescribed by national legislation.
(5) A person may vote in a municipality only if that person is
registered on that municipality's segment of the national common
voters roll.
(6) The national legislation referred to in subsection (1)(b) must
establish a system that allows for parties and interests reflected
within the Municipal Council making the appointment, to be fairly
represented in the Municipal Council to which the appointment is
made.
Section 158 Membership of Municipal Councils
(1) Every citizen who is qualified to vote for a Municipal Council
is eligible to be a member of that Council, except -
(a) anyone who is appointed by, or is in the service of, the
municipality and receives remuneration for that appointment or
service, and who has not been exempted from this disqualification
in terms of national legislation;
(b) anyone who is appointed by, or is in the service of, the state
in another sphere, and receives remuneration for that appointment
or service, and who has been disqualified from membership of a
Municipal Council in terms of national legislation;
(c) anyone who is disqualified from voting for the National
Assembly or is disqualified in terms of section 47(1)(c), (d) or (e)
from being a member of the Assembly;
(d) a member of the National Assembly, a delegate to the National
Council of Provinces or a member of a provincial legislature; but
this disqualification does not apply to a member of a Municipal
Council representing local government in the National Council; or
(e) a member of another Municipal Council; but this
disqualification does not apply to a member of a Municipal
Council representing that Council in another Municipal Council of
a different category.
(2) A person who is not eligible to be a member of a Municipal
Council in terms of subsection (1)(a), (b),(d) or (e) may be a
candidate for the Council, subject to any limits or conditions
established by national legislation.
Section 159 Terms of Municipal Councils
The term of a Municipal Council may be no more than four years,
as determined by national legislation.
Section 160 Internal procedures
(1) A Municipal Council -
(a) makes decisions concerning the exercise of all the powers and
the performance of all the functions of the municipality;
(b) must elect its chairperson;
(c) may elect an executive committee and other committees,
subject to national legislation; and
(d) may employ personnel that are necessary for the effective
performance of its functions.
(2) The following functions may not be delegated by a Municipal
Council:
(a) The passing of by-laws;
(b) the approval of budgets;
(c) the imposition of rates and other taxes, levies and duties; and
(d) the raising of loans.
(3) (a) A majority of the members of a Municipal Council must be
present before a vote may be taken on any matter.
(b) All questions concerning matters mentioned in subsection (2)
are determined by a decision taken by a Municipal Council with
a supporting vote of a majority of its members.
(c) All other questions before a Municipal Council are decided by
a majority of the votes cast.
(4) No by-law may be passed by a Municipal Council unless -
(a) all the members of the Council have been given reasonable
notice; and
(b) the proposed by-law has been published for public comment.
(5) National legislation may provide criteria for determining -
(a) the size of a Municipal Council;
(b) whether Municipal Councils may elect an executive committee
or any other committee; or
(c) the size of the executive committee or any other committee of
a Municipal Council;
(6) A Municipal Council may make by-laws which prescribe rules
and orders for -
(a) its internal arrangements;
(b) its business and proceedings; and
(c) the establishment, composition, procedures, powers and
functions of its committees.
(7) A Municipal Council must conduct its business in an open
manner, and may close its sittings, or those of its committees,
only when it is reasonable to do so having regard to the nature of
the business being transacted.
(8) Members of a Municipal Council are entitled to participate in
its proceedings and those of its committees in a manner that -
(a) allows parties and interests reflected within the Council to be
fairly represented;
(b) is consistent with democracy; and
(c) may be regulated by national legislation.
Section 161 Privilege
Provincial legislation within the framework of national legislation
may provide for privileges and immunities of Municipal Councils
and their members.
Section 162 Publication of municipal by-laws
(1) A municipal by-law may be enforced only after it has been
published in the official gazette of the relevant province.
(2) A provincial official gazette must publish a municipal by-law
upon request by the municipality.
(3) Municipal by-laws must be accessible to the public.
Section 163 Organised local government
An Act of Parliament enacted in accordance with the procedure
established by section 76 must -
(a) provide for the recognition of national and provincial
organisations representing municipalities; and
(b) determine procedures by which local government may -
(i) consult with the national or a provincial government;
(ii) designate representatives to participate in the National Council
of Provinces; and
(iii) nominate persons to the Financial and Fiscal Commission.
Section 164 Other matters
Any matter concerning local government not dealt with in the
Constitution may be prescribed by national legislation or by
provincial legislation within the framework of national legislation.
Section 165 Judicial authority
(1) The judicial authority of the Republic is vested in the courts
(2) The courts are independent
(3) No person or organ of state may interfere with the functioning
of the courts.
(4) Organs of state, through legislative and other measures, must
assist and protect the courts to ensure the independence,
impartiality, dignity, accessibility and effectiveness of the courts.
(5) An order or decision issued by a court binds all persons to
whom and organs of state to which it applies.
Section 166 Judicial system
The courts are -
(a) the Constitutional Court;
(b) the Supreme Court of Appeal;
(c) the High Courts, including any high court of appeal that may
be established by an Act of Parliament to hear appeals from High
Courts;
(d) the Magistrates" Courts; and
(e) any other court established or recognised in terms of an Act of
Parliament, including any court of a status similar to either the
High Courts or the Magistrates" Courts.
Section 167 Constitutional Court
(1) The Constitutional Court
(2) A matter before the Constitutional Court must be heard by at
least eight judges.
(3) The Constitutional Court -
(a) is the highest court in all constitutional matters;
(b) may decide only constitutional matters, and issues connected
with decisions on constitutional matters; and
(c) makes the final decision whether a matter is a constitutional
matter or whether an issue is connected with a decision on a
constitutional matter.
(4) Only the Constitutional Court may -
(a) decide disputes between organs of state in the national or
provincial sphere concerning the constitutional status, powers or
functions of any of those organs of state;
(b) decide on the constitutionality of any parliamentary or
provincial Bill, but may do so only in the circumstances
anticipated in section 79 or 121;
(c) decide applications envisaged in section 80 or 122;
(d) decide on the constitutionality of any amendment to the
Constitution;
(e) decide that Parliament or the President has failed to fulfil a
constitutional obligation; or
(f) certify a provincial constitution in terms of section 144.
(5) The Constitutional Court makes the final decision whether an
Act of Parliament, a provincial Act or conduct of the President is
constitutional, and must confirm any order of invalidity made by
the Supreme Court of Appeal, a High Court, or a court of similar
status, before that order has any force.
(6) National legislation or the rules of the Constitutional Court
must allow a person, when it is in the interests of justice and with
leave of the Constitutional Court -
(a) to bring a matter directly to the Constitutional Court; or
(b) to appeal directly to the Constitutional Court from any other
court.
(7) A constitutional matter includes any issue involving the
interpretation, protection or enforcement of the Constitution.
Section 168 Supreme Court of Appeal
(1) The Supreme Court of Appeal consists of a Chief Justice, a
Deputy Chief Justice and the number of judges of appeal
determined by an Act of Parliament.
(2) A matter before the Supreme Court of Appeal must be decided
by the number of judges determined by an Act of Parliament.
(3) The Supreme Court of Appeal may decide appeals in any
matter. It is the highest court of appeal except in constitutional
matters, and may decide only -
(a) appeals;
(b) issues connected with appeals; and
(c) any other matter that may be referred to it in circumstances
defined by an Act of Parliament.
Section 169 High Courts
A High Court may decide -
(a) any constitutional matter except a matter that -
(i) only the Constitutional Court may decide; or
(ii) is assigned by an Act of Parliament to another court of a status
similar to a High Court; and
(b) any other matter not assigned to another court by an Act of
Parliament.
Section 170 Magistrates" Courts and other courts
Magistrates" Courts and all other courts may decide any matter
determined by an Act of Parliament, but a court of a status lower
than a High Court may not enquire into or rule on the
constitutionality of any legislation or any conduct of the President.
Section 171 Court procedures
All courts function in terms of national legislation, and their rules
and procedures must be provided for in terms of national
legislation.
Section 172 Powers of courts in constitutional matters
(1) When deciding a constitutional matter within its power, a
court -
(a) must declare that any law or conduct that is inconsistent with
the Constitution is invalid to the extent of its inconsistency; and
(b) may make any order that is just and equitable, including -
(i) an order limiting the retrospective effect of the declaration of
invalidity; and
(ii) an order suspending the declaration of invalidity for any
period and on any conditions, to allow the competent authority to
correct the defect.
(2) (a) The Supreme Court of Appeal, a High Court or a court of
similar status may make an order concerning the constitutional
validity of an Act of Parliament, a provincial Act or any conduct
of the President, but an order of constitutional invalidity has no
force unless it is confirmed by the Constitutional Court.
(b) A court which makes an order of constitutional invalidity may
grant a temporary interdict or other temporary relief to a party, or
may adjourn the proceedings, pending a decision of the
Constitutional Court on the validity of that Act or conduct.
(c) National legislation must provide for the referral of an order
of constitutional invalidity to the Constitutional Court.
(d) Any person or organ of state with a sufficient interest may
appeal, or apply, directly to the Constitutional Court to confirm
or vary an order of constitutional invalidity by a court in terms of
this subsection.
Section 173 Inherent power
The Constitutional Court, Supreme Court of Appeal and High
Courts have the inherent power to protect and regulate their own
process, and to develop the common law, taking into account the
interests of justice.
Section 174 Appointment of judicial officers
(1) Any appropriately qualified woman or man who is a fit and
proper person may be appointed as a judicial officer. Any person
to be appointed to the Constitutional Court must also be a South
African citizen.
(2) The need for the judiciary to reflect broadly the racial and
gender composition of South Africa must be considered when
judicial officers are appointed.
(3) The President as head of the national executive, after
consulting the Judicial Service Commission and the leaders of
parties represented in the National Assembly, appoints the
President and Deputy President of the Constitutional Court and,
after consulting the Judicial Service Commission, appoints the
Chief Justice and Deputy Chief Justice.
(4) The other judges of the Constitutional Court are appointed by
the President as head of the national executive, after consulting the
President of the Constitutional Court and the leaders of parties
represented in the National Assembly, in accordance with the
following procedure:
(a) The Judicial Service Commission must prepare a list of
nominees with three names more than the number of appointments
to be made, and submit the list to the President.
(b) The President may make appointments from the list, and must
advise the Judicial Service Commission, with reasons, if any of
the nominees are unacceptable and any appointment remains to be
made.
(c) The Judicial Service Commission must supplement the list with
further nominees and the President must make the remaining
appointments from the supplemented list.
(5) At all times, at least four members of the Constitutional Court
must be persons who were judges at the time they were appointed
to the Constitutional Court.
(6) The President must appoint the judges of all other courts on
the advice of the Judicial Service Commission.
(7) Other judicial officers must be appointed in terms of an Act of
Parliament which must ensure that the appointment, promotion,
transfer or dismissal of, or disciplinary steps against, these judicial
officers take place without favour or prejudice.
(8) Before judicial officers begin to perform their functions, they
must take an oath or affirm, in accordance with Schedule 2, that
they will uphold and protect the Constitution.
Section 175 Acting judges
(1) The President may appoint a woman or a man to be an acting
judge of the Constitutional Court if there is a vacancy or if a
judge is absent. The appointment must be made on the
recommendation of the Cabinet member responsible for the
administration of justice acting with the concurrence of the
President of the Constitutional Court and the Chief Justice.
(2) The Cabinet member responsible for the administration of
justice must appoint acting judges to other courts after consulting
the senior judge of the court on which the acting judge will serve.
Section 176 Terms of office and remuneration
(1) A Constitutional Court judge is appointed for a non-renewable
term of 12 years, but must retire at the age of 70.
(2) Other judges hold office until they are discharged from active
service in terms of an Act of Parliament.
(3) The salaries, allowances and benefits of judges may not be
reduced.
Section 177 Removal
(1) A judge may be removed from office only if -
(a) the Judicial Service Commission finds that the judge suffers
from an incapacity, is grossly incompetent or is guilty of gross
misconduct; and
(b) the National Assembly calls for that judge to be removed, by
a resolution adopted with a supporting vote of at least two thirds
of its members.
(2) The President must remove a judge from office upon adoption
of a resolution calling for that judge to be removed.
(3) The President, on the advice of the Judicial Service
Commission, may suspend a judge who is the subject of a
procedure in terms of subsection (1).
Section 178 Judicial Service Commission
(1) There is a Judicial Service Commission consisting of -
(a) the Chief Justice, who presides at meetings of the
Commission;
(b) the President of the Constitutional Court;
(c) one Judge President designated by the Judges President;
(d) the Cabinet member responsible for the administration of
justice, or an alternate designated by that Cabinet member;
(e) two practising advocates nominated from within the advocates"
profession to represent the profession as a whole, and appointed
by the President;
(f) two practising attorneys nominated from within the attorneys"
profession to represent the profession as a whole, and appointed
by the President;
(g) one teacher of law designated by teachers of law at South
African universities;
(h) six persons designated by the National Assembly from among
its members, at least three of whom must be members of
opposition parties represented in the Assembly;
(i) four permanent delegates to the National Council of Provinces
designated together by the Council with a supporting vote of at
least six provinces;
(j) four persons designated by the President as head of the national
executive, after consulting the leaders of all the parties in the
National Assembly; and
(k) when considering matters specifically relating to a provincial
or local division of the High Court, the Judge President of that
division and the Premier, or an alternate designated by the
Premier, of the province concerned.
(2) If the number of persons nominated from within the
advocates" or attorneys" profession in terms of subsection (1)(e)
or (f) equals the number of vacancies to be filled, the President
must appoint them. If the number of persons nominated exceeds
the number of vacancies to be filled, the President, after
consulting the relevant profession, must appoint sufficient of the
nominees to fill the vacancies, taking into account the need to
ensure that those appointed represent the profession as a whole.
(3) Members of the Commission designated by the National
Council of Provinces serve until they are replaced together, or
until any vacancy occurs in their number. Other members who
were designated or nominated to the Commission serve until they
are replaced by those who designated or nominated them.
(4) The Judicial Service Commission has the powers and functions
assigned to it in the Constitution and national legislation.
(5) The Judicial Service Commission may advise the national
government on any matter relating to the judiciary or the
administration of justice, but when it considers any matter except
the appointment of a judge, it must sit without the members
designated in terms of subsection (1) (h) and (i).
(6) The Judicial Service Commission may determine its own
procedure, but decisions of the Commission must be supported by
a majority of its members.
Section 179 Prosecuting authority
(1) There is a single national prosecuting authority in the
Republic, structured in terms of an Act of Parliament, and
consisting of -
(a) a National Director of Public Prosecutions, who is the head of
the prosecuting authority, and is appointed by the President as
head of the national executive; and
(b) Directors of Public Prosecutions and prosecutors as determined
by an Act of Parliament.
(2) The prosecuting authority has the power to institute criminal
proceedings on behalf of the state, and to carry out any necessary
functions incidental to instituting criminal proceedings.
(3) National legislation must ensure that the Directors of Public
Prosecutions -
(a) are appropriately qualified; and
(b) are responsible for prosecutions in specific jurisdictions,
subject to subsection (5).
(4) National legislation must ensure that the prosecuting authority
exercises its functions without fear, favour or prejudice.
(5) The National Director of Public Prosecutions -
(a) must determine, with the concurrence of the Cabinet member
responsible for the administration of justice, and after consulting
the Directors of Public Prosecutions, prosecution policy which
must be observed in the prosecution process;
(b) must issue policy directives which must be observed in the
prosecution process;
(c) may intervene in the prosecution process when policy
directives are not complied with; and
(d) may review a decision to prosecute or not to prosecute, after
consulting the relevant Director of Public Prosecutions and after
taking representations within a period specified by the National
Director of Public Prosecutions, from the following:
(i) The accused person.
(ii) The complainant.
(iii) Any other person or party whom the National Director
considers to be relevant.
(6) The Cabinet member responsible for the administration of
justice must exercise final responsibility over the prosecuting
authority.
(7) All other matters concerning the prosecuting authority must be
determined by national legislation.
Section 180 Other matters concerning administration of justice
National legislation may provide for any matter concerning the
administration of justice that is not dealt with in the Constitution,
including -
(a) training programmes for judicial officers;
(b) procedures for dealing with complaints about judicial officers;
and
(c)the participation of people other than judicial officers in court
decisions.
Section 181 Establishment and governing principles
(1) The following state institutions strengthen constitutional
democracy in the Republic:
(a) The Public Protector.
(b) The Human Rights Commission.
(c) The Commission for the Promotion and Protection of the
Rights of Cultural, Religious and Linguistic Communities.
(d) The Commission for Gender Equality.
(e) The Auditor-General.
(f) The Electoral Commission.
(2) These institutions are independent, and subject only to the
Constitution and the law, and they must be impartial and must
exercise their powers and perform their functions without fear,
favour or prejudice.
(3) Other organs of state, through legislative and other measures,
must assist and protect these institutions to ensure the
independence, impartiality, dignity and effectiveness of these
institutions.
(4) No person or organ of state may interfere with the functioning
of these institutions.
(5) These institutions are accountable to the National Assembly,
and must report on their activities and the performance of their
functions to the Assembly at least once a year.
Section 182 Functions of Public Protector
(1) The Public Protector has the power, as regulated by national
legislation -
(a) to investigate any conduct in state affairs, or in the public
administration in any sphere of government, that is alleged or
suspected to be improper or to result in any impropriety or
prejudice;
(b) to report on that conduct; and
(c) to take appropriate remedial action.
(2) The Public Protector has the additional powers and functions
prescribed by national legislation.
(3) The Public Protector may not investigate court decisions.
(4) The Public Protector must be accessible to all persons and
communities.
(5) Any report issued by the Public Protector must be open to the
public unless exceptional circumstances, to be determined in terms
of national legislation, require that a report be kept confidential.
Section 183 Tenure
The Public Protector is appointed for a non-renewable period of
seven years.
[Title 2] Human Rights Commission
Section 184 Functions of Human Rights Commission
(1) The Human Rights Commission must -
(a) promote respect for human rights and a culture of human
rights;
(b) promote the protection, development and attainment of human
rights; and
(c) monitor and assess the observance of human rights in the
Republic.
(2) The Human Rights Commission has the powers, as regulated
by national legislation, necessary to perform its functions,
including the power -
(a) to investigate and to report on the observance of human rights;
(b) to take steps to secure appropriate redress where human rights
have been violated;
(c) to carry out research; and
(d) to educate.
(3) Each year, the Human Rights Commission must require
relevant organs of state to provide the Commission with
information on the measures that they have taken towards the
realisation of the rights in the Bill of Rights concerning housing,
health care, food, water, social security, education and the
environment.
(4) The Human Rights Commission has the additional powers and
functions prescribed by national legislation.
Section 185 Functions of Commission
(1) The primary objects of the Commission for the Promotion and
Protection of the Rights of Cultural, Religious and Linguistic
Communities are -
(a) to promote respect for the rights of cultural, religious and
linguistic communities;
(b) to promote and develop peace, friendship, humanity, tolerance
and national unity among cultural, religious and linguistic
communities, on the basis of equality, non-discrimination and free
association; and
(c) to recommend the establishment or recognition, in accordance
with national legislation, of a cultural or other council or councils
for a community or communities in South Africa.
(2) The Commission has the power, as regulated by national
legislation, necessary to achieve its primary objects, including the
power to monitor, investigate, research, educate, lobby, advise
and report on issues concerning the rights of cultural, religious
and linguistic communities.
(3) The Commission may report any matter which falls within its
powers and functions to the Human Rights Commission for
investigation.
(4) The Commission has the additional powers and functions
prescribed by national legislation.
Section 186 Composition of Commission
(1) The number of members of the Commission for the Promotion
and Protection of the Rights of Cultural, Religious and Linguistic
Communities and their appointment and terms of office must be
prescribed by national legislation.
(2) The composition of the Commission must-
(a) be broadly representative of the main cultural, religious and
linguistic communities in South Africa; and
(b) broadly reflect the gender composition of South Africa.
[Title 4] Commission for Gender Equality
Section 187 Functions of Commission for Gender Equality
(1) The Commission for Gender Equality must promote respect
for gender equality and the protection, development and
attainment of gender equality.
(2) The Commission for Gender Equality has the power, as
regulated by national legislation, necessary to perform its
functions, including the power to monitor, investigate, research,
educate, lobby, advise and report on issues concerning gender
equality.
(3) The Commission for Gender Equality has the additional
powers and functions prescribed by national legislation.
Section 188 Functions of Auditor-General
(1) The Auditor-General must audit and report on the accounts,
financial statements and financial management of -
(a) all national and provincial state departments and
administrations;
(b) all municipalities; and
(c) any other institution or accounting entity required by national
or provincial legislation to be audited by the Auditor-General.
(2) In addition to the duties prescribed in subsection (1), and
subject to any legislation, the Auditor-General may audit and
report on the accounts, financial statements and financial
management of -
(a) any institution funded from the National Revenue Fund or a -
Provincial Revenue Fund or by a municipality; or
(b) any institution that is authorised in terms of any law to receive
money for a public purpose.
(3) The Auditor-General must submit audit reports to any
legislature that has a direct interest in the audit, and to any other
authority prescribed by national legislation. All reports must be
made public.
(4) The Auditor-General has the additional powers and functions
prescribed by national legislation.
Section 189 Tenure
The Auditor-General must be appointed for a fixed, non-
renewable term of between five and ten years.
[Title 6] Electoral Commission
Section 190 Functions of Electoral Commission
(1) The Electoral Commission must -
(a) manage elections of national, provincial and municipal
legislative bodies in accordance with national legislation;
(b) ensure that those elections are free and fair; and
(c) declare the results of those elections within a period that must
be prescribed by national legislation and that is as short as
reasonably possible.
(2) The Electoral Commission has the additional powers and
functions prescribed by national legislation.
Section 191 Composition of Electoral Commission
The Electoral Commission must be composed of at least three
persons. The number of members and their terms of office must
be prescribed by national legislation.
[Title 7] Independent Authority to Regulate Broadcasting
Section 192 Broadcasting Authority
National legislation must establish an independent authority to
regulate broadcasting in the public interest, and to ensure fairness
and a diversity of views broadly representing South African
society.
Section 193 Appointments
(1) The Public Protector and members of any Commission
established by this Chapter must be women or men who -
(a) are South African citizens;
(b) are fit and proper persons to hold the particular office; and
(c) comply with any other requirements prescribed by national
legislation.
(2) The need for a Commission established by this Chapter to
reflect broadly the race and gender composition of South Africa
must be considered when members are appointed.
(3) The Auditor-General must be a woman or a man who is a
South African citizen and a fit and proper person to hold that
office. Specialised knowledge of, or experience in, auditing, state
finances and public administration must be given due regard in
appointing the Auditor-General.
(4) The President, on the recommendation of the National
Assembly, must appoint the Public Protector, the Auditor-General
and members of -
(a) the Human Rights Commission;
(b) the Commission for Gender Equality; and
(c) the Electoral Commission.
(5) The National Assembly must recommend persons -
(a) nominated by a committee of the Assembly proportionally
composed of members of all parties represented in the Assembly;
and
(b) approved by the Assembly by a resolution adopted with a
supporting vote -
(i) of at least 60 per cent of the members of the Assembly, if the
recommendation concerns the appointment of the Public Protector
or the Auditor-General; or
(ii) of a majority of the members of the Assembly, if the
recommendation concerns the appointment of a member of a
Commission.
(6) The involvement of civil society in the recommendation
process may be provided for as envisaged in section 59(1)(a).
Section 194 Removal from office
(1) The Public Protector, the Auditor-General or a member of a
Commission established by this Chapter may be removed from
office only on -
(a) the ground of misconduct, incapacity or incompetence;
(b) a finding to that effect by a committee of the National
Assembly; and
(c) the adoption by the Assembly of a resolution calling for that
person's removal from office.
(2) A resolution of the National Assembly concerning the removal
from office of -
(a) the Public Protector or the Auditor-General must be adopted
with a supporting vote of at least two thirds of the members of the
Assembly; or
(b) a member of a commission must be adopted with a supporting
vote of a majority of the members of the Assembly.
(2) The President -
(a) may suspend a person from office at any time after the start of
the proceedings of a committee of the National Assembly for the
removal of that person; and
(b)must remove a person from office upon adoption by the
Assembly of the resolution calling for that person's removal.
Section 195 Basic values and principles governing public administration
(1) Public administration must be governed by the democratic
values and principles enshrined in the Constitution, including the
following principles:
(a) A high standard of professional ethics must be promoted and
maintained.
(b) Efficient, economic and effective use of resources must be
promoted.
(c) Public administration must be development-oriented.
(d) Services must be provided impartially, fairly, equitably and
without bias.
(e) People's needs must be responded to, and the public must be
encouraged to participate in policy-making.
(f) Public administration must be accountable.
(g) Transparency must be fostered by providing the public with
timely, accessible and accurate information.
(h) Good human-resource management and career-development
practices, to maximise human potential, must be cultivated.
(i) Public administration must be broadly representative of the
South African people, with employment and personnel
management practices based on ability, objectivity, fairness, and
the need to redress the imbalances of the past to achieve broad
representation.
(2) The above principles apply to -
(a) administration in every sphere of government;
(b) organs of state; and
(c) public enterprises.
(3) National legislation must ensure the promotion of the values
and principles listed in subsection (1).
(4) The appointment in public administration of a number of
persons on policy considerations is not precluded, but national
legislation must regulate these appointments in the public service.
(5) Legislation regulating public administration may differentiate
between different sectors, administrations or institutions.
(6) The nature and functions of different sectors, administrations
or institutions of public administration are relevant factors to be
taken into account in legislation regulating public administration.
Section 196 Public Service Commission
(1) There is a single Public Service Commission for the Republic.
(2) The Commission is independent and must be impartial, and
must exercise its powers and perform its functions without fear,
favour or prejudice in the interest of the maintenance of effective
and efficient public administration and a high standard of
professional ethics in the public service. The Commission must be
regulated by national legislation.
(3) Other organs of state, through legislative and other measures,
must assist and protect the Commission to ensure the
independence, impartiality, dignity and effectiveness of the
Commission. No person or organ of state may interfere with the
functioning of the Commission.
(4) The powers and functions of the Commission are:
(a) To promote the values and principles set out in section 195,
throughout the public service;
(b) to investigate, monitor and evaluate the organisation and
administration, and the personnel practices, of the public service;
(c) to propose measures to ensure effective and efficient
performance within the public service;
(d) to give directions aimed at ensuring that personnel procedures
relating to recruitment, transfers, promotions and dismissals
comply with the values and principles set out in section 195;
(e) to report in respect of its activities and the performance of its
functions, including any finding it may make and directions and
advice it may give, and to provide an evaluation of the extent to
which the values and principles set out in section 195 are
complied with; and
(f) either of its own accord or on receipt of any complaint -
(i) to investigate and evaluate the application of personnel and
public administration practices, and to report to the relevant
executive authority and legislature;
(ii) to investigate grievances of employees in the public service
concerning official acts or omissions, and recommend appropriate
remedies;
(iii) to monitor and investigate adherence to applicable procedures
in the public service; and
(iv) to advise national and provincial organs of state regarding
personnel practices in the public service, including those relating
to the recruitment, appointment, transfer, discharge and other
aspects of the careers of employees in the public service.
(5) The Commission is accountable to the National Assembly.
(6) The Commission must report at least once a year in terms of
subsection (4)(e) -
(a) to the National Assembly; and
(b) in respect of its activities in a province, to the legislature of
that province.
(7) The Commission has the following 14 commissioners
appointed by the President:
(a) Five commissioners approved by the National Assembly in
accordance with subsection (8)(a); and
(b) one commissioner for each province nominated by the Premier
of the province in accordance with subsection (8)(b).
(8) (a) A commissioner appointed in terms of subsection (7)(a)
must be -
(i) recommended by a committee of the National Assembly that is
proportionally composed of members of all parties represented in
the Assembly; and
(ii) approved by the Assembly by a resolution adopted with a
supporting vote of a majority of its members.
(b) A commissioner nominated by the Premier of a province must
be -
(i) recommended by a committee of the provincial legislature that
is proportionally composed of members of all parties represented
in the legislature; and
(ii) approved by the legislature by a resolution adopted with a
supporting vote of a majority of its members.
(9) An Act of Parliament must regulate the procedure for the
appointment of commissioners.
(10) A commissioner is appointed for a term of five years, which
is renewable for one additional term only, and must be a woman
or a man who is -
(a) a South African citizen; and
(b) a fit and proper person with knowledge of, or experience in,
administration, management or the provision of public services.
(11) A commissioner may be removed from office only on -
(a) the ground of misconduct, incapacity or incompetence;
(b) a finding to that effect by a committee of the National
Assembly or, in the case of a commissioner nominated by the
Premier of a province, by a committee of the legislature of that
province; and
(c) the adoption by the Assembly or the provincial legislature
concerned, of a resolution with a supporting vote of a majority of
its members calling for the commissioner's removal from office.
(12) The President must remove the relevant commissioner from
office upon -
(a) the adoption by the Assembly of a resolution calling for that
commissioner's removal; or
(b) written notification by the Premier that the provincial
legislature has adopted a resolution calling for that commissioner's
removal.
(13) Commissioners referred to in subsection (7)(b) may exercise
the powers and perform the functions of the Commission in their
provinces as prescribed by national legislation.
Section 197 Public Service
(1) Within public administration there is a public service for the
Republic, which must function, and be structured, in terms of
national legislation, and which must loyally execute the lawful
policies of the government of the day.
(2) The terms and conditions of employment in the public service
must be regulated by national legislation. Employees are entitled
to a fair pension as regulated by national legislation.
(3) No employee of the public service may be favoured or
prejudiced only because that person supports a particular political
party or cause.
(4)Provincial governments are responsible for the recruitment,
appointment, promotion, transfer and dismissal of members of the
public service in their administrations within a framework of
uniform norms and standards applying to the public service.
Section 198 Governing principles
The following principles govern national security in the Republic:
(a) National security must reflect the resolve of South Africans,
as individuals and as a nation, to live as equals, to live in peace
and harmony, to be free from fear and want and to seek a better
life.
(b) The resolve to live in peace and harmony precludes any South
African citizen from participating in armed conflict, nationally or
internationally, except as provided for in terms of the Constitution
or national legislation.
(c) National security must be pursued in compliance with the law,
including international law.
(d) National security is subject to the authority of Parliament and
the national executive.
Section 199 Establishment, structuring and conduct of security services
(1) The security services of the Republic consist of a single
defence force, a single police service and any intelligence services
established in terms of the Constitution.
(2) The defence force is the only lawful military force in the
Republic.
(3) Other than the security services established in terms of the
Constitution, armed organisations or services may be established
only in terms of national legislation.
(4) The security services must be structured and regulated by
national legislation.
(5) The security services must act, and must teach and require
their members to act, in accordance with the Constitution and the
law, including customary international law and international
agreements binding on the Republic.
(6) No member of any security service may obey a manifestly
illegal order.
(7) Neither the security services, nor any of their members, may,
in the performance of their functions -
(a) prejudice a political party interest that is legitimate in terms of
the Constitution; or
(b) further, in a partisan manner, any interest of a political party.
(8) To give effect to the principles of transparency and
accountability, multi-party parliamentary committees must have
oversight of all security services in a manner determined by
national legislation or the rules and orders of Parliament.
Section 200 Defence force
(1) The defence force
(2) The primary object of the defence force is to defend and
protect the Republic, its territorial integrity and its people in
accordance with the Constitution and the principles of international
law regulating the use of force.
Section 201 Political responsibility
(1) A member of the Cabinet must be responsible for defence.
(2) Only the President, as head of the national executive, may
authorise the employment of the defence force -
(a) in co-operation with the police service;
(b) in defence of the Republic; or
(c) in fulfilment of an international obligation.
(3) When the defence force is employed for any purpose
mentioned in subsection (2), the President must inform
Parliament, promptly and in appropriate detail, of -
(a) the reasons for the employment of the defence force;
(b) any place where the force is being employed;
(c) the number of people involved; and
(d) the period for which the force is expected to be employed.
(4) If Parliament does not sit during the first seven days after the
defence force is employed as envisaged in subsection (2), the
President must provide the information required in subsection (3)
to the appropriate oversight committee.
Section 202 Command of defence force
(1) The President as head of the national executive is Commander-
in- Chief of the defence force, and must appoint the Military
Command of the defence force.
(2) Command of the defence force must be exercised in
accordance with the directions of the Cabinet member responsible
for defence, under the authority of the President.
Section 203 State of national defence
(1) The President as head of the national executive may declare a
state of national defence, and must inform Parliament promptly
and in appropriate detail of -
(a) the reasons for the declaration;
(b) any place where the defence force is being employed; and
(c) the number of people involved.
(2) If Parliament is not sitting when a state of national defence is
declared, the President must summon Parliament to an
extraordinary sitting within seven days of the declaration.
(3) A declaration of a state of national defence lapses unless it is
approved by Parliament within seven days of the declaration.
Section 204 Defence civilian secretariat
A civilian secretariat for defence must be established by national
legislation to function under the direction of the Cabinet member
responsible for defence.
Section 205 Police service
(1) The national police service must be structured to function in
the national, provincial and, where appropriate, local spheres of
government.
(2) National legislation must establish the powers and functions of
the police service and must enable the police service to discharge
its responsibilities effectively, taking into account the requirements
of the provinces.
(3) The objects of the police service are to prevent, combat and
investigate crime, to maintain public order, to protect and secure
the inhabitants of the Republic and their property, and to uphold
and enforce the law.
Section 206 Political responsibility
(1) A member of the Cabinet must be responsible for policing and
must determine national policing policy after consulting the
provincial governments and taking into account the policing needs
and priorities of the provinces as determined by the provincial
executives.
(2) The national policing policy may make provision for different
policies in respect of different provinces after taking into account
the policing needs and priorities of these provinces.
(3) Each province is entitled -(a) to monitor police conduct;
(b) to oversee the effectiveness and efficiency of the police
service, including receiving reports on the police service;
(c) to promote good relations between the police and the
community;
(d) to assess the effectiveness of visible policing; and
(e) to liaise with the Cabinet member responsible for policing with
respect to crime and policing in the province.
(4) A provincial executive is responsible for policing functions -
(a) vested in it by this Chapter;
(b) assigned to it in terms of national legislation; and
(c) allocated to it in the national policing policy.
(5) In order to perform the functions set out in subsection (3), a
province -
(a) may investigate, or appoint a commission of inquiry into, any
complaints of police inefficiency or a breakdown in relations
between the police and any community; and
(b) must make recommendations to the Cabinet member
responsible for policing.
(6) On receipt of a complaint lodged by a provincial executive, an
independent police complaints body established by national
legislation must investigate any alleged misconduct of, or offence
committed by, a member of the police service in the province.
(7) National legislation must provide a framework for the
establishment, powers, functions and control of municipal police
services.
(8) A committee composed of the Cabinet member and the
members of the Executive Councils responsible for policing must
be established to ensure effective co-ordination of the police
service and effective co-operation among the spheres of
government.
(9) A provincial legislature may require the provincial
commissioner of the province to appear before it or any of its
committees to answer questions.
Section 207 Control of police service
(1) The President as head of the national executive must appoint
a woman or a man as the National Commissioner of the police
service, to control and manage the police service.
(2) The National Commissioner must exercise control over and
manage the police service in accordance with the national policing
policy and the directions of the Cabinet member responsible for
policing.
(3) The National Commissioner, with the concurrence of the
provincial executive, must appoint a woman or a man as the
provincial commissioner for that province, but if the National
Commissioner and the provincial executive are unable to agree on
the appointment, the Cabinet member responsible for policing
must mediate between the parties.
(4) The provincial commissioners are responsible for policing in
their respective provinces -
(a) as prescribed by national legislation; and
(b) subject to the power of the National Commissioner to exercise
control over and manage the police service in terms of subsection
(2).
(5) The provincial commissioner must report to the provincial
legislature annually on policing in the province, and must send a
copy of the report to the National Commissioner.
(6) If the provincial commissioner has lost the confidence of the
provincial executive, that executive may institute appropriate
proceedings for the removal or transfer of, or disciplinary action
against, that Commissioner, in accordance with national
legislation.
Section 208 Police civilian secretariat
A civilian secretariat for the police service must be established by
national legislation to function under the direction of the Cabinet
member responsible for policing.
Section 209 Establishment and control of intelligence services
(1) Any intelligence service, other than any intelligence division
of the defence force or police service, may be established only by
the President, as head of the national executive, and only in terms
of national legislation.
(2) The President as head of the national executive must appoint
a woman or a man as head of each intelligence service established
in terms of subsection (1), and must either assume political
responsibility for the control and direction of any of those
services, or designate a member of the Cabinet to assume that
responsibility.
Section 210 Powers, functions and monitoring
National legislation must regulate the objects, powers and
functions of the intelligence services, including any intelligence
division of the defence force or police service, and must provide
for -
(a) the co-ordination of all intelligence services; and
(b)civilian monitoring of the activities of those services by an
inspector appointed by the President as head of the national
executive, and approved by a resolution adopted by the National
Assembly with a supporting vote of at least two thirds of its
members.
Section 211 Recognition
(1) The institution, status and role of traditional leadership,
according to customary law, are recognised, subject to the
Constitution.
(2) A traditional authority that observes a system of customary law
may function subject to any applicable legislation and customs,
which includes amendments to, or repeal of, that legislation or
those customs.
(3) The courts must apply customary law when that law is
applicable, subject to the Constitution and any legislation that
specifically deals with customary law.
Section 212 Role of traditional leaders
(1) National legislation may provide for a role for traditional
leadership as an institution at local level on matters affecting local
communities.
(2) To deal with matters relating to traditional leadership, the role
of traditional leaders, customary law and the customs of
communities observing a system of customary law -
(a) national or provincial legislation may provide for the
establishment of houses of traditional leaders; and
(b) national legislation may establish a council of traditional
leaders.
[Title 1] General Financial Matters
Section 213 National Revenue Fund
(1) There is a National Revenue Fund into which all money
received by the national government must be paid, except money
reasonably excluded by an Act of Parliament.
(2) Money may be withdrawn from the National Revenue Fund
only -
(a) in terms of an appropriation by an Act of Parliament; or
(b) as a direct charge against the National Revenue Fund, when
it is provided for in the Constitution or an Act of Parliament.
(3) A province's equitable share of revenue raised nationally is a
direct charge against the National Revenue Fund.
Section 214 Equitable shares and allocations of revenue
(1) An Act of Parliament must provide for -
(a) the equitable division of revenue raised nationally among the
national, provincial and local spheres of government;
(b) the determination of each province's equitable share of the
provincial share of that revenue; and
(c) any other allocations to provinces, local government or
municipalities from the national government's share of that
revenue, and any conditions on which those allocations may be
made.
(2) The Act referred to in subsection (1) may be enacted only
after the provincial governments, organised local government and
the Financial and Fiscal Commission have been consulted, and
any recommendations of the Commission have been considered,
and must take into account -
(a) the national interest;
(b) any provision that must be made in respect of the national debt
and other national obligations;
(c) the needs and interests of the national government, determined
by objective criteria;
(d) the need to ensure that the provinces and municipalities are
able to provide basic services and perform the functions allocated
to them;
(e) the fiscal capacity and efficiency of the provinces and
municipalities;
(f) developmental and other needs of provinces, local government
and municipalities;
(g) economic disparities within and among the provinces;
(h) obligations of the provinces and municipalities in terms of
national legislation;
(i) the desirability of stable and predictable allocations of revenue
shares; and
(j) the need for flexibility in responding to emergencies or other
temporary needs, and other factors based on similar objective
criteria.
Section 215 National, provincial and municipal budgets
(1) National, provincial and municipal budgets
(2) National legislation must prescribe -
(a) the form of national, provincial and municipal budgets;
(b) when national and provincial budgets must be tabled; and
(c) that budgets in each sphere of government must show the
sources of revenue and the way in which proposed expenditure
will comply with national legislation.
(3) Budgets in each sphere of government must contain -
(a) estimates of revenue and expenditure, differentiating between
capital and current expenditure;
(b) proposals for financing any anticipated deficit for the period
to which they apply; and
(c) an indication of intentions regarding borrowing and other
forms of public liability that will increase public debt during the
ensuing year.
Section 216 Treasury control
(1) National legislation must establish a national treasury and
prescribe measures to ensure both transparency and expenditure
control in each sphere of government, by introducing -
(a) generally recognised accounting practice;
(b) uniform expenditure classifications; and
(c) uniform treasury norms and standards.
(2) The national treasury, with the concurrence of the Cabinet
member responsible for national financial matters, may stop the
transfer of funds to an organ of state only for serious or persistent
material breach of the measures established in terms of subsection
(1).
(3) A decision to stop the transfer of funds to a province may be
taken only in terms of subsection (2), and -
(a) may not stop the transfer of funds for more than 120 days; and
(b) may be enforced immediately, but will lapse retrospectively
unless Parliament approves it following a process substantially the
same as that established in terms of section 76(1) and prescribed
by the joint rules and orders of Parliament. This process must be
completed within 30 days of the decision by the national treasury.
(4) Parliament may renew a decision to stop the transfer of funds
for no more than 120 days at a time, following the process
established in terms of subsection (3).
(5) Before Parliament may approve or renew a decision to stop the
transfer of funds to a province -
(a) the Auditor-General must report to Parliament; and
(b) the province must be given an opportunity to answer the
allegations against it, and to state its case, before a committee.
Section 217 Procurement
(1) When an organ of state in the national, provincial or local
sphere of government, or any other institution identified in
national legislation, contracts for goods or services, it must do so
in accordance with a system which is fair, equitable, transparent,
competitive and cost-effective.
(2) Subsection (1) does not prevent the organs of state or
institutions referred to in that subsection from implementing a
procurement policy providing for -
(a) categories of preference in the allocation of contracts; and
(b) the protection or advancement of persons, or categories of
persons, disadvantaged by unfair discrimination.
(3) National legislation must prescribe a framework within which
the policy referred to in subsection (2) may be implemented.
Section 218 Government guarantees
(1) The national government, a provincial government or a
municipality may guarantee a loan only if the guarantee complies
with any conditions set out in national legislation.
(2) National legislation referred to in subsection (1) may be
enacted only after any recommendations of the Financial and
Fiscal Commission have been considered.
(3) Each year, every government must publish a report on the
guarantees it has granted.
Section 219 Remuneration of persons holding public office
(1) An Act of Parliament must establish a framework for
determining-
(a) the salaries, allowances and benefits of members of the
National Assembly, permanent delegates to the National Council
of Provinces, members of the Cabinet, Deputy Ministers,
traditional leaders and members of any councils of traditional
leaders; and
(b) the upper limit of salaries, allowances or benefits of members
of provincial legislatures, members of Executive Councils and
members of Municipal Councils of the different categories.
(2) National legislation must establish an independent commission
to make recommendations concerning the salaries, allowances and
benefits referred to in subsection (1).
(3) Parliament may pass the legislation referred to in subsection
(1) only after considering any recommendations of the commission
established in terms of subsection (2).
(4) The national executive, a provincial executive, a municipality
or any other relevant authority may implement the national
legislation referred to in subsection (1) only after considering any
recommendations of the commission established in terms of
subsection (2).
(5) National legislation must establish frameworks for determining
the salaries, allowances and benefits of judges, the Public
Protector, the Auditor-General, and members of any commission
provided for in the Constitution, including the broadcasting
authority referred to in section 192.
[Title 2] Financial and Fiscal Commission
Section 220 Establishment and functions
(1) There is a Financial and Fiscal Commission for the Republic
which makes recommendations envisaged in this Chapter, or in
national legislation, to Parliament, provincial legislatures and any
other authorities determined by national legislation.
(2) The Commission is independent and subject only to the
Constitution and the law, and must be impartial.
(3) The Commission must function in terms of an Act of
Parliament and, in performing its functions, must consider all
relevant factors, including those listed in section 214(2).
Section 221 Appointment and tenure of members
(1) The Commission consists of the following women and men
appointed by the President as head of the national executive:
(a) A chairperson and a deputy chairperson who are full-time
members;
(b) nine persons, each of whom is nominated by the Executive
Council of a province, with each province nominating only one
person;
(c) two persons nominated by organised local government in terms
of section 163; and
(d) nine other persons.
(2) Members of the Commission must have appropriate expertise.
(3) Members serve for a term established in terms of national
legislation. The President may remove a member from office on
the ground of misconduct, incapacity or incompetence.
Section 222 Reports
The Commission must report regularly both to Parliament and to
the provincial legislatures.
Section 223 Establishment
The South African Reserve Bank is the central bank of the
Republic and is regulated in terms of an Act of Parliament.
Section 224 Primary object
(1) The primary object of the South African Reserve Bank is to
protect the value of the currency in the interest of balanced and
sustainable economic growth in the Republic.
(2) The South African Reserve Bank, in pursuit of its primary
object, must perform its functions independently and without fear,
favour or prejudice, but there must be regular consultation
between the Bank and the Cabinet member responsible for national
financial matters.
Section 225 Powers and functions
The powers and functions of the South African Reserve Bank are
those customarily exercised and performed by central banks,
which powers and functions must be determined by an Act of
Parliament and must be exercised or performed subject to the
conditions prescribed in terms of that Act.
[Title 4] Provincial and Local Financial Matters
Section 226 Provincial Revenue Funds
(1) There is a Provincial Revenue Fund for each province into
which all money received by the provincial government must be
paid, except money reasonably excluded by an Act of Parliament.
(2) Money may be withdrawn from a Provincial Revenue Fund
only -
(a) in terms of an appropriation by a provincial Act; or
(b) as a direct charge against the Provincial Revenue Fund, when
it is provided for in the Constitution or a provincial Act.
(3) Revenue allocated through a province to local government in
that province in terms of section 214(1), is a direct charge against
that province's Revenue Fund.
Section 227 National sources of provincial and local government funding
(1) Local government and each province -
(a) is entitled to an equitable share of revenue raised nationally to
enable it to provide basic services and perform the functions
allocated to it; and
(b) may receive other allocations from national government
revenue, either conditionally or unconditionally.
(2) Additional revenue raised by provinces or municipalities may
not be deducted from their share of revenue raised nationally, or
from other allocations made to them out of national government
revenue. Equally, there is no obligation on the national
government to compensate provinces or municipalities that do not
raise revenue commensurate with their fiscal capacity and tax
base.
(3) A province's equitable share of revenue raised nationally must
be transferred to the province promptly and without deduction,
except when the transfer has been stopped in terms of section 216.
(4) A province must provide for itself any resources that it
requires, in terms of a provision of its provincial constitution, that
are additional to its requirements envisaged in the Constitution.
Section 228 Provincial taxes
(1) A provincial legislature may impose -
(a) taxes, levies and duties other than income tax, value-added tax,
general sales tax, rates on property or customs duties; and
(b) flat-rate surcharges on the tax bases of any tax, levy or duty
that is imposed by national legislation, other than the tax bases of
corporate income tax, value-added tax, rates on property or
customs duties.
(2) The power of a provincial legislature to impose taxes, levies,
duties and surcharges -
(a) may not be exercised in a way that materially and
unreasonably prejudices national economic policies, economic
activities across provincial boundaries, or the national mobility of
goods, services, capital or labour; and
(b) must be regulated in terms of an Act of Parliament, which
may be enacted only after any recommendations of the Financial
and Fiscal Commission have been considered.
Section 229 Municipal fiscal powers and functions
(1) Subject to subsections (2), (3) and (4), a municipality may
impose -
(a) rates on property and surcharges on fees for services provided
by or on behalf of the municipality; and
(b) if authorised by national legislation, other taxes, levies and
duties appropriate to local government or to the category of local
government into which that municipality falls, but no municipality
may impose income tax, value-added tax, general sales tax or
customs duty.
(2) The power of a municipality to impose rates on property,
surcharges on fees for services provided by or on behalf of the
municipality, or other taxes, levies or duties -
(a) may not be exercised in a way that materially and
unreasonably prejudices national economic policies, economic
activities across municipal boundaries, or the national mobility of
goods, services, capital or labour; and
(b) may be regulated by national legislation.
(3) When two municipalities have the same fiscal powers and
functions with regard to the same area, an appropriate division of
those powers and functions must be made in terms of national
legislation. The division may be made only after taking into
account at least the following criteria:
(a) The need to comply with sound principles of taxation;
(b) the powers and functions performed by each municipality;
(c) the fiscal capacity of each municipality;
(d) the effectiveness and efficiency of raising taxes, levies and
duties; and
(e) equity.
(4) Nothing in this section precludes the sharing of revenue raised
in terms of this section between municipalities that have fiscal
power and functions in the same area.
(5) National legislation envisaged in this section may be enacted
only after organised local government and the Financial and Fiscal
Commission have been consulted, and any recommendations of
the Commission have been considered.
Section 230 Provincial and municipal loans
(1) A province or a municipality may raise loans for capital or
current expenditure in accordance with reasonable conditions
determined by national legislation, but loans for current
expenditure -
(a) may be raised only when necessary for bridging purposes
during a fiscal year; and
(b) must be repaid within twelve months.
(2)National legislation referred to in subsection (1) may be enacted
only after any recommendations of the Financial and Fiscal
Commission have been considered.
Section 231 International agreements
(1) The negotiating and signing of all international agreements is
the responsibility of the national executive.
(2) An international agreement binds the Republic only after it has
been approved by resolution in both the National Assembly and
the National Council of Provinces, unless it is an agreement
referred to in subsection (3).
(3) An international agreement of a technical, administrative or
executive nature, or an agreement which does not require either
ratification or accession, entered into by the national executive,
binds the Republic without approval by the National Assembly and
the National Council of Provinces, but must be tabled in the
Assembly and the Council within a reasonable time.
(4) Any international agreement becomes law in the Republic
when it is enacted into law by national legislation; but a self-
executing provision of an agreement that has been approved by
Parliament is law in the Republic unless it is inconsistent with the
Constitution or an Act of Parliament.
(5) The Republic is bound by international agreements which were
binding on the Republic when this Constitution took effect.
Section 232 Customary international law
Customary international law is law in the Republic unless it is
inconsistent with the Constitution or an Act of Parliament.
Section 233 Application of international law
When interpreting any legislation, every court must prefer any
reasonable interpretation of the legislation that is consistent with
international law over any alternative interpretation that is
inconsistent with international law.
Section 234 Charters of Rights
In order to deepen the culture of democracy established by the
Constitution, Parliament may adopt Charters of Rights consistent
with the provisions of the Constitution.
Section 235 Self-determination
The right of the South African people as a whole to self-
determination, as manifested in this Constitution, does not
preclude, within the framework of this right, recognition of the
notion of the right of self-determination of any community sharing
a common cultural and language heritage, within a territorial
entity in the Republic or in any other way, determined by national
legislation.
Section 236 Funding for political parties
To enhance multi-party democracy, national legislation must
provide for the funding of political parties participating in national
and provincial legislatures on an equitable and proportional basis.
Section 237 Diligent performance of obligations
All constitutional obligations must be performed diligently and
without delay.
Section 238 Agency and delegation
An executive organ of state in any sphere of government may -
(a) delegate any power or function that is to be exercised or
performed in terms of legislation to any other executive organ of
state, provided the delegation is consistent with the legislation in
terms of which the power is exercised or the function is
performed; or
(b) exercise any power or perform any function for any other
executive organ of state on an agency or delegation basis.
Section 239 Definitions
In the Constitution, unless the context indicates otherwise -
"national legislation" includes -
(a) subordinate legislation made in terms of an Act of Parliament;
and
(b) legislation that was in force when the Constitution took effect
and that is administered by the national government;
"organ of state" means -
(a) any department of state or administration in the national,
provincial or local sphere of government; or
(b) any other functionary or institution -
(i) exercising a power or performing a function in terms of the
Constitution or a provincial constitution; or
(ii) exercising a public power or performing a public function in
terms of any legislation, but does not include a court or a judicial
officer;
"provincial legislation" includes -
(a) subordinate legislation made in terms of a provincial Act; and
(b) legislation that was in force when the Constitution took effect
and that is administered by a provincial government.
Section 240 Inconsistencies between different texts
In the event of an inconsistency between different texts of the
Constitution, the English text prevails.
Section 241 Transitional arrangements
Schedule 6 applies to the transition to the new constitutional order
established by this Constitution, and any matter incidental to that
transition.
Section 242 Repeal of laws
The laws mentioned in Schedule 7 are repealed, subject to section
243 and Schedule 6.
Section 243 Short title and commencement
(1) This Act is called the Constitution of the Republic of South
Africa, 1996, and comes into effect as soon as possible on a date
set by the President by proclamation, which may not be a date
later than 1 July 1997.
(2) The President may set different dates before the date
mentioned in subsection (1) in respect of different provisions of
the Constitution.
(3) Unless the context otherwise indicates, a reference in a
provision of the Constitution to a time when the Constitution
took effect must be construed as a reference to the time when
that provision took effect.
(4) If a different date is set for any particular provision of the
Constitution in terms of subsection (2), any corresponding
provision of the Constitution of the Republic of South Africa,
1993 (Act 200 of 1993), mentioned in the proclamation, is
repealed with effect from the same date.
(5)Sections 213, 214, 215, 216, 218, 226, 227, 228, 229 and
230 come into effect on 1 January 1998, but this does not
preclude the enactment in terms of this Constitution of
legislation envisaged in any of these provisions before that date.
Until that date any corresponding and incidental provisions of
the Constitution of the Republic of South Africa, 1993, remain
in force.
{ Adopted: 8 May 1996 / Amended: 11 Oct 1996 / In Force: 7 Feb 1997 / Status: 7 Feb 1997 }
Schedule 1 National Flag
(1) The national flag is rectangular; it is one and a half times
longer than it is wide.
(2) It is black, gold, green, white, chilli red and blue.
(3) It has a green Y-shaped band that is one fifth as wide as the
flag. The centre lines of the band start in the top and bottom
corners next to the flag post, converge in the centre of the flag,
and continue horizontally to the middle of the free edge.
(4) The green band is edged, above and below in white, and
towards the flag post end, in gold. Each edging is one fifteenth
as wide as the flag.
(5) The triangle next to the flag post is black.
(6)The upper horizontal band is chilli red and the lower
horizontal band is blue. These bands are each one third as wide
as the flag.
Section 1 Oath or solemn affirmation of President and Acting President
The President or Acting President, before the President of the
Constitutional Court, must swear/affirm as follows:
"In the presence of everyone assembled here, and in full
realisation of the high calling I assume as President/Acting
President of the Republic of South Africa, I, A.B.,
swear/solemnly affirm that I will be faithful to the Republic of
South Africa, and will obey, observe, uphold and maintain the
Constitution and all other law of the Republic; and I solemnly
and sincerely promise that I will always -
- promote all that will advance the Republic, and oppose all
that may harm it;
- protect and promote the rights of all South Africans;
- discharge my duties with all my strength and talents to the
best of my knowledge and ability and true to the dictates of my
conscience;
- do justice to all; and
- devote myself to the well-being of the Republic and all of its
people." (In the case of an oath: So help me God.)
Section 2 Oath or solemn affirmation of Deputy President
The Deputy President, before the President of the Constitutional
Court, must swear/affirm as follows:
"In the presence of everyone assembled here, and in full
realisation of the high calling I assume as Deputy President of
the Republic of South Africa, I, A.B., swear/solemnly affirm
that I will be faithful to the Republic of South Africa and will
obey, observe, uphold and maintain the Constitution and all
other law of the Republic; and I solemnly and sincerely promise
that I will always -
- promote all that will advance the Republic, and oppose all
that may harm it;
- be a true and faithful counsellor;
- discharge my duties with all my strength and talents to the
best of my knowledge and ability and true to the dictates of my
conscience;
- do justice to all; and
- devote myself to the well-being of the Republic and all of its
people." (In the case of an oath: So help me God.)
Section 3 Oath or solemn affirmation of Ministers and Deputy Ministers
Each Minister and Deputy Minister, before the President of the
Constitutional Court or another judge designated by the
President of the Constitutional Court, must swear/affirm as
follows:
"I, A.B., swear/solemnly affirm that I will be faithful to the
Republic of South Africa and will obey, respect and uphold the
Constitution and all other law of the Republic; and I undertake
to hold my office as Minister/Deputy Minister with honour and
dignity; to be a true and faithful counsellor; not to divulge
directly or indirectly any secret matter entrusted to me; and to
perform the functions of my office conscientiously and to the
best of my ability." (In the case of an oath: So help me God.)
Section 4 Oath or solemn affirmation of members of the National Assembly, Permanent Delegates to the
National Council of Provinces and members of the provincial legislatures
(1) Members of the National Assembly, permanent delegates to
the National Council of Provinces and members of provincial
legislatures, before the President of the Constitutional Court or
a judge designated by the President of the Constitutional Court,
must swear or affirm as follows:
"I, A.B., swear/solemnly affirm that I will be faithful to the
Republic of South Africa and will obey, respect and uphold the
Constitution and all other law of the Republic, and I solemnly
promise to perform my functions as a member of the National
Assembly/ permanent delegate to the National Council of
Provinces/member of the legislature of the province of C.D. to
the best of my ability." (In the case of an oath: So help me
God.)
(2) Persons filling a vacancy in the National Assembly, a
permanent delegation to the National Council of Provinces or a
provincial legislature may swear or affirm in terms of subitem
(1) before the presiding officer of the Assembly, Council or
legislature, as the case may be.
Section 5 Oath or solemn affirmation of Premiers, Acting Premiers and members of provincial Executive
Councils
The Premier or Acting Premier of a province, and each
member of the Executive Council of a province, before the
President of the Constitutional Court or a judge designated by
the President of the Constitutional Court, must swear/affirm as
follows:
"I, A.B., swear/solemnly affirm that I will be faithful to the
Republic of South Africa and will obey, respect and uphold the
Constitution and all other law of the Republic; and I undertake
to hold my office as Premier/ActingPremier/member of the
Executive Council of the province of C.D. with honour and
dignity; to be a true and faithful counsellor; not to divulge
directly or indirectly any secret matter entrusted to me; and to
perform the functions of my office conscientiously and to the
best of my ability." (In the case of an oath: So help me God.)
Section 6 Oath or solemn affirmation of Judicial Officers
(1) Each judge or acting judge, before the Chief Justice of the
Supreme Court of Appeal or another judge designated by the
Chief Justice, must swear or affirm as follows:
"I, A.B., swear/solemnly affirm that, as a Judge of the
Constitutional Court/Supreme Court of Appeal/High Court/ E.F.
Court, I will be faithful to the Republic of South Africa, will
uphold and protect the Constitution and the human rights
entrenched in it, and will administer justice to all persons alike
without fear, favour or prejudice, in accordance with the
Constitution and the law." (In the case of an oath: So help me
God.)
(2) A person appointed to the office of Chief Justice of the
Supreme Court of Appeal who is not already a judge at the time
of that appointment must swear or affirm before the President
of the Constitutional Court.
(3) Judicial officers, and acting judicial officers, other than
judges, must swear/affirm in terms of national legislation.
Part A Election Procedures for Constitutional Office-Bearers
Section 1 Application
The procedure set out in this Schedule applies whenever -
(a) the National Assembly meets to elect the President, or the
Speaker or Deputy Speaker of the Assembly;
(b) the National Council of Provinces meets to elect its
Chairperson or a Deputy Chairperson; or
(c) a provincial legislature meets to elect the Premier of the
province or the Speaker or Deputy Speaker of the legislature.
Section 2 Nominations
The person presiding at a meeting to which this Schedule
applies must call for the nomination of candidates at the
meeting.
Section 3 Formal requirements
(1) A nomination must be made on the form prescribed by the
rules mentioned in item 9.
(2) The form on which a nomination is made must be signed -
(a) by two members of the National Assembly, if the President
or the Speaker or Deputy Speaker of the Assembly is to be
elected;
(b) on behalf of two provincial delegations, if the Chairperson
or a Deputy Chairperson of the National Council of Provinces
is to be elected; or
(c) by two members of the relevant provincial legislature, if the
Premier of the province or the Speaker or Deputy Speaker of
the legislature is to be elected.
(3) A person who is nominated must indicate acceptance of the
nomination by signing either the nomination form or any other
form of written confirmation.
Section 4 Announcement of names of candidates
At a meeting to which this Schedule applies, the person
presiding must announce the names of the persons who have
been nominated as candidates, but may not permit any debate.
Section 5 Single candidate
If only one candidate is nominated, the person presiding must
declare that candidate elected.
Section 6 Election procedure
If more than one candidate is nominated -
(a) a vote must be taken at the meeting by secret ballot;
(b) each member present, or if it is a meeting of the National
Council of Provinces, each province represented, at the meeting
may cast one vote; and
(c) the person presiding must declare elected the candidate who
receives a majority of the votes.
Section 7 Elimination procedure
(1) If no candidate receives a majority of the votes, the
candidate who receives the lowest number of votes must be
eliminated and a further vote taken on the remaining candidates
in accordance with item 6. This procedure must be repeated
until a candidate receives a majority of the votes.
(2) When applying subitem (1), if two or more candidates each
have the lowest number of votes, a separate vote must be taken
on those candidates, and repeated as often as may be necessary
to determine which candidate is to be eliminated.
Section 8 Further meetings
(1) If only two candidates are nominated, or if only two
candidates remain after an elimination procedure has been
applied, and those two candidates receive the same number of
votes, a further meeting must be held within seven days, at a
time determined by the person presiding.
(2) If a further meeting is held in terms of subitem (1), the
procedure prescribed in this Schedule must be applied at that
meeting as if it were the first meeting for the election in
question.
Section 9 Rules
(1) The President of the Constitutional Court must make rules
prescribing -
(a) the procedure for meetings to which this Schedule applies;
(b) the duties of any person presiding at a meeting, and any
person assisting the person presiding;
(c) the form on which nominations must be submitted; and
(d) the manner in which voting is to be conducted.
(2) These rules must be made known in the way that the
President of the Constitutional Court determines.
The number of delegates in a provincial delegation to the
National Council of Provinces to which a party is entitled, must
be determined by multiplying the number of seats the party
holds in the provincial legislature by ten and dividing the result
by the number of seats in the legislature plus one.
2.If a calculation in terms of item 1 yields a surplus not
absorbed by the delegates allocated to a party in terms of that
item, the surplus must compete with similar surpluses accruing
to any other party or parties, and any undistributed delegates in
the delegation must be allocated to the party or parties in the
sequence of the highest surplus.
Part A
Administration of indigenous forests
Agriculture
Airports other than international and national airports
Animal control and diseases
Casinos, racing, gambling and wagering, excluding lotteries and
sports pools
Consumer protection
Cultural matters
Disaster management
Education at all levels, excluding tertiary education
Environment
Health services
Housing
Indigenous law and customary law subject to Chapter 12 of the
Constitution
Industrial promotion
Language policy and the regulation of official languages to the
extent that the provisions of section 6 of the Constitution
expressly confer upon the provincial legislature legislative
competence
Media services directly controlled or provided by the provincial
government, subject to section 192
Nature conservation, excluding national parks, national
botanical gardens and marine resources
Police to the extent that the provisions of Chapter 11 of the
Constitution confer upon the provincial legislature legislative
competence
Pollution control
Population development
Property transfer fees
Provincial public enterprises in respect of the functional areas in
this Schedule and Schedule 5
Public transport
Public works only in respect of the needs of provincial
government departments in the discharge of their
responsibilities to administer functions specifically assigned to
them in terms of the Constitution or any other law
Regional planning and development
Road traffic regulation
Soil conservation
Tourism
Trade
Traditional leadership subject to Chapter 12 of the Constitution
Urban and rural development
Vehicle licensing
Welfare services
Part B
The following local government matters to the extent set out in
section 155(6)(a) and (7):
Air pollution
Building regulations
Child care facilities
Electricity and gas reticulation
Firefighting services
Local tourism
Municipal airports
Municipal planning
Municipal health services
Municipal public transport
Municipal public works only in respect of the needs of
municipalities in the discharge of their responsibilities to
administer functions specifically assigned to them under this
Constitution or any other law
Pontoons, ferries, jetties, piers and harbours excluding the
regulation of international and national shipping and matters
related thereto
Stormwater management systems in built-up areas
Trading regulations
Water and sanitation services limited to potable water supply
systems and domestic waste-water and sewage disposal systems
Part A
Abattoirs
Ambulance services
Archives other than national archives
Libraries other than national libraries
Liquor licences
Museums other than national museums
Provincial planning
Provincial cultural matters
Provincial recreation and amenities
Provincial sport
Provincial roads and traffic
Veterinary services excluding regulation of the profession
Part B
The following local government matters to the extent set out for
provinces in section 155(6)(a) and (7):
Beaches and amusement facilities
Billboards and the display of advertisements in public places
Cemeteries, funeral parlours and crematoria
Cleansing
Control of public nuisances
Control of undertakings that sell liquor to the public
Facilities for the accommodation, care and burial of animals
Fencing and fences
Licensing of dogs
Licensing and control of undertakings that sell food to the
public
Local amenities
Local sport facilities
Markets
Municipal abattoirs
Municipal parks and recreation
Municipal roads
Noise pollution
Pounds
Public places
Refuse removal, refuse dumps and solid waste disposal
Street trading
Street lighting
Traffic and parking
Section 1 Definitions
In this Schedule, unless inconsistent with the context -
"homeland" means a part of the Republic which, before the
previous Constitution took effect, was dealt with in South
African legislation as an independent or a self-governing
territory;
"new Constitution" means the Constitution of the Republic of
South Africa, 1996;
"old order legislation" means legislation enacted before the
previous Constitution took effect;
"previous Constitution" means the Constitution of the Republic
of South Africa, 1993 (Act 200 of 1993).
Section 2 Continuation of existing law
(1) All law that was in force when the new Constitution took
effect, continues in force, subject to -
(a) any amendment or repeal; and
(b) consistency with the new Constitution.
(2) Old order legislation that continues in force in terms of
subitem (1)-
(a) does not have a wider application, territorially or otherwise,
than it had before the previous Constitution took effect unless
subsequently amended to have a wider application; and
(b) continues to be administered by the authorities that
administered it when the new Constitution took effect, subject
to the new Constitution.
Section 3 Interpretation of existing legislation
(1) Unless inconsistent with the context or clearly inappropriate,
a reference in any legislation that existed when the new
Constitution took effect -
(a) to the Republic of South Africa or a homeland (except when
it refers to a territorial area), must be construed as a reference
to the Republic of South Africa under the new Constitution;
(b) to Parliament, the National Assembly or the Senate, must be
construed as a reference to Parliament, the National Assembly
or the National Council of Provinces under the new
Constitution;
(c) to the President, an Executive Deputy President, a Minister,
a Deputy Minister or the Cabinet, must be construed as a
reference to the President, the Deputy President, a Minister, a
Deputy Minister or the Cabinet under the new Constitution,
subject to item 9 of this Schedule;
(d) to the President of the Senate, must be construed as a
reference to the Chairperson of the National Council of
Provinces;
(e) to a provincial legislature, Premier, Executive Council or
member of an Executive Council of a province, must be
construed as a reference to a provincial legislature, Premier,
Executive Council or member of an Executive Council under
the new Constitution, subject to item 12 of this Schedule; or
(f) to an official language or languages, must be construed as a
reference to any of the official languages under the new
Constitution.
(2) Unless inconsistent with the context or clearly inappropriate,
a reference in any remaining old order legislation -
(a) to a Parliament, a House of a Parliament or a legislative
assembly or body of the Republic or of a homeland, must be
construed as a reference to -
(i) Parliament under the new Constitution, if the administration
of that legislation has been allocated or assigned in terms of the
previous Constitution or this Schedule to the national executive;
or
(ii) the provincial legislature of a province, if the administration
of that legislation has been allocated or assigned in terms of the
previous Constitution or this Schedule to a provincial executive;
or
(b) to a State President, Chief Minister, Administrator or other
chief executive, Cabinet, Ministers" Council or executive
council of the Republic or of a homeland, must be construed as
a reference to -
(i) the President under the new Constitution, if the
administration of that legislation has been allocated or assigned
in terms of the previous Constitution or this Schedule to the
national executive; or
(ii) the Premier of a province under the new Constitution, if the
administration of that legislation has been allocated or assigned
in terms of the previous Constitution or this Schedule to a
provincial executive.
Section 4 National Assembly
(1) Anyone who was a member or office-bearer of the National
Assembly when the new Constitution took effect, becomes a
member or office-bearer of the National Assembly under the
new Constitution, and holds office as a member or office-bearer
in terms of the new Constitution.
(2) The National Assembly as constituted in terms of subitem
(1) must be regarded as having been elected under the new
Constitution for a term that expires on 30 April 1999.
(3) The National Assembly consists of 400 members for the
duration of its term that expires on 30 April 1999, subject to
section 49(4) of the new Constitution.
(4) The rules and orders of the National Assembly in force
when the new Constitution took effect, continue in force,
subject to any amendment or repeal.
Section 5 Unfinished business before Parliament
(1) Any unfinished business before the National Assembly when
the new Constitution takes effect must be proceeded with in
terms of the new Constitution.
(2) Any unfinished business before the Senate when the new
Constitution takes effect must be referred to the National
Council of Provinces, and the Council must proceed with that
business in terms of the new Constitution.
Section 6 Elections of National Assembly
(1) No election of the National Assembly may be held before
30 April 1999 unless the Assembly is dissolved in terms of
section 50(2) after a motion of no confidence in the President in
terms of section 102(2) of the new Constitution.
(2) Section 50(1) of the new Constitution is suspended until 30
April 1999.
(3) Despite the repeal of the previous Constitution, Schedule 2
to that Constitution, as amended by Annexure A to this
Schedule, applies -
(a) to the first election of the National Assembly under the new
Constitution;
(b) to the loss of membership of the Assembly in circumstances
other than those provided for in section 47(3) of the new
Constitution; and
(c) to the filling of vacancies in the Assembly, and the
supplementation, review and use of party lists for the filling of
vacancies, until the second election of the Assembly under the
new Constitution.
(4) Section 47(4) of the new Constitution is suspended until the
second election of the National Assembly under the new
Constitution.
Section 7 National Council of Provinces
(1) For the period which ends immediately before the first
sitting of a provincial legislature held after its first election
under the new Constitution -
(a) the proportion of party representation in the province's
delegation to the National Council of Provinces must be the
same as the proportion in which the province's 10 senators
were nominated in terms of section 48 of the previous
Constitution; and
(b) the allocation of permanent delegates and special delegates
to the parties represented in the provincial legislature, is as
follows:
Province | Permanent Delegates | Special Delegates | 1.Eastern Cape | ANC5 NP1 | ANC4 | 2.Free State | ANC4 FF1 NP1 | ANC4 | 3.Gauteng | ANC3 DP1 FF1 NP1 | ANC3 NP1 | 4.KwaZulu-Natal | ANC1 DP1 IFP3 NP1 | ANC2 IFP2 | 5.Mpumalanga | ANC4 FF1 NP1 | ANC4 | 6.Northern Cape | ANC3 FF1 NP2 | ANC2 NP2 | 7.Northern Province | ANC6 | ANC4 | 8.North West | ANC4 FF1 NP1 | ANC4 | 9.Western Cape | ANC2 DP1 NP3 | ANC1 NP3 |
(2) A party represented in a provincial legislature -
(a) must nominate its permanent delegates from among the
persons who were senators when the new Constitution took
effect and are available to serve as permanent delegates; and
(b) may nominate other persons as permanent delegates only if
none or an insufficient number of its former senators are
available.
(3) A provincial legislature must appoint its permanent delegates
in accordance with the nominations of the parties.
(4) Subitems (2) and (3) apply only to the first appointment of
permanent delegates to the National Council.
(5) Section 62(1) of the new Constitution does not apply to the
nomination and appointment of former senators as permanent
delegates in terms of this item.
(6) The rules and orders of the Senate in force when the new
Constitution took effect, must be applied in respect of the
business of the National Council to the extent that they can be
applied, subject to any amendment or repeal.
Section 8 Former senators
(1) A former senator who is not appointed as a permanent
delegate to the National Council of Provinces is entitled to
become a full voting member of the legislature of the province
from which that person was nominated as a senator in terms of
section 48 of the previous Constitution.
(2) If a former senator elects not to become a member of a
provincial legislature that person is regarded as having resigned
as a senator the day before the new Constitution took effect.
(3) The salary, allowances and benefits of a former senator
appointed as a permanent delegate or as a member of a
provincial legislature may not be reduced by reason only of that
appointment.
Section 9 National executive
(1) Anyone who was the President, an Executive Deputy
President, a Minister or a Deputy Minister under the previous
Constitution when the new Constitution took effect, continues in
and holds that office in terms of the new Constitution, but
subject to subitem (2).
(2) Until 30 April 1999, sections 84, 89, 90, 91, 93 and 96 of
the new Constitution must be regarded to read as set out in
Annexure B to this Schedule.
(3) Subitem (2) does not prevent a Minister who was a senator
when the new Constitution took effect, from continuing as a
Minister referred to in section 91(1)(a) of the new Constitution,
as that section reads in Annexure B.
Section 10 Provincial legislatures
(1) Anyone who was a member or office-bearer of a province's
legislature when the new Constitution took effect, becomes a
member or office-bearer of the legislature for that province
under the new Constitution, and holds office as a member or
office-bearer in terms of the new Constitution and any
provincial constitution that may be enacted.
(2) A provincial legislature as constituted in terms of subitem
(1) must be regarded as having been elected under the new
Constitution for a term that expires on 30 April 1999.
(3) For the duration of its term that expires on 30 April 1999, and
subject to section 108(4), a provincial legislature consists of the
number of members determined for that legislature under the
previous Constitution plus the number of former senators who
became members of the legislature in terms of item 8 of this
Schedule.
(4) The rules and orders of a provincial legislature in force
when the new Constitution took effect, continue in force,
subject to any amendment or repeal.
Section 11 Elections of provincial legislatures
(1) Despite the repeal of the previous Constitution, Schedule 2 to
that Constitution, as amended by Annexure A to this Schedule,
applies -
(a) to the first election of a provincial legislature under the new
Constitution;
(b) to the loss of membership of a legislature in circumstances
other than those provided for in section 106(3) of the new
Constitution; and
(c) to the filling of vacancies in a legislature, and the
supplementation, review and use of party lists for the filling of
vacancies, until the second election of the legislature under the
new Constitution.
(2) Section 106(4) of the new Constitution is suspended in respect
of a provincial legislature until the second election of the
legislature under the new Constitution.
Section 12 Provincial executives
(1) Anyone who was the Premier or a member of the Executive
Council of a province when the new Constitution took effect,
continues in and holds that office in terms of the new Constitution
and any provincial constitution that may be enacted, but subject to
subitem (2).
(2) Until the Premier elected after the first election of a province's
legislature under the new Constitution assumes office, or the
province enacts its constitution, whichever occurs first, sections
132 and 136 of the new Constitution must be regarded to read as
set out in Annexure C to this Schedule.
Section 13 Provincial constitutions
A provincial constitution passed before the new Constitution took
effect must comply with section 143 of the new Constitution.
Section 14 Assignment of legislation to provinces
(1) Legislation with regard to a matter within a functional area
listed in Schedule 4 or 5 to the new Constitution and which, when
the new Constitution took effect, was administered by an authority
within the national executive, may be assigned by the President,
by proclamation, to an authority within a provincial executive
designated by the Executive Council of the province.
(2) To the extent that it is necessary for an assignment of
legislation under subitem (1) to be effectively carried out, the
President, by proclamation, may -
(a) amend or adapt the legislation to regulate its interpretation or
application;
(b) where the assignment does not apply to the whole of any piece
of legislation, repeal and re-enact, with or without any
amendments or adaptations referred to in paragraph (a), those
provisions to which the assignment applies or to the extent that the
assignment applies to them; or
(c) regulate any other matter necessary as a result of the
assignment, including the transfer or secondment of staff, or the
transfer of assets, liabilities, rights and obligations, to or from the
national or a provincial executive or any department of state,
administration, security service or other institution.
(3) (a) A copy of each proclamation issued in terms of subitem (1)
or (2) must be submitted to the National Assembly and the
National Council of Provinces within 10 days of the publication
of the proclamation.
(b) If both the National Assembly and the National Council by
resolution disapprove the proclamation or any provision of it, the
proclamation or provision lapses, but without affecting -
(i) the validity of anything done in terms of the proclamation or
provision before it lapsed; or
(ii) a right or privilege acquired or an obligation or liability
incurred before it lapsed.
(4) When legislation is assigned under subitem (1), any reference
in the legislation to an authority administering it, must be
construed as a reference to the authority to which it has been
assigned.
(5) Any assignment of legislation under section 235(8) of the
previous Constitution, including any amendment, adaptation or
repeal and re-enactment of any legislation and any other action
taken under that section, is regarded as having been done under
this item.
Section 15 Existing legislation outside Parliament's legislative power
(1) An authority within the national executive that administers any
legislation falling outside Parliament's legislative power when the
new Constitution takes effect, remains competent to administer
that legislation until it is assigned to an authority within a
provincial executive in terms of item 14 of this Schedule.
(2) Subitem (1) lapses two years after the new Constitution took
effect.
Section 16 Courts
(1) Every court, including courts of traditional leaders, existing
when the new Constitution took effect, continues to function and
to exercise jurisdiction in terms of the legislation applicable to it,
and anyone holding office as a judicial officer continues to hold
office in terms of the legislation applicable to that office, subject
to -
(a) any amendment or repeal of that legislation; and
(b) consistency with the new Constitution.
(2) (a) The Constitutional Court established by the previous
Constitution becomes the Constitutional Court under the new
Constitution.
(b) Anyone holding office as the President, the Deputy President
or a judge of the Constitutional Court when the new Constitution
takes effect, becomes the President, the Deputy President or a
judge of the Constitutional Court under the new Constitution, and
continues in office for the unexpired portion of their term as fixed
by section 176(1) of the new Constitution.
(3) (a) The Appellate Division of the Supreme Court of South
Africa becomes the Supreme Court of Appeal under the new
Constitution.
(b) Anyone holding office as the Chief Justice, the Deputy Chief
Justice or a judge of the Appellate Division when the new
Constitution takes effect, becomes the Chief Justice, the Deputy
Chief Justice or a judge of the Supreme Court of Appeal under the
new Constitution.
(4) (a) A provincial or local division of the Supreme Court of
South Africa or a supreme court of a homeland or a general
division of such a court, becomes a High Court under the new
Constitution without any alteration in its area of jurisdiction,
subject to any rationalisation contemplated in subitem (6).
(b) Anyone holding office or deemed to hold office as the Judge
President, the Deputy Judge President or a judge of a court
referred to in paragraph (a) when the new Constitution takes
effect, becomes the Judge President, the Deputy Judge President
or a judge of such a court under the new Constitution, subject to
any rationalisation contemplated in subitem (6).
(5) Unless inconsistent with the context or clearly inappropriate,
a reference in any legislation or process to -
(a) the Constitutional Court under the previous Constitution, must
be construed as a reference to the Constitutional Court under the
new Constitution;
(b) the Appellate Division of the Supreme Court of South Africa,
must be construed as a reference to the Supreme Court of Appeal;
and
(c) a provincial or local division of the Supreme Court of South
Africa or a supreme court of a homeland or general division of
that court, must be construed as a reference to a High Court.
(6) (a) As soon as is practical after the new Constitution took
effect all courts, including their structure, composition,
functioning and jurisdiction, and all relevant legislation, must be
rationalised with a view to establishing a judicial system suited to
the requirements of the new Constitution.
(b) The Cabinet member responsible for the administration of
justice, acting after consultation with the Judicial Service
Commission, must manage the rationalisation envisaged in
paragraph (a).
Section 17 Cases pending before courts
All proceedings which were pending before a court when the new
Constitution took effect, must be disposed of as if the new
Constitution had not been enacted, unless the interests of justice
require otherwise.
Section 18 Prosecuting authority
(1) Section 108 of the previous Constitution continues in force
until the Act of Parliament envisaged in section 179 of the new
Constitution takes effect. This subitem does not affect the
appointment of the National Director of Public Prosecutions in
terms of section 179.
(2) An attorney-general holding office when the new Constitution
takes effect, continues to function in terms of the legislation
applicable to that office, subject to subitem (1).
Section 19 Oaths and affirmations
A person who continues in office in terms of this Schedule and
who has taken the oath of office or has made a solemn affirmation
under the previous Constitution, is not obliged to repeat the oath
of office or solemn affirmation under the new Constitution.
Section 20 Other constitutional institutions
(1) In this section "constitutional institution" means -
(a) the Public Protector;
(b) the Human Rights Commission;
(c) the Commission on Gender Equality;
(d) the Auditor-General;
(e) the South African Reserve Bank;
(f) the Financial and Fiscal Commission;
(g) the Judicial Service Commission; or
(h) the Pan South African Language Board.
(2) A constitutional institution established in terms of the previous
Constitution continues to function in terms of the legislation
applicable to it, and anyone holding office as a commission
member, a member of the board of the Reserve Bank or the Pan
South African Language Board, the Public Protector or the
Auditor-General when the new Constitution takes effect, continues
to hold office in terms of the legislation applicable to that office,
subject to -
(a) any amendment or repeal of that legislation; and
(b) consistency with the new Constitution.
(3) Sections 199(1), 200(1), (3) and (5) to (11) and 201 to 206 of
the previous Constitution continue in force until repealed by an
Act of Parliament passed in terms of section 75 of the new
Constitution.
(4) The members of the Judicial Service Commission referred to
in section 105(1)(h) of the previous Constitution cease to be
members of the Commission when the members referred to in
section 178(1)(i) of the new Constitution are appointed.
(5) (a) The Volkstaat Council established in terms of the previous
Constitution continues to function in terms of the legislation
applicable to it, and anyone holding office as a member of the
Council when the new Constitution takes effect, continues to hold
office in terms of the legislation applicable to that office, subject
to -
(i) any amendment or repeal of that legislation; and
(ii) consistency with the new Constitution.
(b) Sections 184A and 184B(1)(a), (b) and (d) of the previous
Constitution continue in force until repealed by an Act of
Parliament passed in terms of section 75 of the new Constitution.
Section 21 Enactment of legislation required by new Constitution
(1) Where the new Constitution requires the enactment of national
or provincial legislation, that legislation must be enacted by the
relevant authority within a reasonable period of the date the new
Constitution took effect.
(2) Section 198(b) of the new Constitution may not be enforced
until the legislation envisaged in that section has been enacted.
(3) Section 199(3)(a) of the new Constitution may not be enforced
before the expiry of three months after the legislation envisaged
in that section has been enacted.
(4) National legislation envisaged in section 217(3) of the new
Constitution must be enacted within three years of the date on
which the new Constitution took effect, but the absence of this
legislation during this period does not prevent the implementation
of the policy referred to in section 217(2).
(5) Until the Act of Parliament referred to in section 65(2) of the
new Constitution is enacted each provincial legislature may
determine its own procedure in terms of which authority is
conferred on its delegation to cast votes on its behalf in the
National Council of Provinces.
(6) Until the legislation envisaged in section 229(1)(b) of the new
Constitution is enacted, a municipality remains competent to
impose any tax, levy or duty which it was authorised to impose
when the Constitution took effect.
Section 22 National unity and reconciliation
Notwithstanding the other provisions of the new Constitution and
despite the repeal of the previous Constitution, all the provisions
relating to amnesty contained in the previous Constitution under
the heading "National Unity and Reconciliation" are deemed to be
part of the new Constitution for the purposes of the Promotion of
National Unity and Reconciliation Act, 1995 (Act 34 of 1995), as
amended, including for the purposes of its validity.
Section 23 Bill of Rights
(1) National legislation envisaged in sections 9(4), 32(2) and 33(3)
of the new Constitution must be enacted within three years of the
date on which the new Constitution took effect.
(2) Until the legislation envisaged in sections 32(2) and 33(3) of
the new Constitution is enacted -
(a) section 32(1) must be regarded to read as follows:
"(1) Every person has the right of access to all information held
by the state or any of its organs in any sphere of government in
so far as that information is required for the exercise or protection
of any of their rights."; and
(b) section 33(1) and (2) must be regarded to read as follows:
"Every person has the right to -
(a) lawful administrative action where any of their rights or
interests is affected or threatened;
(b) procedurally fair administrative action where any of their
rights or legitimate expectations is affected or threatened;
(c) be furnished with reasons in writing for administrative
action which affects any of their rights or interests unless the
reasons for that action have been made public; and
(d) administrative action which is justifiable in relation to the
reasons given for it where any of their rights is affected or
threatened.".
(3) Sections 32(2) and 33(3) of the new Constitution lapse if the
legislation envisaged in those sections, respectively, is not
enacted within three years of the date the new Constitution took
effect.
Section 24 Public administration and security services
(1) Sections 82(4)(b), 215, 218(1), 219(1), 224 to 228, 236(1),
(2), (3), (6), (7)(b) and (8), 237(1) and (2)(a) and 239 (4) and
(5) of the previous Constitution continue in force as if the
previous Constitution had not been repealed, subject to -
(a) the amendments to those sections as set out in Annexure D;
(b) any further amendment or any repeal of those sections by an
Act of Parliament passed in terms of section 75 of the new
Constitution; and
(c) consistency with the new Constitution.
(2) The Public Service Commission and the provincial service
commissions referred to in Chapter 13 of the previous
Constitution continue to function in terms of that Chapter and
the legislation applicable to it as if that Chapter had not been
repealed, until the Commission and the provincial service
commissions are abolished by an Act of Parliament passed in
terms of section 75 of the new Constitution.
(3) The repeal of the previous Constitution does not affect any
proclamation issued under section 237(3) of the previous
Constitution, and any such proclamation continues in force,
subject to -
(a) any amendment or repeal; and
(b) consistency with the new Constitution.
Section 25 Additional disqualification for legislatures
(1) Anyone who, when the new Constitution took effect, was
serving a sentence in the Republic of more than 12 months"
imprisonment without the option of a fine, is not eligible to be a
member of the National Assembly or a provincial legislature.
(2) The disqualification of a person in terms of subitem (1) -
(a) lapses if the conviction is set aside on appeal, or the
sentence is reduced on appeal to a sentence that does not
disqualify that person; and
(b) ends five years after the sentence has been completed.
Section 26 Local Government
(1) Notwithstanding the provisions of sections 151, 155, 156
and 157 of the new Constitution -
(a) the provisions of the Local Government Transition Act,
1993 (Act 209 of 1993), as may be amended from time to time
by national legislation consistent with the new Constitution,
remain in force until 30 April 1999 or until repealed, whichever
is sooner; and
(b) a traditional leader of a community observing a system of
indigenous law and residing on land within the area of a
transitional local council, transitional rural council or transitional
representative council, referred to in the Local Government
Transition Act, 1993, and who has been identified as set out in
section 182 of the previous Constitution, is ex officio entitled to be
a member of that council until 30 April 1999 or until an Act of
Parliament provides otherwise.
(2) Section 245(4) of the previous Constitution continues in force
until the application of that section lapses. Section 16(5) and (6)
of the Local Government Transition Act, 1993, may not be
repealed before 30 April 1999.
Section 27 Safekeeping of Acts of Parliament and Provincial Acts
Sections 82 and 124 of the new Constitution do not affect the
safekeeping of Acts of Parliament or provincial Acts passed before
the new Constitution took effect.
Section 28 Registration of immovable property owned by the state
(1) On the production of a certificate by a competent authority that
immovable property owned by the state is vested in a particular
government in terms of section 239 of the previous Constitution,
a registrar of deeds must make such entries or endorsements in or
on any relevant register, title deed or other document to register
that immovable property in the name of that government.
(2) No duty, fee or other charge is payable in respect of a
registration in terms of subitem (1).
1. The replacement of item 1 with the following item:
"1. Parties registered in terms of national legislation and
contesting an election of the National Assembly, shall nominate
candidates for such election on lists of candidates prepared in
accordance with this Schedule and national legislation.".
2. The replacement of item 2 with the following item:
"2. The seats in the National Assembly as determined in terms of
section 46 of the new Constitution, shall be filled as follows:
(a) One half of the seats from regional lists submitted by the
respective parties, with a fixed number of seats reserved for each
region as determined by the Commission for the next election of
the Assembly, taking into account available scientifically based
data in respect of voters, and representations by interested parties.
(b) The other half of the seats from national lists submitted by the
respective parties, or from regional lists where national lists were
not submitted.".
3. The replacement of item 3 with the following item:
"3. The lists of candidates submitted by a party, shall in total
contain the names of not more than a number of candidates equal
to the number of seats in the National Assembly, and each such
list shall denote such names in such fixed order of preference as
the party may determine.".
4. The amendment of item 5 by replacing the words preceding
paragraph (a) with the following words:
"5. The seats referred to in item 2(a) shall be allocated per region
to the parties contesting an election, as follows:".
5. The amendment of item 6 -
(a) by replacing the words preceding paragraph (a) with the
following words:
"6. The seats referred to in item 2(b) shall be allocated to the
parties contesting an election, as follows:"; and
(b) by replacing paragraph (a) with the following paragraph:
"(a) A quota of votes per seat shall be determined by dividing the
total number of votes cast nationally by the number of seats in the
National Assembly, plus one, and the result plus one, disregarding
fractions, shall be the quota of votes per seat.".
6. The amendment of item 7(3) by replacing paragraph (b) with
the following paragraph:
"(b) An amended quota of votes per seat shall be determined by
dividing the total number of votes cast nationally, minus the
number of votes cast nationally in favour of the party referred to
in paragraph (a), by the number of seats in the Assembly, plus
one, minus the number of seats finally allocated to the said party
in terms of paragraph (a).".
7. The replacement of item 10 with the following item:
"10. The number of seats in each provincial legislature shall be
as determined in terms of section 105 of the new Constitution.".
8. The replacement of item 11 with the following item:
"11. Parties registered in terms of national legislation and
contesting an election of a provincial legislature, shall nominate
candidates for election to such provincial legislature on provincial
lists prepared in accordance with this Schedule and national
legislation.".
9. The replacement of item 16 with the following item:
"Designation of representatives
16. (1) After the counting of votes has been concluded, the
number of representatives of each party has been determined and
the election result has been declared in terms of section 190 of the
new Constitution, the Commission shall, within two days after
such declaration, designate from each list of candidates, published
in terms of national legislation, the representatives of each party
in the legislature.
(2) Following the designation in terms of subitem (1), if a
candidate's name appears on more than one list for the National
Assembly or on lists for both the National Assembly and a
provincial legislature (if an election of the Assembly and a
provincial legislature is held at the same time), and such candidate
is due for designation as a representative in more than one case,
the party which submitted such lists shall, within two days after
the said declaration, indicate to the Commission from which list
such candidate will be designated or in which legislature the
candidate will serve, as the case may be, in which event the
candidate's name shall be deleted from the other lists.
(3) The Commission shall forthwith publish the list of names of
representatives in the legislature or legislatures.".
10. The amendment of item 18 by replacing paragraph (b) with
the following paragraph:
"(b) a representative is appointed as a permanent delegate to the
National Council of Provinces;".
11. The replacement of item 19 with the following item:
"19. Lists of candidates of a party referred to in item 16(1) may
be supplemented on one occasion only at any time during the first
12 months following the date on which the designation of
representatives in terms of item 16 has been concluded, in order
to fill casual vacancies: Provided that any such supplementation
shall be made at the end of the list.".
12. The replacement of item 23 with the following item:
"Vacancies
23. (1) In the event of a vacancy in a legislature to which this
Schedule applies, the party which nominated the vacating member
shall fill the vacancy by nominating a person -
(a) whose name appears on the list of candidates from which the
vacating member was originally nominated; and
(b) who is the next qualified and available person on the list.
(2) A nomination to fill a vacancy shall be submitted to the
Speaker in writing.
(3) If a party represented in a legislature dissolves or ceases to
exist and the members in question vacate their seats in
consequence of item 23A(1), the seats in question shall be
allocated to the remaining parties mutatis mutandis as if such seats
were forfeited seats in terms of item 7 or 14, as the case may
be.".
13. The insertion of the following item after item 23:
"Additional ground for loss of membership of legislatures
23A. (1) A person loses membership of a legislature to which this
Schedule applies if that person ceases to be a member of the party
which nominated that person as a member of the legislature.
(2) Despite subitem (1) any existing political party may at any
time change its name.
(3) An Act of Parliament may, within a reasonable period after the
new Constitution took effect, be passed in accordance with section
76(1) of the new Constitution to amend this item and item 23 to
provide for the manner in which it will be possible for a member
of a legislature who ceases to be a member of the party which
nominated that member, to retain membership of such legislature.
(4) An Act of Parliament referred to in subitem (3) may also
provide for -
(a) any existing party to merge with another party; or
(b) any party to subdivide into more than one party.".
14. The deletion of item 24.
15. The amendment of item 25 -
(a) by replacing the definition of "Commission" with the following
definition:
" "Commission" means the Electoral Commission referred to in
section 190 of the new Constitution;"; and
(b) by inserting the following definition after the definition of
"national list":
" "new Constitution" means the Constitution of the Republic of
South Africa, 1996;".
16. The deletion of item 26.
1. Section 84 of the new Constitution is deemed to contain the
following additional subsection:
"(3) The President must consult the Executive Deputy Presidents -
(a) in the development and execution of the policies of the national
government;
(b) in all matters relating to the management of the Cabinet and
the performance of Cabinet business;
(c) in the assignment of functions to the Executive Deputy
Presidents;
(d) before making any appointment under the Constitution or any
legislation, including the appointment of ambassadors or other
diplomatic representatives;
(e) before appointing commissions of inquiry;
(f) before calling a referendum; and
(g) before pardoning or reprieving offenders.".
2. Section 89 of the new Constitution is deemed to contain the
following additional subsection:
"(3) Subsections (1) and (2) apply also to an Executive Deputy
President.".
3. Paragraph (a) of section 90(1) of the new Constitution is
deemed to read as follows:
"(a) an Executive Deputy President designated by the President;".
4. Section 91 of the new Constitution is deemed to read as
follows:
"Cabinet
91. (1) The Cabinet consists of the President, the Executive
Deputy Presidents and -
(a) not more than 27 Ministers who are members of the National
Assembly and appointed in terms of subsections (8) to (12); and
(b) not more than one Minister who is not a member of the
National Assembly and appointed in terms of subsection (13),
provided the President, acting in consultation with the Executive
Deputy Presidents and the leaders of the participating parties,
deems the appointment of such a Minister expedient.
(2) Each party holding at least 80 seats in the National Assembly
is entitled to designate an Executive Deputy President from among
the members of the Assembly.
(3) If no party or only one party holds 80 or more seats in the
Assembly, the party holding the largest number of seats and the
party holding the second largest number of seats are each entitled
to designate one Executive Deputy President from among the
members of the Assembly.
(4) On being designated, an Executive Deputy President may elect
to remain or cease to be a member of the Assembly.
(5) An Executive Deputy President may exercise the powers and
must perform the functions vested in the office of Executive
Deputy President by the Constitution or assigned to that office by
the President.
(6) An Executive Deputy President holds office -
(a) until 30 April 1999 unless replaced or recalled by the party
entitled to make the designation in terms of subsections (2) and
(3); or
(b) until the person elected President after any election of the
National Assembly held before 30 April 1999, assumes office.
(7) A vacancy in the office of an Executive Deputy President may
be filled by the party which designated that Deputy President.
(8) A party holding at least 20 seats in the National Assembly and
which has decided to participate in the government of national
unity, is entitled to be allocated one or more of the Cabinet
portfolios in respect of which Ministers referred to in subsection
(1)(a) are to be appointed, in proportion to the number of seats
held by it in the National Assembly relative to the number of seats
held by the other participating parties.
(9) Cabinet portfolios must be allocated to the respective
participating parties in accordance with the following formula:
(a) A quota of seats per portfolio must be determined by dividing
the total number of seats in the National Assembly held jointly by
the participating parties by the number of portfolios in respect of
which Ministers referred to in subsection (1) (a) are to be
appointed, plus one.
(b) The result, disregarding third and subsequent decimals, if any,
is the quota of seats per portfolio.
(c) The number of portfolios to be allocated to a participating
party is determined by dividing the total number of seats held by
that party in the National Assembly by the quota referred to in
paragraph (b).
(d) The result, subject to paragraph (e), indicates the number of
portfolios to be allocated to that party.
(e) Where the application of the above formula yields a surplus
not absorbed by the number of portfolios allocated to a party, the
surplus competes with other similar surpluses accruing to another
party or parties, and any portfolio or portfolios which remain
unallocated must be allocated to the party or parties concerned in
sequence of the highest surplus.
(10) The President after consultation with the Executive Deputy
Presidents and the leaders of the participating parties must -
(a) determine the specific portfolios to be allocated to the
respective participating parties in accordance with the number of
portfolios allocated to them in terms of subsection (9);
(b) appoint in respect of each such portfolio a member of the
National Assembly who is a member of the party to which that
portfolio was allocated under paragraph (a), as the Minister
responsible for that portfolio;
(c) if it becomes necessary for the purposes of the Constitution or
in the interest of good government, vary any determination under
paragraph (a), subject to subsection (9);
(d) terminate any appointment under paragraph (b) -
(i) if the President is requested to do so by the leader of the party
of which the Minister in question is a member; or
(ii) if it becomes necessary for the purposes of the Constitution or
in the interest of good government; or
(e) fill, when necessary, subject to paragraph (b), a vacancy in the
office of Minister.
(11) Subsection (10) must be implemented in the spirit embodied
in the concept of a government of national unity, and the President
and the other functionaries concerned must in the implementation
of that subsection seek to achieve consensus at all times: Provided
that if consensus cannot be achieved on -
(a) the exercise of a power referred to in paragraph (a), (c) or
(d)(ii) of that subsection, the President's decision prevails;
(b) the exercise of a power referred to in paragraph (b), (d)(i) or
(e) of that subsection affecting a person who is not a member of
the President's party, the decision of the leader of the party of
which that person is a member prevails; and
(c) the exercise of a power referred to in paragraph (b) or (e) of
that subsection affecting a person who is a member of the
President's party, the President's decision prevails.
(12) If any determination of portfolio allocations is varied under
subsection (10)(c), the affected Ministers must vacate their
portfolios but are eligible, where applicable, for reappointment to
other portfolios allocated to their respective parties in terms of the
varied determination.
(13) The President -
(a) in consultation with the Executive Deputy Presidents and the
leaders of the participating parties, must -
(i) determine a specific portfolio for a Minister referred to in
subsection (1) (b) should it become necessary pursuant to a
decision of the President under that subsection;
(ii) appoint in respect of that portfolio a person who is not a
member of the National Assembly, as the Minister responsible for
that portfolio;
(iii) fill, if necessary, a vacancy in respect of that portfolio; or
(b) after consultation with the Executive Deputy Presidents and the
leaders of the participating parties, must terminate any
appointment under paragraph (a) if it becomes necessary for the
purposes of the Constitution or in the interest of good
government.
(14) Meetings of the Cabinet must be presided over by the
President, or, if the President so instructs, by an Executive
Deputy President: Provided that the Executive Deputy Presidents
preside over meetings of the Cabinet in turn unless the exigencies
of government and the spirit embodied in the concept of a
government of national unity otherwise demand.
(15) The Cabinet must function in a manner which gives
consideration to the consensus-seeking spirit embodied in the
concept of a government of national unity as well as the need for
effective government.".
5. Section 93 of the new Constitution is deemed to read as
follows:
"Appointment of Deputy Ministers
93. (1) The President may, after consultation with the Executive
Deputy Presidents and the leaders of the parties participating in
the Cabinet, establish deputy ministerial posts.
(2) A party is entitled to be allocated one or more of the deputy
ministerial posts in the same proportion and according to the same
formula that portfolios in the Cabinet are allocated.
(3) The provisions of section 91 (10) to (12) apply, with the
necessary changes, in respect of Deputy Ministers, and in such
application a reference in that section to a Minister or a portfolio
must be read as a reference to a Deputy Minister or a deputy
ministerial post, respectively.
(4) If a person is appointed as the Deputy Minister of any
portfolio entrusted to a Minister -
(a) that Deputy Minister must exercise and perform on behalf of
the relevant Minister any of the powers and functions assigned to
that Minister in terms of any legislation or otherwise which may,
subject to the directions of the President, be assigned to that
Deputy Minister by that Minister; and
(b) any reference in any legislation to that Minister must be
construed as including a reference to the Deputy Minister acting
in terms of an assignment under paragraph (a) by the Minister for
whom that Deputy Minister acts.
(5) Whenever a Deputy Minister is absent or for any reason
unable to exercise or perform any of the powers or functions of
office, the President may appoint any other Deputy Minister or
any other person to act in the said Deputy Minister's stead, either
generally or in the exercise or performance of any specific power
or function.".
6. Section 96 of the new Constitution is deemed to contain the
following additional subsections:
"(3) Ministers are accountable individually to the President and to
the National Assembly for the administration of their portfolios,
and all members of the Cabinet are correspondingly accountable
collectively for the performance of the functions of the national
government and for its policies.
(4) Ministers must administer their portfolios in accordance with
the policy determined by the Cabinet.
(5) If a Minister fails to administer the portfolio in accordance
with the policy of the Cabinet, the President may require the
Minister concerned to bring the administration of the portfolio into
conformity with that policy.
(6) If the Minister concerned fails to comply with a requirement
of the President under subsection (5), the President may remove
the Minister from office -
(a) if it is a Minister referred to in section 91(1)(a), after
consultation with the Minister and, if the Minister is not a member
of the President's party or is not the leader of a participating
party, also after consultation with the leader of that Minister's
party; or
(b) if it is a Minister referred to in section 91(1)(b), after
consultation with the Executive Deputy Presidents and the leaders
of the participating parties.".
1. Section 132 of the new Constitution is deemed to read as
follows:
"Executive Councils
132. (1) The Executive Council of a province consists of the
Premier and not more than 10 members appointed by the Premier
in accordance with this section.
(2) A party holding at least 10 per cent of the seats in a provincial
legislature and which has decided to participate in the government
of national unity, is entitled to be allocated one or more of the
Executive Council portfolios in proportion to the number of seats
held by it in the legislature relative to the number of seats held by
the other participating parties.
(3) Executive Council portfolios must be allocated to the
respective participating parties according to the same formula set
out in section 91 (9), and in applying that formula a reference in
that section to -
(a) the Cabinet, must be read as a reference to an Executive
Council;
(b) a Minister, must be read as a reference to a member of an
Executive Council; and
(c) the National Assembly, must be read as a reference to the
provincial legislature.
(4) The Premier of a province after consultation with the leaders
of the participating parties must -
(a) determine the specific portfolios to be allocated to the
respective participating parties in accordance with the number of
portfolios allocated to them in terms of subsection (3);
(b) appoint in respect of each such portfolio a member of the
provincial legislature who is a member of the party to which that
portfolio was allocated under paragraph (a), as the member of the
Executive Council responsible for that portfolio;
(c) if it becomes necessary for the purposes of the Constitution or
in the interest of good government, vary any determination under
paragraph (a), subject to subsection (3);
(d) terminate any appointment under paragraph (b) -
(i) if the Premier is requested to do so by the leader of the party
of which the Executive Council member in question is a member;
or
(ii) if it becomes necessary for the purposes of the Constitution or
in the interest of good government; or
(e) fill, when necessary, subject to paragraph (b), a vacancy in the
office of a member of the Executive Council.
(5) Subsection (4) must be implemented in the spirit embodied in
the concept of a government of national unity, and the Premier
and the other functionaries concerned must in the implementation
of that subsection seek to achieve consensus at all times: Provided
that if consensus cannot be achieved on -
(a) the exercise of a power referred to in paragraph (a), (c) or
(d)(ii) of that subsection, the Premier's decision prevails;
(b) the exercise of a power referred to in paragraph (b), (d)(i) or
(e) of that subsection affecting a person who is not a member of
the Premier's party, the decision of the leader of the party of
which such person is a member prevails; and
(c) the exercise of a power referred to in paragraph (b) or (e) of
that subsection affecting a person who is a member of the
Premier's party, the Premier's decision prevails.
(6) If any determination of portfolio allocations is varied under
subsection (4)(c), the affected members must vacate their
portfolios but are eligible, where applicable, for reappointment to
other portfolios allocated to their respective parties in terms of the
varied determination.
(7) Meetings of an Executive Council must be presided over by
the Premier of the province.
(8) An Executive Council must function in a manner which gives
consideration to the consensus-seeking spirit embodied in the
concept of a government of national unity, as well as the need for
effective government.".
2. Section 136 of the new Constitution is deemed to contain the
following additional subsections:
"(3) Members of Executive Councils are accountable individually
to the Premier and to the provincial legislature for the
administration of their portfolios, and all members of the
Executive Council are correspondingly accountable collectively for
the performance of the functions of the provincial government and
for its policies.
(4) Members of Executive Councils must administer their
portfolios in accordance with the policy determined by the
Council.
(5) If a member of an Executive Council fails to administer the
portfolio in accordance with the policy of the Council, the Premier
may require the member concerned to bring the administration of
the portfolio into conformity with that policy.
(6) If the member concerned fails to comply with a requirement
of the Premier under subsection (5), the Premier may remove the
member from office after consultation with the member, and if the
member is not a member of the Premier's party or is not the
leader of a participating party, also after consultation with the
leader of that member's party.".
1. The amendment of section 218 of the previous Constitution -
(a) by replacing in subsection (1) the words preceding paragraph
(a) with the following words:
"(1) Subject to the directions of the Minister of Safety and
Security, the National Commissioner shall be responsible for -";
(b) by replacing paragraph (b) of subsection (1) with the
following paragraph:
"(b) the appointment of provincial commissioners;";
(c) by replacing paragraph (d) of subsection (1) with the
following paragraph:
"(d) the investigation and prevention of organised crime or
crime which requires national investigation and prevention or
specialised skills;"; and
(d) by replacing paragraph (k) of subsection (1) with the
following paragraph:
"(k) the establishment and maintenance of a national public
order policing unit to be deployed in support of and at the
request of the Provincial Commissioner;".
2. The amendment of section 219 of the previous Constitution by replacing in subsection (1) the words preceding paragraph (a) with the following words: "(1) Subject to section 218(1), a Provincial Commissioner shall be responsible for -".
3. The amendment of section 224 of the previous Constitution by replacing the proviso to subsection (2) with the following proviso: "Provided that this subsection shall also apply to members of any armed force which submitted its personnel list after the commencement of the Constitution of the Republic of South Africa, 1993 (Act 200 of 1993), but before the adoption of the new constitutional text as envisaged in section 73 of that Constitution, if the political organisation under whose authority and control it stands or with which it is associated and whose objectives it promotes did participate in the Transitional Executive Council or did take part in the first election of the National Assembly and the provincial legislatures under the said Constitution.".
4. The amendment of section 227 of the previous Constitution by replacing subsection (2) with the following subsection: "(2) The National Defence Force shall exercise its powers and perform its functions solely in the national interest in terms of Chapter 11 of the Constitution of the Republic of South Africa, 1996.".
5. The amendment of section 236 of the previous Constitution -
(a) by replacing subsection (1) with the following subsection:
"(1) A public service, department of state, administration or
security service which immediately before the commencement of
the Constitution of the Republic of South Africa, 1996 (hereinafter
referred to as "the new Constitution"), performed governmental
functions, continues to function in terms of the legislation
applicable to it until it is abolished or incorporated or integrated
into any appropriate institution or is rationalised or consolidated
with any other institution.";
(b) by replacing subsection (6) with the following subsection:
"(6) (a) The President may appoint a commission to review the
conclusion or amendment of a contract, the appointment or
promotion, or the award of a term or condition of service or other
benefit, which occurred between 27 April 1993 and 30 September
1994 in respect of any person referred to in subsection (2) or any
class of such persons.
(b) The commission may reverse or alter a contract,
appointment, promotion or award if not proper or justifiable in
the circumstances of the case."; and
(c) by replacing "this Constitution", wherever this occurs in
section 236, with "the new Constitution".
6. The amendment of section 237 of the previous Constitution -
(a) by replacing paragraph (a) of subsection (1) with the
following paragraph:
"(a) The rationalisation of all institutions referred to in section
236(1), excluding military forces referred to in section 224(2),
shall after the commencement of the Constitution of the Republic
of South Africa, 1996, continue, with a view to establishing -
(i) an effective administration in the national sphere of government
to deal with matters within the jurisdiction of the national sphere;
and
(ii) an effective administration for each province to deal with
matters within the jurisdiction of each provincial government.";
and
(b) by replacing subparagraph (i) of subsection (2)(a) with the
following subparagraph:
"(i) institutions referred to in section 236(1), excluding military
forces, shall rest with the national government, which shall
exercise such responsibility in co-operation with the provincial
governments;".
7. The amendment of section 239 of the previous Constitution by replacing subsection (4) with the following subsection: "(4) Subject to and in accordance with any applicable law, the assets, rights, duties and liabilities of all forces referred to in section 224(2) shall devolve upon the National Defence Force in accordance with the directions of the Minister of Defence.".
Number and Year of Law | Title |
Act 200 of 1993 | Constitution of the Republic of South Africa, 1993 |
Act 2 of 1994 | Constitution of the Republic of South Africa Amendment Act, 1994 |
Act 3 of 1994 | Constitution of the Republic of South Africa Second Amendment Act, 1994 |
Act 13 of 1994 | Constitution of the Republic of South Africa Third Amendment Act, 1994 |
Act 14 of 1994 | Constitution of the Republic of South Africa Fourth Amendment Act, 1994 |
Act 24 of 1994 | Constitution of the Republic of South Africa Sixth Amendment Act, 1994 |
Act 29 of 1994 | Constitution of the Republic of South Africa Fifth Amendment Act, 1994 |
Act 20 of 1995 | Constitution of the Republic of South Africa Amendment Act, 1995 |
Act 44 of 1995 | Constitution of the Republic of South Africa Second Amendment Act, 1995 |
Act 7 of 1996 | Constitution of the Republic of South Africa Amendment Act, 1996 |
Act 26 of 1996 | Constitution of the Republic of South Africa Third Amendment Act, 1996 |