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Constitution of the Republic of South Africa Act 200 of 1993
Repealed by Constitution of the Republic of South Africa, [No. 108 of 1996], G 17678, 18 December 1996
TABLE OF CONTENTS
Sections
CHAPTER 1
Constituent and Formal Provisions
CHAPTER 2 Citizenship and Franchise
CHAPTER 3 Fundamental Rights
CHAPTER 4 Parliament
CHAPTER 5 The Adoption of the new Constitution
CHAPTER 6 The National Executive
CHAPTER 7 The Judicial Authority and the Administration of Justice
CHAPTER 8 The Public Protector, Human Rights Commission, Commission on Gender Equality and Restitution of Land
Rights
CHAPTER 9 Provincial Government
CHAPTER 10 Local Government
CHAPTER 11 Traditional Authorities
CHAPTER 11A A Volkstaat Council
CHAPTER 12 Finance
CHAPTER 13 Public Service Commission and Public Service
CHAPTER 14 Police and Defence
CHAPTER 15 General and Transitional Provisions
Index to schedules for Interim Constitution
SCHEDULE 1 Definitions of Provinces
SCHEDULE 2 Election of National Assembly and Provincial
legislatures
SCHEDULE 3 Oaths and Affirmations of Office
SCHEDULE 4 Constitutional Principles
SCHEDULE 5 Procedure for Election of President
SCHEDULE 6 Legislative Competences of Provinces
SCHEDULE 7 Repeal of Laws
MEMORANDUM Memorandum of Agreement: 19 April 1994
CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA ACT 200 OF 1993
[ASSENTED TO 25 JANUARY 1994]
[DATE OF COMMENCEMENT: 27 APRIL 1994]
(Unless otherwise indicated)
(Afrikaans text signed by the State President)
as amended by
Constitution of the Republic of South Africa Amendment Act 2 of 1994
Constitution of the Republic of South Africa Second Amendment Act 3 of 1994
Constitution of the Republic of South Africa Third Amendment Act 13 of 1994
Constitution of the Republic of South Africa Fourth Amendment Act 14 of 1994
Constitution of the Republic of South Africa Fifth Amendment Act 29 of 1994
Constitution of the Republic of South Africa Sixth Amendment Act 24 of 1994
ACT
To introduce a new Constitution for the Republic of South Africa and
to provide for matters incidental thereto.
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Preamble
In humble submission to Almighty God,
We, the people of South Africa declare that-
WHEREAS there is a need to create a new order in which all South
Africans will be entitled to a common South African citizenship in a sovereign and
democratic constitutional state in which there is equality between men and women and
people of all races so that all citizens shall be able to enjoy and exercise their
fundamental rights and freedoms;
AND WHEREAS in order to secure the achievement of this goal, elected
representatives of all the people of South Africa should be mandated to adopt a new
Constitution in accordance with a solemn pact recorded as Constitutional Principles;
AND WHEREAS it is necessary for such purposes that provision should be
made for the promotion of national unity and the restructuring and continued governance of
South Africa while an elected Constitutional Assembly draws up a final Constitution;
NOW THEREFORE the following provisions are adopted as the Constitution
of the Republic of South Africa:
CHAPTER 1
Quick Index to Sections...
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1 Republic of South Africa
- (1) The Republic of South Africa shall be one, sovereign state.
- (2) The national territory of the Republic shall comprise the areas defined in Part 1 of
Schedule 1.
- 2 National symbols
- (1) The national flag of the Republic shall be the flag the design of which is
determined by the President by proclamation in the Gazette.
- (2) The national anthem of the Republic shall be as determined by the President by
proclamation in the Gazette.
- (3) The coat of arms of the Republic and the seal of the Republic under the previous
Constitution shall be the national coat of arms of the Republic and the seal of the
Republic under this Constitution.
- 3 Languages
- (1) Afrikaans, English, isiNdebele, Sesotho sa Leboa, Sesotho, siSwati, Xitsonga,
Setswana, Tshivenda, isiXhosa and isiZulu shall be the official South African languages at
national level, and conditions shall be created for their development and for the
promotion of their equal use and enjoyment.
- (2) Rights relating to language and the status of languages existing at the commencement
of this Constitution shall not be diminished, and provision shall be made by an Act of
Parliament for rights relating to language and the status of languages existing only at
regional level, to be extended nationally in accordance with the principles set out in
subsection (9).
- (3) Wherever practicable, a person shall have the right to use and to be addressed in
his or her dealings with any public administration at the national level of government in
any official South African language of his or her choice.
- (4) Regional differentiation in relation to language policy and practice shall be
permissible.
- (5) A provincial legislature may, by a resolution adopted by a majority of at least two-
thirds of all its members, declare any language referred to in subsection (1) to be an
official language for the whole or any part of the province and for any or all powers and
functions within the competence of that legislature, save that neither the rights relating
to language nor the status of an official language as existing in any area or in relation
to any function at the time of the commencement of this Constitution, shall be diminished.
- (6) Wherever practicable, a person shall have the right to use and to be addressed in
his or her dealings with any public administration at the provincial level of government
in any one of the official languages of his or her choice as contemplated in subsection
(5).
- (7) A member of Parliament may address Parliament in the official South African language
of his or her choice.
- (8) Parliament and any provincial legislature may, subject to this section, make
provision by legislation for the use of official languages for the purposes of the
functioning of government, taking into account questions of usage, practicality and
expense.
- (9) Legislation, as well as official policy and practice, in relation to the use of
languages at any level of government shall be subject to and based on the provisions of
this section and the following principles:
- (a) The creation of conditions for the development and for the promotion of the equal
use and enjoyment of all official South African languages;
- (b) the extension of those rights relating to language and the status of languages which
at the commencement of this Constitution are restricted to certain regions;
- (c) the prevention of the use of any language for the purposes of exploitation,
domination or division;
- (d) the promotion of multilingualism and the provision of translation facilities;
- (e) the fostering of respect for languages spoken in the Republic other than the
official languages, and the encouragement of their use in appropriate circumstances; and
- (f) the non-diminution of rights relating to language and the status of languages
existing at the commencement of this Constitution.
- (10)
- (a) Provision shall be made by an Act of Parliament for the establishment by the Senate
of an independent Pan South African Language Board to promote respect for the principles
referred to in subsection (9) and to further the development of the official South African
languages.
- (b) The Pan South African Language Board shall be consulted, and be given the
opportunity to make recommendations, in relation to any proposed legislation contemplated
in this section.
- (c) The Pan South African Language Board shall be responsible for promoting respect for
and the development of German, Greek, Gujerati, Hindi, Portuguese, Tamil, Telegu, Urdu and
other languages used by communities in South Africa, as well as Arabic, Hebrew and
Sanskrit and other languages used for religious purposes.
- 4 Supremacy of the Constitution
- (1) This Constitution shall be the supreme law of the Republic and any law or act
inconsistent with its provisions shall, unless otherwise provided expressly or by
necessary implication in this Constitution, be of no force and effect to the extent of the
inconsistency.
- (2) This Constitution shall bind all legislative, executive and judicial organs of state
at all levels of government.
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CHAPTER 2
Quick Index to Sections
- 5 Citizenship
- (1) There shall be a South African citizenship.
- (2) South African citizenship and the acquisition, loss and restoration of South African
citizenship shall, subject to section 20 read with section 33 (1), be regulated by an Act
of Parliament.
- (3) Every person who is a South African citizen shall, subject to this Constitution, be
entitled to enjoy all rights, privileges and benefits of South African citizenship, and
shall be subject to all duties, obligations and responsibilities of South African
citizenship as are accorded or imposed upon him or her in terms of this Constitution or an
Act of Parliament.
- 6 The franchise
Every person who is-
- (a)(i) a South African citizen; or
- (ii) not such a citizen but who in terms of an Act of Parliament has been accorded the
right to exercise the franchise;
- (b) of or over the age of 18 years; and
- (c) not subject to any disqualifications as may be prescribed by law, shall be entitled
to vote in elections of the National Assembly, a provincial legislature or a local
government and in referenda or plebiscites contemplated in this Constitution, in
accordance with and subject to the laws regulating such elections, referenda and
plebiscites.
[Date of commencement of s. 6: 9 March 1994.]
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CHAPTER 3
Quick Index to Sections
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7 Application
- (1) This Chapter shall bind all legislative and executive organs of state at all levels
of government.
- (2) This Chapter shall apply to all law in force and all administrative decisions taken
and acts performed during the period of operation of this Constitution.
- (3) Juristic persons shall be entitled to the rights contained in this Chapter where,
and to the extent that, the nature of the rights permits.
- (4)(a) When an infringement of or threat to any right entrenched in this Chapter is
alleged, any person referred to in paragraph (b) shall be entitled to apply to a competent
court of law for appropriate relief, which may include a declaration of rights.
- (b) The relief referred to in paragraph (a) may be sought by-
- (i) a person acting in his or her own interest;
- (ii) an association acting in the interest of its members;
- (iii) a person acting on behalf of another person who is not in a position to seek such
relief in his or her own name;
- (iv) a person acting as a member of or in the interest of a group or class of persons;
or
- (v) a person acting in the public interest.
- 8 Equality
- (1) Every person shall have the right to equality before the law and to equal protection
of the law.
- (2) No person shall be unfairly discriminated against, directly or indirectly, and,
without derogating from the generality of this provision, on one or more of the following
grounds in particular: race, gender, sex, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief, culture or language.
- (3) (a) This section shall not preclude measures designed to achieve the adequate
protection and advancement of persons or groups or categories of persons disadvantaged by
unfair discrimination, in order to enable their full and equal enjoyment of all rights and
freedoms.
- (b) Every person or community dispossessed of rights
- in land before the commencement of this Constitution under any law which would have been
inconsistent with subsection (2) had that subsection been in operation at the time of the
dispossession, shall be entitled to claim restitution of such rights subject to and in
accordance with sections 121, 122 and 123.
- (4) Prima facie proof of discrimination on any of the grounds specified in subsection
(2) shall be presumed to be sufficient proof of unfair discrimination as contemplated in
that subsection, until the contrary is established.
- 9 Life
- Every person shall have the right to life.
- 10 Human dignity
- Every person shall have the right to respect for and protection of his or her dignity.
-
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11 Freedom and security of the person
- (1) Every person shall have the right to freedom and security of the person, which shall
include the right not to be detained without trial.
- (2) No person shall be subject to torture of any kind, whether physical, mental or
emotional, nor shall any person be subject to cruel, inhuman or degrading treatment or
punishment.
- 12 Servitude and forced labour
- No person shall be subject to servitude or forced labour.
- 13 Privacy
- Every person shall have the right to his or her personal privacy, which shall include
the right not to be subject to searches of his or her person, home or property, the
seizure of private possessions or the violation of private communications.
- 14 Religion, belief and opinion
- (1) Every person shall have the right to freedom of conscience, religion, thought,
belief and opinion, which shall include academic freedom in institutions of higher
learning.
- (2) Without derogating from the generality of subsection (1), religious observances may
be conducted at state or state-aided institutions under rules established by an
appropriate authority for that purpose, provided that such religious observances are
conducted on an equitable basis and attendance at them is free and voluntary.
- (3) Nothing in this Chapter shall preclude legislation recognising-
- (a) a system of personal and family law adhered to by persons professing a particular
religion; and
- (b) the validity of marriages concluded under a system of religious law subject to
specified procedures.
- 15 Freedom of expression
- (1) Every person shall have the right to freedom of speech and expression, which shall
include freedom of the press and other media, and the freedom of artistic creativity and
scientific research.
- (2) All media financed by or under the control of the state shall be regulated in a
manner which ensures impartiality and the expression of a diversity of opinion.
- 16 Assembly, demonstration and petition
- Every person shall have the right to assemble and demonstrate with others peacefully and
unarmed, and to present petitions.
- 17 Freedom of association
- Every person shall have the right to freedom of association.
- 18 Freedom of movement
- Every person shall have the right to freedom of movement anywhere within the national
territory.
- 19 Residence
- Every person shall have the right freely to choose his or her place of residence
anywhere in the national territory.
- 20 Citizens' rights
- Every citizen shall have the right to enter, remain in and leave the Republic, and no
citizen shall without justification be deprived of his or her citizenship.
- 21 Political rights
- (1) Every citizen shall have the right-
- (a) to form, to participate in the activities of and to recruit members for a political
party;
- (b) to campaign for a political party or cause; and
- (c) freely to make political choices.
- (2) Every citizen shall have the right to vote, to do so in secret and to stand for
election to public office.
- 22 Access to court Every person shall have the right to
have justiciable disputes settled by a court of law or, where appropriate, another
independent and impartial forum.
- 23 Access to information Every person shall have the
right of access to all information held by the state or any of its organs at any level of
government in so far as such information is required for the exercise or protection of any
of his or her rights.
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24 Administrative justice Every person shall have the
right to-
- (a) lawful administrative action where any of his or her rights or interests is affected
or threatened;
- (b) procedurally fair administrative action where any of his or her rights or legitimate
expectations is affected or threatened;
- (c) be furnished with reasons in writing for administrative action which affects any of
his or her rights or interests unless the reasons for such action have been made public;
and
- (d) administrative action which is justifiable in relation to the reasons given for it
where any of his or her rights is affected or threatened.
- 25 Detained, arrested and accused persons
- (1) Every person who is detained, including every sentenced prisoner, shall have the
right-
- (a) to be informed promptly in a language which he or she understands of the reason for
his or her detention;
- (b) to be detained under conditions consonant with human dignity, which shall include at
least the provision of adequate nutrition, reading material and medical treatment at state
expense;
- (c) to consult with a legal practitioner of his or her choice, to be informed of this
right promptly and, where substantial injustice would otherwise result, to be provided
with the services of a legal practitioner by the state;
- (d) to be given the opportunity to communicate with, and to be visited by, his or her
spouse or partner, next-of-kin, religious counsellor and a medical practitioner of his or
her choice; and
- (e) to challenge the lawfulness of his or her detention in person before a court of law
and to be released if such detention is unlawful.
- (2) Every person arrested for the alleged commission of an offence shall, in addition to
the rights which he or she has as a detained person, have the right-
- (a) promptly to be informed, in a language which he or she understands, that he or she
has the right to remain silent and to be warned of the consequences of making any
statement;
- (b) as soon as it is reasonably possible, but not later than 48 hours after the arrest
or, if the said period of 48 hours expires outside ordinary court hours or on a day which
is not a court day, the first court day after such expiry, to be brought before an
ordinary court of law and to be charged or to be informed of the reason for his or her
further detention, failing which he or she shall be entitled to be released;
- (c) not to be compelled to make a confession or admission which could be used in
evidence against him or her; and
- (d) to be released from detention with or without bail, unless the interests of justice
require otherwise.
- (3) Every accused person shall have the right to a fair trial, which shall include the
right-
- (a) to a public trial before an ordinary court of law within a reasonable time after
having been charged;
- (b) to be informed with sufficient particularity of the charge;
- (c) to be presumed innocent and to remain silent during plea proceedings or trial and
not to testify during trial;
- (d) to adduce and challenge evidence, and not to be a compellable witness against
himself or herself;
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(e) to be represented by a legal practitioner of his or her choice or, where substantial
injustice would otherwise result, to be provided with legal representation at state
expense, and to be informed of these rights;
- (f) not to be convicted of an offence in respect of any act or omission which was not an
offence at the time it was committed, and not to be sentenced to a more severe punishment
than that which was applicable when the offence was committed;
- (g) not to be tried again for any offence of which he or she has previously been
convicted or acquitted;
- (h) to have recourse by way of appeal or review To a higher court than the court of
first instance;
- (i) to be tried in a language which he or she understands or, failing this, to have the
proceedings interpreted to him or her; and
- (j) to be sentenced within a reasonable time after conviction.
- 26 Economic activity
- (1) Every person shall have the right freely to engage in economic activity and to
pursue a livelihood anywhere in the national territory.
- (2) Subsection (1) shall not preclude measures designed to promote the protection or the
improvement of the quality of life, economic growth, human development, social justice,
basic conditions of employment, fair labour practices or equal opportunity for all,
provided such measures are justifiable in an open and democratic society based on freedom
and equality.
- 27 Labour relations
- (1) Every person shall have the right to fair labour practices.
- (2) Workers shall have the right to form and join trade unions, and employers shall have
the right to form and join employers' organisations.
- (3) Workers and employers shall have the right to organise and bargain collectively.
- (4) Workers shall have the right to strike for the purpose of collective bargaining.
- (5) Employers' recourse to the lock-out for the purpose of collective bargaining shall
not be impaired, subject to section 33 (1).
- 28 Property
- (1) Every person shall have the right to acquire and hold rights in property and, to the
extent that the nature of the rights permits, to dispose of such rights.
- (2) No deprivation of any rights in property shall be permitted otherwise than in
accordance with a law.
- (3) Where any rights in property are expropriated pursuant to a law referred to in
subsection (2), such expropriation shall be permissible for public purposes only and shall
be subject to the payment of agreed compensation or, failing agreement, to the payment of
such compensation and within such period as may be determined by a court of law as just
and equitable, taking into account all relevant factors, including, in the case of the
determination of compensation, the use to which the property is being put, the history of
its acquisition, its market value, the value of the investments in it by those affected
and the interests of those affected.
- 29 Environment
- Every person shall have the right to an environment which is not detrimental to his or
her health or well-being.
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30 Children
- (1) Every child shall have the right-
- (a) to a name and nationality as from birth;
- (b) to parental care;
- (c) to security, basic nutrition and basic health and social services;
- (d) not to be subject to neglect or abuse; and
- (e) not to be subject to exploitative labour practices nor to be required or permitted
to perform work which is hazardous or harmful to his or her education, health or
well-being.
- (2) Every child who is in detention shall, in addition to the rights which he or she has
in terms of section 25, have the right to be detained under conditions and to be treated
in a manner that takes account of his or her age.
- (3) For the purpose of this section a child shall mean a person under the age of 18
years and in all matters concerning such child his or her best interest shall be
paramount.
- 31 Language and culture Every person shall have the right
to use the language and to participate in the cultural life of his or her choice.
- 32 Education Every person shall have the right-
- (a) to basic education and to equal access to educational institutions;
- (b) to instruction in the language of his or her choice where this is reasonably
practicable; and
- (c) to establish, where practicable, educational institutions based on a common culture,
language or religion, provided that there shall be no discrimination on the ground of
race.
- 33 Limitation
- (1) The rights entrenched in this Chapter may be limited by law of general application,
provided that such limitation-
- (a) shall be permissible only to the extent that it is-
- (i) reasonable; and
- (ii) justifiable in an open and democratic society based on freedom and equality; and
- (b) shall not negate the essential content of the right in question, and provided
further that any limitation to-
- (aa) a right entrenched in section 10, 11, 12, 14 (1), 21, 25 or 30 (1) (d) or (e) or
(2); or
- (bb) a right entrenched in section 15, 16, 17, 18, 23 or 24, in so far as such right
relates to free and fair political activity, shall, in addition to being reasonable as
required in paragraph (a) (i), also be necessary.
- (2) Save as provided for in subsection (1) or any other provision of this Constitution,
no law, whether a rule of the common law, customary law or legislation, shall limit any
right entrenched in this Chapter.
- (3) The entrenchment of the rights in terms of this Chapter shall not be construed as
denying the existence of any other rights or freedoms recognised or conferred by common
law, customary law or legislation to the extent that they are not inconsistent with this
Chapter.
- (4) This Chapter shall not preclude measures designed to prohibit unfair discrimination
by bodies and persons other than those bound in terms of section 7 (1).
- (5) (a) The provisions of a law in force at the commencement of this Constitution
promoting fair employment practices, orderly and equitable collective bargaining and the
regulation of industrial action shall remain of full force and effect until repealed or
amended by the legislature.
- (b) If a proposed enactment amending or repealing a law referred to in paragraph (a)
deals with a matter in respect of which the National Manpower Commission, referred to in
section 2A of the Labour Relations Act, 1956 (Act 28 of 1956), or any other similar body
which may replace the Commission, is competent in terms of a law then in force to consider
and make recommendations, such proposed enactment shall not be introduced in Parliament
unless the said Commission or such other body has been given an opportunity to consider
the proposed enactment and to make recommendations with regard thereto.
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34 State of emergency and suspension
- (1) A state of emergency shall be proclaimed prospectively under an Act of Parliament,
and shall be declared only where the security of the Republic is threatened by war,
invasion, general insurrection or disorder or at a time of national disaster, and if the
declaration of a state of emergency is necessary to restore peace or order.
- (2) The declaration of a state of emergency and any action taken, including any
regulation enacted, in consequence thereof, shall be of force for a period of not more
than 21 days, unless it is extended for a period of not longer than three months, or
consecutive periods of not longer than three months at a time, by resolution of the
National Assembly adopted by a majority of at least two-thirds of all its members.
- (3) Any superior court shall be competent to enquire into the validity of a declaration
of a state of emergency, any extension thereof, and any action taken, including any
regulation enacted, under such declaration.
- (4) The rights entrenched in this Chapter may be suspended only in consequence of the
declaration of a state of emergency, and only to the extent necessary to restore peace or
order.
- (5) Neither any law which provides for the declaration of a state of emergency, nor any
action taken, including any regulation enacted, in consequence thereof, shall permit or
authorise-
- (a) the creation of retrospective crimes;
- (b) the indemnification of the state or of persons acting under its authority for
unlawful actions during the state of emergency; or
- (c) the suspension of this section, and sections 7, 8 (2), 9, 10, 11 (2), 12, 14, 27 (1)
and (2), 30 (1) (d) and (e) and (2) and 33 (1) and (2).
- (6) Where a person is detained under a state of emergency the detention shall be subject
to the following conditions:
- (a) An adult family member or friend of the detainee shall be notified of the detention
as soon as is reasonably possible;
- (b) the names of all detainees and a reference to the measures in terms of which they
are
- being detained shall be published in the Gazette within five days of their detention;
- (c) when rights entrenched in section 11 or 25 have been suspended-
- (i) the detention of a detainee shall, as soon as it is reasonably possible but not
later than 10 days after his or her detention, be reviewed by a court of law, and the
court shall order the release of the detainee if it is satisfied that the detention is not
necessary to restore peace or order;
- (ii) a detainee shall at any stage after the expiry of a period of 10 days after a
review in terms of subparagraph (i) be entitled to apply to a court of law for a further
review of his or her detention, and the court shall order the release of the detainee if
it is satisfied that the detention is no longer necessary to restore peace or order;
- (d) the detainee shall be entitled to appear before the court in person, to be
represented by legal counsel, and to make representations against his or her continued
detention;
- (e) the detainee shall be entitled at all reasonable times to have access to a legal
representative of his or her choice;
- (f) the detainee shall be entitled at all times to have access to a medical practitioner
of his or her choice; and
- (g) the state shall for the purpose of a review referred to in paragraph (c) (i) or (ii)
submit written reasons to justify the detention or further detention of the detainee to
the court, and shall furnish the detainee with such reasons not later than two days before
the review.
- (7) If a court of law, having found the grounds for a detainee's detention unjustified,
orders his or her release, such a person shall not be detained again on the same grounds
unless the state shows good cause to a court of law prior to such re-detention.
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35 Interpretation
- (1) In interpreting the provisions of this Chapter a court of law shall promote the
values which underlie an open and democratic society based on freedom and equality and
shall, where applicable, have regard to public international law applicable to the
protection of the rights entrenched in this Chapter, and may have regard to comparable
foreign case law.
- (2) No law which limits any of the rights entrenched in this Chapter, shall be
constitutionally invalid solely by reason of the fact that the wording used prima facie
exceeds the limits imposed in this Chapter, provided such a law is reasonably capable of a
more restricted interpretation which does not exceed such limits, in which event such law
shall be construed as having a meaning in accordance with the said more restricted
interpretation.
- (3) In the interpretation of any law and the application and development of the common
law and customary law, a court shall have due regard to the spirit, purport and objects of
this Chapter.
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CHAPTER 4
Quick Index to Sections
- 36 Constitution of Parliament
- Parliament shall consist of the National Assembly and the Senate.
- 37 Legislative authority of Republic
- The legislative authority of the Republic shall, subject to this Constitution, vest in
Parliament, which shall have the power to make laws for the Republic in accordance with
this Constitution.
- 38 Duration of Parliament
- (1) Parliament as constituted in terms of the first election under this Constitution
shall, subject to subsection (2), continue for five years as from the date of the first
sitting of the National Assembly under this Constitution.
- (2) If during the period referred to in subsection (1) Parliament is dissolved under
section 73 (9) or 93 (1) or (3) (c), the Houses of Parliament as constituted then, shall
continue for the period up to the day immediately preceding the commencement of polling
for the election of the National Assembly held in pursuance of such dissolution.
- (3) Notwithstanding any dissolution of Parliament-
- (a) every person who at the date of the dissolution is a member of the National Assembly
or the Senate shall remain a member thereof;
- (b) the National Assembly and the Senate shall remain competent to perform their
functions; and
- (c) the President shall be competent to summon Parliament by proclamation in the Gazette
to an extraordinary sitting for the despatch of urgent business, during the period for
which the Houses of Parliament continue in terms of subsection (2) after the dissolution.
- (4) If Parliament is dissolved and a new Parliament is constituted as contemplated in
section 39, this section shall apply mutatis mutandis in respect of such new Parliament
save that the new Parliament shall continue for the unexpired part of the period referred
to in subsection (1).
- 39 Elections
- (1) Upon a dissolution of Parliament in terms of section 73 (9) or 93 (1) or (3) (c),
the President shall by proclamation in the Gazette-
- (a) call an election of the National Assembly, which election shall take place within 90
days after the dissolution of Parliament on a date or dates specified in the proclamation;
and
- (b) request parties represented in the provincial legislatures to nominate persons as
senators for the respective provinces in accordance with section 48 (1) (b).(2) An
election referred to in subsection (1) (a) shall be held in accordance with the Electoral
Act, 1993.
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The National Assembly
- 40 Composition of National Assembly
- (1) The National Assembly shall consist of 400 members elected in accordance with the
system of proportional representation of voters as provided for in Schedule 2 and the
Electoral Act, 1993.
- (2) A person nominated as a candidate for election to the National Assembly on a
regional list contemplated in Schedule 2, shall, subject to subsection (3), at the time of
the nomination be ordinarily resident in the province in respect of which that regional
list applies.
- (3) Notwithstanding subsection (2), a regional list may contain the names of candidates
who are not ordinarily resident in the province in respect of which that list applies,
provided that no such list shall contain the names of more than one such candidate or more
than 10 per cent of the total number of candidates the party concerned is entitled to
nominate on that list, whichever is the greater number.
- (4) For the purposes of this section, a person shall be deemed to be ordinarily resident
at the place where he or she normally lives and to which he or she returns regularly after
any period of temporary absence, including the place where he or she was previously so
ordinarily resident and to which he or she returns regularly after any period of absence.
-
(5) If a regional list contemplated in subsection (2) contains more
names of candidates not ordinarily resident in the province in respect of which that list
applies than are permissible under that subsection, the surplus of such names so contained
shall be deleted mutatis mutandis in accordance with section 22 (8) of the Electoral Act,
1993. [Date of commencement of s. 40: 9 March 1994.]
- 41 Speaker and Deputy Speaker of National Assembly
- (1) At its first sitting after it has been convened under section 46 (2), and after the
election of the President, the National Assembly, with the Chief Justice or a judge of the
Supreme Court designated by him or her acting as the chairperson, shall elect one of its
members to be the Speaker, and shall thereafter elect another of its members to be the
Deputy Speaker.
- (2) The provisions of Schedule 5 shall apply mutatis mutandis to the election of the
Speaker and the Deputy Speaker.
- (3) The Speaker shall be vested with all powers and functions assigned to him or her by
this Constitution, an Act of Parliament and the rules and orders.
- (4) If the Speaker is absent or for any reason unable to exercise or perform the powers
or functions vested in the office of Speaker, or when the office of Speaker is vacant, the
Deputy Speaker shall act as Speaker during the Speaker's absence or inability or until a
Speaker is elected.
- (5) If any of the circumstances described in subsection (4) applies with reference to
both the Speaker and the Deputy Speaker, a member of the National Assembly designated in
terms of the rules and orders shall act as Speaker while the said circumstances prevail.
- (6) The Deputy Speaker or the member designated under subsection (5), while acting as
Speaker, may exercise the powers and shall perform the functions vested in the office of
Speaker.
- (7) The Speaker, the Deputy Speaker or any other member of the National Assembly
designated for that purpose in terms of the rules and orders, shall preside over sittings
of the National Assembly.
- (8) While presiding at a sitting of the National Assembly, the Speaker, Deputy Speaker
or other member presiding shall not have a deliberative vote, but shall have and exercise
a casting vote in the case of an equality of votes.
- (9) The Speaker or Deputy Speaker shall vacate his or her office if he or she ceases to
be a member of the National Assembly, and may be removed from office by resolution of the
National Assembly, and may resign by lodging his or her resignation in writing with the
Secretary to Parliament.
- (10) If the office of Speaker or Deputy Speaker becomes vacant, the National Assembly,
under the chairpersonship of the Chief Justice or a judge as provided in subsection (1),
shall elect a member to fill the vacancy: Provided that the Speaker shall in such event
preside at the election of the Deputy Speaker.
-
[ Top ]
42 Qualification for membership of National Assembly
- (1) No person shall become or remain a member of the National Assembly unless he or she
is a South African citizen and is and remains qualified in terms of section 6 to vote in
an election of the National Assembly, or if he or she-
- (a) at the time of the first election of the National Assembly held under this
Constitution is serving a sentence of imprisonment of more than 12 months without the
option of a fine;
- (b) at any time after the promulgation of this Constitution is convicted of an offence
in the Republic, or outside the Republic if the conduct constituting such offence would
have constituted an offence in the Republic, and for which he or she has been sentenced to
imprisonment of more than 12 months without the option of a fine, unless he or she has
received a pardon;
- (c) is an unrehabilitated insolvent;
- (d) is of unsound mind and has been so declared by a competent court; or
- (e) holds any office of profit under the Republic: Provided that the following persons
shall be deemed not to hold an office of profit under the Republic for the purpose of this
paragraph, namely-
- (i) an Executive Deputy President, a Minister or a Deputy Minister;
- (ii) a person in receipt of a pension paid from public funds or from a pension fund
aided by public funds;
- (iii)a justice of the peace or appraiser; or
- (iv) a member of any council, board, committee, commission or similar body established
by or under law or a committee of the National Assembly who receives remuneration not in
excess of an amount equal to his or her salary as a member of the National Assembly.
-
(2) For the purposes of subsection (1) (b) no person shall be deemed
as having been convicted of an offence until any appeal against the conviction or sentence
has been determined, or, if no appeal against the conviction or sentence has been noted,
the time for noting such an appeal has expired. [Date of commencement of s. 42: 9 March
1994.]
- 43 Vacation of seats A member of the National Assembly
shall vacate his or her seat if he or she-
- (a) ceases to be eligible to be a member of the National Assembly in terms of section
42;
- (b) ceases to be a member of the party which nominated him or her as a member of the
National Assembly;
- (c) resigns his or her seat by submitting his or her resignation in writing to the
Secretary to Parliament;
- (d) without having obtained leave in accordance with the rules and orders, absents
himself or herself voluntarily from sittings of the National Assembly or any other
parliamentary forum of which he or she is a member, for 15 consecutive days on which the
National Assembly or any such forum sat; or
- (e) becomes a member of the Senate, a provincial legislature or a local government.
- 44 Filling of vacancies
- (1) If a member of the National Assembly vacates his or her seat, the vacancy shall be
filled by a person nominated in terms of subsection (2) by the party which nominated the
vacating member.
- (2) The party entitled in terms of subsection (1) to fill a vacancy shall nominate a
person-
- (a) whose name appears on that list of candidates of that party, compiled in terms of
Schedule 2, from which the vacating member was nominated to the National Assembly; and
- (b) who according to the order of preference of the candidates on such list is the next
qualified and available person entitled in terms of Schedule 2 to represent that party in
the National Assembly.
- (3) A nomination in terms of this section shall be submitted in writing to the Speaker.
-
-
[ Top ]
45 Oath or affirmation by members of National Assembly
- Every member of the National Assembly, before taking his or her seat, shall make and
subscribe an oath or solemn affirmation in the terms set out in Schedule 3 before the
Chief Justice, or a judge of the Supreme Court designated by the Chief Justice for this
purpose, or, in the case of a member nominated under section 44, before the Speaker.
- 46 Sittings of National Assembly
- (1) The National Assembly shall sit at the Houses of Parliament in Cape Town, unless the
Speaker, in accordance with the rules and orders and in consultation with the President of
the Senate, directs otherwise on the grounds of public interest, security or convenience.
- (2) The Chief Justice shall convene the National Assembly within 10 days after an
election of the National Assembly.
- (3) The National Assembly shall sit during such periods and on such days and during such
hours as it may determine: Provided that the President may at any time by proclamation in
the Gazette summon the National Assembly to an extraordinary sitting for the despatch of
urgent business.
- 47 Quorum
- The presence of at least one third or, when a vote is taken no a Bill, of at least one
half of all the members of the National Assembly, other than the Speaker or other
presiding member, shall be necessary to constitute a meeting of the National Assembly.
[ Top ]
The Senate
- 48 Composition of Senate
- (1) The Senate shall be composed of 10 senators for each province, nominated by the
parties represented in a provincial legislature within 10 days of-
- (a) the first sitting of such legislature after an election of the legislature; or
- (b) an election of the National Assembly held in pursuance of a dissolution of
Parliament.
- (2) Each party represented in a provincial legislature shall be entitled to nominate a
senator or senators for the relevant province in accordance with the principle of
proportional representation as determined by the following formula:
- (a) The number of senators each party shall be entitled to nominate, shall subject to
paragraph (b) be determined by multiplying the number of seats such party holds in the
provincial legislature by 10 and dividing the result by the total number of seats in the
legislature plus one.
- (b) If the application of paragraph (a) yields a surplus not absorbed by the number of
senators allocated to that party, such surplus shall compete with similar surpluses
accruing to any other party or parties, and any undistributed senatorial seat or seats
shall be allocated to the party or parties concerned in sequence of the highest surplus.
- (3) A member of a provincial legislature or local government nominated as a senator in
terms of this section, shall vacate his or her seat in the provincial legislature or local
government upon his or her acceptance of such nomination.
- 49 President and Deputy President of Senate
- (1) At its first sitting after it has been convened under section 53 (2), and before
proceeding to dispatch any other business, the Senate, with the Chief Justice or a judge
of the Supreme Court designated by him or her acting as the chairperson, shall elect one
of its members to be the President of the Senate, and shall thereafter elect another of
its members to be the Deputy President of the Senate.
- (2) The provisions of Schedule 5 shall apply mutatis mutandis to the election of the
President and the Deputy President of the Senate.
- (3) The President of the Senate shall be vested with all the powers and functions
assigned to him or her by this Constitution, an Act of Parliament and the rules and
orders.
- (4) If the President of the Senate is absent or for any reason unable to exercise and
perform the powers and functions vested in the office of President of the Senate, or when
the office of President of the Senate is vacant, the Deputy President of the Senate shall
act as President of the Senate during the absence or inability of the President of the
Senate or until a President of the Senate is elected.
- (5) If any of the circumstances described in subsection (4) applies with reference to
both the President and the Deputy President of the Senate, a senator designated in terms
of the rules and orders shall act as President of the Senate while the said circumstances
prevail.
- (6) The Deputy President of the Senate or the senator designated under subsection (5),
while acting as resident of the Senate, may exercise the powers and shall perform the
functions vested in the office of President of the Senate.
- (7) The President or Deputy President of the Senate or any other senator designated for
that purpose in terms of the rules and orders shall preside over sittings of the Senate.
- (8) While presiding at a sitting of the Senate, the President or Deputy President of the
Senate or other senator presiding shall not have a deliberative vote, but shall have and
exercise a casting vote in the case of an equality of votes.
- (9) The President or Deputy President of the Senate shall vacate his or her office if he
or she ceases to be a senator, and may be removed from office by resolution of the Senate,
and may resign by lodging his or her resignation in writing with the Secretary to
Parliament.
- (10) If the office of President or Deputy President of the Senate becomes vacant, the
Senate, under the chairpersonship of the Chief Justice or a judge as provided in
subsection (1), shall elect a member to fill the vacancy:
- Provided that the President of the Senate shall in such event preside at the election of
the Deputy President of the Senate.
-
-
[ Top ]
50 Qualification for membership of Senate
- No person shall be qualified to become or remain a senator unless he or she is or
remains qualified to become a member of the National Assembly.
- 51 Vacation of seats by senators and filling of vacancies
- (1) A senator shall vacate his or her seat if he or she-
- (a)ceases to qualify to be a senator in terms of section 50;
- (b)ceases to be a member of the party which nominated him or her as a senator in terms
of section 48;
- (c)resigns his or her seat by submitting his or her resignation in writing to the
Secretary to Parliament;
- (d)without having obtained leave in accordance with the rules and orders, absents
himself or herself voluntarily from sittings of the Senate or any other parliamentary
forum of which he or she is a member, for 15 consecutive days on which the Senate or any
such forum sat; or
- (e)becomes a member of the National Assembly, a provincial legislature or a local
government.
- (2)
- (a) If a senator vacates his or her seat, the vacancy shall be filled by a person
nominated by the party which nominated the vacating senator and who is qualified and
available to fill the vacancy.
- (b) A nomination in terms of this subsection shall be submitted in writing to the
President of the Senate.
- (3) If a provincial legislature is dissolved, the senators from the province in question
shall vacate their seats in the Senate with effect from the date of the first sitting of
such legislature after the election of
- such legislature held in pursuance of such dissolution, whereupon the vacancies shall be
filled in terms of section 48 (1) (a).
- 52 Oath or affirmation by senators
- Every senator, before taking his or her seat, shall make and subscribe an oath or solemn
affirmation in the terms set out in Schedule 3 before the Chief Justice, or a judge of the
Supreme Court designated by the Chief Justice for this purpose, or, in the case of a
senator nominated under section 51 (2), before the President of the Senate.
- 53 Sittings of Senate
- (1) The Senate shall sit at the Houses of Parliament in Cape Town, unless the President
of the Senate, in accordance with the rules and orders and in consultation with the
Speaker, directs otherwise on the grounds of public interest, security or convenience.
- (2) The Chief Justice shall after an election of the National Assembly convene the
Senate as soon as is practically possible, but not later than 30 days after such election.
- (3) The Senate shall sit during such periods and on such days and during such hours as
it may determine:
- Provided that the President may at any time by proclamation in the Gazette summon the
Senate to an extraordinary sitting for the dispatch of urgent business.
- 54 Quorum
- The presence of at least one third or, when a vote is taken on a Bill, of at least one
half of all the senators, other than the President of the Senate or other presiding
senator, shall be necessary to constitute a meeting of the Senate.
[ Top ]
The
National Assembly and the Senate
- 55 Powers, privileges and immunities of Parliament and benefits
of members
- (1) Parliament shall have full power to control, regulate and dispose of its internal
affairs, and shall have all such other powers, privileges and immunities as may, subject
to this Constitution, be prescribed by an Act of Parliament.
- (2) Subject to the rules and orders there shall be freedom of speech and debate in or
before Parliament and any committee thereof, and such freedom shall not be impeached or
questioned in any court.
- (3) A member of Parliament shall not be liable to any civil or criminal proceedings,
arrest, imprisonment or damages by reason of anything which he or she has said, produced
or submitted in or before or to Parliament or any committee thereof or by reason of
anything which may have been revealed as a result of what he or she has said, produced or
submitted in or before or to Parliament or any committee thereof.
-
(4) There shall, subject to section 207 (2), be paid out of and as a
charge on the National Revenue Fund to a member of the National Assembly or the Senate
such remuneration and allowances as may be prescribed by or determined under an Act of
Parliament. [Sub-s. (4) substituted by s. 1 of Act 13 of 1994.]
- 56 Penalty for sitting or voting when disqualified by law
- Any person who in terms of this Constitution is disqualified to sit as a member of a
House and who, while so disqualified and knowing that he or she is so disqualified, sits
or votes as a member of a House in question, shall be liable to a penalty determined by
the rules and orders for each day on which he or she so sits or votes, which may be
recovered for credit of the National Revenue Fund by action in a court of law.
- 57 Joint sittings of Houses
- (1) Whenever necessary the National Assembly and the Senate shall convene in a joint
sitting, which shall be presided over by the Speaker, the President of the Senate or any
other member of the National Assembly or the Senate as may be determined by the rules and
orders.
- (2) While presiding at a joint sitting the Speaker, the President of the Senate or the
other member presiding, shall not have a deliberative vote, but shall have and exercise a
casting vote in the case of an equality of votes.
- (3) Without derogating from the power of Parliament to regulate its business and
proceedings, the President of the Republic may, whenever he or she deems it desirable,
request by message to the Speaker and the President of the Senate that a joint sitting of
the National Assembly and the Senate be convened.
- 58 Rules and orders
- (1) The National Assembly or the Senate may make rules and orders in connection with the
conduct of its business and proceedings, and the National Assembly and the Senate may make
joint rules and orders in connection with the conduct of their joint business and
proceedings, including rules and orders regulating-
- (a)the establishment, constitution, powers and functions, procedures and duration of
committees of Parliament;
- (b)restrictions on access to such committees;
- (c)the competency of any such committee to perform or dispose of its business and
proceedings at venues other than the Houses of Parliament; and
- (d)the designation of members of the National Assembly and the Senate as presiding
officers to preside over sittings of the National Assembly or the Senate or joint sittings
of the National Assembly and the Senate, as the case may be, as and when the Speaker or
the President of the Senate so requires.
- (2) For the purposes of exercising its powers and performing its functions, any
committee established under subsection (1) (a) shall have the power to summon persons to
appear before it to give evidence on oath or affirmation and to produce any documents
required by it, and to receive representations from interested persons.
-
-
[ Top ]
59 Ordinary Bills
- (1) An ordinary Bill may be introduced in either the National Assembly or the Senate and
shall for its passing by Parliament, subject to subsection (2), be required to be adopted
by each House.
- (2) An ordinary Bill passed by one House and rejected by the other shall be referred to
a joint committee consisting of members of both Houses and of all the parties represented
in Parliament and willing to participate in the joint committee, to consider and report on
any proposed amendments to the Bill, whereafter the Bill shall be referred to a joint
sitting of both Houses, at which it may be passed with or without amendment by a majority
of the total number of members of both Houses.
- (3) All Bills, except the new constitutional text and those referred to in sections 60
(1), 61 and 62, shall for the purposes of this Constitution be considered to be ordinary
Bills.
- 60 Money Bills
- (1) Bills appropriating revenue or moneys or imposing taxation shall be introduced in
the National Assembly only.
- (2) Bills appropriating revenue or moneys for services provided by the national
government shall deal with such appropriation only.
- (3) The National Assembly shall not consider any Bill appropriating revenue or moneys
unless such Bill was initiated by the Minister responsible for national financial matters,
or by any other Minister acting with the concurrence of the said Minister.
- (4) The National Assembly shall not pass a Bill referred to in subsection (1) unless it
has been considered and reported on by a joint committee of both Houses and, in so far as
it may be required in terms of this Constitution, by the Financial and Fiscal Commission.
- (5) A Bill shall not be deemed to appropriate revenue or moneys or to impose taxation by
reason only of its containing provisions for the imposition or appropriation of fines or
other pecuniary penalties.
- (6) The Senate may not amend any Bill in so far as it appropriates revenue or moneys or
imposes taxation.
- (7) If the National Assembly passes a Bill imposing taxation or dealing with the
appropriation of revenue or moneys and the Senate rejects it or proposes amendments to it
or fails to pass it within 30 days after it has been passed by the National Assembly, the
Bill shall be referred back to the National Assembly for reconsideration.
- (8) The National Assembly may pass a Bill referred to in subsection (7), with or without
amendment, and if passed by the National Assembly such Bill shall be deemed to have been
passed by Parliament.
- 61 Bills affecting certain provincial matters
- Bills affecting the boundaries or the exercise or performance of the powers and
functions of the provinces shall be deemed not to be passed by Parliament unless passed
separately by both Houses and, in the case of a Bill, other than a Bill referred to in
section 62, affecting the boundaries or the exercise or performance of the powers or
functions of a particular province or provinces only, unless also approved by a majority
of the senators of the province or provinces in question in the Senate.
-
-
[ Top ]
62 Bills amending Constitution
- (1) Subject to subsection (2) and section 74, a Bill amending this Constitution shall,
for its passing by Parliament, be required to be adopted at a joint sitting of the
National Assembly and the Senate by a majority of at least two-thirds of the total number
of members of both Houses.
- (2) No amendment of sections 126 and 144 shall be of any force and effect unless passed
separately by both Houses by a majority of at least two-thirds of all the members in each
House: Provided that the boundaries and legislative and executive competences of a
province shall not be amended without the consent of a relevant provincial legislature.
- 63 Requisite majorities
- Save where otherwise required in this Constitution, all questions before the National
Assembly or the Senate or before the National Assembly and the Senate in a joint sitting,
shall be determined by a majority of votes cast.
- 64 Assent to Bills
- (1) A Bill duly passed by Parliament in accordance with this Constitution shall be
assented to by the President subject to section 82 (1) (b).
- (2) A Bill referred to in subsection (1) to which the President has assented and a copy
of which he or she has signed, shall upon its promulgation be an Act of Parliament.
- 65 Signature and enrollment of Acts
- (1) An Act of Parliament referred to in section 64
- (2) shall be enrolled of record in the office of the Registrar of the Appellate Division
of the Supreme Court in such official South African languages as may be required in terms
of section 3, and copies of the Act so enrolled shall be conclusive evidence of the
provisions of the Act.
- (2) In the case of a conflict between copies of an Act enrolled in terms of subsection
(1), the copy signed by the President shall prevail.
- (3) The public shall have the right of access to copies of an Act so enrolled, subject
to such laws as may be passed by Parliament to protect the safety and durability of the
said copies and with due regard to the convenience of the Registrar's staff.
- 66 Rights and duties of President, Executive Deputy Presidents,
Ministers and Deputy Ministers in Houses
-
The President, an Executive Deputy President, a Minister and a Deputy
Minister shall be entitled to sit and to speak in any House and at a joint sitting of the
Houses, but may not vote in the House of which he or she is not a member or, if he or she
is not a member of any of the Houses, in any House or at a joint sitting of the Houses. [S.
66 substituted by s. 1 of Act 14 of 1994.]
- 67 Public access to Parliament
- Sittings of the National Assembly or the Senate and joint sittings of the National
Assembly and the Senate shall be held in public, and the public, including the media,
shall have access to such sittings: Provided that reasonable measures may be taken to
regulate such access and to provide for the search and, where appropriate, the refusal of
entry or the removal of any person.
[ Top ]
CHAPTER 5
Quick Index to Sections
- 68 Constitution-making Body
- (1) The National Assembly and the Senate, sitting jointly for the purposes of this
Chapter, shall be the Constitutional Assembly.
- (2) The Constitutional Assembly shall draft and adopt a new constitutional text in
accordance with this Chapter.
- (3) (a) The first sitting of the Constitutional Assembly shall be convened by the
President of the Senate not later than seven days as from the first sitting of the Senate
under this Constitution.
- (b) Any subsequent sittings of the Constitutional Assembly shall be convened by the
Chairperson of the Constitutional Assembly after consultation with the Speaker and the
President of the Senate.
- (4) Subject to the rules and orders contemplated in section 70 and save where clearly
inappropriate, sections 55 and 56 and the provisions of this Constitution with regard to
joint sittings of the National Assembly and the Senate shall apply mutatis mutandis in
respect of the Constitutional Assembly.
- 69 Chairperson and Deputy Chairperson
- (1) At its first sitting and before proceeding to dispatch any other business, the
Constitutional Assembly, with the President of the Senate presiding, shall elect one of
the members of the Constitutional Assembly to be the Chairperson and another of its
members to be the Deputy Chairperson of the Constitutional Assembly.
- (2) The provisions of Schedule 5 shall apply mutatis mutandis in respect of the election
of the Chairperson and the Deputy Chairperson of the Constitutional Assembly.
- (3) The Chairperson shall be vested with all powers and functions assigned to him or her
under this Constitution, an Act of Parliament and the rules and orders.
- (4) Section 49 (4) to (10) shall apply mutatis mutandis in respect of the Chairperson
and Deputy Chairperson of the Constitutional Assembly, and in any such application
references in the said sections to the Senate and a senator shall be construed as
references to the Constitutional Assembly and a member of the Constitutional Assembly,
respectively.
- 70 Rules and orders
- (1) The Constitutional Assembly may make rules and orders in connection with the conduct
of its business and proceedings.
- (2) The provisions of section 58 shall apply mutatis mutandis in respect of the
Constitutional Assembly.
- 71 Constitutional Principles and certification
- (1) A new constitutional text shall-
- (a) comply with the Constitutional Principles contained in Schedule 4; and
- (b) be passed by the Constitutional Assembly in accordance with this Chapter.
- (2) The new constitutional text passed by the Constitutional Assembly, or any provision
thereof, shall not be of any force and effect unless the Constitutional Court has
certified that all the provisions of such text comply with the Constitutional Principles
referred to in subsection (1) (a).
- (3) A decision of the Constitutional Court in terms of subsection (2) certifying that
the provisions of the new constitutional text comply with the Constitutional Principles,
shall be final and binding, and no court of law shall have jurisdiction to enquire into or
pronounce upon the validity of such text or any provision thereof.
- (4) During the course of the proceedings of the Constitutional Assembly any proposed
draft of the constitutional text before the Constitutional Assembly, or any part or
provision of such text, shall be referred to the Constitutional Court by the Chairperson
if petitioned to do so by at least one fifth of all the members of the Constitutional
Assembly, in order to obtain an opinion from the Court as to whether such proposed text,
or part or provision thereof, would, if passed by the Constitutional Assembly, comply with
the Constitutional Principles.
-
-
[ Top ]
72 Appointment of commissions, committees and bodies
- (1) The Constitutional Assembly shall, in addition to appointing committees of its
members, be competent to appoint any commissions, technical committees and other advisory
bodies to assist it in the performance of its functions.
- (2) The Constitutional Assembly shall, subject to subsection (3), appoint an independent
panel of seven South African citizens being recognised constitutional experts, not being
members of Parliament or any other legislature and not holding office in any political
party, to advise it, or the Chairperson, on matters pertaining to its functions, and to
perform such other tasks as are provided for in this Constitution.
- (3) A majority of at least two-thirds of all the members of the Constitutional Assembly
shall be required for the appointment of the panel of constitutional experts, and, in the
event of such majority not being achieved, a panel of constitutional experts complying
with the requirements mentioned in subsection (2) and consisting of a nominee of each
party which holds at least 40 seats in the Constitutional Assembly and wishes to make such
a nomination, shall be appointed.
- 73 Adoption of new constitutional text
- (1) The Constitutional Assembly shall pass the new constitutional text within two years
as from the date of the first sitting of the National Assembly under this Constitution.
- (2) For the passing of the new constitutional text by the Constitutional Assembly, a
majority of at least two-thirds of all the members of the Constitutional Assembly shall be
required: Provided that provisions of such text relating to the boundaries, powers and
functions of provinces shall not be considered passed by the Constitutional Assembly
unless approved also by a majority of two-thirds of all the members of the Senate.
- (3) If the Constitutional Assembly fails to pass a proposed draft of the new
constitutional text in accordance with subsection (2), but such draft is supported by a
majority of all its members, such proposed draft shall be referred by the Chairperson to
the panel of constitutional experts referred to in section 72 (2) for its advice, to be
given within 30 days of such referral, on amendments to the proposed draft, within the
framework of the Constitutional Principles, which might secure the support required in
terms of subsection (2).
- (4) An amended draft text unanimously recommended by the panel of constitutional experts
and submitted to the Constitutional Assembly within the said period of 30 days, shall be
considered by the Constitutional Assembly, and if passed in accordance with subsection
(2), it shall become the Constitution of the Republic of South Africa.
- (5) Should the panel of constitutional experts fail to submit within the said period of
30 days to the Constitutional Assembly an amended draft text which is unanimously
recommended by the panel, or should such an amended draft text not be passed by the
Constitutional Assembly in accordance with subsection (2), any proposed draft text before
the Constitutional Assembly may be approved by it by resolution of a majority of its
members for the purposes of subsection (6).
- (6) A text approved under subsection (5) shall, after it has been certified by the
Constitutional Court in terms of section 71 (2), be referred by the President for a
decision by the electorate by way of a national referendum.
- (7) The question put before the electorate in the referendum shall be the acceptance or
rejection of the text approved under subsection (5).
- (8) The text presented to the electorate in the referendum shall, if approved by a
majority of at least 60 per cent of the votes cast in the referendum and subject to
subsection (13), become the Constitution of the Republic of South Africa.
- (9) If the relevant text is not approved in the referendum in accordance with subsection
(8), or if a new constitutional text is not passed in terms of this Chapter within the
period of two years referred to in subsection (1), the President shall dissolve Parliament
by proclamation in the Gazette within 14 days after the referendum or the expiry of the
said period, whereupon an election contemplated in section 39 (1) (a) shall be held.
- (10) The Constitutional Assembly as constituted after such an election, shall pass the
new constitutional text within a period of one year as from the date of its first sitting
after such election.
- (11) For the passing of the new constitutional text referred to in subsection (10) by
the Constitutional Assembly, a majority of at least 60 per cent of all the members of the
Constitutional Assembly shall be required: Provided that provisions of such text relating
to the boundaries, powers and functions of provinces shall not be considered passed by the
Constitutional Assembly unless approved also by a majority of at least 60 per cent of all
the members of the Senate.
- (12) The provisions of subsections (3) to (9) of this section and the other sections of
this Chapter shall apply mutatis mutandis in respect of the Constitutional Assembly
referred to in subsection (10) of this section.
- (13) A new constitutional text adopted in terms of this Chapter shall be assented to by
the President and shall upon its promulgation be the Constitution of the Republic of South
Africa.
-
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74 Amendments relating to this Chapter and Schedule 4
- (1) No amendment or repeal of-
- (a) this section or the Constitutional Principles set out in Schedule 4; or
- (b) any other provision of this Chapter in so far as it relates to-
- (i) the Constitutional Principles; or
- (ii) the requirement that the new constitutional text shall comply with the
Constitutional Principles, or that such text shall be certified by the Constitutional
Court as being in compliance therewith, shall be permissible.
- (2) The other provisions of this Chapter may be amended by the Constitutional Assembly
by resolution of a majority of at least two-thirds of all its members.
[ Top ]
CHAPTER 6
Quick Index to Sections
- 75 Executive authority of the Republic
- The executive authority of the Republic with regard to all matters falling within the
legislative competence of Parliament shall vest in the President, who shall exercise and
perform his or her powers and functions subject to and in accordance with this
Constitution.
- 76 Head of State
- The President shall be the Head of State.
- 77 Election of President
- (1)
- (a) The National Assembly shall at its first sitting after it has been convened in terms
of section 46 (2) elect one of its members as the President.
- (b) The National Assembly and the Senate shall thereafter, as often as it again becomes
necessary to elect a President, elect at a joint sitting one of the members of the
National Assembly as the President.
- (2)
- (a) The Chief Justice, or a judge of the Supreme Court designated by the Chief Justice
for this purpose, shall preside over any sitting at which an election referred to in
subsection (1) takes place.
- (b) An election referred to in subsection (1) shall be conducted in accordance with
Schedule 5.
- (3) The election of a President in terms of subsection (1) (b) shall take place at a
time and on a date fixed by the Chief Justice: Provided that-
- (a) if such an election of a President is occasioned by reason of a dissolution of
Parliament, it shall take place within 10 days after the Senate was convened after the
election of the National Assembly held in pursuance of such dissolution; or
- (b) if such an election of a President is occasioned by reason of a vacancy in the
office of President, it shall take place within 30 days after the vacancy arose.
- (4) On being elected, the President shall vacate his or her seat in the National
Assembly.
- (5) During the period in which the President continues in office in terms of section 80
(1) (b) , he or she shall for the purposes of section 42 (1) (e) be deemed not to hold an
office of profit under the Republic.
- 78 Oath or affirmation
- The President-elect shall, before formally assuming office, make and subscribe an oath
or solemn affirmation in the terms set out in Schedule 3 before the Chief Justice or a
judge of the Supreme Court designated by the Chief Justice for this purpose.
- 79 Remuneration of President
- There shall be paid to the President out of and as a charge on the National Revenue Fund
and apart from any privilege which he or she may enjoy, such remuneration and allowances,
and upon his or her retirement, or to his or her widow or widower or dependent or nominee
(including his or her estate) as he or she may elect, on his or her death, such pension
and pension benefits, as may be determined from time to time by resolution of Parliament.
-
-
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80 Tenure of office of President
- (1) The President elected in terms of section 77 (1) (a) shall, subject to sections 87
and 93 (2), hold office-
- (a) for the period terminating on a date five years as from the date of the first
sitting of the National Assembly under this Constitution; or
- (b) if Parliament is dissolved during such period, for the period until a President has
been elected in terms of section 77 (1) (b) after such dissolution and has assumed office.
- (2) A President elected in terms of section 77 (1) (b) shall, subject to subsection (1)
(b) of this section and sections 87 and 93 (2) , hold office for the unexpired part of the
period referred to in subsection (1) (a) of this section.
- 81 Responsibilities of President
- (1) The President shall be responsible for the observance of the provisions of this
Constitution by the executive and shall as head of state defend and uphold the
Constitution as the supreme law of the land.
- (2) The President shall with dignity provide executive leadership in the interest of
national unity in accordance with this Constitution and the law of the Republic.
- (3) The President shall not hold any other public office and shall not perform
remunerative work outside the duties of his or her office.
- 82 Powers and functions of President
- (1) The President shall be competent to exercise and perform the following powers and
functions, namely- (a) to assent to, sign and promulgate Bills duly passed by Parliament;
- (b) in the event of a procedural shortcoming in the legislative process, to refer a Bill
passed by Parliament back for further consideration by Parliament;
- (c) to convene meetings of the Cabinet;
- (d) to refer disputes of a constitutional nature between parties represented in
Parliament or between organs of state at any level of government to the Constitutional
Court or other appropriate institution, commission or body for resolution;
- (e) to confer honours;
- (f) to appoint, accredit, receive and recognise ambassadors, plenipotentiaries,
diplomatic representatives and other diplomatic officers, consuls and consular officers;
- (g) to appoint commissions of enquiry;
- (h) to make such appointments as may be necessary under powers conferred upon him or her
by this Constitution or any other law; referenda and plebiscites in terms of this
Constitution(i) to negotiate and sign international agreements;
- (j) to proclaim or an Act of Parliament; and
- (k) to pardon or reprieve offenders, either unconditionally or subject to such
conditions as he or she may deem fit, and to remit any fines, penalties or forfeitures.
- (2) The President shall 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 and allocation of functions contemplated in section 84 (5) to an
Executive Deputy President;
- (d) regarding appointments under subsection (1) (f) ; and
- (e) before exercising any of the competences referred to in subsection (1) (g) to (k) .
- (3) The President shall exercise and perform all powers and functions assigned to him or
her by this Constitution or any other law, except those specified in subsections (1) and
(2) or where otherwise expressly or by implication provided in this Constitution, in
consultation with the Cabinet: Provided that the Cabinet may delegate its consultation
function in terms of this subsection, with reference to any particular power or function
of the President, to any Minister or Ministers.
- (4)
- (a) The President shall be the Commander-in-Chief of the National Defence Force.
- (b) The President may-
- (i) with the approval of Parliament, declare a state of national defence;
- (ii) employ the National Defence Force in accordance with and subject to sections 227
and 228; and
- (iii) confer upon members of the National Defence Force permanent commissions and cancel
such commissions.
- 83 Confirmation of executive acts of President
- (1) Decisions of the President taken in terms of section 82 shall be expressed in
writing under his or her signature.
- (2) Any instrument signed by the President in the exercise or performance of a power or
function referred to in section 82 (3) shall be countersigned by a Minister.
- (3) The signature of the President on any instrument shall be confirmed by the seal of
the Republic.
-
-
[ Top ]
- 84 Executive Deputy Presidents
- (1) Every party holding at least 80 seats in the National Assembly shall be entitled to
designate an Executive Deputy President from among the members of the National Assembly.
- (2) Should no party or only one party hold 80 or more seats in the National Assembly,
the party holding the largest number of seats and the party holding the second largest
number of seats shall each be entitled to designate one Executive Deputy President from
among the members of the National Assembly.
- (3) On being designated as such, an Executive Deputy President may elect to vacate or
not to vacate his or her seat in the National Assembly.
- (4) Section 81 shall apply mutatis mutandis to an Executive Deputy President.
- (5) An Executive Deputy President may exercise the powers and shall perform the
functions vested in the office of Executive Deputy President by this Constitution or
assigned to him or her by the President.
- (6) An Executive Deputy President shall, before formally assuming office, make and
subscribe an oath or solemn affirmation in the terms set out in Schedule 3 before the
Chief Justice or a judge of the Supreme Court designated by the Chief Justice for this
purpose.
- 85 Tenure of office of Executive Deputy Presidents and filling of
vacancies
- (1) An Executive Deputy President shall, subject to section 87, hold office- (a) for the
period terminating on a date five years as from the date of the first sitting of the
National Assembly under this Constitution, unless he or she is before the expiry of such
period replaced as Executive Deputy President by the party which designated him or her; or
- (b) if Parliament is dissolved during such period, for the period until a President has
been elected in terms of section 77 (1) (b) after such dissolution and has assumed office.
- (2) If an Executive Deputy President vacates his or her office, section 84 (1) or (2)
shall apply mutatis mutandis in respect of the filling of the vacancy.
- (3) An Executive Deputy President designated to fill a vacancy shall, subject to
subsection (1) (b) of this section and section 87, hold office for the unexpired part of
the period referred to in subsection (1) (a) of this section.
- 86 Acting President
- (1) The President shall appoint one of the Executive Deputy Presidents, or if no
Executive Deputy President is available, a Minister, to act as President during his or her
absence or temporary incapacity.
- (2) In designating an Acting President under subsection (1), the President shall take
into consideration the exigencies of government and the spirit underlying the concept of a
government of national unity.
- (3) Should it be necessary that an Acting President be appointed and the President is
absent or unable to make such an appointment, or if the office of President is vacant, the
other members of the Cabinet shall make such appointment, taking into consideration the
exigencies of government and the spirit underlying the concept of a government of national
unity.
- (3A)
- (a) The person appointed as Acting President shall, subject to paragraph (b) , before
formally assuming office make and subscribe an oath or solemn affirmation in the terms set
out in Schedule 3 before the Chief Justice or a judge of the Supreme Court designated by
the Chief Justice for this purpose.
-
(b) An oath or solemn affirmation made and subscribed by a person
appointed as Acting President shall for purposes of any subsequent appointment of that
person as Acting President during the term of office of a particular President, be deemed
to be an oath or solemn declaration made and subscribed by that person also in respect of
such subsequent appointment. [Sub-s. (3A) inserted by s. 2 of Act 29 of 1993.]
-
-
[ Top ]
87 Removal from office of President or Executive Deputy President
- The President or an Executive Deputy President shall cease to hold office on a
resolution adopted at a joint sitting of the National Assembly and the Senate by a
majority of at least two-thirds of the total number of members of the Houses and
impeaching the President or such Executive Deputy President on the ground of a serious
violation of this Constitution or the other laws of the Republic, or of misconduct or
inability rendering him or her unfit to exercise and perform his or her powers and
functions in accordance with section 81 or 84 (4) , as the case may be.
- 88 Cabinet
- (1) The Cabinet shall consist of the President, the Executive Deputy Presidents and-
- (a) not more than 27 Ministers who are members of Parliament and appointed in terms of
subsections (2) to (6) ; and
-
(b) not more than one Minister who is not a member of Parliament and
appointed in terms of subsection (6A) , 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. [Sub-s. (1) substituted by s. 2 (a) of
Act 14 of 1994.]
- (2) A party holding at least 20 seats in the National Assembly and which has decided to
participate in the government of national unity, shall be 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. [Sub-s. (2) substituted by s. 2 (b) of Act 14 of 1994.]
- (3) Cabinet portfolios shall for the purposes of subsection (2) be allocated to the
respective participating parties in accordance with the following formula:
-
(a) A quota of seats per portfolio shall 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. [Para. (a) substituted by s. 2 (c) of Act 14 of
1994.]
- (b) The result, disregarding third and subsequent decimals, if any, shall be the quota
of seats per portfolio.
- (c) The number of portfolios to be allocated to a participating party shall be
determined by dividing the total number of seats held by such party in the National
Assembly by the quota referred to in paragraph (b) .
- (d) The result shall, subject to paragraph (e) , indicate the number of portfolios to be
allocated to such party.
- (e) Where the application of the above formula yields a surplus not absorbed by the
number of portfolios allocated to a party, such surplus shall compete with other similar
surpluses accruing to another party or parties, and any portfolio or portfolios which
remain unallocated shall be allocated to the party or parties concerned in sequence of the
highest surplus.
- (4) The President shall after consultation with the Executive Deputy Presidents and the
leaders of the participating parties-
- (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 Parliament 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 this 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 he or she 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 this Constitution or in the interest of
good government; or
- (e) fill, when necessary, subject to paragraph (b) , a vacancy in the office of
Minister.
- (5) Subsection (4) shall be implemented in the spirit underlying the concept of a
government of national unity, and the President and the other functionaries concerned
shall in the implementation of that subsection endeavour 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 shall prevail;
- (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 such person is a member shall prevail; 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
shall prevail.
- (6) If any determination of portfolio allocations is varied under subsection (4) (c) ,
the affected Ministers shall vacate their portfolios but shall be eligible, where
applicable, for re-appointment to other portfolios allocated to their respective parties
in terms of the varied determination.
- (6A) The President shall-
- (a) in consultation with the Executive Deputy Presidents and the leaders of the
participating parties-
- (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) appointing respect of such a portfolio a person who is not a member of Parliament,
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 terminate any appointment under paragraph (a) if it
becomes necessary for the purposes of this Constitution or in the interest of good
government. [Sub-s.(6A) inserted by s. 2 (d) of Act 14 of 1994.]
- (7) A Minister shall, before formally assuming office, make and subscribe an oath or
solemn affirmation in the terms set out in Schedule 3 before the Chief Justice or a judge
of the Supreme Court designated by the Chief Justice for this purpose.
- (8) No member of the Cabinet may take up any other paid employment, engage in activities
inconsistent with his or her membership of the Cabinet, or expose himself or herself to
any situation which carries with it the risk of a conflict between his or her
responsibilities as a member of the Cabinet and his or her private interests.
- (9) No member of the Cabinet shall use his or her position as such, or directly or
indirectly use information entrusted confidentially to him or her in such capacity, to
enrich himself or herself or any other person.
-
(10) There shall, subject to section 207 (2) , be paid out of and as a
charge on the National Revenue Fund to an Executive Deputy President and to a Minister
such remuneration and allowances as may be prescribed by or determined under an Act of
Parliament. [Sub-s. (10) substituted by s. 2 of Act 13 of 1994.]
-
-
[ Top ]
89 Cabinet procedure
- (1) Meetings of the Cabinet shall be presided over by the President, or, if the
President so instructs, by an Executive Deputy President: Provided that the Executive
Deputy Presidents shall preside over meetings of the Cabinet in turn unless the exigencies
of government and the spirit underlying the concept of a government of national unity
otherwise dictate.
- (2) The Cabinet shall function in a manner which gives consideration to the
consensus-seeking spirit underlying the concept of a government of national unity as well
as the need for effective government.
- (3) Where an Executive Deputy President presides over a meeting of the Cabinet otherwise
than in the capacity of Acting President, a decision in the Cabinet on any matter shall be
submitted to the President before its implementation and shall upon its ratification by
the President be deemed to be a decision taken in consultation with the Cabinet in
accordance with section 82 (3) .
- 90 Temporary assignment of Minister's powers and functions to
another Minister
- Whenever a Minister is absent or for any reason unable to exercise and perform any of
the powers and functions assigned to him or her, or whenever a Minister has vacated his or
her office and a successor has not yet been appointed, the President may appoint any other
Minister to act in the said Minister's stead, either generally or in the exercise or
performance of any specific power or function.
- 91 Transfer of Minister's powers and functions to another
Minister
- (1) The President may assign the administration of a law which is entrusted to any
particular Minister or which entrusts to any particular Minister any power or function, to
any other Minister.
- (2) Any reference in such a law to a particular Minister as the Minister to whom the
administration of such law is entrusted, shall upon the assignment under subsection (1) of
its administration to another Minister, be construed as a reference to the latter.
- 92 Accountability of Ministers and Cabinet
- (1) A Minister shall be accountable individually both to the President and to Parliament
for the administration of the portfolio entrusted to him or her, and all members of the
Cabinet shall correspondingly be accountable collectively for the performance of the
functions of the national government and for its policies.
- (2) A Minister shall administer his or her portfolio in accordance with the policy
determined by the Cabinet.
- (3) If a Minister fails to administer his or her 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 such policy.
- (4) If the Minister concerned fails to comply with a requirement of the President under
subsection (3) , the President may-
- (a) in the case of a Minister referred to in section 88 (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 such
Minister's party; or
-
(b) in the case of a Minister referred to in section 88 (1) (b) ,
after consultation with the Executive Deputy Presidents and the leaders of the
participating parties, remove the Minister from office. [Sub-s. (4) substituted by s. 3
of Act 14 of 1994.]
-
[ Top ]
93 Votes of no confidence
- (1) If Parliament passes a vote of no confidence in the Cabinet, including the
President, the President shall, unless he or she resigns, dissolve Parliament and call an
election in accordance with section 39.
- (2) If Parliament passes a vote of no confidence in the President, but not in the other
members of the Cabinet, the President shall resign.
- (3) If Parliament passes a vote of no confidence in the Cabinet, excluding the
President, the President may-
- (a) resign;
- (b) reconstitute the Cabinet in accordance with section 88 (4) ; or
- (c) dissolve Parliament and call an election in accordance with section 39.
- (4) The President shall where required, or where he or she elects, to do so in terms of
this section, dissolve Parliament by proclamation in the Gazette within 14 days of the
relevant vote of no confidence.
- 94 Appointment of Deputy Ministers
- (1) The President may, after consultation with the Executive Deputy Presidents and the
leaders of the parties serving in the Cabinet, establish deputy ministerial posts.
- (2) A party shall be entitled to be allocated one or more of the deputy ministerial
posts in the same proportion and according to the same formula as that in which the
portfolios in the Cabinet are allocated to it.
- (3) The provisions of section 88 (4) to (6) and (7) to (10) shall apply mutatis mutandis
in respect of Deputy Ministers, and in such application a reference to-
- (a) a Minister or portfolio shall be construed as a reference to a Deputy Minister and a
deputy ministerial post, respectively; and
-
(b) subsection (3) of section 88 shall be construed as a reference to
subsection (2) of this section. [Sub-s. (3) amended by s. 4 of Act 14 of 1994.]
- (4) If a person is appointed as the Deputy Minister of any portfolio entrusted to a
Minister-
- (a) such Deputy Minister shall exercise and perform on behalf of the relevant Minister
any of the powers and functions assigned to such Minister in terms of any law or otherwise
which may, subject to the directions of the President, be assigned to him or her by such
Minister; and
- (b) any reference in any law to such a Minister shall be construed as including a
reference to the Deputy Minister acting in pursuance of an assignment under paragraph (a)
by the Minister for whom he or she acts.
- (5) Whenever a Deputy Minister is absent or for any reason unable to exercise or perform
any of the powers or functions of his or her 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.
- 95 Composition and functioning of Cabinet in event of
non-participation by parties
- (1) If every party entitled to designate an Executive Deputy President, other than the
President's party, fails to do so, the Executive Deputy President of the President's party
shall exercise and perform the powers and functions of the Executive Deputy Presidents.
- (2) If any party entitled to Cabinet portfolios declines to serve in the Cabinet, such
party shall be disregarded in the determination of portfolio allocations in terms of
section 88.
- (3) If all parties entitled to Cabinet portfolios, other than the President's party,
decline to serve in the Cabinet, appointments to the Cabinet shall be made at the
discretion of the President.
[ Top ]
CHAPTER 7
Quick index to sections
- 96 Judicial authority
- (1) The judicial authority of the Republic shall vest in the courts established by this
Constitution and any other law.
- (2) The judiciary shall be independent, impartial and subject only to this Constitution
and the law.
- (3) No person and no organ of state shall interfere with judicial officers in the
performance of their functions.
- 97 Appointment of Chief Justice and President of Constitutional
Court
- (1) There shall be a Chief Justice of the Supreme Court of South Africa, who shall,
subject to section 104, be appointed by the President in consultation with the Cabinet and
after consultation with the Judicial Service Commission.
- (2)
- (a) There shall be a President of the Constitutional Court, who shall, subject to
section 99, be appointed by the President in consultation with the Cabinet and after
consultation with the Chief Justice.
- (b) Unless the new constitutional text provides otherwise, the President of the
Constitutional Court shall hold office for a non-renewable period of seven years.
- 98 Constitutional Court and its jurisdiction
- (1) There shall be a Constitutional Court consisting of a President and 10 other judges
appointed in terms of section 99.
- (2) The Constitutional Court shall have jurisdiction in the Republic as the court of
final instance over all matters relating to the interpretation, protection and enforcement
of the provisions of this Constitution, including-
- (a)any alleged violation or threatened violation of any fundamental right entrenched in
Chapter 3;
- (b)any dispute over the constitutionality of any executive or administrative act or
conduct or threatened executive or administrative act or conduct of any organ of state;
- (c)any inquiry into the constitutionality of any law, including an Act of Parliament,
irrespective of whether such law was passed or made before or after the commencement of
this Constitution;
- (d)any dispute over the constitutionality of any Bill before Parliament or a provincial
legislature, subject to subsection (9);
- (e)any dispute of a constitutional nature between organs of state at any level of
government;
- (f)the determination of questions whether any matter falls within its jurisdiction; and
- (g)the determination of any other matters as may be entrusted to it by this Constitution
or any other law.
-
(3) The Constitutional Court shall be the only court having
jurisdiction over a matter referred to in subsection (2), save where otherwise provided in
sections 101 (3) and (6) and 103 (1) and in an Act of Parliament. [Sub-s. (3)
substituted by s. 3 of Act 13 of 1994.]
- (4) A decision of the Constitutional Court shall bind all persons and all legislative,
executive and judicial organs of state.
- (5) In the event of the Constitutional Court finding that any law or any provision
thereof is inconsistent with this Constitution, it shall declare such law or provision
invalid to the extent of its inconsistency: Provided that the Constitutional Court may, in
the interests of justice and good government, require Parliament or any other competent
authority, within a period specified by the Court, to correct the defect in the law or
provision, which shall then remain in force pending correction or the expiry of the period
so specified.
- (6) Unless the Constitutional Court in the interests of justice and good government
orders otherwise, and save to the extent that it so orders, the declaration of invalidity
of a law or a provision thereof-
- (a)existing at the commencement of this Constitution, shall not invalidate anything done
or permitted in terms thereof before the coming into effect of such declaration of
invalidity; or
- (b)passed after such commencement, shall invalidate everything done or permitted in
terms thereof.
- (7) In the event of the Constitutional Court declaring an executive or administrative
act or conduct or threatened executive or administrative act or conduct of an organ of
state to be unconstitutional, it may order the relevant organ of state to refrain from
such act or conduct, or, subject to such conditions and within such time as may be
specified by it, to correct such act or conduct in accordance with this Constitution.
- (8) The Constitutional Court may in respect of the proceedings before it make such order
as to costs as it may deem just and equitable in the circumstances.
- (9) The Constitutional Court shall exercise jurisdiction in any dispute referred to in
subsection (2) (d) only at the request of the Speaker of the National Assembly, the
President of the Senate or the Speaker of a provincial legislature, who shall make such a
request to the Court upon receipt of a petition by at least one-third of all the members
of the National Assembly, the Senate or such provincial legislature, as the case may be,
requiring him or her to do so.
- 99 Composition of Constitutional Court and appointment of judges
of Constitutional Court
- (1) Unless the new constitutional text provides otherwise, the judges of the
Constitutional Court shall be appointed by the President for a non-renewable period of
seven years.
- (2) No person shall be qualified to be appointed President or a judge of the
Constitutional Court unless he or she-
- (a)is a South African citizen; and
- (b)is a fit and proper person to be a judge of the Constitutional Court; and
- (c)(i) is a judge of the Supreme Court or is qualified to be admitted as an advocate or
attorney and has, for a cumulative period of at least 10 years after having so qualified,
practised as an advocate or an attorney or lectured in law at a university;
or
- (ii)is a person who, by reason of his or her training and experience, has expertise in
the field of constitutional law relevant to the application of this Constitution and the
law of the Republic.
- (3) Four judges of the Constitutional Court shall be appointed from among the judges of
the Supreme Court by the President in consultation with the Cabinet and with the Chief
Justice.
- (4) Subject to subsection (5), six judges of the Constitutional Court shall be appointed
by the President in consultation with the Cabinet and after consultation with the
President of the Constitutional Court: Provided that not more than two persons may be
appointed from the category of persons referred to in subsection (2) (c) (ii).
- (5)
- (a) Subject to subsection (6), an appointment or appointments under section 97 (2) or
subsection (4) or (7) of this section shall only be made from the recommendations of the
Judicial Service Commission, and with due regard to its reasons for such recommendations,
of not more than three nominees in excess of the number of persons required to be
appointed: Provided that in respect of the first appointment after the commencement of
this Constitution of the six judges referred to in subsection (4), the Judicial Service
Commission shall submit a list of ten nominees.
- (b) If the appointing authorities decide not to accept any or some of such
recommendations, the Judicial Service Commission shall be informed thereof and be
furnished with the reasons therefor.
- (c) After having been informed in terms of paragraph (b), the Judicial Service
Commission shall, in accordance with paragraph (a), submit further recommendations,
whereafter the appointing authorities shall make the appointment or appointments from the
recommendations as supplemented in terms of this paragraph.
- (d) In submitting its recommendations to the appointing authorities in terms of
paragraphs (a) and (c) the Judicial Service Commission shall have regard to the need to
constitute a court which is independent and competent and representative in respect of
race and gender.
- (6) Subsection (5) shall not apply to the first appointment after the commencement of
this Constitution of the President of the Constitutional Court under section 97 (2).
- (7) Vacancies in the Constitutional Court shall be filled-
- (a)in the case of a vacancy in the office of a judge appointed under subsection (3), in
accordance with that subsection; and
- (b)in the case of a vacancy in the office of a judge appointed under subsection (4), in
accordance with that subsection.
-
(8) Whenever the President of the Constitutional Court is absent or
unable to perform his or her functions, or if the office of President of the
Constitutional Court becomes vacant, the President may in consultation with the Cabinet
and after consultation with the Chief Justice and, if he or she is available, the
President of the Constitutional Court, appoint a judge of the Constitutional Court as
Acting President of the Constitutional Court for the period of absence or inability of the
President of the Constitutional Court or until the vacancy is filled. [Sub-s. (8) added
by s. 3 of Act 29 of 1994.]
-
(9) Whenever a judge of the Constitutional Court is absent or unable
to perform his or her functions, or if a vacancy among the judges of the Constitutional
Court arises, the President may, on the recommendation of the Minister responsible for the
administration of justice made in consultation with the President of the Constitutional
Court and the Chief Justice, appoint any person qualified in terms of subsection (2), as
an acting judge of the Constitutional Court for the period of absence or inability of the
judge concerned or until the vacancy is filled: Provided that at all times at least four
judges of the Constitutional Court, including acting judges, shall be judges who have been
appointed from among the judges of the Supreme Court. [Sub-s. (9) added by s. 3 of Act
29 of 1994.]
-
(10) A person may be appointed as Acting President or acting judge of
the Constitutional Court irrespective of whether he or she was appointed on a previous
occasion as Acting President or acting judge of the Constitutional Court: Provided that no
person shall act as an acting judge for a period exceeding six months. [Sub-s. (10)
added by s. 3 of Act 29 of 1994.]
-
(11) Any appointment made under this section shall be deemed to have
been made also in respect of any period during which the person appointed is necessarily
engaged in connection with the disposal of any proceedings in which he or she has
participated as a judge of the Constitutional Court and which have not yet been disposed
of at the expiry of the period for which he or she was appointed. [Sub-s. (11) added by
s. 3 of Act 29 of 1994.]
-
-
[ Top ]
100 Engaging the Constitutional Court
- (1) The conditions upon which the Constitutional Court may be seized of any matter
within its jurisdiction, and all matters relating to the proceedings of and before the
Court, shall be regulated by rules prescribed by the President of the Constitutional Court
in consultation with the Chief Justice, which rules shall be published in the Gazette.
- (2) The rules of the Constitutional Court may make provision for direct access to the
Court where it is in the interest of justice to do so in respect of any matter over which
it has jurisdiction.
- 101 Supreme Court
-
(1) There shall, subject to sections 241 and 242, be a Supreme Court
of South Africa, which shall consist of an Appellate Division and such provincial and
local divisions, and with such areas of jurisdiction, as may be prescribed by law. [Sub-s.
(1) substituted by s. 4 of Act 13 of 1994.]
- (2) Subject to this Constitution, the Supreme Court shall have the jurisdiction,
including the inherent jurisdiction, vested in the Supreme Court immediately before the
commencement of this Constitution, and any further jurisdiction conferred upon it by this
Constitution or by any law.
- (3) Subject to this Constitution, a provincial or local division of the Supreme Court
shall, within its area of jurisdiction, have jurisdiction in respect of the following
additional matters, namely-
- (a)any alleged violation or threatened violation of any fundamental right entrenched in
Chapter 3;
- (b)any dispute over the constitutionality of any executive or administrative act or
conduct or threatened executive or administrative act or conduct of any organ of state;
- (c)any inquiry into the constitutionality of any law applicable within its area of
jurisdiction, other than an Act of Parliament, irrespective of whether such law was passed
or made before or after the commencement of this Constitution;
- (d)any dispute of a constitutional nature between local governments or between a local
and a provincial government;
- (e)any dispute over the constitutionality of a Bill before a provincial legislature,
subject to section 98 (9);
- (f)the determination of questions whether any matter falls within its jurisdiction; and
- (g)the determination of any other matters as may be entrusted to it by an Act of
Parliament.
- (4) For the purposes of exercising its jurisdiction under subsection (3), a provincial
or local division of the Supreme Court shall have the powers of the Constitutional Court
in terms of section 98 (5), (6), (7), (8) and (9) relating to the interpretation,
protection and enforcement of this Constitution.
- (5) The Appellate Division shall have no jurisdiction to adjudicate any matter within
the jurisdiction of the Constitutional Court.
- (6) If the parties to a matter falling outside the additional jurisdiction of a
provincial or local division of the Supreme Court in terms of subsection (3), agree
thereto, a provincial or local division shall, notwithstanding any provision to the
contrary, have jurisdiction to determine such matter: Provided that a provincial or local
division shall not acquire jurisdiction in terms of this subsection with regard to any
matter referred to in section 102 (12).
-
[ Top ]
102 Procedural Matters
- (1) If, in any matter before a provincial or local division of the Supreme Court, there
is an issue which may be decisive for the case, and which falls within the exclusive
jurisdiction of the Constitutional Court in terms of section 98 (2) and (3), the
provincial or local division concerned shall, if it considers it to be in the interest of
justice to do so, refer such matter to the Constitutional Court for its decision: Provided
that, if it is necessary for evidence to be heard for the purposes of deciding such issue,
the provincial or local division concerned shall hear such evidence and make a finding
thereon, before referring the matter to the Constitutional Court.
- (2) If, in any matter before a local or provincial division, there is any issue other
than an issue referred to the Constitutional Court in terms of subsection (1), the
provincial or local division shall, if it refers the relevant issue to the Constitutional
Court, suspend the proceedings before it, pending the decision of the Constitutional
Court.
- (3) If, in any matter before a provincial or local division, there are both
constitutional and other issues, the provincial or local division concerned shall, if it
does not refer an issue to the Constitutional Court, hear the matter, make findings of
fact which may be relevant to a constitutional issue within the exclusive jurisdiction of
the Constitutional Court, and give a decision on such issues as are within its
jurisdiction.
- (4) An appeal shall lie to the Appellate Division against a decision of a provincial or
local division in terms of subsection (3).
- (5) If the Appellate Division is able to dispose of an appeal brought in terms of
subsection (4), without dealing with any constitutional issue that has been raised, it
shall do so.
- (6) If it is necessary for the purposes of disposing of the said appeal for the
constitutional issue to be decided, the Appellate Division shall refer such issue to the
Constitutional Court for its decision.
- (7) The Chief Justice and the President of the Constitutional Court shall jointly make
rules to facilitate the procedure for dealing with appeals in which there are both
constitutional and other issues, which may provide for the constitutional issues to be
referred to the Constitutional Court before or after any such appeal has been heard by the
Appellate Division.
- (8) If any division of the Supreme Court disposes of a matter in which a constitutional
issue has been raised and such court is of the opinion that the constitutional issue is of
such public importance that a ruling should be given thereon, it may, notwithstanding the
fact that the matter has been disposed of, refer such issue to the Constitutional Court
for a decision.
- (9) When a constitutional issue has been referred to the Constitutional Court by a
division of the Supreme Court in terms of subsection (8), the Minister responsible for the
administration of justice shall, at the request of the President of the Constitutional
Court, appoint counsel to argue such constitutional issue.
- (10) If the validity of a law is in dispute in any matter, and a relevant government is
not a party to the proceedings, it shall be entitled to intervene as a party before the
court in question, or shall be entitled to submit written argument to the said court.
- (11) Appeals to the Appellate Division and the Constitutional Court shall be regulated
by law, including the rules of such courts, which may provide that leave of the court from
which the appeal is brought, or to which the appeal is noted, shall be required as a
condition for such appeal.
- (12) Appeals arising from matters referred to in section 101 (3) and which relate to
issues of constitutionality shall lie to the Constitutional Court.
- (13) If a dispute arises between organs of state (other than a dispute referred to in
section 101 (3) (d)) regarding the question whether or not any executive or administrative
act or conduct or any threatened executive or administrative act or conduct of one of
those organs is consistent with this Constitution, the organ disputing the validity of the
act or conduct may apply to a provincial or local division to refer the question of the
validity of such act or conduct to the Constitutional Court for its decision.
- (14) If the provincial or local division concerned is of the opinion that the act or
conduct or threatened act or conduct referred to in subsection (13) may be
unconstitutional, it shall refer the matter to the Constitutional Court.
- (15) If evidence is necessary for the purpose of deciding a matter referred to in
subsections (13) and (14), the provincial or local division concerned shall hear such
evidence and make a finding thereon, before referring such matter to the Constitutional
Court.
- (16) A decision not to refer a matter to the Constitutional Court in terms of subsection
(14), shall be appealable to the Constitutional Court.
- (17) If, in any matter before a provincial or local division, the only issue raised is a
constitutional issue within the exclusive jurisdiction of the Constitutional Court in
terms of section 98 (2) and (3), a refusal to refer such issue to the Constitutional Court
shall be appealable to the Constitutional Court.
-
[ Top ]
103 Other Courts
-
(1) The establishment, jurisdiction, composition and functioning of
all other courts shall, subject to sections 241 and 242, be as prescribed by or under a
law. [Sub-s. (1) substituted by s. 5 (a) of Act 13 of 1994.]
-
(2) If in any proceedings before a court referred to in subsection
(1), it is alleged that any law or provision of such law is invalid on the ground of its
inconsistency with a provision of this Constitution and the court does not have the
competency to enquire into the validity of such a law or provision, the court shall,
subject to the other provisions of this section, decide the matter on the assumption that
the law or provision is valid. [Sub-s. (2) substituted by s. 5 (b) of Act 13 of 1994.]
- (3) If in any proceedings before a court referred to in subsection (1), the presiding
officer is of the opinion that it is in the interest of justice to do so, he or she may
postpone the proceedings to enable the party who has alleged that a relevant law or
provision is invalid, to apply to a provincial or local division of the Supreme Court for
relief in terms of subsection (4).
- (4) If the provincial or local division hearing an application referred to in subsection
(3), is of the opinion that a decision regarding the validity of the law or provision is
material to the adjudication of the matter before the court referred to in subsection (1),
and that there is a reasonable prospect that the relevant law or provision will be held to
be invalid, and that it is in the interest of justice to do so, the provincial or local
division shall-
- (a)if the issue raised is within its jurisdiction, deal with such issue itself, and if
it is in the exclusive jurisdiction of the Constitutional Court, refer it to the
Constitutional Court for its decision after making a finding on any evidence which may be
relevant to such issue; and
- (b)suspend the proceedings before the court referred to in subsection (1) pending the
decision of the provincial or local division or the Constitutional Court, as the case may
be.
- 104 Appointment, removal from office and remuneration of judges
-
(1) Judges of the Supreme Court shall be fit and proper persons
appointed by the President acting on the advice of the Judicial Service Commission:
Provided that the appointment of acting judges shall be as may be provided for in an Act
of Parliament. [Sub-s. (1) amended by s. 6 of Act 13 of 1994.]
- (2) Judges of the Constitutional Court and the Supreme Court shall receive such
remuneration as may be prescribed by or under law, and their remuneration shall not be
reduced during their continuation in office.
- (3) Any judge shall, before commencing to perform the functions of his or her office,
make and subscribe an oath or solemn affirmation in the terms set out in Schedule 3 before
any other judge.
- (4) A judge may only be removed from office by the President on the grounds of
misbehaviour, incapacity or incompetence established by the Judicial Service Commission
and upon receipt of an address from both the National Assembly and the Senate praying for
such removal.
- (5) A judge who is the subject of an investigation by the Judicial Service Commission in
terms of subsection (4) may be suspended by the President pending such investigation.
-
-
[ Top ]
105 Judicial Service Commission
- (1) There shall be a Judicial Service Commission, which shall, subject to subsection
(3), consist of-
- (a)the Chief Justice, who shall preside at meetings of the Commission;
- (b)the President of the Constitutional Court;
- (c)one Judge President designated by the Judges President;
- (d)the Minister responsible for the administration of justice or his or her nominee;
- (e)two practising advocates designated by the advocates' profession;
- (f)two practising attorneys designated by the attorneys' profession;
- (g)one professor of law designated by the deans of all the law faculties at South
African universities;
- (h)four senators designated en bloc by the Senate by resolution adopted by a majority of
at least two- thirds of all its members;
- (i)four persons, two of whom shall be practising attorneys or advocates, who shall be
designated by the President in consultation with the Cabinet;
- (j)on the occasion of the consideration of matters specifically relating to a provincial
division of the Supreme Court, the Judge President of the relevant division and the
Premier of the relevant province.
- (2) The functions of the Judicial Service Commission shall be-
- (a)to make recommendations regarding the appointment, removal from office, term of
office and tenure of judges of the Supreme Court in terms of section 104;
- (b)to makerecommendations regarding the removal from office of judges of the
Constitutional Court in terms of section 104 (4); and
- (c)to advise the national and provincial governments on all matters relating to the
judiciary and the administration of justice.
- (3) When the Commission performs its functions in terms of subsection (2) (c), it shall
sit without the four senators referred to in subsection (1) (h).
- (4) The Commission shall determine its own procedure, provided that the support of at
least an ordinary majority of all its members shall be required for its decisions.
- (5) The Commission may appoint committees from among its number and assign any of its
powers and functions to such committee.
- 106 Seats of Constitutional Court and Appellate Division
- (1) The seat of the Constitutional Court shall be Johannesburg.
- (2) The seat of the Appellate Division of the Supreme Court shall be Bloemfontein.
-
[ Top ]
107 Languages
- (1) A party to litigation, an accused person and a witness may, during the proceedings
of a court, use the South African language of his or her choice, and may require such
proceedings of a court in which he or she is involved to be interpreted in a language
understood by him or her.
- (2) The record of the proceedings of a court shall, subject to section 3, be kept in any
official language: Provided that the relevant rights relating to language and the status
of languages in this regard existing at the commencement of this Constitution shall not be
diminished.
- 108 Attorneys-General
- (1) The authority to institute criminal prosecutions on behalf of the state shall vest
in the attorneys- general of the Republic.
- (2) The area of jurisdiction, powers and functions of an attorney-general shall be as
prescribed by or under law.
- (3) No person shall be appointed as an attorney-general unless he or she is
appropriately qualified in terms of a law regulating the appointment of attorneys-general
in the Republic.
- 109 Magistrates Commission
- There shall be a Magistrates Commission established by law to ensure that the
appointment, promotion, transfer or dismissal of, or disciplinary steps against
magistrates, take place without favour or prejudice, and that the applicable laws and
administrative directive in this regard are applied uniformly and properly, and to ensure
that no victimization or improper influencing of magistrates occurs.
[ Top ]
CHAPTER 8
Quick Index to Sections
The Public Protector
- 110 Establishment and appointment
- (1) There shall be a Public Protector for the Republic.
- (2) The President shall, whenever it becomes necessary, appoint as the Public Protector
a person-
- (a)nominated by a joint committee of the Houses of Parliament composed of one member of
each party represented in Parliament and willing to serve on the committee; and
- (b)approved by the National Assembly and the Senate by a resolution adopted by a
majority of at least 75 per cent of the members present and voting at a joint meeting:
Provided that if any nomination is not approved as required in paragraph (b), the joint
committee shall nominate another person.
-
(3) The first appointment of a person as the Public Protector after
the commencement of this Constitution shall be made as soon as possible after the first
sitting of the Senate under this Constitution. [Sub-s. (3) substituted by s. 7 of Act
13 of 1994.]
- (4) The Public Protector shall be a South African citizen who is a fit and proper person
to hold such office, and who-
- (a)is a Judge of the Supreme Court of South Africa; or (b)is qualified to be admitted as
an advocate and has, for a cumulative period of at least 10 years after having so
qualified-
- (i)practised as an advocate or an attorney; or
- (ii)lectured in law at a university; or
- (c)has specialised knowledge of or experience for a period of at least 10 years in the
administration of justice, public administration or public finance.
- (5) Unless the new constitutional text provides otherwise, the Public Protector shall
hold office for a period of seven years.
- (6) The remuneration and other terms and conditions of employment of the Public
Protector shall be as prescribed by or under an Act of Parliament, and such remuneration
shall not be reduced, nor shall such terms and conditions be adversely altered, during his
or her term of office.
- (7) The Public Protector shall not perform remunerative work outside his or her official
duties.
- (8) The Public Protector may be removed from office by the President, but only on the
grounds of misbehaviour, incapacity or incompetence, determined by a joint committee of
the Houses of Parliament, composed as provided in subsection (2) (a), and upon receipt of
an address from both the National Assembly and the Senate requesting such removal.
- (9) A Public Protector who is the subject of an investigation by a joint committee in
terms of subsection (8), may be suspended by the President pending a decision in such
investigation.
-
[ Top ]
111 Independence and impartiality
- (1) The Public Protector shall be independent and impartial and shall exercise and
perform his or her powers and functions subject only to this Constitution and the law.
- (2) The Public Protector and the persons appointed in terms of section 113 (1) shall
have such immunities and privileges as may be assigned to them by or under an Act of
Parliament for the purpose of ensuring the independent and impartial exercise and
performance of their powers and functions.
- (3) No organ of state and no member or employee of an organ of state nor any other
person shall interfere with the Public Protector or a person appointed under section 113
in the exercise and performance of his or her powers and functions.
- (4) All organs of state shall accord such assistance as may be reasonably required for
the protection of the independence, impartiality, dignity and effectiveness of the Public
Protector in the exercise and performance of his or her powers and functions.
- 112 Powers and functions
- (1) The Public Protector shall, in addition to any powers and functions assigned to him
or her by any law, be competent-
- (a)to investigate, on his or her own initiative or on receipt of a complaint, any
alleged-
- (i)maladministration in connection with the affairs of government at any level;
- (ii)abuse or unjustifiable exercise of power or unfair, capricious, discourteous or
other improper conduct or undue delay by a person performing a public function;
- (iii) improper or dishonest act, or omission or corruption, with respect to public
money;
- (iv) improper or unlawful enrichment, or receipt of any improper advantage, or promise
of such enrichment or advantage, by a person as a result of an act or omission in the
public administration or in connection with the affairs of government at any level or of a
person performing a public function; or
- (v) act or omission by a person in the employ of government at any level, or a person
performing a public function, which results in unlawful or improper prejudice to any other
person;
- (b)to endeavour, in his or her sole discretion, to resolve any dispute or rectify any
act or omission by-
- (i)mediation, conciliation or negotiation;
- (ii)advising, where necessary, any complainant regarding appropriate remedies; or
- (iii)any other means that may be expedient in the circumstances;
or
- (c)at any time prior to, during or after an investigation
- (i)if he or she is of the opinion that the facts disclose the commission of an offence
by any person, to bring the matter to the notice of the relevant authority charged with
prosecutions; or
- (ii)if he or she deems it advisable, to refer any matter which has a bearing on an
investigation, to the appropriate public body or authority affected by it or to make an
appropriate recommendation regarding the redress of the prejudice resulting therefrom or
make any other appropriate recommendation he or she deems expedient to the affected public
body or authority.
- (2) Nothing in subsection (1) shall be construed as empowering the Public Protector to
investigate the performance of judicial functions by any court of law.
- (3) The Public Protector shall conduct an investigation under subsection (1) with due
regard to the circumstances of each case, and shall for the purposes of such
investigation, in addition to such powers as may be prescribed by law, but subject to the
provisions of this Constitution and the law of privilege, be competent to-
- (a)direct any person to appear before him or her to give evidence or to produce any
document in his or her possession or under his or her control which, in the opinion of the
Public Protector, has a bearing on the matter being inquired into, and may examine such
person for that purpose; and
- (b)enter, or authorise another person to enter, any building or premises and there to
make such investigation or inquiry as he or she may deem necessary, and seize anything on
those premises which in his or her opinion has a bearing on the purpose of the
investigation.
- (4) The Public Protector or any member of his or her staff shall be competent, but not
compellable, to answer questions in any proceedings in or before a court of law or any
body or institution established by or under any law, in connection with any information
which in the course of his or her investigation has come to his or her knowledge.
- (5) Recourse to, or the exercise and performance of any powers and functions of, the
Public Protector shall not oust the jurisdiction of a court of law to hear any matter or
cause whatsoever.
- (6) The Public Protector shall report in writing on his or her activities to Parliament
at least once every year.
-
[ Top ]
- 113 Staff and expenditure
- (1) The Public Protector may appoint, on such terms and conditions of service as may be
determined by or under a law, such persons as may be necessary for the discharge of the
work of the office of the Public Protector.
- (2) The Public Protector may delegate any of his or her powers or functions to persons
referred to in subsection (1) subject to such conditions as may be determined by or under
a law.
- (3) Expenditure incidental to the exercise and performance of the powers and functions
of the Public Protector in terms of this Constitution or under any other law shall be
defrayed from money appropriated by Parliament.
- 114 Provincial public protectors
- (1) A provincial legislature may, subject to subsections (2) and (3), by law provide for
the establishment, appointment, powers and functions of a provincial public protector and
for matters in connection therewith.
- (2) A provincial law referred to in subsection (1) shall not in any way derogate from
the powers and functions of the Public Protector.
- (3) A provincial public protector shall be appointed by the Premier of a province in
consultation with the Public Protector, provided that the appointment shall be confirmed
by resolution of a majority of at least two-thirds of all the members of the provincial
legislature.
- (4) A provincial public protector shall exercise and perform his or her powers and
functions in consultation with the Public Protector, who shall have concurrent
jurisdiction in the provinces.
[ Top ]
Human Rights Commission
- 115 Establishment and appointments
- (1) There shall be a Human Rights Commission, which shall consist of a chairperson and
10 members who are fit and proper persons, South African citizens and broadly
representative of the South African community.
- (2) The members of the Commission shall be appointed as provided in subsection (3) and
vacancies in the Commission shall be filled accordingly.
- (3) The President shall, whenever it becomes necessary, appoint as a member of the
Commission a person
- (a)nominated by a joint committee of the Houses of Parliament composed of one member of
each party represented in Parliament and willing to participate in the committee; and
- (b)approved by the National Assembly and the Senate by a resolution adopted by a
majority of at least 75 per cent of the members present and voting at a joint meeting:
- Provided that if any nomination is not approved as required in paragraph (b), the joint
committee shall nominate another person.
-
(4) The first members of the Commission after the commencement of this
Constitution, shall be appointed as soon as possible after the first sitting of the Senate
under this Constitution. [Sub-s. (4) substituted by s. 8 of Act 13 of 1994.]
- (5) A Chairperson and a Deputy Chairperson of the Commission shall as often as it
becomes necessary be elected by the members of the Commission from among their number.
- 116 Powers and functions
- (1) The Commission shall, in addition to any powers and functions assigned to it by law,
be competent and be obliged to-
- (a)promote the observance of, respect for and the protection of fundamental rights;
- (b)develop an awareness of fundamental rights among all people of the Republic;
- (c)make recommendations to organs of state at all levels of government where it
considers such action advisable for the adoption of progressive measures for the promotion
of fundamental rights within the framework of the law and this Constitution, as well as
appropriate measures for the further observance of such rights;
- (d)undertake such studies for report on or relating to fundamental rights as it
considers advisable in the performance of its functions; and
- (e)request any organ of state to supply it with information on any legislative or
executive measures adopted by it relating to fundamental rights.
- (2) If the Commission is of the opinion that any proposed legislation might be contrary
to Chapter 3 or to norms of international human rights law which form part of South
African law or to other relevant norms of international law, it shall immediately report
that fact to the relevant legislature.
- (3) The Commission shall be competent to investigate on its own initiative or on receipt
of a complaint, any alleged violation of fundamental rights, and if, after due
investigation, the Commission is of the opinion that there is substance in any complaint
made to it, it shall, in so far as it is able to do so, assist the complainant and other
persons adversely affected thereby, to secure redress, and where it is necessary for that
purpose to do so, it may arrange for or provide financial assistance to enable proceedings
to be taken to a competent court for the necessary relief or may direct a complainant to
an appropriate forum.
-
-
[ Top ]
- 117 Staff and expenditure
- (1) The Commission shall appoint a director, who shall be the chief executive officer of
the Commission and who shall be empowered to appoint staff subject to the approval of the
Commission and on such terms and conditions of service as may be determined by or under an
Act of Parliament.
- (2) Expenditure incidental to the exercise and performance of the powers and functions
of the Commission in terms of this Constitution or any other law shall be defrayed from
money appropriated by Parliament.
- 118 Reports
- The Commission shall report to the President at least once every year on its activities,
and the President shall cause such report to be tabled promptly in the National Assembly
and the Senate.
[ Top ]
Commission on Gender Equality
- 119 Establishment
- (1) There shall be a Commission on Gender Equality, which shall consist of a chairperson
and such number of members as may be determined by an Act of Parliament.
- (2) The Commission shall consist of persons who are fit and proper for appointment,
South African citizens and broadly representative of the South African community.
- (3) The object of the Commission shall be to promote gender equality and to advise and
to make recommendations to Parliament or any other legislature with regard to any laws or
proposed legislation which affects gender equality and the status of women.
- 120 Composition and functioning
-
The Act of Parliament referred to in section 119 shall provide for the
composition, powers, functions and functioning of the Commission on Gender Equality and
for all other matters in connection therewith. [S. 120 amended by s. 9 of Act 13 of
1994.]
[ Top ]
Restitution of Land Rights
- 121 Claims
- (1) An Act of Parliament shall provide for matters relating to the restitution of land
rights, as envisaged in this section and in sections 122 and 123.
- (2) A person or a community shall be entitled to claim restitution of a right in land
from the state if-
- (a)such person or community was dispossessed of such right at any time after a date to
be fixed by the Act referred to in subsection (1); and
- (b)such dispossession was effected under or for the purpose of furthering the object of
a law which would have been inconsistent with the prohibition of racial discrimination
contained in section 8(2), had that section been in operation at the time of such
dispossession.
- (3) The date fixed by virtue of subsection (2) (a) shall not be a date earlier than 19
June 1913.
- (4) (a) The provisions of this section shall not apply to any rights in land
expropriated under the Expropriation Act, 1975 (Act 63 of 1975), or any other law
incorporating by reference that Act, or the provisions of that Act with regard to
compensation, if just and equitable compensation as contemplated in section 123 (4) was
paid in respect of such expropriation.
- (b) In this section `Expropriation Act, 1975' shall include any expropriation law
repealed by that Act.
- (5) No claim under this section shall be lodged before the passing of the Act
contemplated in subsection (1).
- (6) Any claims under subsection (2) shall be subject to such conditions, limitations and
exclusions as may be prescribed by such Act, and shall not be justiciable by a court of
law unless the claim has been dealt with in terms of section 122 by the Commission
established by that section.
- 122 Commission
- (1) The Act contemplated in section 121 (1) shall establish a Commission on Restitution
of Land Rights, which shall be competent to-
- (a)investigate the merits of any claims;
- (b)mediate and settle disputes arising from such claims;
- (c)draw up reports on unsettled claims for submission as evidence to a court of law and
to present any other relevant evidence to the court; and
- (d)exercise and perform any such other powers and functions as may be provided for in
the said Act.
- (2) The procedures to be followed for dealing with claims in terms of this section shall
be as prescribed by or under the said Act.
-
-
[ Top ]
123 Court Orders
- (1) Where a claim contemplated in section 121 (2) is lodged with a court of law and the
land in question is-
- (a)in the possession of the state and the state certifies that the restoration of the
right in question is feasible, the court may, subject to subsection (4), order the state
to restore the relevant right to the claimant; or
- (b)in the possession of a private owner and the state certifies that the acquisition of
such land by the state is feasible, the court may, subject to subsection (4), order the
state to purchase or expropriate such land and restore the relevant right to the claimant.
- (2) The court shall not issue an order under subsection (1) (b) unless it is just and
equitable to do so, taking into account all relevant factors, including the history of the
dispossession, the hardship caused, the use to which the property is being put, the
history of its acquisition by the owner, the interests of the owner and others affected by
any expropriation, and the interests of the dispossessed: Provided that any expropriation
under subsection (1) (b) shall be subject to the payment of compensation calculated in the
manner provided for in section 28 (3).
- (3) If the state certifies that any restoration in terms of subsection (1) (a) or any
acquisition in terms of subsection (1) (b) is not feasible, or if the claimant instead of
the restoration of the right prefers alternative relief, the court may, subject to
subsection (4), order the state, in lieu of the restoration of the said right-
- (a)to grant the claimant an appropriate right in available alternative state-owned land
designated by the state to the satisfaction of the court, provided that the state
certifies that it is feasible to designate alternative state-owned land;
- (b)to pay the claimant compensation; or
- (c)to grant the claimant any alternative relief.
- (4)
- (a) The compensation referred to in subsection (3) shall be determined by the court as
being just and equitable, taking into account the circumstances which prevailed at the
time of the dispossession and all such other factors as may be prescribed by the Act
referred to in section 121 (1), including any compensation that was paid upon such
dispossession.
- (b) If the court grants the claimant the relief contemplated in subsection (1) or (3),
it shall take into account, and, where appropriate, make an order with regard to, any
compensation that was paid to the claimant upon the dispossession of the right in
question.
[ Top ]
CHAPTER 9
Quick Index to Sections
-
[ Top ]
124 Establishment of provinces
- (1) The following provinces are hereby established, which for the purposes of this
Constitution, but subject to subsection (2), shall be recognised as the provinces of the
Republic:
- (a) Eastern Cape;
- (b) Eastern Transvaal;
-
(c) KwaZulu/Natal; [Para. (c) amended by s. 1 of Act 2 of 1994.]
- (d) Northern Cape;
- (e) Northern Transvaal;
- (f) North-West;
- (g) Orange Free State;
- (h) Pretoria-Witwatersrand-Vereeniging; and
- (i) Western Cape:
- Provided that Parliament shall at the request of a provincial legislature alter the name
of a province in accordance with the request of such legislature.
- (2) The areas of the respective provinces shall be as defined in Part 1 of Schedule 1:
Provided that the establishment of the Northern Cape as a separate province, the
establishment in the area of the Eastern Cape of one province, and the inclusion of the
areas specified in paragraphs (a) to (f) and (i) to (n) of Part 2 of Schedule 1 within the
provinces as defined in Part 1 of Schedule 1, shall be subject to alteration in accordance
with this section.
- (3)
- (a) A referendum may be held in terms of this section in each of the areas specified in
paragraphs (a) to (n) of Part 2 of Schedule 1 (hereinafter referred to as an affected
area) to determine the views of the voters ordinarily resident in such area regarding an
issue referred to in ubsection (5) or (6).
- (b) A referendum referred to in paragraph (a) shall be held in an affected area within
three months of the lodging with the Secretary to Parliament of a petition signed by
persons entitled to vote and ordinarily resident in such area.
- (c) The number of signatures on such a petition shall be at least equal in number to
such percentage of the votes recorded in terms of subsection (4) in respect of the
affected area in question, as may be determined by the Independent Electoral Commission.
- (d) The Independent Electoral Commission shall not be dissolved in terms of the
Independent Electoral Commission Act, 1993 (Act 150 of 1993), after the first election
held under this Constitution until it has made a determination in terms of paragraph (c)
in respect of all the affected areas.
- (e) Such a petition shall be lodged with the Secretary to Parliament within a period of
six months of the commencement of this Constitution or a period referred to in subsection
(10), whichever period expires first.
- (4) In the first election of the National Assembly and the provincial legislatures held
under this Constitution, votes cast in each of the affected areas shall be counted
separately and recorded for use for the purposes of this section.
- (5) Subject to subsection (7), the object of a referendum in respect of an area referred
to in paragraph (e), (f), (g) or (h) of Part 2 of Schedule 1, shall be the determination
of the views of voters ordinarily resident in such an area, concerning, as the case may
be-
-
(a) the continued inclusion of the area referred to in the said
paragraph (e) in the provincial territory of the Eastern Cape, or its inclusion in the
provincial territory of KwaZulu/Natal; [Para. (a) amended by s. 1 of Act 2 of 1994.]
- (b) the continued inclusion of the area referred to in the said paragraph (f) in the
provincial territory of Pretoria-Witwatersrand-Vereeniging, or its inclusion in the
provincial territory of the Eastern Transvaal;
- (c) the continued existence of the area referred to in the said paragraph (g) as one
province, or its division into two separate provinces on either side of the line forming
the eastern boundaries of the districts of Venterstad, Steynsburg, Hofmeyr, Tarka, Fort
Beaufort, Albany and Bathurst; or
- (d) the continued existence of the area referred to in the said paragraph (h) as a
separate province, or its discontinuance as a separate province, in which event those
districts of the said area north of the Orange River shall be included in the provincial
territory of the North-West, and those districts south of the Orange River shall be
included in the provincial territory of the Western Cape: Provided that in the case of a
referendum regarding an issue referred to in-
-
(i) paragraphs (a) and (b) of this subsection, a majority of votes
cast shall be required to sanction the inclusion of the areas in question in the
provincial territories of KwaZulu/Natal or the Eastern Transvaal, as the case may be; [Sub-para.
(i) amended by s. 1 of Act 2 of 1994.]
- (ii) paragraph (c) of this subsection, a majority of at least 60 per cent of the votes
cast in either of the two blocks mentioned in paragraph (g) of Part 2 of Schedule 1 shall
be required to sanction the division of the said area into two separate provinces; and
- (iii) paragraph (d) of this subsection, a majority of at least 60 per cent of the votes
cast shall be required to sanction the discontinuance of the Northern Cape as a separate
province.
- (6) Subject to subsection (7), the object of a referendum in respect of an area referred
to in paragraph (a), (b), (c), (d), (i), (j), (k), (l), (m) or (n) of Part 2 of Schedule
1, shall be the determination of the views of the majority of the voters ordinarily
resident in such an area, concerning-
- (a) in the case of the area referred to in the said paragraph (a), the continued
inclusion of such area in the provincial territory of the Northern Transvaal, or its
inclusion in the provincial territory of the Eastern Transvaal;
- (b) in the case of the area referred to in the said paragraph (b), the continued
inclusion of such area in the provincial territory of the Northern Cape, or its inclusion
in the provincial territory of the Western Cape;
- (c) in the case of the area referred to in the said paragraph (c), the continued
inclusion of such area in the provincial territory of the Eastern Transvaal, or its
inclusion in the provincial territory of the Northern Transvaal;
-
(d) in the case of the area referred to in the said paragraph (d), the
continued inclusion of such area in the provincial territory of the Eastern Cape, or its
inclusion in the provincial territory of KwaZulu/Natal; [Para. (d) amended by s. 1 of
Act 2 of 1994.]
- (e) in the case of the area referred to in the said paragraph (I), the continued
inclusion of such area in the provincial territory of the Eastern Transvaal, or its
inclusion in the provincial territory of Pretoria-Witwatersrand -Vereeniging;
- (f) in the case of the area referred to in the said paragraph (j), the continued
inclusion of such area in the provincial territory of the Orange Free State, or its
inclusion in the provincial territory of Pretoria-Witwatersrand -Vereeniging;
- (g) in the case of the area referred to in the said paragraph (k), the continued
inclusion of such area in the provincial territory of the Western Cape, or its inclusion
in the provincial territory of the Northern Cape;
-
(h) in the case of the area referred to in the said paragraph (l), the
continued inclusion of such area in the provincial territory of KwaZulu/Natal, or its
inclusion in the provincial territory of the Eastern Cape; [Para. (h) amended by s. 1
of Act 2 of 1994.]
- (i) in the case of the area referred to in the said paragraph (m), the continued
inclusion of such area in the provincial territory of the Northern Cape, or its inclusion
in the provincial territory of the North-West; or
- (j) in the case of the area referred to in the said paragraph (n), the continued
inclusion of such area in the provincial territory of the North-West, or its inclusion in
the provincial territory of Pretoria-Witwatersrand-Vereeniging.
- (7)
- (a)The Independent Electoral Commission shall be competent to make regulations or give
directions concerning the implementation of this section, including-
- (i) the formulation of the question to be put before the electorate in any particular
referendum;
- (ii) the determination of the sequence of referendums with reference to a province in
respect of which more than one petition contemplated in subsection (3) (e) or (10) is
received;
- (iii) the drawing up and registering of party lists for an affected area;
- (iv) the identification of persons entitled to vote in a referendum or election held in
terms of this section;
- (v) procedures relating to the drawing up of petitions for the purposes of this section;
and
- (vi) any other matters which it considers necessary for such implementation.
- (b) This subsection shall come into operation on the date of promulgation of this
Constitution.
- (8) A party or parties representing a majority of voters in an affected area may within
a period of one month of the date of the first election under this Constitution of members
of the provincial legislature of the province within which such area falls in terms of
Part 1 of Schedule 1, petition the Independent Electoral Commission to publish a notice in
terms of subsection (9).
- (9) If a petition is lodged with the Independent Electoral Commission in terms of
subsection (8), requesting that an affected area be altered as contemplated in subsection
(5) or (6), and the Independent Electoral Commission is satisfied that the petition has
the support of a party or parties representing a majority of voters in that affected area,
it shall forthwith cause to be published in the Gazette, notice of the fact that it has
received such a petition.
- (10) Within five months of the date of publication of a notice referred to in subsection
(9) a petition may be lodged with the Secretary to Parliament, calling for a referendum
contemplated in subsection (3) to be held in the area in respect of which such notice was
published.
- (11) If a petition for a referendum as provided for in subsection (10) is lodged with
the Secretary to Parliament, the petition lodged with the Independent Electoral Commission
under subsection (8) will lapse, and the result of the referendum in respect of such area
will be decisive.
- (12) If a petition for a referendum as provided for in subsection (10) is not lodged
with the Secretary to Parliament within the period referred to in that subsection, the
Independent Electoral Commission shall, upon the expiry of that prescribed period,
forthwith cause to be published in the Gazette, notice of that fact, and the alteration
contemplated in the notice published in terms of subsection (9) shall thereupon be
implemented in accordance with subsection (13).
- (13)
- (a) For the purpose of implementing an alteration in terms of subsection (12), or an
alteration pursuant to a referendum held in terms of subsection (3), the Independent
Electoral Commission shall, if it considers it necessary to do so as a result of an
alteration to be made, give directions concerning-
- (i) the establishment of a new provincial legislature or the reconstitution of an
existing provincial legislature;
- (ii) the holding of an election of a new or reconstituted provincial legislature;
- (iii) the allocation of seats within such new or reconstituted provincial legislature;
and
- (iv) the names of the persons who will become or remain members of such provincial
legislature.
- (b) The Independent Electoral Commission shall for the purposes of any directions under
paragraph (a) have regard to-
- (i) representations made to it by political parties who will or may be affected by any
such directions;
- (ii) party lists compiled by parties for the purpose of the election of the provincial
legislatures which will be dissolved or reconstituted;
- (iii) party lists compiled pursuant to any regulation made or directions given by it in
terms of subsection (7);
- (iv) the provisions of Schedule 2 (without necessarily being bound thereby in regard to
the sequence in which seats are to be awarded or forfeited); and
- (v) all other factors which in its opinion are relevant to such directions: Provided
that if it is of the opinion that any particular alteration does not require an existing
provincial legislature to be reconstituted, it may direct that notwithstanding such
alteration, such provincial legislature shall not be reconstituted.
- (c) If a Premier, member of the Executive Council of a province, senator or other
officer has been elected, appointed or nominated in terms of this Constitution by the
members of any provincial legislature affected by directions given by the Independent
Electoral Commission in terms of paragraph (a), the Independent Electoral Commission may
also give directions that new elections, appointments or nominations be made, in which
event such elections, appointments or nominations shall be carried out in accordance with
this Constitution, and within such times as the Independent Electoral Commission may
prescribe.
- (14) The President shall by proclamation in the Gazette, to take effect on such date as
may be determined by the Independent Electoral Commission, amend subsection (1) and
Schedule 1 to give effect to any alteration made in terms of this section.
- (15) Notwithstanding the provisions of section 62, Parliament may by majority of votes
in each House, effect consequential amendments to this Constitution arising out of any
alterations to provinces or provincial boundaries, or directions given by the Independent
Electoral Commission in terms of this section.
[ Top ]
Provincial Legislative
Authority
- 125 Provincial Legislature
- (1) There shall be a legislature for each province.
- (2) The legislative authority of a province shall, subject to this Constitution, vest in
the provincial legislature, which shall have the power to make laws for the province in
accordance with this Constitution.
- (3) Laws made by a provincial legislature shall, subject to any exceptions as may be
provided for by an Act of Parliament, be applicable only within the territory of the
province.
- 126 Legislative competence of provinces
-
(1) A provincial legislature shall be competent, subject to
subsections (3) and (4), to make laws for the province with regard to all matters which
fall within the functional areas specified in Schedule 6. [Sub-s. (1) substituted by s.
2 (a) of Act 2 of 1994.]
- (2) The legislative competence referred to in subsection (1), shall include the
competence to make laws which are reasonably necessary for or incidental to the effective
exercise of such legislative competence.
-
(2A) Parliament shall be competent, subject to subsections (3) and
(4), to make laws with regard to matters referred to in subsections (1) and (2). [Sub-s.
(2A) inserted by s. 2 (b) of Act 2 of 1994.]
- (3) A law passed by a provincial legislature in terms of this Constitution shall prevail
over an Act of Parliament which deals with a matter referred to in subsection (1) or (2)
except in so far as-
- (a) the Act of Parliament deals with a matter that cannot be regulated effectively by
provincial legislation;
- (b) the Act of Parliament deals with a matter that, to be performed effectively,
requires to be regulated or co-ordinated by uniform norms or standards that apply
generally throughout the Republic;
- (c) the Act of Parliament is necessary to set minimum standards across the nation for
the rendering of public services;
- (d) the Act of Parliament is necessary for the maintenance of economic unity, the
protection of the environment, the promotion of interprovincial commerce, the protection
of the common market in respect of the mobility of goods, services, capital or labour, or
the maintenance of national security; or
-
(e) the provincial law materially prejudices the economic, health or
security interests of another province or the country as a whole, or impedes the
implementation of national economic policies. [Sub-s. (3) substituted by s. 2 (c) of
Act 2 of 1994.]
- (4) An Act of Parliament shall prevail over a provincial law, as provided for in
subsection (3), only if it applies uniformly in all parts of the Republic.
- (5) An Act of Parliament and a provincial law shall be construed as being consistent
with each other, unless, and only to the extent that, they are, expressly or by necessary
implication, inconsistent with each other.
- (6) A provincial legislature may recommend to Parliament the passing of any law relating
to any matter in respect of which such legislature is not competent to make laws or in
respect of which an Act of Parliament prevails over a provincial law in terms of
subsection (3).
- 127 Composition of provincial legislature
- (1) A provincial legislature shall consist of not fewer than 30 and not more than 100
members elected in accordance with the system of proportional representation of voters
provided for in Schedule 2 and the Electoral Act, 1993.
- (2) The number of seats in a provincial legislature shall, subject to subsection (1), be
determined in accordance with Schedule 2.
-
(3) The members of a provincial legislature shall be elected from
provincial lists of party candidates for the province in question. [Date of
commencement of s. 127: 9 March 1994.]
- 128 Duration and dissolution of provincial legislatures
- (1) A provincial legislature, as constituted in terms of an election of such legislature
under this Constitution, shall, subject to subsection (2), continue for five years as from
the date of such election, at the expiry of which it shall be dissolved.
- (2) If during the period referred to in subsection (1) a provincial legislature is
dissolved in terms of section 154 (1) or (3) (c) or 162, the provincial legislature as
constituted then, shall continue for the period up to the day immediately preceding the
commencement of polling for the election of the provincial legislature held in pursuance
of such dissolution.
- (3) Notwithstanding any dissolution of a provincial legislature-
- (a) every person who at the date of the dissolution is a member of the provincial
legislature shall remain a member thereof;
- (b) the provincial legislature shall remain competent to perform its functions; and
- (c) the Premier of the province shall be competent to summon the provincial legislature
by proclamation in the Provincial Gazette to an extraordinary sitting for the dispatch of
urgent business, during the period for which the provincial legislature continues in terms
of subsection (2) after the dissolution.
-
-
[ Top ]
129 Elections
- (1) If a provincial legislature is dissolved in terms of section 128 (1), 154 (1) or (3)
(c) or 162, the Premier of the province shall upon such dissolution, by proclamation in
the Provincial Gazette call an election of such legislature, which election shall take
place within 90 days after the dissolution of the legislature on a date or dates specified
in the proclamation.
- (2) An election referred to in subsection (1), shall be conducted in accordance with the
Electoral Act, 1993.
- 130 Sittings of provincial legislature
- (1) The Secretary of a provincial legislature shall convene such legislature within
seven days after an election of such legislature.
- (2) The provincial legislature shall sit during such periods and on such days and during
such hours as it may determine: Provided that the Premier of a province may at any time by
proclamation in the Provincial Gazette summon the provincial legislature to an
extraordinary sitting for the dispatch of urgent business.
- 131 Speaker and Deputy Speaker of provincial legislature
- (1) At its first sitting after it has been convened under section 130 (1), and after the
election of the Premier of the province, a provincial legislature with a judge of the
Supreme Court designated by the Chief Justice acting as the chairperson, shall elect one
of its members to be the Speaker, and shall thereafter elect another of its members to be
the Deputy Speaker of such legislature.
- (2) The provisions of Schedule 5 and section 41 (3) to (10) shall apply mutatis mutandis
in respect of the Speaker and the Deputy Speaker of a provincial legislature.
- 132 Qualification for membership of provincial legislatures
- (1) No person shall be qualified to become or remain a member of a provincial
legislature unless he or she is qualified to become a member of the National Assembly.
- (2) A member of a provincial legislature who is elected as the Premier or appointed as a
member of the Executive Council of a province shall for the purposes of section 42 (1) (e)
be deemed not to hold an office of profit under the Republic.
-
(3) The provisions of section 40 (2), (3), (4) and (5) shall mutatis
mutandis apply to a person nominated as a candidate for election to a provincial
legislature, and in any such application a reference in that section to a regional list
shall be construed as a reference to a provincial list as contemplated in Schedule 2. [Date
of commencement of s. 132: 9 March 1994.]
- 133 Vacation of seats and filling of vacancies
- (1) A member of a provincial legislature shall vacate his or her seat if he or she-
- (a) ceases to be eligible to be a member of the provincial legislature in terms of
section 132;
- (b) ceases to be a member of the party which nominated him or her as a member of the
provincial legislature;
- (c) resigns his or her seat by submitting his or her resignation in writing to the
Secretary of the provincial legislature;
- (d) absents himself or herself voluntarily from sittings of the provincial legislature
for 30 consecutive sitting days, without having obtained the leave of the provincial
legislature in accordance with the rules and orders; or
- (e) becomes a member of the National Assembly or the Senate.
- (2) The provisions of section 44 (1) and (2) shall apply mutatis mutandis in respect of
the filling of vacancies in a provincial legislature, and in any such application a
reference to-
- (a) the National Assembly shall be construed as a reference to a provincial legislature;
and
- (b) a list of party candidates shall be construed as a reference to a list referred to
in section 127 (3).
- (3) A nomination in terms of this section shall be submitted in writing to the Speaker
of the provincial legislature in question.
-
-
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134 Oath or affirmation by members
- Every member of a provincial legislature, before taking his or her seat, shall make and
subscribe an oath or solemn affirmation in the terms set out in Schedule 3 before a judge
of the Supreme Court designated by the Chief Justice for this purpose, or, in the case of
a member nominated under section 133, before the Speaker of the provincial legislature.
- 135 Powers, privileges and immunities of provincial legislatures
and benefits of members
- (1) A provincial legislature shall have full power to control, regulate and dispose of
its internal affairs and shall have all such other powers, privileges and immunities as
may, subject to this Constitution, be prescribed by a law of such legislature.
- (2) Subject to the rules and orders of a provincial legislature there shall be freedom
of speech and debate in or before such legislature and any committee thereof, and such
freedom shall not be impeached or questioned in any court.
- (3) A member of a provincial legislature shall not be liable to any civil or criminal
proceedings, arrest, imprisonment or damages by reason of anything which he or she has
said, produced or submitted in or before or to such legislature or any committee thereof
or by reason of anything which may have been revealed as a result of what he or she has
said, produced or submitted in or before or to such legislature or any committee thereof.
-
(4) There shall, subject to section 207 (2), be paid out of and as a
charge on the Provincial Revenue Fund of a province to a member of the legislature of that
province such remuneration and allowances as may be prescribed by or determined under a
law of the provincial legislature. [Sub-s. (4) substituted by s. 10 of Act 13 of 1994.]
- Penalty for sitting or voting when disqualified
- Any person who in terms of this Constitution is disqualified to sit as a member of a
provincial legislature and who, while so disqualified and knowing that he or she is so
disqualified, sits or votes as such a member, shall be liable to a penalty determined by
the rules and orders for each day on which he or she so sits or votes, which may be
recovered for credit of the Provincial Revenue Fund concerned by action in a court of law.
- Rules and orders
- (1) A provincial legislature may make rules and orders in connection with the conduct of
its business and proceedings.
- (2) The provisions of section 58 shall apply mutatis mutandis in respect of a provincial
legislature.
- Quorum
- The presence of at least one third or, when a vote is taken on a Bill, of at least one
half of all the members of the provincial legislature other than the Speaker or other
presiding member, shall be necessary to constitute a sitting of such legislature.
- Requisite majorities
- Save where otherwise required in this Constitution, all questions before a provincial
legislature shall be determined by a majority of votes cast.
-
-
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Assent to Bills
- (1) A Bill duly passed by a provincial legislature in accordance with this Constitution
shall be assented to by the Premier of the province subject to section 147 (1) (b).
- (2) A Bill referred to in subsection (1) to which the Premier has assented and a copy of
which he or she has signed, shall upon its promulgation be a law of the provincial
legislature in question.
- Signature and enrolment of provincial laws
- (1) A law of a provincial legislature referred to in section 140 (2) shall be enrolled
of record in the office of the Registrar of the Appellate Division of the Supreme Court in
such official South African languages as may be required in terms of section 3, and copies
of the law so enrolled shall be conclusive evidence of the provisions of such law.
- (2) In the case of a conflict between copies of a law enrolled in terms of subsection
(1), the copy signed by the Premier shall prevail.
- (3) The public shall have the right of access to copies of a law so enrolled, subject to
such laws as may be passed by Parliament to protect the safety and durability of the said
copies and with due regard to the convenience of the Registrar's staff.
- Public access to provincial legislatures
- Sittings of a provincial legislature shall be held in public, and the public, including
the media, shall have access to such sittings: Provided that reasonable measures may be
taken to regulate such access, and to provide for the search of and, where appropriate,
the refusal of entry or the removal of any person.
- Administration of provincial legislatures
-
(1) For the purposes of setting up a provisional administration of a
provincial legislature, the Transitional Executive Council shall as soon as possible after
the commencement of this Constitution appoint for each provincial legislature a
provisional secretary, who shall hold office as Secretary until an appointment is made in
terms of subsection (2). [Date of commencement of sub-s. (1): 9 March 1994.]
- (2) The Executive Council of a province shall after consultation with the Commission on
Provincial Government appoint a Secretary and such other staff as may be necessary for the
discharge of the work of such legislature.
- (3) Persons appointed under this section shall be remunerated out of and as a charge on
the Provincial Revenue Fund of the province.
-
-
[ Top ]
Executive authority of provinces
- (1) The executive authority of a province shall vest in the Premier of the province, who
shall exercise and perform his or her powers and functions subject to and in accordance
with this Constitution.
- (2) A province shall have executive authority over all matters in respect of which such
province has exercised its legislative competence, matters assigned to it by or under
section 235 or any law, and matters delegated to it by or under any law.
- 145 Election of Premiers
- (1)
- (a) The provincial legislature of a province shall at its first sitting after it has
been convened in terms of section 130(1), elect one of its members as the Premier of the
province.
- (b) A provincial legislature shall thereafter, as often as it again becomes necessary to
elect a Premier, elect one of its members as the Premier of the province.
- (c) The provisions of Schedule 5 shall apply mutatis mutandis in respect of the election
of the Premier of a province.
- (2) A judge of the Supreme Court designated by the Chief Justice for this purpose, shall
preside over an election referred to in subsection (1).
- (3) The election of a Premier in terms of subsection (1) (b) shall take place at a time
and on a date fixed by the judge so designated: Provided that-
- (a)if such election of a Premier is occasioned by reason of a dissolution of the
provincial legislature, it shall take place within 14 days after the election of the
provincial legislature held in pursuance of such dissolution; or
- (b)if suchelection of a Premier is occasioned by reason of a vacancy in the office of
Premier, it shall take place within 30 days after the vacancy arose.
- 146 Tenure of and removal from office of Premiers
- (1) The Premier of a province elected in terms of section 145 (1) shall, subject to
subsection (2) and section 154(2), hold office-
- (a)for the period referred to in section 128 (1); or
- (b)if the provincial legislature is dissolved during such period, for the period until
such dissolution, and shall thereafter remain in office until a Premier has been elected
in terms of section 145 (1) (b) after the dissolution and has assumed office.
- (2) The Premier of a province shall cease to hold office on a resolution adopted by the
provincial legislature by a majority of at least two-thirds of all its members and
impeaching the Premier on the ground of a serious violation of this Constitution or the
other laws of the Republic or the province in question, or of misconduct or inability
rendering him or her unfit to exercise and perform his or her powers and functions in
accordance with section 147.
-
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147 Responsibilities, powers and functions of Premiers
- (1) The Premier of a province shall be responsible for the observance of the provisions
of this Constitution and all other laws by the executive of the province, and shall be
competent to exercise and perform the following powers and functions, namely-
- (a)to assent to, sign and promulgate Bills duly passed by the provincial legislature;
- (b)in the event of a procedural shortcoming in the legislative process, to refer a Bill
passed by the provincial legislature back for further consideration by such legislature;
- (c)to convene meetings of the Executive Council;
- (d)to appoint commissions of enquiry;
- (e)to make such appointments as may be necessary under powers conferred upon him or her
by this Constitution or any other law; and
- (f)to proclaim referenda and plebiscites in terms of this Constitution or a provincial
law.
- (2) The Premier of a province shall exercise and perform all powers and functions
assigned to him or her by this Constitution or any other law, except those specified in
subsection (1) or where otherwise expressly or by implication provided in this
Constitution, in consultation with the Executive Council of the province: Provided that
the Executive Council may delegate its consultation function in terms of this subsection,
with reference to any particular power or function of the Premier, to any member or
members of the Executive Council.
- 148 Acting Premiers
- (1) The Premier of a province shall appoint one of the members of the Executive Council
of the province to act as Premier during his or her absence or temporary incapacity.
- (2) Should it be necessary that an Acting Premier be appointed and the Premier is absent
or unable to make such an appointment, or if the office of Premier is vacant, the other
members of the Executive Council shall make such appointment.
- (3) An Acting Premier shall while acting as Premier have all the powers and functions
vested in the office of Premier.
-
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149 Executive Councils
- (1) The Executive Council of a province shall consist 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 Executive Council, shall be entitled to be
allocated one or more of the Executive Council portfolios in proportion to the number of
seats held by it in the provincial legislature relative to the number of seats held by the
other participating parties.
- (3) Executive Council portfolios shall for the purposes of subsection (2) be allocated
mutatis mutandis in accordance with the formula set out in paragraphs (a) to (e) of
section 88 (3), to the respective participating parties.
- (4) The Premier of a province shall after consultation with the leaders of the
participating parties-
- (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 this 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 he or she is requested to do so by the leader of the party of which the relevant
member of the Executive Council is a member; or
- (ii)if it becomes necessary for the purposes of this 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) shall be implemented in the spirit underlying the concept of a
government of national unity, and the Premier and the other functionaries concerned shall
for the purposes of subsection (4) endeavour 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 shall prevail;
- (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 shall prevail; 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 shall
prevail.
- (6) If any determination of portfolio allocations is varied under subsection (4) (c),
the affected members of the Executive Council shall vacate their portfolios but shall be
eligible, where applicable, for re-appointment to other portfolios allocated to their
respective parties in terms of the varied determination.
- (7) The Premier or a member of the Executive Council shall, before formally assuming
office, make and subscribe an oath or solemn affirmation in the terms set out in Schedule
3 before a judge of the Supreme Court designated by the Chief Justice for this purpose.
- (8) No member of an Executive Council may take up any other paid employment, engage in
activities inconsistent with his or her membership of the Executive Council, or expose
himself or herself to any situation which carries with it the risk of a conflict between
his or her responsibilities as a member of the Executive Council and his or her private
interests.
- (9) No member of the Executive Council shall use his or her position as such, or
directly or indirectly use information entrusted confidentially to him or her in such
capacity, to enrich himself or herself or any other person.
-
(10) There shall, subject to section 207 (2), be paid out of and as a
charge on the Provincial Revenue Fund of a province to the Premier and to a member of an
Executive Council of such province such remuneration and allowances as may be prescribed
by or determined under a law of the provincial legislature. [Sub-s. (10) substituted by
s. 11 of Act 13 of 1994.]
-
-
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150 Executive Council procedure
- (1) Meetings of the Executive Council shall be presided over by the Premier.
- (2) The Executive Council shall function in a manner which gives consideration to the
consensus-seeking spirit underlying the concept of a government of national unity as well
as the need for effective government.
- 151 Temporary assignment of powers and functions to Executive
Council members
- Whenever a member of an Executive Council of a province is absent or for any reason
unable to exercise and perform any of the powers and functions assigned to him or her, or
whenever a member of an Executive Council has vacated his or her office and a successor
has not yet been appointed, the Premier may appoint any other member of the Council to act
in the said member's stead, either generally or in the exercise or performance of any
specific power or function.
- 152 Transfer of powers and functions from one member to another
member
- (1) The Premier of a province may assign the administration of a law which is entrusted
to any particular member of the Executive Council or which entrusts to any particular
member of the Council any power or function, to any other member of the Council.
- (2) Any reference in such a law to a particular member of the Executive Council as the
member to whom the administration of such a law is entrusted, shall upon the assignment
under subsection (1) of the administration of such a law to another member of the Council,
be construed as a reference to the latter.
- 153 Accountability of members of Executive Councils
- (1) A member of an Executive Council of a province shall be accountable individually
both to the Premier and the provincial legislature of the province for the administration
of the portfolio allocated to him or her, and all members of an Executive Council shall
correspondingly be accountable collectively for the performance of the functions of the
provincial government and for its policies.
- (2) A member of an Executive Council shall administer his or her portfolio in accordance
with the policy determined by the Executive Council.
- (3) If a member of an Executive Council of a province fails to administer his or her
portfolio in accordance with the policy of the Executive Council, the Premier of the
province may require the member concerned to bring the administration of the portfolio
into conformity with such policy.
- (4) If the member concerned fails to comply with a requirement of the Premier under
subsection (3), the Premier may, 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 such member's party, remove the member from office.
- 154 Votes of no confidence
- (1) If a provincial legislature passes a vote of no confidence in the Executive Council,
including the Premier, the Premier shall, unless he or she resigns, dissolve such
legislature and call an election in accordance with section 129.
- (2) If a provincial legislature passes a vote of no confidence in the Premier, but not
in the other members of the Executive Council, the Premier shall resign.
- (3) If a provincial legislature passes a vote of no confidence in the Executive Council,
excluding the Premier, the Premier may-
- (a)resign;
- (b)reconstitute the Executive Council in accordance with section 149 (4); or
- (c)dissolve such legislature and call an election in accordance with section 129.
- (4) The Premier shall where required, or where he or she elects, to do so in terms of
this section, dissolve the provincial legislature by proclamation in the Provincial
Gazette within 14 days of the vote of no confidence.
-
[ Top ]
155 Provinces' share of revenue collected nationally
- (1) A province shall be entitled to an equitable share of revenue collected nationally
to enable it to provide services and to exercise and perform its powers and functions.
- (2) The equitable share of revenue referred to in subsection (1) shall consist of-
- (a)a percentage, as fixed by an Act of Parliament, of income tax on individuals which is
collected nationally;
- (b)a percentage, as fixed by an Act of Parliament, of value-added tax or other sales tax
which is collected nationally;
- (c)a percentage, as fixed by an Act of Parliament, of any national levy on the sale of
fuel;
- (d)any transfer duty, collected nationally, on the acquisition, sale or transfer of any
property situated within the province concerned; and
-
(e)any other conditional or unconditional allocations out of national
revenue to a province. [Sub-s. (2) substituted by s. 3 (a) of Act 2 of 1994.]
-
(2A) Sections 59 (2) and 60 shall not apply to an Act referred to in
subsection (2), and such an Act shall be passed by the National Assembly and the Senate
sitting separately. [Sub-s. (2A) inserted by s. 3 (b) of Act 2 of 1994.]
-
(3) The percentages referred to in paragraphs (a), (b) and (c) of
subsection (2), and the conditions referred to in paragraph (e) of that subsection, shall
be fixed reasonably in respect of the different provinces after taking into account the
national interest and recommendations of the Financial and Fiscal Commission, and all
transfers to the provinces shall be effected expeditiously and without any deduction there
from. [Sub-s. (3) substituted by s. 3 (c) of Act 2 of 1994.]
- (4) Allocations referred to in subsection (2) (e) shall be determined in accordance with
an Act of Parliament, with due regard to the national interest and after taking into
account-
- (a)the provision that has to be made for interest and other payments in respect of the
national debt; and
-
(b)the different fiscal capacities, including the revenues derived
from sources referred to in subsection (2) (a), (b), (c) and (d), fiscal performances,
efficiency of utilisation of revenue, needs and economic disparities within and between
provinces, as well as the developmental needs, administrative responsibilities and other
legitimate interests of the provinces, and any other objective criteria identified by the
Financial and Fiscal Commission; and [Para. (b) amended by s. 4 (e) of Act 2 of 1994.]
- (c)the legitimate needs and interests of the national government; and
-
(d)the recommendations of the Financial and Fiscal Commission. [Sub-s.
(4) amended by s. 3 (d) of Act 2 of 1994.]
-
[ Top ]
156 Levying of taxes by provinces
- (1) A provincial legislature shall be competent to raise taxes, levies and duties, other
than income tax or value-added or other sales tax, and to impose surcharges on taxes,
provided that-
- (a)it is authorised to do so by an Act of Parliament passed after recommendations of the
Financial and Fiscal Commission on the draft text of any such Act have been submitted to
and considered by Parliament; and
-
(b)there is no discrimination against non-residents of that province
who are South African citizens. [Sub-s. (1) amended by s. 4 (a) of Act 2 of 1994.]
-
(1A) Sections 59 (2) and 60 shall not apply to an Act referred to in
subsection (1), and such an Act shall be passed by the National Assembly and the Senate
sitting separately. [Sub-s. (1A) inserted by s. 4 (b) of Act 2 of 1994.]
- (1B) A provincial legislature shall notwithstanding subsection (1) have exclusive
competence within its province to impose taxes, levies and duties (excluding income tax or
value- added or other sales tax) on-
- (a)casinos;
- (b)gambling, wagering and lotteries; and
-
(c)betting. [Sub-s. (1B) inserted by s. 4 (b) of Act 2 of 1994.]
- (2) A provincial legislature shall not be entitled to levy taxes detrimentally affecting
national economic policies, inter-provincial commerce or the national mobility of goods,
services, capital and labour.
- (3) A provincial legislature shall be competent to enact legislation authorising the
imposition of user charges: Provided that-
- (a)such legislation may only be enacted after consideration by the provincial
legislature of any recommendations made by the Financial and Fiscal Commission concerning
the criteria according to which such charges should be determined; and
-
(b)there is non discrimination against non-residents of that province
who are South African citizens. [Sub-s. (3) amended by s. 4 (c) of Act 2 of 1994.]
- 157 Raising of loans by provinces
- (1) A province-
- (a)shall, subject to subsection (2), not be competent to raise loans for current
expenditure; and
-
(b)shall be competent to raise loans for capital expenditure, provided
it does so within the framework of reasonable norms and conditions prescribed by an Act of
Parliament passed after recommendations of the Financial and Fiscal Commission relating to
the draft text of any such Act have been submitted to and considered by Parliament. [Para.
(b) substituted by s. 5 (a) of Act 2 of 1994.]
-
(1A) Sections 59 (3) and 60 shall not apply to an Act referred to in
subsection (1) (b), and such an Act shall be passed by the National Assembly and the
Senate sitting separately. [Sub-s. (1A) inserted by s. 5 (b) of Act 2 of 1994.]
-
(2) Loans referred to in subsection (1) (a) may be raised for bridging
finance during a fiscal year, subject to the condition that they shall be redeemed within
12 months and subject to such further, reasonable conditions as may be prescribed by an
Act of Parliament passed after recommendations of the Financial and Fiscal Commission
relating to the draft text of any such Act have been submitted to and considered by
Parliament. [Sub-s. (2) substituted by s. 5 (c) of Act 2 of 1994.]
- (3) A province may not guarantee a loan unless-
- (a)the Financial and Fiscal Commission has verified the need for a guarantee and
recommended that it be given; and
-
(b)...... [Para. (b) deleted by s. 5 (d) of Act 2 of 1994.]
-
-
[ Top ]
158 Revenue allocations by national government Financial
allocations by the national government
- (a)to a provincial or local government, shall be made in terms of an appropriation Act;
and
-
(b)to a local government, shall ordinarily be made through the
provincial government of the province in which the local government is situated. [S.
158 substituted by s. 6 of Act 2 of 1994.]
- 159 Provincial Revenue Funds
-
(1) There is hereby established in the administration of each province
a Provincial Revenue Fund, into which shall be paid all revenue collected by or accruing
to the provincial government, and all financial allocations referred to in section 158
made by the national government to such a provincial government and to local governments
within the province of such a provincial government. [Sub-s. (1) substituted by s. 7 of
Act 2 of 1994.]
- (2) No money may be withdrawn from a Provincial Revenue Fund otherwise than by virtue of
an appropriation made in accordance with a law of the provincial legislature concerned.
Provincial Constitutions
- 160 Adoption of provincial constitutions
- (1) The provincial legislature shall be entitled to pass a constitution for its province
by a resolution of a majority of at least two-thirds of all its members.
- (2) A provincial legislature may make such arrangements as it deems appropriate in
connection with its proceedings relating to the drafting and consideration of a provincial
constitution.
- (3) A provincial constitution shall not be inconsistent with a provision of this
Constitution, including the Constitutional Principles set out in Schedule 4: Provided that
a provincial constitution may-
- (a)provide for legislative and executive structures and procedures different from those
provided for in this Constitution in respect of a province; and
-
(b)where applicable, provide for the institution, role, authority and
status of a traditional monarch in the province, and shall make such provision for the
Zulu Monarch in the case of the province of KwaZulu/Natal. [Sub-s. (3) substituted by
s. 8 (a) of Act 2 of 1994 and amended by s. 1 of Act 3 of 1994.]
-
(4) The text of a provincial constitution passed by a provincial
legislature, or any provision thereof, shall be of no force and effect unless the
Constitutional Court has certified that none of its provisions is inconsistent with a
provision referred to in subsection (3), subject to the proviso to that subsection. [Sub-s.
(4) substituted by s. 8 (b) of Act 2 of 1994.]
- (5) A decision of the Constitutional Court in terms of subsection (4) certifying that
the text of a provincial constitution is not inconsistent with the said provisions, shall
be final and binding, and no court of law shall have jurisdiction to enquire into or
pronounce upon the validity of such text or any provision thereof.
-
-
[ Top ]
161 Development of provincial constitutional dispensation
- (1) The development of a system of provincial government shall receive the priority
attention of the Constitutional Assembly, and in this regard it shall take into
consideration any recommendations of the Commission on Provincial Government and any
comments thereon by the respective provincial governments.
- (2) Any recommendations of the Commission to the Constitutional Assembly shall include
draft provisions for inclusion in the new constitutional text in so far as they relate to
matters falling within the ambit of the Commission's object in terms of section 164.
- (3) The Constitutional Assembly shall deal with such draft provisions in the same manner
as it is required in terms of this Constitution to deal with other constitutional
proposals.
- (4) Draft provisions recommended by the Commission which are not adopted by the
Constitutional Assembly shall lapse, except if the Constitutional Assembly by resolution
of a majority of the members present and voting refers the recommended provisions back to
the Commission for further consideration.
- (5) Draft provisions referred back to the Commission may again be presented to the
Constitutional Assembly, provided that if amended in one or more substantive respects, the
provisions of this section regarding the acceptance, rejection or referral of the
recommendations of the Commission shall apply mutatis mutandis.
- 162 Election of new provincial governments
- A provincial government may at any time after the commencement of a provincial
constitution contemplated in section 160 or of the constitutional dispensation
contemplated in section 161, petition the Constitutional Assembly to dissolve its
provincial legislature and to call an election for the establishment of a new provincial
legislature and executive authority in that province.
Commission on
Provincial Government
- 163 Establishment of Commission on Provincial Government
- There is hereby established a Commission on Provincial Government consisting of not less
than 10 and not more than 15 members appointed by the President subject to section 165.
- 164 Object and functions of Commission
- (1) The object of the Commission is to facilitate the establishment of provincial
government, and the Commission shall for the achievement of that object be competent-
- (a)to advise the Constitutional Assembly on the development of a constitutional
dispensation with regard to provincial systems of government;
- (b)to advise the national government or a provincial government on the establishment and
consolidation of administrative institutions and structures in a province or on any matter
arising out of the application of section 124; and
- (c)to make recommendations to the national government or a provincial government on the
rationalisation of statutory enactments or public sector resources directed at the
introduction and maintenance of an effective system of provincial government.
- (2) Advice to the Constitutional Assembly in terms of subsection (1) (a), shall include
recommendations in the form of draft constitutional provisions regarding-
- (a)the finalisation of the number and the boundaries of the provinces of the Republic;
- (b)the constitutional dispensations of such provinces, including the constitutional
structures within such provinces as well as the method of their election and their
authority, functions and procedures;
- (c)measures, including transitional measures, that provide for the phasing in of new
provincial constitutional dispensations;
- (d)the final delimitation of powers and functions between national and provincial
institutions of government, with due regard to the criteria that are set out in subsection
(3);
- (e)fiscal arrangements between the institutions of national government and those of the
provincial governments;
- (f)the powers and functions of local governments; and
- (g)any matter which the Commission considers to be relevant or ancillary to its
functions.
- (3) In carrying out its functions the Commission shall, inter alia, take into
consideration-
- (a)the provisions of this Constitution;
- (b)the Constitutional Principles set out in Schedule 4;
- (c)historical boundaries, including those set out in Part 1 of Schedule 1, former
provincial boundaries, magisterial district boundaries and infrastructures;
- (d)administrative considerations, including the availability or non-availability of
infrastructures and nodal points for service;
- (e)the need to rationalise existing structures;
- (f)cost-effectiveness of government, administration and the delivery of services;
- (g)the need to minimise inconvenience;
- (h)demographic considerations;
- (i)economic viability;
- (j)developmental potential; and
- (k)cultural and language realities.
-
[ Top ]
165 Constitution of Commission
- (1) The members of the Commission shall be appointed by the President within 30 days of
the commencement of this Constitution.
- (2) Unless the President otherwise determines, the members of the Commission shall be
appointed in a full-time capacity.
- (3) At least one member of the Commission shall be appointed from each province with the
concurrence of the Premier of the province.
- (4) A member of the Commission shall perform his or her functions fairly, impartially
and independently.
- (5) A member appointed in a full-time capacity shall not perform or commit himself or
herself to perform remunerative work outside his or her functions as a member of the
Commission.
- (6) A member of the Commission shall not hold office in any political party or political
organisation.
- 166 Chairperson and Deputy Chairperson
- (1) The President shall designate one of the members of the Commission as the
Chairperson and another as the Deputy Chairperson.
- (2)
- (a) If the Chairperson is absent or unable to perform his or her functions as
chairperson, or when there is a vacancy in the office of Chairperson, the Deputy
Chairperson shall act as Chairperson, and if both the Chairperson and the Deputy
Chairperson are absent or unable to perform the functions of the Chairperson, the
Commission shall elect another member to act as Chairperson.
- (b) While acting as Chairperson the Deputy Chairperson or such member may exercise the
powers and shall perform the functions of the Chairperson.
- 167 Vacation of office and filling of vacancies
- (1) A member of the Commission shall vacate his or her office if he or she resigns or if
he or she becomes disqualified in terms of section 165 to hold office or is removed from
office under subsection (2).
- (2) A member of the Commission may be removed from office by the President only on the
grounds of misbehaviour, incapacity or incompetence established by a judge of the Supreme
Court after an enquiry.
- (3) If a member of the Commission ceases to hold office, the President may, subject to
section 165, appoint a person to fill the vacancy.
- 168 Meetings of Commission
- (1) The first meeting of the Commission shall be held within 30 days of its appointment
at a time and place to be determined by the Chairperson, and subsequent meetings shall be
held at a time and place determined by the Commission or, if authorised thereto by the
Commission, by the Chairperson.
- (2) A quorum for a meeting of the Commission shall not be less than one half of all its
members.
- (3) A decision of a majority of the members of the Commission shall constitute a
decision of the Commission and in the event of an equality of votes the Chairperson shall
have a casting vote in addition to his or her deliberative vote.
- (4) All the decisions of the Commission shall be recorded.
- 169 Committees
- (1) The Commission may establish committees from among its members.
- (2) The Commission shall designate one of the members of a committee as chairperson
thereof, and if any such chairperson is absent from a meeting of the committee the members
present shall elect one from among their number to act as chairperson.
- (3) The Commission may, subject to such directions as, it may issue from time to time-
- (a)delegate any power granted to it by or under section 164 to such a committee; and
- (b)authorise such a committee to perform any function assigned to the Commission by
section 164.
- (4) The Commission shall not be divested of a power so delegated and the performance of
a function so authorised, and may amend or withdraw any decision of a committee.
-
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170 Co-option of persons to committees
- (1) A committee may co-opt any person to serve on it or to attend a particular meeting
thereof in connection with a particular matter dealt with by the committee.
- (2) Such a person may take part in the proceedings of the committee in connection with
such matter or at the meeting in respect of which he or she has been co-opted, but shall
not be entitled to vote.
- 171 Remuneration of members of Commission and other persons
- Members of the Commission and persons referred to in section 170 who are not in the
employment of the state, shall be paid, from moneys appropriated by Parliament for the
purpose, such remuneration and allowances as the Minister responsible for national
financial affairs may determine.
- 172 Appointment of staff
- The Commission may appoint such staff as it may deem necessary for the efficient
performance of its functions and administration, and may, in consultation with the Public
Service Commission, determine the remuneration and conditions of service of staff members
who are not public servants seconded to the service of the Commission.
- 173 Regulations
- The President may make regulations-
- (a)prescribing procedures in connection with any function of the Commission or a
committee thereof;
- (b)prohibiting conduct aimed at influencing or attempting to influence the Commission or
any committee or member thereof and prescribing penalties for any contravention of such a
prohibition; and
- (c)prescribing any other matter in connection with the achievement of the object of the
Commission.
[ Top ]
CHAPTER 10
Quick Index to Sections:
- 174 Establishment and status of local government
(1) Local government shall be established for the residents of areas demarcated by law
of a competent authority.
- (2) A law referred to in subsection (1) may make provision for categories of
metropolitan, urban and rural local governments with differentiated powers, functions and
structures according to considerations of demography, economy, physical and environmental
conditions and other factors which justify or necessitate such categories.
- (3) A local government shall be autonomous and, within the limits prescribed by or under
law, shall be entitled to regulate its affairs.
- (4) Parliament or a provincial legislature shall not encroach on the powers, functions
and structure of a local government to such an extent as to compromise the fundamental
status, purpose and character of local government.
- (5) Proposed legislation which materially affects the status, powers or functions of
local governments or the boundaries of their jurisdictional areas, shall not be introduced
in Parliament or a provincial legislature unless it has been published for comment in the
Gazette or the Provincial Gazette, as the case may be, and local governments and
interested persons, including organised local government, have been given a reasonable
opportunity to make written representations in regard thereto.
- 175 Powers and functions of local government
- (1) The powers, functions and structures of local government shall be determined by law
of a competent authority.
- (2) A local government shall be assigned such powers and functions as may be necessary
to provide services for the maintenance and promotion of the well-being of all persons
within its area of jurisdiction.
- (3) A local government shall, to the extent determined in any applicable law, make
provision for access by all persons residing within its area of jurisdiction to water,
sanitation, transportation facilities, electricity, primary health services, education,
housing and security within a safe and healthy environment, provided that such services
and amenities can be rendered in a sustainable manner and are financially and physically
practicable.
- (4) A local government shall have the power to make by-laws not inconsistent with this
Constitution or an Act of Parliament or an applicable provincial law.
- (5) A local government shall have such executive powers as to allow it to function
effectively.
- (6) A local government may, in its discretion, by means of a resolution of its council
provide for the assignment of specified functions to local bodies or submunicipal entities
within its area of jurisdiction as prescribed and regulated by or under law where, in the
opinion of the council, such assignment of functions will facilitate or enhance the
provision or administration of services, the adherence to municipal bylaws or, more
generally, good governance in the public interest: Provided that such assignment of
functions-
- (a)shall not be inconsistent with an Act of Parliament or an applicable provincial law;
and
- (b)shall not diminish the accountability of such local government.
-
-
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176 Council resolutions
- Matters before the council of a local government pertaining to-
- (a)the budget of the local government, shall be decided by a resolution of the council
adopted by a majority of at least two-thirds of all its members; and
- (b)town planning, shall be decided by a resolution of the council adopted by at least a
majority of all its members: Provided that a council may delegate the power to make
decisions on matters pertaining to town planning to the executive committee or to a
committee appointed for this purpose:Provided further that section 177 shall apply mutatis
mutandis to the appointment and functioning of a committee appointed for this purpose.
- 177 Executive committees
- A council of a local government shall elect, according to a system of proportional
representation as may be prescribed by a law, from among its members, an executive
committee to exercise such powers and perform such functions as may be determined by such
council: Provided that-
- (a)the council shall determine the number of members of and the quorum for the executive
committee;
- (b)the executive committee shall endeavour to exercise its powers and perform its
functions on the basis of consensus among its members; and
- (c)if consensus on any matter cannot be achieved, such matter may be decided by the
committee by resolution of a majority of at least two-thirds of all its members, or the
committee may, if a majority of the committee so decides, submit a report and
recommendation (if any) on the matter to the council for a decision.
- 178 Administration and finance
- (1)A local government shall ensure that its administration is based on sound principles
of public administration, good government and public accountability so as to render
efficient services to the persons within its area of jurisdiction and effective
administration of its affairs.
- (2) A local government shall, subject to such conditions as may be prescribed by law of
a competent legislature after taking into consideration any recommendations of the
Financial and Fiscal Commission, be competent to levy and recover such property rates,
levies, fees, taxes and tariffs as may be necessary to exercise its powers and perform its
functions: Provided that within each local government such rates, levies, fees, taxes and
tariffs shall be based on a uniform structure for its area of jurisdiction.
- (3) A local government shall be entitled to an equitable allocation by the provincial
government of funds, and the Financial and Fiscal Commission shall make recommendations
regarding criteria for such allocations, taking into account the different categories of
local government referred to in section 174(2).
- 179 Elections
- (1) A local government shall be elected democratically, and such election shall take
place in terms of an applicable law and at intervals of not less than three and not more
than five years: Provided that the first local government elections after the commencement
of this Constitution shall take place on the same day.
- (2) The electoral system for a local government shall include both proportional and ward
representation and shall be regulated by a law referred to in subsection (1).
- (3) Subject to section 6, every natural person shall be entitled to vote in an election
of a local government if he or she- (a)is ordinarily resident within the area of
jurisdiction of that local government or is under law liable for the payment of property
rates, rent, service charges or levies to that local government; and
- (b)is registered as a voter on the voters' role of that local government.
- (4) A voter shall not have more than one vote per local government.
- (5) No person shall be qualified to become or remain a member of a local government if
he or she- (a)is not eligible to vote in terms of subsection (3);
- (b)is a member of the National Assembly or the Senate;
- (c)is not qualified to become a member of the National Assembly;
- (d)is an employee of a local government (unless, with due regard to the public interest,
exemption of this disqualification is given by the Executive Council of the province in
which the local government is situated and proof of such exemption accompanies the
nomination of such person); or
- (e)is disqualified in terms of any other law.
- 180 Code of conduct
- An enforceable code of conduct for members and officials of local governments shall be
provided for by law.
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CHAPTER 11
Quick Index to Sections:
- 181 Recognition of traditional authorities and indigenous law
(1) A traditional authority which observes a system of indigenous law and is recognised
by law immediately before the commencement of this Constitution, shall continue as such an
authority and continue to exercise and perform the powers and functions vested in it in
accordance with the applicable laws and customs, subject to any amendment or repeal of
such laws and customs by a competent authority.
- (2) Indigenous law shall be subject to regulation by law.
- 182 Traditional authorities and local government
- The traditional leader of a community observing a system of indigenous law and residing
on land within the area of jurisdiction of an elected local government referred to in
Chapter 10, shall ex officio be entitled to be a member of that local government, and
shall be eligible to be elected to any office of such local government.
- 183 Provincial House of Traditional Leaders
- (1)
- (a) The legislature of each province in which there are traditional authorities and
their communities, shall establish a House of Traditional Leaders consisting of
representatives elected or nominated by such authorities in the province.
- (b) Draft legislation providing, subject to this Chapter, for the establishment, the
composition, the election or nomination of representatives, and the powers and functions
of a House contemplated in paragraph (a), and for procedures applicable to the exercise
and performance of such powers and functions, and for any other matters incidental to the
establishment and functioning of such a House, shall be introduced in a provincial
legislature not later than six months after the election of the first Premier of such
province in terms of this Constitution.
- (c) The traditional authorities resident in a province shall before the introduction of
draft legislation referred to in paragraph (b), be consulted, in a manner determined by
resolution of the provincial legislature, to establish their views on the content of such
legislation.
- (2)
- (a) A House referred to in subsection (1) (a), shall be entitled to advise and make
proposals to the provincial legislature or government in respect of matters relating to
traditional authorities, indigenous law or the traditions and customs of traditional
communities within the province.
- (b) Any provincial Bill pertaining to traditional authorities, indigenous law or such
traditions and customs, or any other matters having a bearing thereon, shall be referred
by the Speaker of the provincial legislature to the House for its comments before the Bill
is passed by such legislature.
- (c) The House shall, within 30 days as from the date of such referral, indicate by
written notification to the provincial legislature its support for or opposition to the
Bill, together with any comments it wishes to make.
- (d) If the House indicates in terms of paragraph (c) that it is opposed to the Bill, the
provincial legislature shall not pass the Bill before a period of 30 days as from the date
of receipt by the Speaker of such written notification has lapsed.
- (e) If the House fails to indicate within the period prescribed by paragraph (c) whether
it supports or opposes the Bill, the provincial legislature may proceed with the Bill.
-
-
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184 Council of Traditional Leaders
- (1) There is hereby established a Council of Traditional Leaders consisting of a
chairperson and 19 representatives elected by traditional authorities in the Republic.
- (2) The Chairperson and members of the Council shall be elected by an electoral college
constituted by the members of the Houses of Traditional Leaders referred to in section
183.
- (3)
- (a) Draft legislation providing, subject to this Chapter, for the composition, the
election of representatives and the powers and functions of the Council established by
subsection (1), and for procedures applicable to the exercise and performance of such
powers and functions, and for any other matters incidental to the establishment and
functioning of the Council, shall be introduced in Parliament not later than six months as
from the commencement of this Constitution.
- (b) Section 183 (1) (c) shall apply mutatis mutandis in respect of draft legislation
referred to in paragraph (a) of this subsection, and in such application a reference
therein to a provincial legislature shall be construed as a reference to Parliament.
- (4) The Council shall, in addition to any other powers and functions assigned to it by
any other law, be competent-
- (a)to advise and make recommendations to the national government with regard to any
matter pertaining to traditional authorities, indigenous law or the traditions and customs
of traditional communities anywhere in the Republic, or any other matters having a bearing
thereon; and
- (b)at the request of the President, to advise him or her on any matter of national
interest.
- (5) (a) Any parliamentary Bill pertaining to traditional authorities, indigenous law or
the traditions and customs of traditional communities or any other matters having a
bearing thereon, shall, after having been passed by the House in which it was introduced
but before it is passed by the other House, be referred by the Secretary to Parliament to
the Council for its comments.
- (b) The Council shall, within 30 days as from the date of such referral, indicate by
written notification to the Secretary to Parliament its support for or opposition to the
Bill, together with any comments it wishes to make.
- (c) If the Council indicates in terms of paragraph (b) its opposition to the Bill, the
other House shall not pass the Bill before a period of 30 days as from the date of receipt
by the said Secretary of such written notification has lapsed.
- (d) If the Council fails to indicate within the period prescribed by paragraph (b)
whether it supports or opposes the Bill, Parliament may proceed with the Bill.
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[Chapter 11A inserted by s. 9 of Act 2 of 1994.]
- 184A Provision for establishment of Volkstaat Council
- (1) The establishment of a Volkstaat Council is hereby authorised.
- (2) The Council shall consist of 20 members elected by members of Parliament who support
the establishment of a Volkstaat for those who want it.
-
(3) The Council shall conduct its affairs according to rules made by
the Council. [S. 184A inserted by s. 9 of Act 2 of 1994.]
- 184B Functions of Council
- (1) The Council shall serve as a constitutional mechanism to enable proponents of the
idea of a Volkstaat to constitutionally pursue the establishment of such a Volkstaat, and
shall for this purpose be competent-
- (a)to gather, process and make available information with regard to possible boundaries,
powers and functions and legislative, executive and other structures of such a Volkstaat,
its suggested constitutional relationship with government at national and provincial
level, and any other matter directly relevant to the establishment of such a Volkstaat;
- (b)to make feasibility and other relevant studies with regard to the matters referred to
in paragraph (a);
- (c)to submit representations and recommendations to the Constitutional Assembly and the
Commission on Provincial Government with regard to the possible establishment of a
Volkstaat and any matter in connection therewith; and
- (d)to perform such other functions as may be prescribed by an Act of Parliament.
- (2) The procedures to be followed by the Council in the performance of its functions
under subsection (1), shall be prescribed by an Act of Parliament.
-
(3) The procedures provided for in this Constitution with regard to
the finalisation of provincial boundaries, shall not be construed as precluding the
establishment of such a Volkstaat, and in the event of the acceptance of the concept of a
Volkstaat, alternative provision shall be made by an Act of Parliament for the
finalisation of the boundaries of any affected province or provinces. [S. 184B inserted
by s. 9 of Act 2 of 1994.]
[ Top ]
CHAPTER 12
Quick Index to Sections:
General Financial Affairs
- 185 National Revenue Fund
- (1) There is hereby established a National Revenue Fund, into which shall be paid all
revenues, as may be defined by an Act of Parliament, raised or received by the national
government, and from which appropriations shall be made by Parliament in accordance with
this Constitution or any applicable Act of Parliament, and subject to the charges imposed
thereby.
-
(2) No money shall be withdrawn from the National Revenue Fund, except
under appropriation made by an Act of Parliament in accordance with this Constitution:
Provided that revenue to which a province is entitled in terms of section 155 (2) (a),
(b), (c) and (d) shall form a direct charge against the National Revenue Fund to be
credited to the respective Provincial Revenue Funds. [Sub-s. (2) amended by s. 12 of
Act 13 of 1994.]
- 186 Annual budget
- The Minister responsible for national financial affairs shall in respect of every
financial year cause to be laid before the National Assembly an annual budget reflecting
the estimates of revenue and expenditure, which shall, inter alia, reflect capital and
current expenditure of the government for that year.
- 187 Procurement administration
- (1) The procurement of goods and services for any level of government shall be regulated
by an Act of Parliament and provincial laws, which shall make provision for the
appointment of independent and impartial tender boards to deal with such procurements.
- (2) The tendering system referred to in subsection (1) shall be fair, public and
competitive, and tender boards shall on request give reasons for their decisions to
interested parties.
- (3) No organ of state and no member of any organ of state or any other person shall
improperly interfere with the decisions and operations of the tender boards.
- (4) All decisions of any tender board shall be recorded.
-
-
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188 Guarantees by national government
- The national government may not guarantee any provincial or local government loan,
unless-
- (a)the guarantee complies with the norms and conditions for such a guarantee as set out
in an Act of Parliament; and
- (b)the Financial and Fiscal Commission has made a recommendation concerning compliance
of the guarantee concerned with such norms and conditions.
189
Special pensions
- (1) Provision shall be made by an Act of Parliament for the payment of special pensions
by the national government to-
- (a)persons who have made sacrifices or who have served the public interest in the
establishment of a democratic constitutional order, including members of any armed or
military force not established by or under any law and which is under the authority and
control of, or associated with and promotes the objectives of, a political organisation;
or
- (b)dependants of such persons.
- (2) The Act of Parliament referred to in subsection (1) shall prescribe the
qualifications of a beneficiary of a special pension referred to in subsection (1), the
conditions for the granting thereof and the manner of the determination of the amount of
such pension, taking into account all relevant factors, including, inter alia, any other
remuneration or pension received by such beneficiary.
- 190 Income tax of elected representatives
- Without derogating from the Receiver of Revenue's powers and functions, the Receiver of
Revenue shall annually assess the income tax returns of all elected representatives at all
levels of government.
- 190A Pensions of political office-bearers
- (1)There shall be paid out of and as a charge on the pension fund referred to in
subsection (2) to a political office-bearer upon his or her retirement as a political
office-bearer, or to his or her widow or widower or dependent or any other category of
persons as may be determined in the rules of such pension fund upon his or her death, such
pension and pension benefits as may be determined in terms of the said rules.
- (2) A pension fund shall be established for the purposes of this section after
consultation with a committee appointed by Parliament, and such a fund shall be registered
in terms of and be subject to the laws governing the registration and control of pension
funds in the Republic.
- (3) All political office-bearers shall be members of the said pension fund.
- (4) Contributions to the said fund by members of the fund shall be made at a rate to be
determined in the rules of the fund, and such contributions shall be deducted monthly from
the remuneration payable to members as political office-bearers.
- (5) Contributions to the said fund by the State shall be made at a rate to be determined
by the President, and such contributions shall be paid monthly from the National Revenue
Fund and the respective Provincial Revenue Funds, according to whether a member serves at
national or provincial level of government.
- (6) In this section `political office-bearer' means- (a)an Executive Deputy President;
- (b)a Minister or Deputy Minister;
- (c)a member of the National Assembly or the Senate;
- (d)the Premier or a member of the Executive Council of a province;
- (e)a member of a provincial legislature;
- (f)a diplomatic representative of the Republic who is not a member of the public
service; or
-
(g)any other political office-bearer recognised for purposes of this
section by an Act of Parliament. [S. 190A inserted by s. 13 (1) of Act 13 of 1994.]
Auditor-General
- 191 Establishment and appointment
- (1) There shall be an Auditor-General for the Republic.
- (2) The President shall whenever it becomes necessary appoint as Auditor-General a
person-
- (a)nominated by a joint committee of the Houses of Parliament, composed of one member of
each party represented in Parliament and willing to participate in the committee; and
- (b)approved by the National Assembly and the Senate by resolution adopted, without
debate, by a majority of at least two-thirds of the members present and voting at a joint
meeting:
- Provided that if any nomination is not approved as required in paragraph (b), the joint
committee shall nominate another person.
- (3) The Auditor-General shall be a South African citizen who is a fit and proper person
to hold such office and who shall be appointed with due regard to his or her specialised
knowledge of or experience in auditing, state finances and public administration.
- (4) Unless the new constitutional text provides otherwise, the Auditor-General shall be
appointed for a period of not less than five years and not more than ten years and shall
not thereafter be eligible for re-appointment.
- (5) If the Auditor-General is absent or unable to exercise and perform his or her powers
and functions, or if the office of Auditor-General is vacant, the highest ranking member
of the Auditor-General's staff shall act as Auditor-General until the vacancy is filled,
and shall for that purpose have all the powers and functions of the Auditor-General.
- (6) The remuneration and other conditions of service of the Auditor-General shall be as
prescribed by or under an Act of Parliament, and such remuneration and the other
conditions of service shall not be altered to his or her detriment during his or her term
of office.
- (7) The Auditor-General shall not perform remunerative work outside his or her official
duties.
- (8) The Auditor-General shall not hold office in any political party or political
organisation.
- (9) The Auditor-General may be removed from office by the President, but only on the
grounds of misconduct, incapacity or incompetence determined by a joint committee of the
Houses of Parliament composed as provided for in subsection (2) (a), and upon receipt of a
request for such removal made by Parliament in pursuance of a resolution to that effect
adopted at a joint sitting of the National Assembly and the Senate.
- (10) An Auditor-General who is the subject of an investigation by a joint committee in
terms of subsection (9), may be suspended by the President pending a decision in such
investigation.
- (11) The Auditor-General may at any time resign, subject to his or her conditions of
service, by lodging his or her resignation in writing with the President.
- 192 Independence and impartiality
- (1) The Auditor-General shall be independent and impartial and shall exercise and
perform his or her powers and functions subject only to this Constitution and the law.
- (2) The Auditor-General and the persons appointed under section 194 (1) shall have such
immunities and privileges as may be assigned to them by or under an Act of Parliament for
the purpose of ensuring the independent and impartial exercise and performance of their
powers and functions.
- (3) No organ of state and no member or employee of an organ of state nor any other
person shall interfere with the Auditor-General or a person appointed under section 194
(1) in the exercise or performance of his or her powers or functions.
- (4) All organs of state shall accord such assistance as may be reasonably required for
the protection of the independence, impartiality, dignity and effectiveness of the
Auditor-General in the exercise and performance of his or her powers and functions.
-
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193 Powers and functions
- (1) The Auditor-General shall audit and report on all the accounts and financial
statements of all the accounting officers at national and provincial level of government,
other than that of the office of Auditor-General, and of all other persons in the national
and provincial public services entrusted with public assets, trust property and other
assets.
- (2) The Auditor-General shall audit and report on all the accounts and financial
statements of any local government, board, fund, institution, company, corporation or
other organisation established or constituted by or under any law and of which the
accounts and financial statements are required in terms of a law to be audited by the
Auditor-General, and the accounts and financial statements of all persons in the
employment of such a body who have been entrusted by it with its assets, or any other
assets.
- (3) The Auditor-General shall also, at the request of the President or Parliament,
conduct performance audits.
- (4) The Auditor-General may, whenever he or she considers it to be in the public
interest, or upon receipt of a complaint, investigate, audit and report on the accounts
and financial statements of any statutory body or any other institution in control of
public funds.
- (5) No further duties or functions may be imposed upon or assigned to the
Auditor-General other than by means of an Act of Parliament.
- (6) Whenever the Auditor-General or a person appointed in terms of section 194 (1)
exercises or performs his or her powers and functions in terms of this Constitution, he or
she shall have access to all books, records and other documents and information relating
to the accounts and financial statements referred to in this section.
- (7) The Auditor-General shall report on the accounts examined by him or her and submit
such reports to the authorities designated by an Act of Parliament to receive them, and,
unless otherwise provided by an Act of Parliament, such reports or a report by the
Auditor-General on any other matter shall be submitted to Parliament within seven days
after receipt thereof by such authority.
- (8) The Auditor-General shall make public any report referred to in subsection (7) after
the expiry of a period of 14 days from the date on which such report was submitted to the
authorities concerned.
- 194 Staff and expenditure
- (1) The Auditor-General may appoint, in accordance with a law, such persons as may be
necessary for the discharge of the work of the office of the Auditor-General.
- (2) The Auditor-General may, subject to such conditions as may be prescribed by or under
a law, delegate any of his or her powers to a person referred to in subsection (1), or
authorise such a person to perform any function of the Auditor-General.
- (3) Expenditure incurred during the exercise and performance of the powers and functions
of the Auditor-General in terms of this Constitution or under any other law shall be
defrayed from money appropriated by Parliament for such purpose and from fees raised or
money obtained in a manner authorised by an Act of Parliament.
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South
African Reserve Bank
- 195 Central Bank
- The South African Reserve Bank, established and regulated by an Act of Parliament, shall
be the central bank of the Republic.
- 196 Primary objectives
- (1) The primary objectives of the South African Reserve Bank shall be to protect the
internal and external value of the currency in the interest of balanced and sustainable
economic growth in the Republic.
- (2) The South African Reserve Bank shall, in the pursuit of its primary objectives
referred to in subsection (1), exercise its powers and perform its functions
independently, subject only to an Act of Parliament referred to in section 197: Provided
that there shall be regular consultation between the South African Reserve Bank and the
Minister responsible for national financial matters.
- 197 Powers and functions
- The powers and functions of the South African Reserve Bank shall be those customarily
exercised and performed by central banks, which powers and functions shall be determined
by an Act of Parliament and shall be exercised or performed subject to such conditions as
may be prescribed by or under such Act.
Financial and Fiscal Commission
- 198 Establishment
- There is hereby established a Financial and Fiscal Commission.
- 199 Objects and functions
- (1) The objects and functions of the Commission shall be to apprise itself of all
financial and fiscal information relevant to national, provincial and local government,
administration and development and, on the basis of such information, to render advice and
make recommendations to the relevant legislative authorities in terms of this Constitution
regarding the financial and fiscal requirements of the national, provincial and local
governments, including-
- (a) financial and fiscal policies;
- (b) equitable financial and fiscal allocations to the national, provincial and local
governments from revenue collected at national level;
- (c) taxes, levies, imposts and surcharges that a provincial government intends to levy;
- (d)the raising of loans by a provincial or local government and the financial norms
applicable thereto;
- (e)criteria for the allocation of financial and fiscal resources; and
- (f)any other matter assigned to the Commission by this Constitution or any other law.
- (2) In performing its functions the Commission shall take into consideration, inter
alia, the provisions of section 155 (4) (b) and any other provision of this Constitution.
- 200 Constitution, expertise and impartiality
- (1) The Commission shall consist of-
- (a)a chairperson and deputy chairperson, appointed by the President in consultation with
the Cabinet;
- (b)a person designated by each of the various Executive Councils of the provinces, who
shall be appointed by the President; and
- (c)seven members appointed by the President on the advice of the Cabinet, at least one
of whom shall have expertise in local government finance.
-
(2) The first appointment of members of the Commission shall be
effected within 120 days from the date of commencement of this Constitution. [Sub-s.
(2) substituted by s. 14 of Act 13 of 1994.]
- (3) No person shall be qualified to be appointed to the Commission unless he or she-
- (a)is a South African citizen; and
- (b)is a person who, by reason of his or her training and experience, has expertise in
economics, public finance, public administration, taxation, management or accountancy.
- (4)
- (a) Unless the new constitutional text provides otherwise, a member of the Commission
may be removed from office only by the President and only on account of misconduct,
incapacity or incompetence.
- (b) The President shall within 14 days after the removal from office of a member of the
Commission, notify Parliament and the provincial legislatures by message of such removal
and of the reasons therefor.
- (5) Vacancies in the Commission shall be filled in accordance with the relevant
provisions of this section under which the former member concerned was appointed.
- (6) The chairperson and the deputy chairperson shall be appointed for a period of five
years, and the other members of the Commission for a period of two years, but shall be
eligible for re-appointment.
- (7) A member of the Commission shall perform his or her duties fairly, impartially and
independently.
- (8) The chairperson and deputy chairperson shall not perform or commit himself or
herself to perform remunerative work outside his or her official duties.
- (9) A member of the Commission shall not hold office in any political party or political
organisation.
- (10) It shall be an offence to influence or attempt to influence a member of the
Commission to act otherwise than in accordance with the provisions of subsection (7).
- (11) The chairperson and deputy chairperson-
- (a)shall be the only full-time members of the Commission;
- (b)shall be the chief executive officer and deputy chief executive officer,
respectively, of the Commission.
-
-
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201 Meetings of Commission
- (1)
- (a) The first meeting of the Commission shall be held within 30 days of its appointment
at a time and place to be determined by the chairperson, and subsequent meetings shall be
held at a time and place determined by the Commission or, if authorised thereto by the
Commission, by the chairperson.
- (b) If both the chairperson and deputy chairperson are absent from a meeting, the
members present shall elect one from among their number to act as chairperson.
- (2) A quorum for a meeting of the Commission shall be not less than one half of all its
members.
- (3) A decision of two-thirds of the members present shall constitute a decision of the
Commission.
- (4) All the decisions of the Commission shall be recorded.
- 202 Committees
- (1) The Commission may establish committees from among its number.
- (2) Any such committee shall consist of such number of members as the Commission may
determine.
- (3) The Commission shall designate one of the members of a committee as chairperson
thereof, and if any such chairperson is absent from a meeting of the committee the members
present shall elect one from among their number to act as chairperson.
- (4)
- (a) The Commission may, subject to such directions as it may issue from time to time-
- (i)delegate any power conferred upon it by or under section 199 to such a committee; and
- (ii) grant authority that a function assigned to it by or under section 199 may be
performed by such a committee.
- (b) The Commission shall not be divested of a power so delegated or the performance of a
function so authorised, and may amend or set aside any decision of a committee.
- 203 Co-option of persons by committees
- (1) A committee may co-opt any person to serve on such committee or to attend a
particular meeting thereof in connection with a particular matter dealt with by the
committee.
- (2) Such a person may take part in the proceedings of the committee in connection with
the matter or at the meeting in respect of which he or she has been co-opted, but shall
not be entitled to vote.
-
-
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204 Remuneration and allowances of members and other persons
- Members of the Commission and persons referred to in section 203 who are not in the
employment of the state, shall be paid, from money appropriated by Parliament for that
purpose, such remuneration and allowances as the Minister responsible for national
financial affairs may determine.
- 205 Appointment of staff
- (1) The Commission may appoint staff and accept secondment of staff as it may deem
necessary in consultation with the Public Service Commission.
- (2) Expenditure incidental to the performance of the functions of the Commission in
terms of this Constitution or under any other law shall be defrayed from money
appropriated by Parliament.
- 206 Regulations
- The President may make regulations regarding-
- (a)procedures in connection with the performance of any function of the Commission; and
- (b)any other matter in connection with the achievement of the objects of the Commission.
Commission on Remuneration of Representatives
- 207 Establishment
- (1) There shall be established by an Act of Parliament a Commission on Remuneration of
Representatives.
- (2) The Commission shall make recommendations to Parliament, the provincial legislatures
and local governments regarding the nature, extent and conditions of the remuneration and
allowances of the members of all elected legislative bodies of the national government and
of provincial and local governments, including members of the Provincial Houses of
Traditional Leaders and the Council of Traditional Leaders.
- 208 Composition and functioning
- (1) The composition, structure, powers, functions and procedures of the Commission and
related matters shall be provided for in the Act referred to in section 207.
- (2) Reports by the Commission shall be tabled in Parliament: Provided that the
Commission shall report to Parliament on its activities at least once every year.
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CHAPTER 13
Quick Index to Sections:
Public Service Commission
- 209 Establishment
- (1) There shall be a Public Service Commission for the Republic, which shall have the
powers and functions entrusted to it by this Constitution or by a law of a competent
authority.
- (2) The Commission shall in respect of the exercise and performance of its powers and
functions be accountable to Parliament.
- 210 Powers and functions
- (1) The Commission shall be competent-
- (a)to make recommendations, give directions and conduct enquiries with regard to-
- (i)the organisation and administration of departments and the public service;
- (ii)the conditions of service of members of the public service and matters related
thereto;
- (iii)personnel practices in the public service, appointments, promotions, transfers,
discharge and other career incidents of members of the public service and matters in
connection with the employment of personnel;
- (iv)the promotion of efficiency and effectiveness in departments and the public service;
and
- (v)a code of conduct applicable to members of the public service;
- (b)when so requested, to advise the President, a Minister or a member of the Executive
Council of a province in regard to any matter relating to the public service or the
employment, remuneration or other conditions of service of functionaries employed by any
institution or body which receives funds wholly or partly appropriated by Parliament or a
provincial legislature;
- (c)to exercise such other powers and perform such other functions as may be entrusted to
it by a law of a competent authority; and
- (d)subject to any limitation imposed by law, to delegate any of its powers to a member
of the Commission or an official in the public service or authorise any such member or
official to perform any of its functions.
- (2) Until amended by law, the powers and functions of the Commission set out in
subsection (1) shall be exercised and performed in accordance with the laws in force at
the commencement of this Constitution.
- (3) A recommendation or direction of the Commission shall be implemented by the
appropriate person or institution within six months unless-
- (a)such recommendation or direction involves expenditure from public funds and the
approval of the treasury for such expenditure is not obtained; or
- (b)the President rejects it and refers it back to the Commission before its
implementation.
- (4) The Commission may appoint, in a manner prescribed by law, such persons as may be
necessary for the discharge of its work.
- (5) Expenditure incurred in connection with the exercise and the performance of the
powers and functions of the Commission in terms of this Constitution or any other law
shall be defrayed from money appropriated by Parliament and from fees raised or money
obtained in a manner authorised by an Act of Parliament.
- (6) On the recommendation of the Commission the President may assign by proclamation in
the Gazette any power or function of the Commission to a provincial service commission.
- (7) The Commission shall annually submit a report on its activities to Parliament.
-
-
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211 Composition
- (1)
- (a) The Commission shall consist of not fewer than three members and not more than five
members appointed by the President, one of whom shall be designated as the Chairperson of
the Commission by the President.
- (b) The Commission shall exercise its powers and perform its functions fairly,
impartially and independently.
- (c) The remuneration and other conditions of service of a member of the Commission shall
be determined in accordance with an Act of Parliament, and such remuneration and the other
conditions of service shall not be altered to his or her detriment during his or her term
of office.
- (d) A member of the Commission shall not hold office in any political party or political
organisation and shall be non-partisan in the performance of his or her functions.
- (e) A member of the Commission may be removed from office by the President on account of
misconduct, or unfitness for his or her duties, or incapacity to carry them out
efficiently, or if, for reasons other than unfitness or incapacity, his or her removal
from office will promote efficiency, and particulars of the removal, including the reasons
therefor, shall be submitted by the President to Parliament within 14 days after such
removal.
- (2) A person shall be qualified to be appointed to the Commission if he or she-
- (a)is a South African citizen; and
- (b)is a person who has sufficient knowledge of or experience in the administration,
management or rendering of public services.
- (3) The composition, appointment, tenure, vacation of office, conditions of service and
functioning of the Commission shall be as determined by Act of Parliament, and such Act
shall ensure the independence and impartiality of the Commission and the efficient and
effective exercise and performance of its powers and functions.
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The
Public Service
- 212 The Public Service
- (1) There shall be a public service for the Republic, structured in terms of a law to
provide effective public administration.
- (2) Such public service shall-
- (a)be non-partisan, career-orientated and function according to fair and equitable
principles;
- (b)promote an efficient public administration broadly representative of the South
African community;
- (c)serve all members of the public in an unbiased and impartial manner;
- (d)be regulated by laws dealing specifically with such service, and in particular with
its structure, functioning and terms and conditions of service;
- (e)loyally execute the policies of the government of the day in the performance of its
administrative functions; and
- (f)be organised in departments and other organisational components, and the head of such
department or organisational component shall be responsible for the efficient management
and administration of his or her department or organisational component.
- (3) Employment in the public service shall be accessible to all South African citizens
who comply with the requirements determined or prescribed by or under any law for
employment in such service.
- (4) In the making of any appointment or the filling of any post in the public service,
the qualifications, level of training, merit, efficiency and suitability of the persons
who qualify for the appointment, promotion or transfer concerned, and such conditions as
may be determined or prescribed by or under any law, shall be taken into account.
- (5) Subsection (4) shall not preclude measures to promote the objectives set out in
subsection (2).
- (6) Provision shall be made by law for a pension for a member of the public service by
means of a pension fund or funds established by law, and members of the public service who
are required by law to be members of a pension fund shall be entitled to fair
representation on the body which manages the applicable fund.
- (7)
- (a) In the event of changes to the law governing pension funds which prejudice a member
of a fund, the real value of the accrued benefits of such member of a fund, and his or her
beneficiary, as represented by the fund's actuarial liability towards the member or his or
her beneficiary, shall be maintained.
- (b) The retirement age applicable to a public servant by law as at 1 October 1993, shall
not be changed without his or her consent.
- (8) For the purposes of this section the public service shall include the permanent
force of the National Defence Force referred to in section 226 (1).
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Provincial
Service Commissions
- 213 Provincial Service Commissions
- (1) A provincial legislature may provide by law for a provincial service commission and,
subject to norms and standards applying nationally, such commission shall, in respect of
public servants employed by the province, be competent-
- (a)to make recommendations, give directions and conduct inquiries with regard to-
- (i)the establishment and organisation of departments of the province;
- (ii)appointments, promotions, transfers, discharge and other career incidents of such
public servants; and
- (iii)the promotion of efficiency and effectiveness in departments of the province;
- (b)when so requested, to advise the Premier or a member of the Executive Council of a
province in regard to any matter relating to the public service or the employment,
remuneration or other conditions of service of functionaries employed by any institution
or body which receives funds wholly or partly appropriated by a provincial legislature;
- (c)subject to any limitation imposed by a law, to delegate any of its powers to a member
of such commission or official in the public service or authorise any such member or
official to perform any of its functions; and
- (d)to exercise and perform such other powers and functions of the Public Service
Commission assigned to it by the President with the approval of the Premier of the
province.
- (2) The provisions of sections 210 (2), (3), (4), (5) and (7) and 211 pertaining to the
Public Service Commission, shall mutatis mutandis apply to a provincial service
commission, except that any reference to an Act of Parliament, Parliament or the President
shall be deemed to be a reference to a provincial law, a provincial legislature or the
Premier of a province, respectively.
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CHAPTER 14
Quick Index to Sections:
- 214 Establishment
- (1) There shall be established and regulated by an Act of Parliament a South African
Police Service, which shall be structured at both national and provincial levels and shall
function under the direction of the national government as well as the various provincial
governments.
- (2) The Act of Parliament referred to in subsection (1) shall-
- (a)subject to sections 216, 217 and 218, provide for the appointment of a Commissioner
of the South African Police Service (hereinafter in this Chapter called the `National
Commissioner') and a Commissioner for each province (hereinafter in this Chapter called a
`Provincial Commissioner');
- (b)provide for the establishment and maintenance of uniform standards of policing at all
levels regarding-
- (i)the exercise of police powers;
- (ii)the recruitment, appointment, promotion and transfer of members of the Service;
- (iii)suspension, dismissal, disciplinary and grievance procedures;
- (iv)the training, conduct and conditions of service of members of the Service;
- (v)the general management, control, maintenance and provisioning of the Service;
- (vi)returns, registers, records, documents, forms and correspondence; and
- (vii)generally, all matters which are necessary or expedient for the achievement of the
purposes of this Constitution.
-
-
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- 215 Powers and functions
- The powers and functions of the Service shall be-
- (a)the prevention of crime;
- (b)the investigation of any offence or alleged offence;
- (c)the maintenance of law and order; and
- (d)the preservation of the internal security of the Republic.
- 216 Minister and National Commissioner
- (1) The President shall, subject to this Constitution, charge a Minister with
responsibility for the Service.
- (2) (a) The President shall, subject to section 236 (1) and (2), appoint the National
Commissioner.
- (b) The National Commissioner shall exercise executive command of the Service, subject
to section 219 (1) and the directions of the Minister referred to in subsection (1).
- (3) The President may, if the National Commissioner has lost the confidence of the
Cabinet, institute appropriate proceedings against the Commissioner in accordance with a
law.
- 217 Powers of provinces
- (1) The Premier of a province shall charge a member of the Executive Council of the
province with responsibility for the performance by the Service in or in regard to that
province of the functions set out in section 219 (1).
- (2) The member of the Executive Council referred to in subsection
- (1)
- (a)shall approve or veto the appointment of the relevant Provincial Commissioner in
terms of section 218 (1) (b); and
- (b)may, if the Provincial Commissioner has lost the confidence of the Executive Council,
institute appropriate proceedings against the said Commissioner in accordance with a law.
- (3) A provincial legislature may pass laws not inconsistent with national legislation
regarding the functions of the Service set out in section 219 (1).
- (4) No provincial law may-
- (a)permit lower standards of performance of the functions of the Service than those
provided for by an Act of Parliament; or
- (b)detract from the rights which citizens have under an Act of Parliament.
-
-
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218 Responsibilities of National Commissioner
- (1) Subject to section 214 and the directions of the Minister referred to in section 216
(1), the National Commissioner shall be responsible for-
- (a)the maintenance of an impartial, accountable, transparent and efficient police
service;
- (b)the appointment of provincial commissioners, subject to section 217 (2) (a);
- (c)the preservation of the internal security in the Republic;
- (d)the investigation and prevention of organised crime or crime which requires national
investigation and prevention or specialised skills: Provided that the Act referred to in
section 214 (1) shall set out the circumstances which shall be regarded as organised crime
and the circumstances which require national investigation and prevention or specialised
skills;
- (e)international police liaison;
- (f)the keeping and provision of crime intelligence data, criminal records and
statistics;
- (g)the training of members of the Service, including any municipal or metropolitan
police services to be established;
- (h)the recruitment, appointment, promotion and transfer of all members of the Service;
- (i)the provision of forensic laboratory services;
- (j)such functions relating to border control and the import and export of goods as may
be assigned to the Service by law;
- (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: Provided that
the Act referred to in section 214 (1) shall provide that the President, in consultation
with the Cabinet, may direct the National Commissioner to deploy the said unit in
circumstances where the Provincial Commissioner is unable to maintain public order and the
deployment of the said unit is necessary to restore public order;
- (l)national protection services;
- (m)the establishment of a special task force for high risk operations which require
specialised skills; and
- (n)subject to section 219, such other functions as-
- (i)are necessary to achieve the objectives referred to in section 215; and
- (ii)are appropriate for the National Commissioner to take responsibility for.
- (2) The National Commissioner may after consultation with the Executive Council of the
province concerned assign responsibility for any function set out in this section to a
Provincial Commissioner: Provided that the National Commissioner shall ensure that
sufficient resources are made available to the Provincial Commissioner for such purpose.
-
-
[ Top ]
219 Provincial Commissioners
- (1)Subject to sections 214 and 218 and the directions of the relevant member of the
Executive Council referred to in section 217 (1), a Provincial Commissioner shall be
responsible for-
- (a)the investigation and prevention of crime;
- (b)the development of community-policing services;
- (c)the maintenance of public order;
- (d)the provision in general of all other visible policing services, including-
- (i)the establishment and maintenance of police stations;
- (ii)crime reaction units; and
- (iii)patrolling services;
- (e)protection services in regard to provincial institutions and personnel;
- (f)transfers within the province of members of the Service performing functions in terms
of this section; and
- (g)the promotion, up to the rank of lieutenant-colonel, of members of the Service
performing functions in terms of this section.
- (2) Subject to sections 214 and 218 and the directions of the National Commissioner, a
Provincial Commissioner shall be responsible for-
- (a)the maintenance and discipline of the Service in the province concerned;
- (b)the recruitment of members of the Service responsible for the functions set out in
subsection (1);
- (c)such other functions as may be assigned to him or her by the National Commissioner
under section 218 (2); and
- (d)subject to such procedures or mechanisms as may be established by the Board of
Commissioners referred to in section 220(2), the transfer of members of the Service under
his or her command to or from positions outside his or her jurisdiction.
- 220 Co-ordination and co-operation
- (1)A committee consisting of the Minister referred to in section 216 (1) and the
respective members of the Executive Councils referred to in section 217 (1) shall be
established to ensure the effective co-ordination of the Service and effective
co-operation between the various Commissioners.
- (2) The Act referred to in section 214 (1) shall provide for the appointment of a Board
of Commissioners, consisting of the National Commissioner and the Provincial Commissioners
and presided over by the National Commissioner or his or her nominee, in order to promote
co-operation and co-ordination in the Service.
-
-
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221 Local policing
- (1) The Act referred to in section 214 (1) shall provide for the establishment of
community- police forums in respect of police stations.
- (2) The functions of community-police forums referred to in subsection (1) may include-
- (a)the promotion of accountability of the Service to local communities and co-operation
of communities with the Service;
- (b)the monitoring of the effectiveness and efficiency of the Service;
- (c)advising the Service regarding local policing priorities;
- (d)the evaluation of the provision of visible police services, including-
- (i)the provision, siting and staffing of police stations;
- (ii)the reception and processing of complaints and charges;
- (iii)the provision of protective services at gatherings;
- (iv)the patrolling of residential and business areas; and
- (v)the prosecution of offenders; and
- (e)requesting enquiries into policing matters in the locality concerned.
- (3) The Act referred to in section 214 (1) shall make provision for the establishment by
any local government of a municipal or metropolitan police service: Provided that-
- (a)such a police service may only be established with the consent of the relevant member
of the Executive Council of the province referred to in section 217 (1);
- (b)the powers of such a police service shall be limited to crime prevention and the
enforcement of municipal and metropolitan by-laws;
- (c)the said member of the Executive Council of the province shall, subject to paragraph
(b) and the provisions of the said Act, determine the powers and functions of such a
police service; and
- (d)the said Act shall provide that its provisions shall, as far as practicable, apply
mutatis mutandis to any such police service.
- 222 Independent complaints mechanism
- There shall be established and regulated by an Act of Parliament an independent
mechanism under civilian control, with the object of ensuring that complaints in respect
of offences and misconduct allegedly committed by members of the Service are investigated
in an effective and efficient manner.
- 223 Acts of members outside their territorial jurisdiction
- (1) No act of a member of the Service shall be invalid solely by reason of the fact that
it was committed outside the province in which that member is stationed.
-
(2) The National Commissioner shall by regulation determine the
procedures and the relevant powers of the members of the Service to enable them to perform
their functions outside their area of provincial jurisdiction.
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National Defence Force
- 224 Establishment of National Defence Force
- (1) The National Defence Force is hereby established as the only defence force for the
Republic.
- (2) The National Defence Force shall at its establishment consist of all members of-
- (a)the South African Defence Force;
- (b)any defence force of any area forming part of the national territory; and
- (c)any armed force as defined in section 1 of the Transitional Executive Council Act,
1993 (Act 151 of 1993), and whose names, at the commencement of this Constitution, are
included in a certified personnel register referred to in section 16 (3) or (9) of the
said Act: Provided that this subsection shall not apply to members of any such defence or
armed force if the political organisation under whose authority and control it stands or
with which it is associated and whose objectives it promotes did not take part in the
first election of the National Assembly and the provincial legislatures under this
Constitution.
- (3) Save for the National Defence Force, no other armed force or military force or armed
organisation or service may be established in or for the Republic other than-
- (a)as provided for in this Constitution;
- (b)a force established by or under an Act of Parliament for the protection of public
property or the environment; or
- (c)a service established by or under law for the protection of persons or property.
- 225 Chief of National Defence Force
- Subject to section 236 (1) and (2), the President shall appoint a Chief of the National
Defence Force, who shall exercise military executive command of the National Defence
Force, subject to the directions of the Minister responsible for defence and, during a
state of national defence, of the President.
-
-
[ Top ]
226 Members of National Defence Force
- (1) The National Defence Force shall comprise both a permanent force and a part-time
reserve component.
- (2) The establishment, organisation, training, conditions of service and other matters
concerning the permanent force shall be as provided for by an Act of Parliament.
- (3) The establishment, organisation, training, state of preparedness, calling up,
obligations and conditions of service of the part-time reserve component shall be as
provided for by an Act of Parliament.
- (4) The National Defence Force shall be established in such a manner that it will
provide a balanced, modern and technologically advanced military force, capable of
executing its functions in terms of this Constitution.
- (5) All members of the National Defence Force shall be properly trained in order to
comply with international standards of competency.
- (6) No member of the permanent force shall hold office in any political party or
political organisation.
- (7) A member of the National Defence Force shall be obliged to comply with all lawful
orders, but shall be entitled to refuse to execute any order if the execution of such
order would constitute an offence or would breach international law on armed conflict
binding on the Republic.
- (8) Provision shall be made by an Act of Parliament for the payment of adequate
compensation to-
- (a)a member of the National Defence Force who suffers loss due to physical or mental
disability sustained in the execution of his or her duties as such a member; and
- (b)the immediate dependants of a member of the National Defence Force who suffer loss
due to the death or physical or mental disability of such a member resulting from the
execution of his or her duties as such a member.
-
-
[ Top ]
227 Functions of National Defence Force
- (1) The National Defence Force may, subject to this Constitution, be employed-
- (a)for service in the defence of the Republic, for the protection of its sovereignty and
territorial integrity;
- (b)for service in compliance with the international obligations of the Republic with
regard to international bodies and other states;
- (c)for service in the preservation of life, health or property;
- (d)for service in the provision or maintenance of essential services;
- (e)for service in the upholding of law and order in the Republic in co-operation with
the South African Police Service under circumstances set out in a law where the said
Police Service is unable to maintain law and order on its own; and
- (f)for service in support of any department of state for the purpose of socio-economic
upliftment.
- (2) The National Defence Force shall-
- (a)exercise its powers and perform its functions solely in the national interest by-
- (i)upholding the Constitution;
- (ii)providing for the defence of the Republic; and
- (iii)ensuring the protection of the inhabitants of the Republic, in accordance with this
Constitution and any law;
- (b)exercise its powers and perform its functions under the directions of the government
of the Republic;
- (c)refrain from furthering or prejudicing party-political interests;
- (d)not breach international customary law binding on the Republic relating to
aggression;
- (e)in armed conflict comply with its obligations under international customary law and
treaties binding on the Republic; and
- (f)be primarily defensive in the exercise or performance of its powers and functions.
- (3) The employment for service, training, organisation and deployment of the National
Defence Force shall be effected in accordance with the requirements of subsection (2).
- 228 Accountability
- (1) The Minister responsible for defence shall be accountable to Parliament for the
National Defence Force.
- (2) Parliament shall annually approve a budget for the defence of the Republic.
- (3)
- (a) A joint standing committee of Parliament on defence shall be established, consisting
of members of all political parties holding more than 10 seats in the National Assembly
and willing to participate in the committee.
- (b) The total membership of the committee shall be as determined by or under the rules
and orders.
- (c) Such a party shall be entitled to designate a member or members on the committee in
accordance with the principle of proportional representation and as determined in
accordance with the following formula:
- (i)A quota of seats per member of the committee shall be determined by dividing the
total number of seats in the National Assembly held jointly by all the parties referred to
in paragraph (a) by the total number of members of the committee plus one.
- (ii)The result, disregarding third and subsequent decimals, if any, shall be the quota
of seats per member.
- (iii)The number of members that a participating party shall be entitled to designate on
the committee, shall be determined by dividing the total number of seats held by such
party in the National Assembly by the quota referred to in subparagraph (ii).
- (iv)The result shall, subject to subparagraph (v), indicate the number of members that
such party is entitled to designate on the committee.
- (v)Where the application of the above formula yields a surplus not absorbed by the
number of members allocated to a party, such surplus shall compete with other similar
surpluses accruing to another party or parties, and any member or members which remain
unallocated shall be allocated to the party or parties concerned in sequence of the
highest surplus. (d) The committee shall be competent to investigate and make
recommendations regarding the budget functioning, organisation, armaments, policy, morale
and state of preparedness of the National Defence Force and to perform such other
functions relating to parliamentary supervision of the Force as may be prescribed by law.
- (4) (a) The President shall, when the National Defence Force is employed for service
referred to in section 227 (1) (a), (b) or (e), forthwith inform Parliament of the reasons
for such employment. (b) If, in the case of such an employment referred to in section 227
(1) (a) or (b), Parliament is not sitting, the President shall summon the joint standing
committee referred to in subsection (3) to meet expeditiously, but not later than 14 days
after the commencement of such employment, and shall inform the committee of the reasons
for such employment.
- (5) Parliament may by resolution terminate any employment referred to in section 227 (1)
(a), (b) or (e), but such termination of employment shall not affect the validity of
anything done in terms of such employment up to the date of such termination, or any
right, privilege, obligation or liability acquired, accrued or incurred as at the said
date under and by virtue of such employment.
[ Top ]
CHAPTER 15
Quick Index to Sections:
- 229 Continuation of existing laws
- Subject to this Constitution, all laws which immediately before the commencement of this
Constitution were in force in any area which forms part of the national territory, shall
continue in force in such area, subject to any repeal or amendment of such laws by a
competent authority.
- 230 Repeal of laws
- (1) The laws mentioned in Schedule 7 are hereby repealed to the extent set out in the
third column of the said Schedule.
- (2) Notwithstanding the repeal of sections 13 and 101 (2) of the previous Constitution,
any pension which, but for such repeal, would have been payable shall continue to be
payable as if such repeal had not been effected.
- 231 Continuation of international agreements and status of
international law
- (1) All rights and obligations under international agreements which immediately before
the commencement of this Constitution were vested in or binding on the Republic within the
meaning of the previous Constitution, shall be vested in or binding on the Republic under
this Constitution, unless provided otherwise by an Act of Parliament.
- (2) Parliament shall, subject to this Constitution, be competent to agree to the
ratification of or accession to an international agreement negotiated and signed in terms
of section 82 (1) (i).
- (3) Where Parliament agrees to the ratification of or accession to an international
agreement under subsection (2), such international agreement shall be binding on the
Republic and shall form part of the law of the Republic, provided Parliament expressly so
provides and such agreement is not inconsistent with this Constitution.
- (4) The rules of customary international law binding on the Republic, shall, unless
inconsistent with this Constitution or an Act of Parliament, form part of the law of the
Republic.
- 232 Interpretation
- (1) Unless it is inconsistent with the context or clearly inappropriate, a reference in
a law referred to in section 229-
- (a)to the Republic or to any territory which after the commencement of this Constitution
forms part of the national territory-
- (i)as a constitutional institution, shall be construed as a reference to the Republic
referred to in section 1; or
- (ii)as a territorial area, shall be construed as a reference to that part of the
national territory in which the law in question was in force immediately before such
commencement, unless such law is applied by a law of a competent authority to the whole or
any part of the national territory;
- (b)to a Parliament, House of a Parliament or legislative assembly or body of any
territory which after the commencement of this Constitution forms part of the national
territory, shall-
- (i)if the administration of such a law is allocated in terms of this Constitution to the
national government, be construed as a reference to Parliament referred to in section 36;
or
- (ii)if the administration of such law is allocated or assigned in terms of this
Constitution to a government of a province, be construed as a reference to the provincial
legislature of that province;
- (c)to a State President, Chief Minister, Administrator or other chief executive,
Cabinet, Ministers' Council or executive council of any territory which after the
commencement of this Constitution forms part of the national territory, shall-
- (i)if the administration of such law is allocated in terms of this Constitution to the
national government, be construed as a reference to the President acting in accordance
with this Constitution; or
- (ii)if the administration of such law is allocated or assigned in terms of this
Constitution to a government of a province, be construed as a reference to the Premier of
such province acting in terms of this Constitution;
- (d)to an official language or to both official languages, shall be construed, with due
regard to section 3, as a reference to any of the official South African languages under
this Constitution.
[ Top ]
- (2)
- (a) Any reference in this Constitution to any particular law shall be construed as a
reference to that law as it exists from time to time after any amendment or replacement
thereof by a competent authority.
- (b) An amendment, replacement or repeal of a law referred to in paragraph (a), shall for
the purposes of section 62 not be considered to be an amendment of this Constitution, and
any such amendment, replacement or repeal of a law shall for its validity be dependent on
its consistency with this Constitution in terms of section 4 (1).
- (3) No law shall be constitutionally invalid solely by reason of the fact that the
wording used is prima facie capable of an interpretation which is inconsistent with a
provision of this Constitution, provided such a law is reasonably capable of a more
restricted interpretation which is not inconsistent with any such provision, in which
event such law shall be construed as having a meaning in accordance with the said more
restricted interpretation.
- (4) In interpreting this Constitution a provision in any Schedule, including the
provision under the heading 'National Unity and Reconciliation', to this Constitution
shall not by reason only of the fact that it is contained in a Schedule, have a lesser
status than any other provision of this Constitution which is not contained in a Schedule,
and such provision shall for all purposes be deemed to form part of the substance of this
Constitution.
- (5)
- (a) Notwithstanding the provisions of the Independent Electoral Commission Act, 1993
(Act 150 of 1993),the President may at any time after the dissolution of the Independent
Electoral Commission in terms of section 9 of that Act, by proclamation in the Gazette,
reconvene the Commission for the purposes of a referendum or election referred to in
section 124.
- (b) If any person who before its dissolution was a member of the Commission, cannot or
is unwilling to serve as a member after it has been reconvened under paragraph (a),
Parliament may, by resolution adopted at a joint sitting of the National Assembly and the
Senate by a majority of at least two-thirds of the total number of members of both Houses,
appoint any suitably qualified person to replace any such member.
- 233 Definitions
- (1) In this Constitution, unless the context otherwise indicates- 'Chief Justice' means
the Chief Justice of the Supreme Court of South Africa referred to in section 97 (1);
'Commission on Provincial Government' means the Commission established by section 163;
'Financial and Fiscal Commission' means the Commission established by section 198;
'House',in relation to Parliament, means the National Assembly or the Senate; 'Independent
Electoral Commission' means the Commission established by section 4 of the Independent
Electoral Commission Act, 1993 (Act 150 of 1993); 'National Defence Force' means the
Defence Force established by section 224 (1); 'National Revenue Fund' means the Revenue
Fund established by section 185; 'new constitutional text' means the text of a new
Constitution contemplated in Chapter 5; 'organ of state' includes any statutory body or
functionary; 'previous Constitution' means the Republic of South Africa Constitution Act,
1983 (Act 110 of 1983); 'Provincial Revenue Fund' means the Revenue Fund of a province
established by section 159 (1); 'Public Service Commission' means the Commission
established by section 209; 'Republic' means the Republic of South Africa referred to in
section 1; 'Transitional Executive Council' means the Council established by section 2 of
the Transitional Executive Council Act, 1993 (Act 151 of 1993).
[ Top ]
- (2) A reference in this Constitution to rules and orders shall according to the context
be construed as a reference to the rules and orders of the National Assembly or the
Senate, or the joint rules and orders of the National Assembly and the Senate, or the
rules and orders of the Constitutional Assembly, or the rules and orders of a provincial
legislature.
- (3) Where in this Constitution any functionary is required to take a decision in
consultation with another functionary, such decision shall require the concurrence of such
other functionary: Provided that if such other functionary is a body of persons it shall
express its concurrence in accordance with its own decision-making procedures.
- (4) Where in this Constitution any functionary is required to take a decision after
consultation with another functionary, such decision shall be taken in good faith after
consulting and giving serious consideration to the views of such other functionary.
- 234 Transitional arrangements: Legislative authorities
- (1) A person who immediately before the commencement of this Constitution was a member
of Parliament or of any other legislature (excluding a local government) which exercised
legislative powers in respect of any area which forms part of the national territory,
shall upon such commencement cease to be such a member, but shall for the purpose of any
law relating to the payment of pension benefits to such members not be disqualified solely
by reason of this section.
- (2) A person who immediately before the commencement of this Constitution was employed
by Parliament, shall after such commencement continue in such employment, subject to and
in accordance with the applicable laws regulating such employment.
- (3) The provisions of section 236 (4), (5) and (6) shall apply mutatis mutandis in
respect of a person referred to in subsection (2).
- (4) A person who immediately before the commencement of this Constitution was employed
by a legislature referred to in subsection (1) other than Parliament, shall be deemed to
be employed by the administration in that part of the national territory in which such
legislature exercised legislative powers, subject to and in accordance with the applicable
laws regulating such employment, and sections 236 and 237 shall apply mutatis mutandis in
respect of such person.
- (5) Any matter before Parliament or any such other legislature which immediately before
the commencement of this Constitution was not yet disposed of by Parliament or such
legislature, as the case may be, shall lapse upon such commencement.
- (6) The rules and orders of Parliament in force immediately before the commencement of
this Constitution, shall, to the extent that they can mutatis mutandis be applied in
respect of the business and proceedings of Parliament under this Constitution, continue in
force until amended or replaced in terms of this Constitution.
- 235 Transitional arrangements: Executive authorities
- (1) A person who immediately before the commencement of this Constitution was-
- (a)the State President or a Minister or Deputy Minister of the Republic within the
meaning of the previous Constitution;
- (b)the Administrator or a member of the Executive Council of a province; or
- (c)the President, Chief Minister or other chief executive or a Minister, Deputy Minister
or other political functionary in a government under any other constitution or
constitutional arrangement which was in force in an area which forms part of the national
territory, shall continue in office until the President has been elected in terms of
section 77 (1) (a) and has assumed office: Provided that a person referred to in paragraph
(a), (b) or (c) shall for the purposes of section 42 (1) (e) and while continuing in
office, be deemed not to hold an office of profit under the Republic.
- (2) Any vacancy which may occur in an office referred to in subsection (1) (a), (b) or
(c) shall, if necessary, be filled by a person designated by the persons continuing in
office in terms of subsection (1) (a), acting in consultation with the Transitional
Executive Council.
- (3) Executive authority which was vested in a person or persons referred to in
subsection (1) (a), (b) or (c) in terms of a constitution or constitutional arrangement in
force immediately before the commencement of this Constitution, shall during the period in
which the said person or persons continue in office in terms of subsection (1), be
exercised in accordance with such constitution or constitutional arrangement, as if it had
not been repealed or superseded by this Constitution, and any such person or persons shall
continue to be competent to administer any department of state, administration, force or
other institution which was entrusted to, and to exercise and perform any power or
function which was vested in, him or her or them immediately before the said commencement:
Provided that-
- (a)no such executive authority, power or function shall be exercised or performed if the
Transitional Executive Council disapproves thereof; and
- (b)once the election results of the National Assembly have been certified by the
Independent Electoral Commission in terms of the Independent Electoral Commission Act,
1993, the State President referred to in subsection (1) (a) shall exercise and perform his
or her powers and functions in consultation with the leader of the party which has
received the largest number of votes in the said election.
- (4) The Transitional Executive Council may by resolution of a majority of all its
members at any time during the period in which the said State President continues in
office in terms of subsection (1), require him or her, or any other appropriate authority,
to take such steps in terms of any law as are necessary to maintain law and order,
including the declaration of a state of emergency or of an area to be an unrest area in
terms of an applicable law.
- (5) Upon the assumption of office by the President in terms of this Constitution-
- (a)the executive authority of the Republic as contemplated in section 75 shall vest in
the President acting in accordance with this Constitution; and
- (b)the executive authority of a province as contemplated in section 144 shall, subject
to subsections (8) and (9), vest in the Premier of that province acting in accordance with
this ConstItution, or while the Premier of a province has not yet assumed office, in the
President acting in accordance with section 75 until the Premier assumes office.
[ Top ]
- (6) The power to exercise executive authority in terms of laws which, immediately prior
to the commencement of this Constitution, were in force in any area which forms part of
the national territory and which in terms of section 229 continue in force after such
commencement, shall be allocated as follows:
- (a)All laws with regard to matters which-
- (i)do not fall within the functional areas specified in Schedule 6; or
- (ii)do fall within such functional are as but are matters referred to in paragraphs (a)
to (e) of section 126 (3) (which shall be deemed to include all policing matters until the
laws in question have been assigned under subsection (8) and for the purposes of which
subsection (8) shall apply mutatis mutandis), shall be administered by a competent
authority within the jurisdiction of the national government: Provided that any policing
function which but for subparagraph (ii) would have been performed subject to the
directions of a member of the Executive Council of a province in terms of section 219 (1)
shall be performed after consultation with the said member within that province.
- (b)All laws with regard to matters which fall within the functional areas specified in
Schedule 6 and which are not matters referred to in paragraphs (a) to (e) of section 126
(3) shall-
- (i)if any such law was immediately before the commencement of this Constitution
administered by or under the authority of a functionary referred to in subsection (1) (a)
or (b), be administered by a competent authority within the jurisdiction of the national
government until the administration of any such law is with regard to any particular
province assigned under subsection (8) to a competent authority within the jurisdiction of
the government of such province; or
- (ii)if any such law was immediately before the said commencement administered by or
under the authority of a functionary referred to in subsection (1) (c), subject to
subsections(8) and (9) be administered by a competent authority within the jurisdiction of
the government of the province in which that law applies, to the extent that it so
applies: Provided that this subparagraph shall not apply to policing matters, which shall
be dealt with as contemplated in paragraph (a).
- (c)In this subsection and subsection (8) 'competent authority' shall mean-
- (i)in relation to a law of which the administration is allocated to the national
government, an authority designated by the President; and
- (ii)in relation to a law of which the administration is allocated to the government of a
province, an authority designated by the Premier of the province.
- (a) The President may, after consultation with the Premier of a province, by
proclamation in the Gazette take such measures, including legislative measures, as he or
she considers necessary for the better achievement of this section.
- (b) A copy of a proclamation under paragraph (a), shall be submitted to Parliament
within 14 days after the publication thereof.
- (c) If Parliament disapproves of any such proclamation or any provision thereof, such
proclamation or provision shall thereafter cease to be of force and effect to the extent
to which it is so disapproved, but without prejudice to the validity of anything done in
terms of such proclamation up to the date upon which it so ceased to be of force and
effect, or to any right, privilege, obligation or liability acquired, accrued or incurred
as at the said date under and by virtue of such proclamation.
- (8)
- (a) The President may, and shall if so requested by the Premier of a province, and
provided the province has the administrative capacity to exercise and perform the powers
and functions in question, by proclamation in the Gazette assign, within the framework of
section 126, the administration of a law referred to in subsection (6) (b) to a competent
authority within the jurisdiction of the government of a province, either generally or to
the extent specified in the proclamation.
- (b) When the President so assigns the administration of a law, or at any time
thereafter, and to the extent that he or she considers it necessary for the efficient
carrying out of the assignment, he or she may-
- (i)amend or adapt such law in order to regulate its application or interpretation;
- (ii)where the assignment does not relate to the whole of such law, repeal and re-enact,
whether with or without an amendment or adaptation contemplated in subparagraph (i), those
of its provisions to which the assignment relates or to the extent that the assignment
relates to them; and
- (iii)regulate any other matter necessary, in his or her opinion, as a result of the
assignment, including matters relating to the transfer or secondment of persons (subject
to sections 236 and 237) and relating to the transfer of assets, liabilities, rights and
obligations, including funds, to or from the national or a provincial government or any
department of state, administration, force or other institution.
- (c) In regard to any policing power the President may only make that assignment
effective upon the rationalisation of the police service as contemplated in section 237:
Provided that such assignment to a province may be made where such rationalisation has
been completed in such a province.
- (d) Any reference in a law to the authority administering such law, shall upon the
assignment of such law in terms of paragraph (a) be deemed to be a reference mutatis
mutandis to the appropriate authority of the province concerned.
[ Top ]
- (9)
- (a) If for any reason a provincial government is unable to assume responsibility within
14 days after the election of its Premier, for the administration of a law referred to in
subsection (6) (b), the President shall by proclamation in the Gazette assign the
administration of such law to a special administrator or other appropriate authority
within the jurisdiction of the national government, either generally or to the extent
specified in the proclamation, until that provincial government is able to assume the said
responsibility.
- (b) Subsection (8) (b) and (d) shall mutatis mutandis apply in respect of an assignment
under paragraph (a) of this subsection.
- 236 Transitional arrangements: Public administration
- (1) A public service, department of state (including a police force), administration,
military force as defined in section 224 (2) (a) or (b) or other institution (excluding
any local government) which immediately before the commencement of this Constitution
performed governmental functions under the control of an authority referred to in section
235 (1) (a), (b) or (c), shall, subject to subsection (7), continue to function as such in
accordance with the laws applicable to it until it is, as the case may be, abolished or
incorporated or integrated into any appropriate institution or is rationalised as
contemplated in any other Chapter, consolidated with any other institution or otherwise
rationalised as contemplated in section 237, as the case may be: Provided that a military
force referred to in this subsection shall not be employed for service referred to in
section 227 (1) (a), (b) or (e) otherwise than by the President and shall only be used for
such service by the authority referred to in section 225 in accordance with section 227
(2).
- (2) A person who immediately before the commencement of this Constitution was employed
by an institution referred to in subsection (1) shall continue in such employment subject
to and in accordance with this Constitution and other applicable laws regulating such
employment.
- (3) Subject to subsections (1) and (2), all powers, directions, orders, instructions or
delegations which were in force in respect of an institution which immediately before the
commencement of this Constitution performed governmental functions as contemplated in
subsection (1) shall, after the said commencement, continue in force for the purpose of
the continued functioning within the contemplation of subsection (1) of any such
institution, until cancelled or otherwise no longer in force in law.
- (4) Subject to this Constitution and subsection (5), the terms and conditions of
employment applicable to a person employed by an institution referred to in subsection (1)
immediately before the commencement of this Constitution, shall continue to apply to him
or her until amended by or under any law, including any law enacted in order to establish
uniformity of the terms and conditions of employment in accordance with those generally
prevailing at such commencement.
- (5) Subject to any law relating to unfitness or incapacity of a person to carry out his
or her duties efficiently, the pensionable salary or pensionable salary scale of a person
referred to in subsection (2) shall not be reduced below that applicable to such person
immediately before the commencement of this Constitution.
- (6) Notwithstanding the provisions of this section, 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 or may occur between 27 April 1993 and 30 September 1994 in
respect of any person referred to in subsection (2), or any class of such persons, may, at
the instance of a Minister or a member of the Executive Council of a province, within one
year of the commencement of this Constitution be reviewed by a commission appointed by the
President and presided over by a judge, and if not proper or justifiable in the
circumstances of the case, the commission may reverse or alter the contract, appointment,
promotion or award.
[ Top ]
- (7)
- (a) At the commencement of this Constitution the South African Police existing in terms
of the Police Act, 1958 (Act 7 of 1958), and all other police forces established by law
shall be deemed to constitute the South African Police Service referred to in section 214,
and any reference to the South African Police or any such force in the said Act or law
shall be deemed to be a reference to the said Service.
- (b) Any reference in any law to the South African Police or any other police force
(excluding a municipal police service) shall, unless the context indicates otherwise, be
construed as a reference to the said South African Police Service.
- (8)
- (a) The National Defence Force referred to in section 224 shall, subject to this
Constitution and any Act of Parliament, mutatis mutandis be governed by the Defence Act,
1957 (Act 44 of 1957).
- (b) Any reference in any law to a defence force referred to in section 224 (2) (a) or
(b), shall be deemed to be a reference to the National Defence Force.
- (c) If the number of the members of the National Defence Force exceeds the personnel
strength determined in respect of the force design and structure for the Force, any member
of the Force who, due to integration, consolidation and rationalisation of the National
Defence Force is not accommodated in such force design and structure, shall be dealt with
in accordance with a law.
- (d) The continuance of membership of members of the National Defence Force referred to
in section 224 (2) (c) shall be subject to such members entering into an agreement for
temporary or permanent appointment with the National Defence Force within a reasonable
time: Provided that such agreements shall be in accordance with normal employment policies
and terms and conditions of service.
- 237 Rationalisation of public administration
- (1)
- (a) All institutions referred to in section 236 (1), excluding military forces referred
to in section 224 (2), shall as soon as is possible after the commencement of this
Constitution be rationalised with a view to establishing within the public service
contemplated in section 212 (1)-
- (i)an effective administration at the national level of government to deal with matters
within the jurisdiction of the national government referred to in section 235 (5) (a); and
- (ii)an effective administration for each province to deal with matters within the
jurisdiction of each provincial government referred to in section 235 (5) (b).
- (b) All military forces referred to in section 224 (2) shall be rationalised for the
purposes of the National Defence Force.
- (2)
- (a) The responsibility for the rationalisation of-
- (i)institutions referred to in section 236 (1), excluding military forces, shall
primarily but not exclusively rest with the national government, which shall exercise such
responsibility in co-operation with the provincial governments and the Commission on
Provincial Government, and with due regard to the advice of the Public Service Commission:
Provided that in the case of policing services, the national government shall exercise
such responsibility in co-operation with the committee referred to in section 220 (1) and
the Board of Commissioners referred to in section 220 (2); and
- (ii)military forces shall rest with the national government.
- (aA) In anticipation of the adoption of the Act of Parliament contemplated in section
214-
- (i)the National Commissioner and Provincial Commissioners of the South African Police
Service contemplated in section 214 (2) (a) may be appointed;
- (ii) a meeting of the National Commissioner and the Provincial Commissioners or their
nominees shall be deemed to be a meeting of the Board of Commissioners contemplated in
section 220 (2) and any decision taken at such a meeting shall be deemed to be a decision
of the Board;
- (iii) the existing police forces, deemed in terms of section 236 (7) to constitute the
South African Police Service contemplated in section 214, may be rationalised in
accordance with this section; and
-
(iv) proclamations to regulate such rationalisation may be issued in
terms of subsection (3). [Para. (aA) inserted by s. 8 of Act 29 of 1994.]
- (b) Subject to section 235 (6), (7), (8) and (9), the responsibility for the internal
rationalisation of an administration referred to in subsection (1) (a) (ii) shall
primarily rest with the relevant provincial government, with due regard to the advice of
the Public Service Commission and any relevant provincial service commission: Provided
that the rationalisation of all police forces shall be dealt with in accordance with
paragraph (a) (I).
[ Top ]
- (3)
- (a) The President may, subject to subsection (2) (a), by proclamation in the Gazette
take such steps as he or she considers necessary in order to achieve the aim mentioned in
subsection (1).
- (b) Without derogating from the generality of paragraph (a), the steps referred to in
that paragraph may include-
- (i)the amendment, repeal or replacement of any law regulating the establishment,
functions and other matters relating to an institution referred to in section 236 (1), or
of any law referred to in section 236 (2), or of any law which deals with any of the
aforegoing matters in a consequential manner: Provided that if a law referred to in
section 236 (2) is repealed, provision shall be made for the application of any law of
general application regulating the employment of persons or any class of persons in the
employment of the state, to the persons or class of persons affected by such repeal; and
- (ii)measures relating to the transfer or secondment of personnel, or the allocation of
property, funds, rights and obligations, including administrative records, in order to
establish the administrations referred to in subsection (2) and rationalise the South
African Police Service and the National Defence Force.
- (c) A copy of a proclamation under paragraph (a), shall be submitted to Parliament
within 14 days after the publication thereof.
- (d) If Parliament disapproves of any such proclamation or any provision thereof, such
proclamation or provision shall thereafter cease to be of force and effect to the extent
to which it is so disapproved, but without prejudice to the validity of anything done in
terms of such proclamation up to the date upon which it so ceased to be of force and
effect, or to any right, privilege, obligation or liability acquired, accrued or incurred
as at the said date under and by virtue of such proclamation.
- (4)
- (a) The labour appeal court established by section 17A of the Labour Relations Act, 1956
(Act 28 of 1956), sitting as a special tribunal in terms of an Act to be passed by
Parliament, shall be competent to determine any claim or dispute of right in terms of a
law regulating as at 1 November 1993 employment in an institution referred to in section
236 (1) and arising out of the implementation of this section and section 236.
- (b) The Act of Parliament contemplated in paragraph (a) shall prescribe expeditious
procedures for the adjudication of claims and disputes contemplated in this section,
including the granting of interim and final relief.
- (c) Notwithstanding the provisions of any law the procedures contemplated in paragraph
(b) shall be the only procedures to be followed in such court.
- (d) A decision of the court on any such claim or dispute shall be final and binding.
- (e) This subsection and the Act of Parliament contemplated in paragraph (a) shall lapse
one year from the commencement of this Constitution, save that any matter properly before
the court referred to in paragraph (a) on that date shall be heard and determined as if
this subsection and the said Act had not lapsed.
- 238 Transitional arrangements: Public service commissions
- (1) A public service commission established for a public service referred to in section
236 (1) shall, subject to subsections(3) and (4), after the commencement of this
Constitution continue to function as such in accordance with the laws applicable to it.
- (2)
- (a) A person who immediately before the commencement of this Constitution was the
chairperson or member of a public service commission referred to in subsection (1) shall,
subject to subsections (3) and (4) and section 237, after such commencement, continue in
office in accordance with the laws regulating his or her appointment.
- (b) Section 236 (3), (4) and (5) shall apply mutatis mutandis in respect of a person
referred to in paragraph (a) of this subsection.
- (3) The Commission for Administration established by the Commission for Administration
Act, 1984 (Act 65 of 1984), shall cease to exist upon the appointment of the members of
the Public Service Commission referred to in section 209: Provided that a person who
immediately before such appointment held office as the chairperson or a member of the
Commission for Administration shall be entitled to be appointed as a member of the Public
Service Commission.
[ Top ]
- (4) A public service commission, other than the Commission for Administration referred
to in subsection (3), which continues to perform its functions in any part of the national
territory, shall mutatis mutandis be subject to rationalisation under section 237 and
shall cease to exist to the extent that it is superseded by the establishment of a
provincial service commission contemplated in section 213 or otherwise rationalised or
abolished under section 237.
- (5) If-
- (a)the chairperson or a member referred to in the proviso to subsection (3) elects not
to be appointed to the Public Service Commission; or
- (b)the chairperson or a member of a public service commission referred to in subsection
(4), is not upon the abolition of such public service commission appointed to any
provincial service commission, the period of office for which such a chairperson or member
has been appointed shall for the purpose of any applicable law regulating retirement
benefits, be deemed to have been completed.
- (6) Any reference in any law to the Commission for Administration referred to in
subsection (3), shall be deemed to be a reference to the Public Service Commission.
- 239 Transitional arrangements: Assets and liabilities
- (1) All assets, including funds and administrative records, which immediately before the
commencement of this Constitution vested in an authority referred to in section 235 (1)
(a), (b) or (c), or in a government, administration or force under the control of such an
authority, shall be allocated as follows:
- (a) Where any asset is applied or intended to be applied for or in connection with a
matter which-
- (i)does not fall within a functional area specified in Schedule 6; or
- (ii)does fall within such a functional area but is a matter referred to in paragraphs
(a) to (e) of section 126 (3) (which shall be deemed to include a police asset), such
asset shall vest in the national government.
- (b)Where any asset is applied or intended to be applied for or in connection with a
matter which is not a matter referred to in paragraphs (a) to (e) of section 126 (3), such
asset shall, subject to paragraph(c),vest in the relevant provincial government.
- (c)Where any asset referred to in paragraph (b) is applied or intended to be applied for
or in connection with the administration of a particular law or the performance of a
particular function in a particular area, such asset shall vest in the government to which
the administration of that law is assigned, or is assigned in that particular area, in
terms of section 235 (6), (8) or (9), or to which the performance of that function is
entrusted, or entrusted in the particular area, in terms of section 237.
- (d)Where any asset cannot in terms of the aforegoing rules be classified with reference
to a particular matter, law or function, or where there is disagreement between two or
more governments, the advice of the Commission on Provincial Government shall be obtained,
and any dispute shall be resolved with due regard to such advice.
- (e)Parliament shall be competent to enact a law to facilitate the application of this
section and to prescribe guidelines for the resolution of disputes arising from such
application.
- (f)All assets under the control of a police force shall vest in the South African Police
Service.
- (2)
- (a) A registrar of deeds shall upon the production of a certificate by a competent
authority that immovable property described in the certificate is vested in a particular
government in terms of this section, make such entries or endorsements in or on any
relevant register, title deed or other document to register such immovable property in the
name of such government.
- (b) No duty, fee or other charge shall be payable in respect of a registration in terms
of paragraph (a).
[ Top ]
- (3)
- (a) Subject to paragraph (b), all debts and liabilities-
- (i)directly linked to an asset vesting in terms of subsection (1) in a provincial
government, shall be assumed by such provincial government; and
- (ii)other than those referred to in subparagraph (i) shall be assumed by the national
government: Provided that the servicing of all state debts and liabilities not provided
for in this Constitution shall be undertaken by the national government until allocated to
the relevant level of government.
- (b) Parliament shall be competent to pass a law regulating the re-allocation of debts
and liabilities to the national government and the respective provincial governments, but
no such law shall be passed unless a report and recommendations of the Financial and
Fiscal Commission has been tabled in and considered by Parliament.
- (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.
- (5)Anything done in terms of this section shall be subject to audit by the
Auditor-General.
- 240 Transitional arrangements: State Revenue Fund
- (1) At the commencement of this Constitution the State Revenue Fund established in terms
of section 81 of the previous Constitution shall continue to exist until an Act of
Parliament contemplated in section 185(1) is adopted prescribing the administration of the
National Revenue Fund.
- (2) While the State Revenue Fund continues to exist it shall for all purposes be deemed
to be the National Revenue Fund.
- (3) The Accounts of the State Revenue Fund referred to in section 82 of the previous
Constitution shall be phased out and closed as soon as circumstances permit.
- (4) In the 1994/1995 financial year the head of the department of the Treasury, as
defined in section 1 of the Exchequer Act, 1975 (Act 66 of 1975), may, in consultation
with the Minister responsible for national financial matters, from the Exchequer Account,
on conditions aimed at ensuring financial control, grant advances to provincial
governments as he or she deems necessary for the purposes of establishing and funding of
structures of government at provincial level as contemplated in this Constitution until
Parliament has appropriated money for such purposes.
- (5) Any Revenue Fund established before the commencement of this Constitution by a law
in force in an area which forms part of the national territory, excluding the State
Revenue Fund referred to in subsection (1), shall, subject to subsection (6) and any laws
governing the application and withdrawal of moneys from such Revenue Fund, continue to
exist until the money therein is transferred under this Chapter to the National Revenue
Fund or to any relevant Provincial Revenue Fund, as the case may be, or otherwise dealt
with by a competent authority.
- (6) Moneys in a Revenue Fund referred to in subsection (5) may only be withdrawn in
order to meet expenditure for services in the area in respect of which the Fund was
established and in respect of which an appropriation has been made for the current or in
the immediately preceding financial year or for which there is other statutory authority:
Provided that no withdrawal shall be made from such Revenue Fund other than with the
concurrence of a person designated by the President for that purpose.
- 241 Transitional arrangements: Judiciary
- (1) Every court of law existing immediately before the commencement of this Constitution
in an area which forms part of the national territory, shall be deemed to have been duly
constituted in terms of this Constitution or the laws in force after such commencement,
and shall continue to function as such in accordance with the laws applicable to it until
changed by a competent authority: Provided-
- (a) that an appellate division of a supreme court which immediately before the
commencement of this Constitution exercised jurisdiction in respect of an area which forms
part of the national territory, other than the Appellate Division of the Supreme Court of
South Africa, shall cease to exist with effect from the date of commencement of the
Constitution of the Republic of South Africa Third Amendment Act, 1994;
- (b) that any case pending before any such appellate division immediately before the said
date shall be disposed of by such appellate division and the judges of appeal serving in
such appellate division as if such division had not ceased to exist; and
-
(c) that any person who immediately before the said date was the chief
justice in respect of any such appellate division, shall continue in office without any
change in the terms and conditions of his or her service and shall be deemed to be the
Judge President of the supreme court of which that appellate division previously formed
part until the existing court structures have been rationalised as contemplated in section
242 (1). [Sub-s. (1) amended by s. 15 (a) of Act 13 of 1994.]
[ Top ]
- (1A) Until the court structures contemplated in Chapter 7 have been established as
required by section 242 (1), the jurisdiction of courts of law which existed immediately
before the commencement of this Constitution and which continued to exist by virtue of
subsection (1) of this section, shall be as follows:
- (a) The Appellate Division of the Supreme Court of South Africa shall have the same
jurisdiction as that which is vested in terms of this Constitution in the Appellate
Division contemplated in section 101 (1), and shall exercise such jurisdiction in respect
of the whole of the national territory;
- (b) a provincial or local division of the said Supreme Court of South Africa, and any
other supreme court or general division thereof, shall have the same jurisdiction as that
which is vested in terms of this Constitution in a provincial or local division
contemplated in section 101 (1), and shall exercise such jurisdiction in respect of the
area of jurisdiction for which it was established; and
-
(c) any other court shall, in addition to the jurisdiction vested in
it immediately before the commencement of this Constitution, have the same jurisdiction as
that which is vested in terms of section 103 in a court of similar status contemplated
therein, and shall exercise such jurisdiction in respect of the area of jurisdiction for
which it was established. [Sub-s. (1A) inserted by s. 15 (b) of Act 13 of 1994.]
-
(1B) For the purposes of the application of this Constitution while
the existing court structures referred to in subsection (1) continue, any reference in
this Constitution to any of the court structures contemplated in Chapter 7 shall, unless
inconsistent with the context or clearly inappropriate, be deemed to be a reference to the
corresponding existing court structure, and in such application a reference to a
provincial division shall be construed also to refer to any of the other supreme courts,
or general division of any such court, referred to in subsection (1A) (b). [Sub-s. (1B)
inserted by s. 15 (b) of Act 13 of 1994.]
- (2) The Chief Justice of South Africa, the judges-president and deputy judges-president
of the various divisions of the Supreme Court of South Africa, the judges of appeal of the
Appellate Division of the said Supreme Court, and the other judges of the said Supreme
Court, holding office immediately before the commencement of this Constitution, shall be
deemed to have been duly appointed to the corresponding positions in terms of Chapter 7
and shall continue to hold office in accordance with the applicable laws.
-
(2A) The chief justice of a supreme court referred to in the proviso
to subsection (1) who in terms of that proviso continues in office as the Judge President
of such supreme court, and the other judges of such supreme court, including the judges of
any other supreme court which did not have an appellate division, holding office
immediately before the commencement of this Constitution, shall be deemed to have been
duly appointed to the corresponding positions in terms of Chapter 7 and shall continue in
office in accordance with the applicable laws. [Sub-s. (2A) inserted by s. 15 (c) of
Act 13 of 1994.]
- (3) All other judicial officers holding office immediately before the commencement of
this Constitution in terms of a law, shall continue to hold such office in accordance with
such law.
- (4) Every attorney-general holding office immediately before the commencement of this
Constitution in terms of a law, shall continue to hold such office in accordance with such
law.
- (5) Subject to this Constitution, all measures which immediately before the commencement
of this Constitution were in operation and applied to judicial officers and
attorneys-general, including measures regarding the remuneration, pension and pension
benefits, leave gratuity and any other term and condition of service, shall continue in
operation and to apply to the said judicial officers and attorneys-general, until amended
or repealed by a competent authority: Provided that no such measure shall, except in
accordance with an applicable law, be changed in a manner which affects such judicial
officers and attorneys-general to their detriment.
- (6) The provisions of section 236 (5) and (6) shall apply mutatis mutandis in respect of
persons referred to in subsections (3) and (4) of this section.
[ Top ]
- (7)
- (a) Persons referred to in subsections (2), (2A), (3) and (4) shall within 30 days of
the election of the President in terms of section 77 (1) (a) make and subscribe an oath or
solemn affirmation in the terms set out in Schedule 3 before the Chief Justice or a judge
of the Supreme Court designated by the Chief Justice for this purpose, or, in the case of
a person continuing in office or appointed as the Chief Justice or the President of the
Constitutional Court, before the President.
-
(b) For the purposes of paragraph (a) a reference in the relevant oath
of office or solemn affirmation set out in Schedule 3 to a Judge of the Supreme Court
shall, in the case of a judicial officer referred to in subsection (3), be construed as a
reference to the office of such judicial officer. [Sub-s. (7) substituted by s. 15 (d)
of Act 13 of 1994.]
- (8) All proceedings which immediately before the commencement of this Constitution were
pending before any court of law, including any tribunal or reviewing authority established
by or under law, exercising jurisdiction in accordance with the law then in force, shall
be dealt with as if this Constitution had not been passed: Provided that if an appeal in
such proceedings is noted or review proceedings with regard thereto are instituted after
such commencement such proceedings shall be brought before the court having jurisdiction
under this Constitution.
- (9) Any legal proceedings instituted before or after the commencement of this
Constitution by or against a government, authority or functionary which ceased to exist at
or after such commencement, may be continued by or against the relevant government,
authority or functionary which superseded the said government, authority or functionary.
- (10) The laws and other measures which immediately before the commencement of this
Constitution regulated the jurisdiction of courts of law, court procedures, the power and
authority of judicial officers and all other matters pertaining to the establishment and
functioning of courts of law, shall continue in force subject to any amendment or repeal
thereof by a competent authority.
- 242 Rationalisation of court structures
- (1) All jurisdictional areas and court structures appropriate thereto existing
immediately before the commencement of this Constitution, shall as soon as possible after
such commencement be rationalised in accordance with an Act of Parliament with a view to
establishing the jurisdictional areas and court structures contemplated in Chapter 7.
- (2) The rationalisation of the jurisdictional areas and court structures referred to in
subsection (1) shall be the responsibility of the national government after consultation
with the Judicial Service Commission.
- (3) The rationalisation contemplated in subsection (1) includes-
- (a) the amendment, repeal or replacement of any law regulating the establishment,
functions, jurisdiction and other matters relating to a court referred to in section 241
(1), or of any law referred to in section 241 (2), or of any law which deals with any of
the aforegoing matters in a consequential manner: Provided that if a law referred to in
section 241 (2) is repealed, provision shall be made for the application of any law of
general application regulating the service of judicial officers or any class of judicial
officers, to the judicial officers or class of judicial officers affected by such repeal;
and
- (b) measures relating to the transfer or secondment of judicial officers, or the
allocation of property, including court and administrative records, in order to establish
the said jurisdictional areas or court structures.
- 243 Transitional arrangements: Ombudsman
- (1) A person who immediately before the commencement of this Constitution was-
- (a) the Ombudsman in terms of the Ombudsman Act, 1979 (Act 118 of 1979), shall continue
to hold office and to exercise and perform the powers and functions of the Ombudsman in
accordance with the said Act until the Public Protector has been appointed under section
110 and has assumed office;
- (b) an assistant to the Ombudsman, shall continue as such until the Public Protector has
been appointed and has assumed office, whereupon such person shall be deemed to have been
appointed under section 113; or
- (c) an ombudsman in terms of a law of an area which forms part of the national territory
(other than the Ombudsman referred to in paragraph (a)), or in the employ of such an
ombudsman, shall continue in such office or employment in accordance with the law which
regulated such office or employment, until the office of such ombudsman is abolished or
such ombudsman or person is appointed as, or to the office of, a provincial public
protector contemplated in section 114.
- (2) Section 236 (4), (5) and (6) shall apply mutatis mutandis to a person referred to in
subsection (1) (c).
[ Top ]
- 244 Transitional arrangements: Auditor-General
- (1) A person who immediately before the commencement of this Constitution was-
- (a) the Auditor-General in terms of the Auditor-General Act, 1989 (Act 52 of 1989),
shall continue in office subject to section 191 and the laws applicable to such office;
- (b) employed in terms of the Audit Arrangements Act, 1992 (Act 122 of 1992), shall
continue in such employment subject to and in accordance with this Constitution, the said
Act and any other applicable law regulating such employment; and
- (c) the auditor-general of any area which forms part of the national territory (other
than the Auditor-General referred to in paragraph (a)), shall continue in such office or
employment in accordance with the laws regulating such office or employment, until such
office of auditor-general is abolished by law: Provided that any such auditor-general
shall be eligible for appointment under section 194: Provided further that should such a
person not be appointed, he or she shall have the right to retire and if he or she so
retires he or she shall be entitled to such pension as he or she would have been entitled
to under the pensions law applicable to him or her if he or she had been compelled to
retire from the public service owing to the abolition of his or her post.
- (2) For the purpose of subsection (1), the persons referred to in that subsection shall
not be dealt with less favourably than an officer or employee in a public service.
- 245 Transitional arrangements: Local government
- (1) Until elections have been held in terms of the Local Government Transition Act,
1993, local government shall not be restructured otherwise than in accordance with that
Act.
- (2) Restructuring of local government which takes place as a result of legislation
enacted by a competent authority after the elections referred to in subsection (1) have
been held, shall be effected in accordance with the principles embodied in Chapter 10 and
the Constitution as a whole.
- (3) (a) For the purposes of the first election of members of a local government after
the commencement of this Constitution, the area of jurisdiction of such local government
shall be divided into wards in accordance with the Act referred to in subsection (1).
- (b) Forty per cent of the members of the local government shall be elected according to
the system of proportional representation applicable to an election of the National
Assembly and regulated specifically by or under the Act referred to in subsection (1), and
sixty per cent of the members shall be elected on the basis that each such member shall
represent a ward as contemplated in paragraph (a): Provided that, notwithstanding anything
to the contrary contained in this Constitution, where the area of jurisdiction of the
local government includes-
- (i) the area of jurisdiction of any institution or body as was referred to in section 84
(1) (f) of the Provincial Government Act, 1961 (Act 32 of 1961); and
-
(ii) any other area not falling within the area of jurisdiction of the
institution or body referred to in subparagraph (I), no area referred to in subparagraph
(I) or (ii) shall be allocated less than half of the total number of wards of the local
government concerned: Provided further that an area referred to in subparagraph (i) shall
be deemed not to include any area for which a local government body referred to in
paragraphs (a), (b) and (c) of the definition of `local government body' in section 1 (1)
of the Act referred to in subsection (1) of this section (as that Act exists at the
commencement of this Constitution), has been established. b) amended by s. 9 of Act 29
of 1994.]
[ Top ]
- 245 Transitional arrangements: Pension of political
office-bearers
- The right of any person in terms of any law which at the commencement of this
Constitution provides for the payment of pensions from the exchequer or from any pension
fund or arrangement to which the state contributes or has contributed, to or in respect of
political office-bearers or former political office-bearers (including members and former
members of Parliament and of any other legislative assembly which exercised legislative
powers in respect of any area which forms part of the national territory) shall continue
and shall not be diminished: Provided that those who have already received benefits that
were due to them shall not benefit again by reason of the provisions of this section.
- 247 Special provisions regarding existing educational
institutions
- (1) The national government and the provincial governments as provided for in this
Constitution shall not alter the rights, powers and functions of the governing bodies,
management councils or similar authorities of departmental, community-managed or
state-aided primary or secondary schools under laws existing immediately before the
commencement of this Constitution unless an agreement resulting from bona fide negotiation
has been reached with such bodies and reasonable notice of any proposed alteration has
been given.
- (2) The national government shall not alter the rights, powers and functions of the
controlling bodies of universities and technikons under laws existing immediately before
the commencement of this Constitution, unless agreement resulting from bona fide
negotiation has been reached with such bodies, and reasonable notice of any proposed
alteration has been given.
- (3) Should agreement not be reached in terms of subsection (1) or (2), the national
government and the provincial governments shall, subject to the other provisions of this
Constitution, not be precluded from altering the rights, powers and functions of the
governing bodies, management councils or similar authorities of departmental,
community-managed or state-aided primary or secondary schools, as well as the controlling
bodies of universities and technikons, provided that interested persons and bodies shall
be entitled to challenge the validity of any such alteration in terms of this
Constitution.
- (4) In order to ensure an acceptable quality of education, the responsible government
shall provide funds to departmental, community-managed or state-aided primary or secondary
schools on an equitable basis.
- 248 National flag and anthem
- (1) The State President may at any time before the commencement of this Constitution or
while continuing in office in terms of section 235 (1) (a), exercise, on the advice of the
Transitional Executive Council, the powers conferred upon the President by section 2 (1)
and (2), and if the State President in the exercise of such powers issues a proclamation
referred to in that section, such proclamation shall for all purposes be deemed to form
part of this Constitution.
-
(2) This section shall come into operation on the date of promulgation
of this Constitution. [Date of commencement of s. 248: 28 January 1994.]
- 249 First election of National Assembly
-
(1) Notwithstanding the fact that Chapter 4 may not yet be in force,
the State President may, by proclamation in the Gazette, call an election in terms of the
Electoral Act, 1993, for the election of the members of the National Assembly and the
provincial legislatures. [Sub-s. (1) substituted by s. 10 (1) of Act 2 of 1994.]
-
(2) Such election shall be conducted in accordance with Schedule 2 and
the Electoral Act, 1993, as amended by the Constitution of the Republic of South Africa
Amendment Act, 1994, and the Electoral Amendment Act, 1994, respectively. [Sub-s. (2)
substituted by s. 10 (1) of Act 2 of 1994.]
-
(3) This section shall come into operation on the date of promulgation
of this Constitution. [Date of commencement of s. 249: 28 January 1994.]
[ Top ]
- 250 Non-certification of election by Independent Electoral
Commission
- (1) If in the application of section 18 of the Independent Electoral Commission Act,
1993, the Independent Electoral Commission declares that it is unable to certify that any
election referred to in that section was substantially free and fair, the Commission shall
declare that either-
- (a) it is able to determine a result based on the votes which could be counted; or
- (b) it is unable to determine any result.
- (2) If the Independent Electoral Commission declares as contemplated in subsection (1)
(a)-
- (a) a new election shall be held for the National Assembly and the provincial
legislatures or a relevant provincial legislature, as the case may be, mutatis mutandis in
accordance with this Constitution and the Electoral Act, 1993, as soon as practicable but
in any event not later than 12 months after the date of the election in question: Provided
that any reference to the Transitional Executive Council in the said Act shall be deemed
to be a reference to Parliament;
- (b) Parliament and the provincial legislatures or a provincial legislature, as the case
may be, shall be established on the basis of the result determined in terms of subsection
(1) (a): Provided that no provincial legislature shall be established unless the National
Assembly is established;
- (c) no amendment by a Parliament established on the basis of a declaration in terms of
subsection (1) (a), of this Constitution, the Independent Electoral Commission Act, 1993,
the Electoral Act, 1993, the Independent Media Commission Act, 1993, or the Independent
Broadcasting Authority Act, 1993, shall be permissible until the election contemplated in
paragraph (a) has been certified as substantially free and fair in terms of the
Independent Electoral Commission Act, 1993; and
- (d) any provincial legislature established on the basis of a declaration in terms of
subsection (1) (a), shall have no legislative competence save for the enactment of laws
necessary for the appropriation of revenue or moneys, or the imposition of taxation within
the framework of section 126, until the election contemplated in paragraph (a) has been
certified as substantially free and fair in terms of the Independent Electoral Commission
Act, 1993.
- (3) If the Independent Electoral Commission declares as contemplated in subsection (1)
(b)-
- (a) a new election shall be held for the National Assembly and the provincial
legislatures, or a relevant provincial legislature, as the case may be, in accordance with
this Constitution and the Electoral Act, 1993, as soon as practicable, but in any event
not later than within 10 weeks after the date of the election in question: Provided that a
new election for the National Assembly and the provincial legislatures shall be held
simultaneously; and
- (b) the constitutional arrangements under the Republic of South Africa Constitution Act,
1983 (Act 110 of 1983), the Transitional Executive Council Act, 1993, the Independent
Electoral Commission Act, 1993, the Electoral Act, 1993, the Independent Media Commission
Act, 1993, and the Independent Broadcasting Authority Act, 1993, shall apply, until the
election referred to in paragraph (a) has been held.
- (4) Notwithstanding the provisions of any other law, the Independent Electoral
Commission shall continue to exist for the purposes set out in this section and the
Commission shall exercise its function contemplated in section 18 of the Independent
Electoral Commission Act, 1993, with reference to an election referred to in this section:
Provided that section 232 (5) (b) shall apply mutatis mutandis in respect of the
replacement of members of the Commission.
- 251 Short title and commencement
- (1) This Act shall be called the Constitution of the Republic of South Africa, 1993, and
shall, subject to subsection (2), come into operation on 27 April 1994.
- (2) The State President may, in consultation with the Transitional Executive Council, by
proclamation in the Gazette provide that a provision of this Constitution specified in the
proclamation shall come into operation on a date prior to the date referred to in
subsection (1).
- (3) Different dates may be fixed in terms of subsection (2) in respect of different
provisions of this Constitution.
- (4) A reference in a provision of this Constitution to the commencement of this
Constitution shall, unless the context otherwise indicates, be construed as a reference to
thecommencement of such provision.
[ Top ]
National Unity and Reconciliation
This Constitution provides a historic bridge between the past of a deeply divided
society characterised by strife, conflict, untold suffering and injustice, and a future
founded on the recognition of human rights, democracy and peaceful co-existence and
development opportunities for all South Africans, irrespective of colour, race, class,
belief or sex. The pursuit of national unity, the well-being of all South African citizens
and peace require reconciliation between the people of South Africa and the reconstruction
of society.
The adoption of this Constitution lays the secure foundation for the people of South
Africa to transcend the divisions and strife of the past, which generated gross violations
of human rights, the transgression of humanitarian principles in violent conflicts and a
legacy of hatred, fear, guilt and revenge.
These can now be addressed on the basis that there is a need for understanding but not
for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not
for victimisation.
In order to advance such reconciliation and reconstruction, amnesty shall be granted in
respect of acts, omissions and offences associated with political objectives and committed
in the course of the conflicts of the past. To this end, Parliament under this
Constitution shall adopt a law determining a firm cut-off date, which shall be a date
after 8 October 1990 and before 6 December 1993, and providing for the mechanisms,
criteria and procedures, including tribunals, if any, through which such amnesty shall be
dealt with at any time after the law has been passed.
With this Constitution and these commitments we, the people of South Africa, open a new
chapter in the history of our country.
- Nkosi sikelel' iAfrika. God seën Suid-Afrika
- Morena boloka sechaba sa heso. May God bless our country
- Mudzimu fhatutshedza Afrika. Hosi katekisa Afrika
Schedule 1
PART 1
DEFINITIONS OF PROVINCES
THE PROVINCE OF NATAL
Districts created in terms of the Magistrates' Courts Act, 1944 (Act 32 of
1944)
Alfred Kranskop Nqutu*
Babanango Lions River Paulpietersburg
Bergville Lower Tugela Piet Retief (2)
Camperdown Lower Umfolozi Pietermaritzburg
Chatsworth Mapumulo* Pinetown
Dannhauser Mhlabatini* Polela
Dundee Mooi River Port Shepstone
Durban Mount Currie (1) Richmond
Eshowe Msinga* Ubombo
Estcourt Mtonjaneni Umbumbulu*
Glencoe Mtunzini Umlazi*
Hlabisa Ndwedwe* Umvoti
Impendle New Hanover Umzinto
Inanda Newcastle Underberg
Ingwavuma* Ngotshe Utrecht
Ixopo Nkandhla* Vryheid
Klip River Nongoma* Weenen
[ Top ]
(1) Excluding land mentioned in Proclamations R141 of 30 September 1983
and 43 of 26 April 1985 and the farms Drumleary 130 and Stanford 127.
(2) Only the Simdlangentsha and Pongola areas, described as:
PONGOLA.
From the north-western beacon of Portion 45 (Diagram A 4265/55) of the
farm Pongola 61 HU on the boundary between the Republic of South Africa and Swaziland;
thence east along the said boundary between the Republic of South Africa and Swaziland to
the north-eastern corner of the farm Devils Dive 79 HU, thence generally south along the
said boundary to the south-eastern corner of the farm Lebombo's Poort 92 HU, thence
generally west along the middle of the Pongola River, to the south-eastern corner of the
farm Zwartkloof 60 HU; thence generally north along the boundaries of the following so as
to exclude them out of this area: the said farm Zwartkloof 60 HU, Kranskloof 59 HU and
Portion 45 (Diagram A 4275/55) of the farm Pongola 61 HU to the north-eastern beacon of
the last-named Portion 45, the place of beginning.
SIMDLANGENTSHA
From the north-western beacon of Portion 10 (Diagram A 1373/39) of the
farm Voorslag 24 HU, in a south-eastern direction along the north-eastern boundary of the
said Voorslag 24 HU to the north-western beacon of the farm Beginsel 56 HU; thence
eastwards along the northern boundaries of the following properties: the said farm
Beginsel 56 HU, Kranskloof 59 HU and Portion 45 (Diagram A 4265/55) of the farm Pongola 61
HU, to the north-eastern beacon of the latter portion; thence in a general southern
direction along the boundaries of the following properties so as to include them in this
area: the said Portion 45 HU, the farm Kranskloof 59 HU and Zwartkloof 60 HU to the
south-eastern beacon of the latter farm in the middle of the Pongola River; thence in a
general western direction along the middle of the said Pongola River to the northernmost
beacon of the farm Gunsteling 45 HU; thence in a general north-eastern direction along the
boundaries of the following properties so as to include them in this area: the said farm
Gunsteling 45 HU, Prudentie 46 HU, Oranjedal 38 HU, Tobolsk 28 HU, Belgrade 27 HU and
Portion 10 (Diagram A 1373/39) of the farm Voorslag 24 HU to the north-western beacon of
the latter farm, the place of beginning.
* Kwazulu districts, as they were on 1 February 1977.
THE PROVINCE OF NORTHERN CAPE
Districts created in terms of the Magistrates' Courts Act, 1944 (Act 32 of
1944)
Barkly West Hartswater Philipstown
Britstown Hay Postmasburg
Calvinia Herbert Prieska
Carnarvon Hopetown Richmond
Colesberg Kenhardt Sutherland
De Aar Kimberley Victoria West
Fraserburg Kuruman (1) Warrenton
Gordonia Namaqualand Williston
Hanover Noupoort
(1) Excluding the areas as described in Proclamation 103 of 31 October
1991.
[ Top ]
THE PROVINCE OF NORTHERN TRANSVAAL
(a) Districts created in terms of the Magistrates' Courts Act, 1944 (Act
32 of 1944)
Dzanani* Phalaborwa Thabazimbi (3)
Ellisras Pietersburg Vuvani*
Letaba 1 Potgietersrust Warmbaths (4)
Letaba 2 Sibasa* Waterberg
Messina (1) Soutpansberg 1 (2)
Mutale* Soutpansberg 2
(1) Including the areas as described in Proclamations 187 of 24 September
1982, R51 of 27 March 1986 and 178 of 28 October 1988
(2) Including the areas as described in Proclamation R51 of 27 March 1986
(3) Excluding the areas as described in Proclamation R222 of 28 November
1986
(4) Excluding the areas as described in Proclamation R98 of 30 June 1989
* Venda districts, as they were on 13 September 1979
(b) The area for which the Gazankulu Legislative Assembly has been
instituted in terms of section 1 of the Self-governing Territories Constitution Act, 1971
(Act 21 of 1971)
(c) The area for which the Lebowa Legislative Assembly has been instituted
in terms of section 1 of the Self-governing Territories Constitution Act, 1971 (Act 21 of
1971), excluding the area consisting of the following properties-
(i) Remainder of the farm Elandsfontein 435 KT, in extent 5678,5521
hectares, according to Diagram A2306/1927; and
(ii) Portion 1, in extent 1457,4567 hectares, of the farm Dientjie 453 KT,
according to Diagram A1939/1964.
THE PROVINCE OF NORTH-WEST
Districts created in terms of the Magistrates' Courts Act, 1944 (Act 32 of
1944)
Bloemhof Lehurutshe* Pretoria (7)
Bafokeng* Lichtenburg (4) Rustenburg 1 (8)
Brits (1) Madikwe* Rustenburg 2 (9)
Christiana Mafeking (5) Schweizer-Reneke
Coligny Mankwe* Swartruggens (10)
Delareyville (2) Marico 1 (6) Taung*
Ditsobotla* Marico 2 Tlhaping-Tlharo*
Ganyesa* Molopo Ventersdorp
Klerksdorp Moretele* Vryburg (11)
Koster Odi* Warmbaths (12)
Kuruman (3) Potchefstroom Wolmaransstad
[ Top ]
(1) Including-
(a) areas as described in Part 1 of the Schedule to the Bophuthatswana
Border Extension Act, 1978 (Act 8 of 1978);
(b) the areas as described in Proclamations R222 of 28 November 1986 and
R98 of 30 June 1989
(2) Including the areas as described in Proclamation R98 of 30 June 1989
(3) Only-
(a) land as described in Part 4 of the Schedule to the Bophuthatswana
Border Extension Act, 1978 (Act 8 of 1978);
(b) the areas as described in Proclamation 103 of 31 October 1991
(4) Including the areas as described in Proclamation R98 of 30 June 1989
(5) Including-
(a) land as described in the Schedule to the Bophuthatswana Border
Extension Act, 1978 (Act 8 of 1978);
(b) the areas as described in Proclamations 70 of 1 April 1990 and 103 of
31 October 1991
(6) Including the areas as described in Proclamations R222 of 28 November
1986; 43 of 18 March 1988; R220 of 30 December 1988; R98 of 30 June 1989; 70 of 1 April
1990; and 103 of 31 October 1991
(7) Only those areas as described in Proclamations R137 of 25 September
1987 and R98 of 30 June 1989
(8) Including-
(a) land as described in Part 3 of the Schedule to the Bophuthatswana
Border Extension Act, 1978 (Act 8 of 1978);
(b) the areas as described in Proclamation 4 of 3 February 1989
(9) Including the areas as described in Proclamations 103 of 31 October
1991; 70 of 1 April 1990 and R98 of 30 June 1989
(10) Including the areas as described in Proclamation 103 of 31 October
1991
(11) Including-
(a) land as described in Part 5 of the Schedule to the Bophuthatswana
Border Extension Act, 1978 (Act 8 of 1978);
(b) the areas as described in Proclamations 103 of 31 October 1991; 70 of
1 April 1990; R98 of 30 June 1989; R23 of 28
February 1986; and R259 of 31 December 1981
[ Top ]
(12) Only those areas as described in Proclamation R. 98 of 30 June 1989
* Districts of Bophuthatswana, as they were on 6 December 1977 as well as
the areas as described in Proclamation R222 of 28
November 1986.
THE PROVINCE OF EASTERN CAPE
Districts created in terms of the Magistrates' Courts Act, 1944 (Act 32 of
1944)
BLOCK `A'
Aberdeen Graaff-Reinet Pearston
Adelaide Hankey Port Elizabeth
Albany Hofmeyr Somerset East
Alexandria Humansdorp Steynsburg
Bathurst Jansenville Steytlerville
Bedford Joubertina Tarka
Cradock Kirkwood Uitenhage
Fort Beaufort (1) Middelburg Venterstad
Willowmore
BLOCK `B'
Albert Komgha Qumbu#
Aliwal North Lady Grey St Marks#
Barkly East Libode# Sterkstroom
Bizana# Lusikisiki# Stockenstrm (6)
Butterworth# Maclear Stutterheim (7)
Cathcart (2) Matatiele# Tabankulu#
Elliot Mdantsane* Tsolo#
Elliotdale# Middledrift* Tsomo#
Engcobo# Molteno Umtata#
Flagstaff# Mount Fletcher# Umzimkulu#
Glen Grey# Mount Ayliff# Victoria East*
Herschel# Mount Frere# Willowvale#
Hewu* Mqanduli# Wodehouse
Idutywa# Ngqeleni# Xalanga#
Indwe Nqamakwe# Zwelitsha*
Keiskammahoek* East London (4)
Kentani# Peddie*
King William's Town (3) Port St Johns#
Queenstown (5)
(1) Including the areas as described in Proclamation 75 of 30 April 1987
(2) Including the areas as described in Proclamation 187 of 3 November
1989
(3) Including the areas as described in Proclamations 101 of 26 June 1987;
127 of 12 August 1988 and 187 of 3 November 1989, as corrected by Correction Notice 380 of
23 February 1990
(4) Including the areas as described in Proclamations 15 of 3 March 1989
and 187 of 3 November 1989
(5) Including the areas as described in Proclamations R211 of 29 October
1982 and 101 of 26 June 1987
[ Top ]
(6) Including the areas as described in Proclamation 187 of 3 November
1989
(7) Including the areas as described in Proclamations 75 of 30 April 1987;
R139 of 25 September 1987; and 15 of 3 March 1989
* Districts of the Ciskei, as they were on 4 December 1981
# Districts of the Transkei, as they were on 26 October 1976, including
the land mentioned in Proclamations R141 of 30 September 1983 and 43 of 26 April 1985 and
the farms Drumleary 130 and Stanford 127
THE PROVINCE OF EASTERN TRANSVAAL
(a) Districts created in terms of the Magistrates' Courts Act, 1944 (Act
32 of 1944)
Amersfoort Highveld Ridge Pilgrim's Rest 1
Balfour Kriel Pilgrim's Rest 2
Barberton Lydenburg Piet Retief (2)
Belfast Mathanjana (1) Standerton
Bethal Middelburg Volksrust
Carolina Moutse 1 Wakkerstroom
Delmas Moutse 2 Waterval-Boven
Ermelo Moutse 3 Witbank
Groblersdal Nelspruit White River
(1) As described in Part 2 of the Schedule to the Bophuthatswana Border
Extension Act, 1978 (Act 8 of 1978);
(2) Excluding the Simdlangentsha and Pongola areas, described as:
PONGOLA
From the north-western beacon of Portion 45 (Diagram A 4265/55) of the
farm Pongola 61 HU on the boundary between the Republic of South Africa and Swaziland;
thence east along the said boundary between the Republic of South Africa and Swaziland to
the north-eastern corner of the farm Devils Dive 79 HU; thence generally south along the
said boundary to the south-eastern corner of the farm Lebombo's Poort 92 HU; thence
generally west along the middle of the Pongola River, to the south-eastern corner of the
farm Zwartkloof 60 HU; thence generally north along the boundaries of the following so as
to exclude them out of this area: the said farm Zwartkloof 60 HU, Kranskloof 59 HU and
Portion 45 (Diagram A 4275/55) of the farm Pongola 61 HU to the north-eastern beacon of
the last-named Portion 45, the place of beginning.
SIMDLANGENTSHA
From the north-western beacon of Portion 10 (Diagram A 1373/39) of the
farm Voorslag 24 HU, in a south-eastern direction along the north-eastern boundary of the
said Voorslag 24 HU to the north-western beacon of the farm Beginsel 56 HU; thence
eastwards along the northern boundaries of the following properties: the said farm
Beginsel 56 HU, Kranskloof 59 HU and Portion 45 (Diagram A 4265/55) of the farm Pongola 61
HU, to the north-eastern beacon of the latter portion; thence in a general southern
direction along the boundaries of the following properties so as to include them in this
area: the said Portion 45 HU, the farm Kranskloof 59 HU and Zwartkloof 60 HU to the
south-eastern beacon of the latter farm in the middle of the Pongola River; thence in a
general western direction along the middle of the said Pongola River to the northernmost
beacon of the farm Gunsteling 45 HU; thence in a general north-eastern direction along the
boundaries of the following properties so as to include them in this area: the said farm
Gunsteling 45 HU, Prudentie 46 HU, Oranjedal 38 HU, Tobolsk 28 HU, Belgrade 27 HU and
Portion 10 (Diagram A 1373/39) of the farm Voorslag 24 HU to the north-western beacon of
the latter farm, the place of beginning.
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(b) The area for which the Kangwane Legislative Assembly has been
instituted in terms of section 1 of the Self-governing Territories Constitution Act, 1971
(Act 21 of 1971)
(c) The area for which the Kwandebele Legislative Assembly has been
instituted in terms of section 1 of the Self-governing Territories Constitution Act, 1971
(Act 21 of 1971)
(d) As well as the following properties forming part of the area for which
the Lebowa Legislative Assembly has been instituted in terms of section 1 of the
Self-governing Territories Constitution Act, 1971 (Act 21 of 1971):
(i) Remainder of the farm Elandsfontein 435 KT, in extent 5678,5521
hectares, according to Diagram A2306/1927; and
(ii) Portion 1, in extent 1457,4567 hectares, of the farm Dientjie 453 KT,
according to Diagram A1939/1964.
THE PROVINCE OF THE ORANGE FREE STATE
(a) Districts created in terms of the Magistrates' Courts Act, 1944 (Act
32 of 1944)
Bethlehem Heilbron Rouxville
Bethulie Hennenman Sasolburg
Bloemfontein (1) Hoopstad Senekal
Boshof Jacobsdal Smithfield
Bothaville Jagersfontein Thaba Nchu*
Botshabelo Koffiefontein Theunissen
Brandfort Koppies Trompsburg
Bultfontein Kroonstad Ventersburg
Clocolan Ladybrand Viljoenskroon
Dewetsdorp Lindley Virginia
Edenburg Marquard Vrede
Excelsior (2) Odendaalsrus Vredefort
Fauresmith Parys Welkom
Ficksburg Petrusburg Wepener
Fouriesburg Philippolis Wesselsbron
Frankfort Reddersburg Winburg
Harrismith Reitz Zastron
(1) Including the areas as described in Proclamation R 98 of 30 June 1989
(2) Including the areas as described in Proclamations R142 of 30 September
1983 and R98 of 30 June 1989
* Districts of Bophuthatswana, as described on 6 December 1977
(b) The area for which the QwaQwa Legislative Assembly has been instituted
in terms of section 1 of the Self-governing Territories Constitution Act, 1971 (Act 21 of
1971)
THE PROVINCE OF PRETORIA-WITWATERSRAND-VEREENIGING
Districts created in terms of the Magistrates' Courts Act, 1944 (Act 32 of
1944)
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BLOCK `A'
Alberton Kempton Park Springs
Benoni Krugersdorp Vanderbijlpark
Boksburg Nigel Vereeniging
Brakpan Oberholzer Westonaria
Germiston Randburg
Heidelberg Randfontein
Johannesburg Roodepoort
BLOCK `B'
Bronkhorstspruit Pretoria (1) Soshanguve 2
Cullinan Soshanguve 1 Wonderboom
(1) Excluding the areas as described in Proclamations R137 of 25 September
1987 and R. 98 of 30 June 1989
THE PROVINCE OF THE WESTERN CAPE
Districts created in terms of the Magistrates' Courts Act, 1944 (Act 32 of
1944)
Beaufort West Ladismith Somerset West
Bellville Laingsburg Stellenbosch
Bredasdorp Malmesbury Strand
Caledon Mitchells Plain Swellendam
Calitzdorp Montagu Tulbagh
Ceres Moorreesburg Uniondale
Clanwilliam Mossel Bay Van Rhynsdorp
George Murraysburg Vredendal
Goodwood Oudtshoorn Vredenburg
Heidelberg Paarl Wellington
Hermanus Piquetberg Worcester
Hopefield Prince Albert Wynberg
Cape Riversdale
Knysna Robertson
Kuils River Simonstown
PART 2
Affected Areas
(a) Bosbokrand- Consisting of the Mala district of Gazankulu and the
Mapumaleng district of Lebowa
(b) District of Namaqualand
(c) District of Groblersdal
(d) Northern Transkei/Pondoland- Consisting of the Bizana, Flagstaff,
Libode, Lusikisiki, Nqeleni, Port St Johns and Tabankulu districts of Transkei, as they
were defined on 26 October 1976
(e) District of Umzimkulu of Transkei, as it was defined on 26 October
1976
(f) The area consisting of the districts of block `B' envisaged in Part 1
in respect of the province of Pretoria-Witwatersrand-Vereeniging
(g) The areas consisting of the districts of the two blocks envisaged in
Part 1 in respect of the province of Eastern Cape
(h) Province of Northern Cape
(i) The area for which the KwaNdebele Legislative Assembly has been
instituted in terms of section 1 of the Self-governing Territories Constitution Act, 1971
(Act 21 of 1971), including the districts of Moutse 1, 2 and 3 and the district of
Mathanjana as described in Part 2 of the Schedule to the Bophuthatswana Border Extension
Act, 1978 (Act 8 of 1978)
(j) District of Sasolburg
(k) The area consisting of the districts of Clanwilliam, Vredendal and Van
Rhynsdorp
(l) District of Mount Currie, including land mentioned in Proclamations
R141 of 30 September 1983 and 43 of 26 April 1985 and the farms Drumleary 130 and Stanford
127
(m) The area consisting of the districts of Kuruman, including the area
defined in Proclamation 103 of 31 October 1991, Postmasburg and Hartswater
(n) The area consisting of-
(i) the district of Brits, excluding the areas as described in Part 1 of
the Schedule to the Bophuthatswana Border Extension Act, 1978 (Act 8 of 1978), and
Proclamations R222 of 28 November 1986 and R98 of 30 June 1989;
(ii) the districts of Moretele and Odi of Bophuthatswana, as they were
defined on 6 December 1977.
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Schedule 2
System for Election of National Assembly and Provincial Legislatures
Election of National Assembly
1. Parties registered in terms of the Electoral Act, 1993, 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 the Electoral Act, 1993.
2. The 400 seats in the National Assembly referred to in section 40 (1),
shall be filled as follows:
(a) 200 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
a particular election, taking into account available scientifically based data in respect
of voters, representations by interested parties and the following proposed determination
in respect of the various regions:
Western Cape -21 seats
Eastern Cape -26 seats
Northern Cape - 4 seats
Natal -40 seats
Orange Free State -15 seats
North-West -17 seats
Northern Transvaal -20 seats
Eastern Transvaal -14 seats
Pretoria-Witwatersrand-Vereeniging -43 seats; and
(b) 200 seats from national lists submitted by the respective parties, or
from regional lists where national lists were not submitted.
3. The lists of candidates submitted by a party, shall in total contain
the names of not more than 400 candidates, and each such list shall denote such names in
such fixed order of preference as the party may determine.
4. A party's lists of candidates shall consist of-
(a) both a national list and a list for each region; or
(b) a list for each region, with such number of names on each list as the
party may determine subject to item 3.
5. The 200 seats referred to in item 2 (a) shall be allocated per region
to the parties contesting an election, as follows:
(a) A quota of votes per seat shall be determined in respect of each
region by dividing the total number of votes cast in a region by the number of seats, plus
one, reserved for such region under item 2 (a).
(b) The result plus one, disregarding fractions, shall be the quota of
votes per seat in respect of a particular region.
(c) The number of seats to be awarded for the purposes of paragraph (e) in
respect of such region to a party, shall, subject to paragraph (d), be determined by
dividing the total number of votes cast in favour of such party in a region by the quota
of votes per seat indicated by paragraph (b) for that region.
(d) Where the result of the calculation referred to in paragraph (c)
yields a surplus not absorbed by the number of seats awarded to a party concerned, such
surplus shall compete with other similar surpluses accruing to any other party or parties
in respect of the relevant region, and any seat or seats in respect of that region not
awarded in terms of paragraph (c), shall be awarded to the party or parties concerned in
sequence of the highest surplus.
(e) The aggregate of a party's awards in terms of paragraphs (c) and (d)
in respect of a particular region shall indicate that party's provisional allocation of
the seats reserved under item 2 (a) for that region.
(f) The aggregate of a party's provisional allocations for the various
regions in terms of paragraph (e), shall indicate its provisional allocation of the seats
referred to in item 2 (a).
(g) If no recalculation of provisional allocations is required in terms of
item 7 in respect of the seats referred to in item 2 (a), the provisional allocation of
such seats in terms of paragraphs (e) and (f) shall become the final allocation of such
seats to the various parties, and if such a recalculation is required the provisional
allocation of such seats, as adjusted in terms of item 7, shall become the final
allocation of such seats to the various parties.
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6. The 200 seats referred to in item 2 (b) shall be allocated to parties
contesting an election, as follows:
(a) A quota of votes per seat shall be determined by dividing the total
number of votes cast nationally by 401, and the result plus one, disregarding fractions,
shall be the quota of votes per seat.
(b) The number of seats to be awarded to a party for the purposes of
paragraph (d) shall, subject to paragraph (c), be determined by dividing the total number
of votes cast nationally in favour of such party by the quota of votes per seat determined
in terms of paragraph (a).
(c) Where the result of the calculation in terms of paragraph (b) yields a
surplus not absorbed by the number of seats awarded to a party concerned, such surplus
shall compete with other similar surpluses accruing to any other party or parties, and any
seat or seats not awarded in terms of paragraph (b), shall be awarded to the party or
parties concerned in sequence of the highest surplus, up to a maximum of five seats so
awarded: Provided that subsequent awards of seats still remaining unawarded shall be made
in sequence to those parties having the highest average number of votes per seat already
awarded in terms of paragraph (b) and this paragraph.
(d) The aggregate of a party's awards in terms of paragraphs (b) and (c)
shall be reduced by the number of seats provisionally allocated to it in terms of item 5
(f) and the result shall indicate that party's provisional allocation of the seats
referred to in item 2 (b).
(e) If no recalculation of provisional allocations is required in terms of
item 7 in respect of the seats referred to in item 2 (b), the provisional allocation of
such seats in terms of paragraph (d) shall become the final allocation of such seats to
the various parties, and if such a recalculation is required, the provisional allocation
of such seats, as adjusted in terms of item 7, shall become the final allocation of such
seats to the various parties.
7. (1) If a party has submitted a national or a regional list containing
fewer names than the number of its provisional allocation of seats which would have been
filled from such list in terms of item 8 or 9 had such provisional allocation been the
final allocation, it shall forfeit a number of seats equal to the deficit.
(2) In the event of any forfeiture of seats in terms of subitem (1)
affecting the provisional allocation of seats in respect of any particular region in terms
of item 5 (e), such allocation shall be recalculated as follows:
(a) The party forfeiting seats shall be disregarded in such recalculation,
and its provisional allocation of seats in terms of item 5 (e) for the region in question,
minus the number of seats forfeited by it in respect of its list for such region, shall
become its final allocation in respect of the seats reserved for such region in terms of
item 2 (a).
(b) An amended quota of votes per seat shall be determined in respect of
such region by dividing the total number of votes cast in the region, minus the number of
votes cast in such region in favour of the party referred to in paragraph (a), by the
number of seats, plus one, reserved for such region under item 2 (a), minus the number of
seats finally allocated to the said party in terms of paragraph (a).
(c) The result plus one, disregarding fractions, shall be the amended
quota of votes per seat in respect of such region for purposes of the said recalculation.
(d) The number of seats to be awarded for the purposes of paragraph (f) in
respect of such region to a party participating in the recalculation, shall, subject to
paragraph (e), be determined by dividing the total number of votes cast in favour of such
party in such region by the amended quota of votes per seat indicated by paragraph (c) for
such region.
(e) Where the result of the recalculation in terms of paragraph (d) yields
a surplus not absorbed by the number of seats awarded to a party concerned, such surplus
shall compete with other similar surpluses accruing to any other party or parties
participating in the recalculation in respect of the said region, and any seat or seats in
respect of such region not awarded in terms of paragraph (d), shall be awarded to the
party or parties concerned in sequence of the highest surplus.
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(f) The aggregate of a party's awards in terms of paragraphs (d) and (e)
in respect of such region shall, subject to subitem (4), indicate that party's final
allocation of the seats reserved under item 2 (a) for that region.
(3) In the event of any forfeiture of seats in terms of subitem (1)
affecting the provisional allocation of seats in terms of item 6 (d), such allocation
shall be recalculated as follows:
(a) The party forfeiting seats shall be disregarded in such recalculation,
and its provisional allocation of seats in terms of item 6 (d), minus the number of such
seats forfeited by it, shall become its final allocation of the seats referred to in item
2 (b).
(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 401, minus the number of seats finally
allocated to the said party in terms of paragraph (a).
(c) The result plus one, disregarding fractions, shall be the amended
quota of votes per seat for the purposes of the said recalculation.
(d) The number of seats to be awarded for the purposes of paragraph (f) to
a party participating in the recalculation shall, subject to paragraph (e), be determined
by dividing the total number of votes cast nationally in favour of such party by the
amended quota of votes per seat indicated by paragraph (c).
(e) Where the result of the recalculation in terms of paragraph (d) yields
a surplus not absorbed by the number of seats awarded to a party concerned, such surplus
shall compete with other similar surpluses accruing to any other party or parties
participating in the recalculation, and any seat or seats not awarded in terms of
paragraph (d), shall be awarded to the party or parties concerned in sequence of the
highest surplus, up to a maximum of five seats so awarded: Provided that subsequent awards
of seats still remaining unawarded shall be made in sequence to those parties having the
highest average number of votes per seat already awarded in terms of paragraph (d) and
this paragraph.
(f) The aggregate of such a party's awards in terms of paragraphs (d) and
(e) shall be reduced by the number of seats finally allocated to it in terms of item 5
(g), and the result shall, subject to subitem (4), indicate that party's final allocation
of the seats referred to in item 2 (b).
(4) In the event of a party being allocated an additional number of seats
in terms of this item, and its list in question then does not contain the names of a
sufficient number of candidates as set out in subitem (1), the procedure provided for in
this item shall mutatis mutandis be repeated until all seats have been allocated.
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8. (1) Where a party submitted both a national list and regional lists,
the seats finally allocated to it-
(a) in terms of item 5 (g), shall be filled from its regional lists in
accordance with its final allocation of seats in respect of the various regions; and
(b) in terms of item 6 (e), shall be filled from its national list in
accordance with its final allocation of seats in terms of that item.
(2) A seat finally allocated to a party in respect of a region, shall, for
the purposes of subitem (1) (a), be filled only from such party's list for that particular
region.
9. (1) Where a party submitted regional lists only, the seats finally
allocated to it-
(a) in terms of item 5 (g), shall be filled from such lists in accordance
with its final allocation of seats in respect of the various regions; and
(b) in terms of item 6 (e), shall be filled from the said lists in the
same proportions as the proportions in which the seats referred to in paragraph (a) are to
be filled in respect of the various regions for which the party was finally allocated
seats in terms of item 5 (g): Provided that if a party was not allocated any seats in
terms of item 5 (g), the seats allocated to it in terms of item 6 (e) shall be filled from
its regional lists in proportion to the number of votes received by that party in each of
the regions: Provided further that surplus fractions shall be Election of provincial
legislatures
10. The Commission shall determine the number of seats in each provincial
legislature, taking into account available scientifically based data in respect of voters,
representations by interested parties and the following proposed determination:
Western Cape -42 seats
Eastern Cape -52 seats
Northern Cape -30 seats
Natal -80 seats
Orange Free State -30 seats
North-West -34 seats
Northern Transvaal -40 seats
Eastern Transvaal -30 seats
Pretoria-Witwatersrand-Vereeniging -86 seats
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Provided that the Commission may for the purposes of any provincial
election after the first election under this Constitution vary any determination under
this item.
11. Parties registered in terms of the Electoral Act, 1993, 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
the Electoral Act, 1993.
12. Each party shall be entitled to submit only one list per province,
which shall contain the names of not more than the number of seats determined under item
10 for the relevant provincial legislature and in such fixed order of preference as the
party may determine.
13. The seats determined for a provincial legislature shall be allocated
to parties contesting an election, as follows-
(a) A quota of votes per seat shall be determined by dividing the total
number of votes cast in the province concerned by the number of seats, plus one,
determined under item 10 for such province and the result plus one, disregarding
fractions, shall be the quota of votes per seat for such province.
(b) The number of seats to be awarded to a party for the purposes of
paragraph (d) shall, subject to paragraph (c), be determined by dividing the total number
of votes cast in the province in favour of such party by the quota of votes per seat
determined in terms of paragraph (a).
(c) Where the result of the calculation in terms of paragraph (b) yields a
surplus not absorbed by the number of seats awarded to a party concerned, such surplus
shall compete with other similar surpluses accruing to any other party or parties in
respect of the province concerned, and any seat or seats not awarded in terms of paragraph
(b), shall be awarded to the party or parties concerned in sequence of the highest
surplus.
(d) The aggregate of a party's awards in terms of paragraphs (b) and (c),
shall indicate that party's provisional allocation of seats in the provincial legislature
in question.
(e) If no recalculation of provisional allocations for a province
concerned is required in terms of item 14, the provisional allocation of seats in respect
of that province in terms of paragraph (d), shall become the final allocation of such
seats to the various parties, and if such a recalculation is required the provisional
allocation of such seats as adjusted in terms of item 14 shall become the final allocation
of such seats to the various parties.
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14. (1) If a party has submitted a provincial list containing fewer names
than the number of seats provisionally allocated to it in terms of item 13 (d), it shall
forfeit a number of seats equal to the deficit.
(2) In the event of any forfeiture of seats in terms of subitem (1), the
allocation of seats in respect of the province concerned shall be recalculated as follows:
(a) The party forfeiting seats shall be disregarded in such recalculation,
and its provisional allocation of seats in terms of item 13 (d), minus the number of seats
forfeited by it in respect of its list for such province, shall become its final
allocation of seats in the provincial legislature concerned.
(b) An amended quota of votes per seat shall be determined in respect of
such province by dividing the total number of votes cast in the province, minus the number
of votes cast in the province in favour of the party referred to in paragraph (a), by the
number of seats, plus one, determined in terms of item 10 in respect of the province
concerned, minus the number of seats finally allocated to the said party in terms of
paragraph (a).
(c) The result plus one, disregarding fractions, shall be the amended
quota of votes per seat in respect of such province for purposes of the said
recalculation.
(d) The number of seats to be awarded for the purposes of paragraph (f) in
respect of such province to a party participating in the recalculation, shall, subject to
paragraph (e), be determined by dividing the total number of votes cast in favour of such
party in such province by the amended quota of votes per seat indicated by paragraph (c)
for such province.
(e) Where the result of the recalculation in terms of paragraph (d) yields
a surplus not absorbed by the number of seats awarded to a party concerned, such surplus
shall compete with other similar surpluses accruing to any other party or parties
participating in the recalculation, and any seat or seats in respect of such province not
awarded in terms of paragraph (d), shall be awarded to the party or parties concerned in
sequence of the highest surplus.
(f) The aggregate of such a party's awards in terms of paragraphs (d) and
(e) in respect of such province shall, subject to subitem (3), indicate that party's final
allocation of the seats determined under item 10 in respect of that province.
(3) In the event of a party being allocated an additional number of seats
in terms of this item, and its list in question then does not contain the names of a
sufficient number of candidates as set out in subitem (1), the process provided for in
this item shall mutatis mutandis be repeated until all seats have been allocated.
Declaration of support by one party of another party
15. (1) A party intending to contest the election of one or more or all
the provincial legislatures, but not the election of the National Assembly, may, within
the time and in the manner prescribed by or under the Electoral Act, 1993, declare that it
supports another party which is contesting theelection of the National Assembly, and if it
so declares, all votes cast in its favour shall, for the purpose of the election of the
National Assembly, be deemed to be votes cast in favour of such other party.
(2) A party intending to contest the election of the National Assembly,
but not the election of one or more or any of the provincial legislatures, may, within the
time and in the manner prescribed by or under the Electoral Act, 1993, declare that it
supports another party which is contesting the election of a provincial legislature which
the first-mentioned party is not contesting, and if it so declares, all votes cast in its
favour shall, for the purpose of the election of that particular provincial legislature or
legislatures, be deemed to be votes cast in favour of such other party.
(3) A party intending to contest the election of one or more provincial
legislatures, but not the election of all the provincial legislatures, may, within the
time and in the manner prescribed by or under the Electoral Act, 1993, declare that it
supports another party which is contesting the election of a provincial legislature or
legislatures which the first-mentioned party is not contesting, and if it so declares, all
votes cast in its favour shall, for the purpose of the election of the last-mentioned
provincial legislature or legislatures, be deemed to be votes cast in favour of such other
party.
(4) For the purposes of subitems (2) and (3), a party may support
different parties in the different provincial legislatures.
(5) This item shall apply only to an election of the National Assembly
which is held simultaneously with the election of the provincial legislatures.
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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 has been certified by
the Commission as having been free and fair or a declaration has been made by the
Commission under section 250 (1) (a), the Commission shall, within two days after such
certification or declaration, designate from each list of candidates published in terms of
section 23 of the Electoral Act, 1993, the representatives of each party in each
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 of both the
National Assembly and a provincial legislature 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 certification or declaration, indicate to the Commission
from which list such candidate will be designated or in which legislature the candidate
shall 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 all legislatures.
Supplementation of lists of candidates
17. No lists of candidates of a party for any legislature shall be
supplemented prior to the designation of representatives in terms of item 16, save where
provided for by an Act of Parliament.
18 Lists of candidates may, after the designation of representatives in
terms of item 16 has been concluded, be supplemented by the addition of an equal number of
names at the end of the applicable list, if-
(a) a representative is elected as the President or to any other executive
office as a result of which he or she resigns as a representative of a legislature;
(b) a representative is elected as a member of the Senate;
(c) a name is deleted from a list in terms of item 16 (2); or
(d) a vacancy has occurred and the appropriate list of candidates of the
party concerned is depleted.
19. Lists of candidates of a party published in terms of section 23 of the
Electoral Act, 1993, 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.
20. The number of names on lists of candidates as supplemented in terms of
item 18 shall not exceed the difference between the number of seats in the National
Assembly or a provincial legislature, as the case may be, and the number of
representatives of a party in any such legislature.
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Review of lists of candidates by a party
21. A party may review its undepleted lists as supplemented in terms of
items 18, 19 and 20, within seven days after the expiry of the period referred to in item
19, and annually thereafter, until the date on which a party has to submit lists of
candidates for an ensuing election, in the following manner:
(a) all vacancies may be supplemented;
(b) no more than 25 per cent of candidates may be replaced; and
(c) the fixed order of lists may be changed.
Publication of supplemented and reviewed lists of candidates
22. Candidates' lists supplemented in terms of items 18 and 19 or reviewed
in terms of item 21 shall be published by the Secretary to Parliament and the Secretaries
of the provincial legislatures within 10 days after the receipt of such lists from the
parties concerned.
Vacancies
23. (1) In the event of a vacancy occurring in the representation of a
party in any legislature, such vacancy shall forthwith be filled in accordance with
section 44 or 133.
(2) If a party represented in a legislature dissolves or ceases to exist
and the members in question vacate their seats in consequence of section 43 (b) or 133 (1)
(b), 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.
Alteration of numbers and boundaries of provinces
24. If the numbers or boundaries of provinces are altered pursuant to
section 124, the Commission shall review the determinations made in terms of items 2 and
10, and such revised determinations shall then be the basis of any elections for the
National Assembly or the provincial legislatures held after any such alteration.
Definitions
25. In this Schedule-
`Commission' means the Independent Electoral Commission, established by
the Independent Electoral Commission Act, 1993 (Act 150 of 1993), or, in relation to any
election held after the first election under this Constitution, that Commission or any
other body established or designated by an Act of Parliament;
`national list' means a list of candidates prepared by a party for an election of the
National Assembly to reflect that party's order of preference of candidates in respect of
the allocation of seats on a national basis;
`provincial list' means a list of candidates prepared by a party for an election of a
provincial legislature;
`region' means the territorial area of a province;
`regional list' means a list of candidates in respect of a region prepared by a party for
an election of the National Assembly to reflect that party's order of preference of
candidates in respect of the allocation of seats in respect of such region.
Application of Schedule with reference to section 124
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26. The provisions of this Schedule shall be subject to any regulations
made or directions given by the Commission in terms of section 124 (7) in so far as
affected areas within the meaning of that section are concerned
(1) disregarded save that any remaining seats shall be awarded to regions
in sequence of the highest surplus fractions.
(2) A seat finally allocated to a party in respect of a region, shall, for
the purposes of subitem (1) (a), be filled only from such party's list for that particular
region.
Schedule 3
OATHS OF OFFICE AND SOLEMN AFFIRMATIONS
Oath of office or solemn affirmation of President and Acting President
In the presence of those assembled here and in full realisation of the
high calling I assume as President/Acting President in the service of the Republic of
South Africa I, A.B., do hereby swear/solemnly affirm to be faithful to the Republic of
South Africa, and do solemnly and sincerely promise at all times to promote that which
will advance and to oppose all that may harm the Republic; to obey, observe, uphold and
maintain the Constitution and all other Law of the Republic; to 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; to do justice to all; and to devote myself to the well-being of
the Republic and all its people.
(In the case of an oath: So help me God.)
Oath of office or solemn affirmation of Executive Deputy Presidents
In the presence of those assembled here and in full realisation of the
high calling I assume as Executive Deputy President in the service of South Africa I,
A.B., do hereby swear/solemnly affirm to be faithful to the Republic of South Africa, and
do solemnly and sincerely promise at all times to promote that which will advance and to
oppose all that may harm the Republic; to obey, observe, uphold and maintain the
Constitution and all other Law of the Republic; to 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; to do justice to all; and to devote myself to the well-being of the
Republic and all its people.
(In the case of an oath: So help me God.)
Oath of office or solemn affirmation of Ministers and Deputy Ministers
I, A.B., do hereby swear/solemnly affirm to be faithful to the Republic of
South Africa and undertake before those assembled here to hold my office as
Minister/Deputy Minister with honour and dignity; to respect and uphold the Constitution
and all other Law of the Republic of South Africa; to be a true and faithful counsellor;
not to divulge directly or indirectly any matters which are entrusted to me under secrecy;
and to perform the duties of my office conscientiously and to the best of my ability.
(In the case of an oath: So help me God.)
Oath of office or solemn affirmation of Premiers and members of
Executive Councils
I, A.B., do hereby swear/solemnly affirm to be faithful to the Republic of
South Africa and undertake before those assembled here to hold my office as Premier/Member
of the Executive Council of my province with honour and dignity; to respect and uphold the
Constitution and all other Law of the Republic of South Africa; to be a true and faithful
counsellor; not to divulge directly or indirectly any matters which are entrusted to me
under secrecy; and to perform the duties of my office conscientiously and to the best of
my ability.
(In the case of an oath: So help me God.)
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Oath of office or solemn affirmation of members of National Assembly,
Senate or provincial legislature
I, A.B., do hereby swear/solemnly affirm to be faithful to the
Republic of South Africa and solemnly promise to perform my functions as a member of the
National Assembly/Senate/provincial legislature to the best of my ability.
(In the case of an oath: So help me God.)
Oath of office or solemn affirmation of Judges
I, A.B., do hereby swear/solemnly affirm that I will in my capacity as
Judge of the Supreme Court/Constitutional Court of the Republic of South Africa uphold and
protect the Constitution of the Republic and the fundamental rights entrenched therein and
in so doing administer justice to all persons alike without fear, favour or prejudice, in
accordance with the Constitution and the Law of the Republic.
(In the case of an oath: So help me God.)
Oath of office or solemn affirmation of Attorneys-General
I, A.B., do hereby swear/solemnly affirm that I will in my capacity as
Attorney-General uphold and protect the Constitution of the Republic of South Africa and
the fundamental rights entrenched therein and in so doing enforce the Law of the Republic
without fear, favour or prejudice, in accordance with the Constitution and the Law of the
Republic.
(In the case of an oath: So help me God.)
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Schedule 4
CONSTITUTIONAL PRINCIPLES
I
The Constitution of South Africa shall provide for the establishment of
one sovereign state, a common South African citizenship and a democratic system of
government committed to achieving equality between men and women and people of all races.
II
Everyone shall enjoy all universally accepted fundamental rights, freedoms
and civil liberties, which shall be provided for and protected by entrenched and
justiciable provisions in the Constitution, which shall be drafted after having given due
consideration to inter alia the fundamental rights contained in Chapter 3 of this
Constitution.
III
The Constitution shall prohibit racial, gender and all other forms of
discrimination and shall promote racial and gender equality and national unity.
IV
The Constitution shall be the supreme law of the land. It shall be binding
on all organs of state at all levels of government.
V
The legal system shall ensure the equality of all before the law and an
equitable legal process. Equality before the law includes laws, programmes or activities
that have as their object the amelioration of the conditions of the disadvantaged,
including those disadvantaged on the grounds of race, colour or gender.
VI
There shall be a separation of powers between the legislature, executive
and judiciary, with appropriate checks and balances to ensure accountability,
responsiveness and openness.
VII
The judiciary shall be appropriately qualified, independent and impartial
and shall have the power and jurisdiction to safeguard and enforce the Constitution and
all fundamental rights.
VIII
There shall be representative government embracing multi-party democracy,
regular elections, universal adult suffrage, a common voters' roll, and, in general,
proportional representation.
IX
Provision shall be made for freedom of information so that there can be
open and accountable administration at all levels of government.
X
Formal legislative procedures shall be adhered to by legislative organs at
all levels of government.
XI
The diversity of language and culture shall be acknowledged and protected,
and conditions for their promotion shall be encouraged.
XII
Collective rights of self-determination in forming, joining and
maintaining organs of civil society, including linguistic, cultural and religious
associations, shall, on the basis of non-discrimination and free association, be
recognised and protected.
XIII
The institution, status and role of traditional leadership, according to
indigenous law, shall be recognised and protected in the Constitution. Indigenous law,
like common law, shall be recognised and applied by the courts, subject to the fundamental
rights contained in the Constitution and to legislation dealing specifically therewith.
XIV
Provision shall be made for participation of minority political parties in
the legislative process in a manner consistent with democracy.
XV
Amendments to the Constitution shall require special procedures involving
special majorities.
XVI
Government shall be structured at national, provincial and local levels.
XVII
At each level of government there shall be democratic representation. This
principle shall not derogate from the provisions of Principle XIII.
XVIII
The powers, boundaries and functions of the national government and
provincial governments shall be defined in the Constitution. Amendments to the
Constitution which alter the powers, boundaries, functions or institutions of provinces
shall in addition to any other procedures specified in the Constitution for constitutional
amendments, require the approval of a special majority of the legislatures of the
provinces, alternatively, if there is such a chamber, a two-thirds majority of a chamber
of Parliament composed of provincial representatives, and if the amendment concerns
specific provinces only, the approval of the legislatures of such provinces will also be
needed. Provision shall be made for obtaining the views of a provincial legislature
concerning all constitutional amendments regarding its powers, boundaries and functions.
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XIX
The powers and functions at the national and provincial levels of
government shall include exclusive and concurrent powers as well as the power to perform
functions for other levels of government on an agency or delegation basis.
XX
Each level of government shall have appropriate and adequate legislative
and executive powers and functions that will enable each level to function effectively.
The allocation of powers between different levels of government shall be made on a basis
which is conducive to financial viability at each level of government and to effective
public administration, and which recognises the need for and promotes national unity and
legitimate provincial autonomy and acknowledges cultural diversity.
XXI
The following criteria shall be applied in the allocation of powers to the
national government and the provincial governments:
1. The level at which decisions can be taken most effectively in respect
of the quality and rendering of services, shall be the level responsible and accountable
for the quality and the rendering of the services, and such level shall accordingly be
empowered by the Constitution to do so.
2. Where it is necessary for the maintenance of essential national
standards, for the establishment of minimum standards required for the rendering of
services, the maintenance of economic unity, the maintenance of national security or the
prevention of unreasonable action taken by one province which is prejudicial to the
interests of another province or the country as a whole, the Constitution shall empower
the national government to intervene through legislation or such other steps as may be
defined in the Constitution.
3. Where there is necessity for South Africa to speak with one voice, or
to act as a single entity- in particular in relation to other states- powers should be
allocated to the national government.
4. Where uniformity across the nation is required for a particular
function, the legislative power over that function should be allocated predominantly, if
not wholly, to the national government.
5. The determination of national economic policies, and the power to
promote interprovincial commerce and to protect the common market in respect of the
mobility of goods, services, capital and labour, should be allocated to the national
government.
6. Provincial governments shall have powers, either exclusively or
concurrently with the national government, inter alia-
(a) for the purposes of provincial planning and development and the
rendering of services; and
(b) in respect of aspects of government dealing with specific
socio-economic and cultural needs and the general well-being of the inhabitants of the
province.
7. Where mutual co-operation is essential or desirable or where it is
required to guarantee equality of opportunity or access to a government service, the
powers should be allocated concur rently to the national government and the provincial
governments.
8. The Constitution shall specify how powers which are not specifically
allocated in the Constitution to the national government or to a provincial government,
shall be dealt with as necessary ancillary powers pertaining to the powers and functions
allocated either to the national government or provincial governments.
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XXII
The national government shall not exercise its powers (exclusive or
concurrent) so as to encroach upon the geographical, functional or institutional integrity
of the provinces.
XXIII
In the event of a dispute concerning the legislative powers allocated by
the Constitution concurrently to the national government and provincial governments which
cannot be resolved by a court on a construction of the Constitution, precedence shall be
given to the legislative powers of the national government.
XXIV
A framework for local government powers, functions and structures shall be
set out in the Constitution. The comprehensive powers, functions and other features of
local government shall be set out in parliamentary statutes or in provincial legislation
or in both.
XXV
The national government and provincial governments shall have fiscal
powers and functions which will be defined in the Constitution. The framework for local
government referred to in Principle XXIV shall make provision for appropriate fiscal
powers and functions for different categories of local government.
XXVI
Each level of government shall have a constitutional right to an equitable
share of revenue collected nationally so as to ensure that provinces and local governments
are able to provide basic services and execute the functions allocated to them.
XXVII
A Financial and Fiscal Commission, in which each province shall be
represented, shall recommend equitable fiscal and financial allocations to the provincial
and local governments from revenue collected nationally, after taking into account the
national interest, economic disparities between the provinces as well as the population
and developmental needs, administrative responsibilities and other legitimate interests of
each of the provinces.
XXVIII
Notwithstanding the provisions of Principle XII, the right of employers
and employees to join and form employer organisations and trade unions and to engage in
collective bargaining shall be recognised and protected. Provision shall be made that
every person shall have the right to fair labour practices.
XXIX
The independence and impartiality of a Public Service Commission, a
Reserve Bank, an Auditor-General and a Public Protector shall be provided for and
safeguarded by the Constitution in the interests of the maintenance of effective public
finance and administration and a high standard of professional ethics in the public
service.
XXX
1. There shall be an efficient, non-partisan, career-orientated public
service broadly representative of the South African community, functioning on a basis of
fairness and which shall serve all members or the public in an unbiased and impartial
manner, and shall, in the exercise of its powers and in compliance with its duties,
loyally execute the lawful policies of the government of the day in the performance of its
administrative functions. The structures and functioning of the public service, as well as
the terms and conditions of service of its members, shall be regulated by law.
2. Every member of the public service shall be entitled to a fair pension.
XXXI
Every member of the security forces (police, military and intelligence),
and the security forces as a whole, shall be required to perform their functions and
exercise their powers in the national interest and shall be prohibited from furthering or
prejudicing party political interest.
XXXII
The Constitution shall provide that until 30 April 1999 the national
executive shall be composed and shall function substantially in the manner provided for in
Chapter 6 of this Constitution.
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XXXIII
The Constitution shall provide that, unless Parliament is dissolved on
account of its passing a vote of no-confidence in the Cabinet, no national election shall
be held before 30 April 1999.
XXXIV
1. This Schedule and the recognition therein of the right of the South
African people as a whole to se determination, shall not be construed as precluding,
within the framework of the said right, constitutional provision for a notion of the right
to self-determination by any community sharing a common cultural and language heritage,
whether in a territorial entity within the Republic or in any other recognised way.
2. The Constitution may give expression to any particular form of
self- determination provided there is substantial proven support within the community
concerned for such a form of self-determination.
3. If a territorial entity referred to in paragraph 1 is
established in terms of this Constitution before the new constitutional text is adopted,
the new Constitution shall entrench the continuation of such territorial entity, including
its structures, powers and functions.
[Principle XXXIV inserted by sec 13(b) of Act 2 of 1994.]
Schedule 5
PROCEDURE FOR ELECTION OF PRESIDENT
1. Nominations of candidates for election as President shall be called for
by the Chief Justice or the other judge presiding at the meeting at which the President is
to be elected.
2. Every nomination shall be submitted on the form prescribed by the Chief
Justice and shall be signed by two members of Parliament and also by the person nominated,
unless the person nominated has in writing signified his or her willingness to accept the
nomination.
3. The names of the persons duly nominated as provided for in item 2 shall
be announced at the meeting at which the election is to take place by the person presiding
thereat, and no debate shall be allowed at the election.
4. If in respect of any election only one nomination has been received,
the person presiding at the meeting shall declare the candidate in question to be duly
elected.
5. Where more than one candidate is nominated, a vote shall be taken by
secret ballot, each person present and entitled to vote having one vote, and any candidate
in whose favour the majority of all the votes cast is recorded, shall be declared duly
elected by the person presiding at the meeting.
6. (a) If no candidate obtains a majority of all the votes so cast, the
candidate who has received the smallest number of votes shall be eliminated and a further
ballot shall be taken in respect of the remaining candidates, this procedure being
repeated as often as may be necessary until a candidate receives a majority of all the
votes cast and is declared duly elected.
(b) Whenever two or more candidates being the lowest on the poll have
received the same number of votes, the meeting shall by separate vote, to be repeated as
often as may be necessary, determine which of those candidates shall for the purpose of
paragraph (a) be eliminated.
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7. Whenever-
(a) only two candidates have been nominated; or
(b) after the elimination of one or more candidates in accordance with
this Schedule, only two candidates remain, and there is an equality of votes between those
two candidates, the person presiding at the meeting shall at the time the result of the
election is announced, fix the time at and date on which a further meeting will be held,
being a date not more than seven days thereafter.
8. At the further meeting referred to in item 7, the provisions of this
Schedule shall apply as if such further meeting were the first meeting called for the
purpose of the election in question.
9. (1) The Chief Justice shall make rules in regard to the procedure to be
observed at a meeting at which the President is to be elected, and rules defining the
duties of the presiding officer and of any person appointed to assist him and prescribing
the manner in which the ballot at any such meeting shall be conducted.
(2) Any such rules shall be made known in such manner as the Chief Justice
may consider necessary.
Schedule 6
LEGISLATIVE COMPETENCES OF PROVINCES
Agriculture
Casinos, racing, gambling and wagering
Cultural affairs
Education at all levels, excluding university and technikon education
Environment
Health services
Housing
Language policy and the regulation of the use of official languages within
a province, subject to section 3.
Local government, subject to the provisions of Chapter 10
Nature conservation, excluding national parks, national botanical gardens
and marine resources
Police, subject to the provisions of Chapter 14
Provincial public media
Public transport
Regional planning and development
Road traffic regulation
Roads
Tourism
Trade and industrial promotion
Traditional authorities
Urban and rural development
Welfare services
[ Top ]
Schedule 7
Number and year
Title of law
Extent of repeal
Act 46 of 1959
Representation between the Republic of South Africa and Self-governing Territories Act,
1959
The whole
Act 32 of 1961
Provincial Government Act, 1961
The whole
Act 22 of 1963
Provincial Councils and Executive Committees Act, 1963
The whole
Act 48 of 1963
Transkei Constitution Act, 1963
The whole
Act 101 of 1967
Transkei Constitution Amendment Act, 1967
The whole
Act 36 of 1968
Transkei Constitution Amendment Act, 1968
The whole
Act 26 of 1969
South Africa Act Amendment Act, 1969
The whole
Act 26 of 1970
National States Citizenship Act, 1970
The whole
Act 21 of 1971
Self-governing Territories Constitution Act, 1971
The whole
Act 31 of 1971
Transkei Constitution Amendment Act, 1971
The whole
Act 61 of 1975
Transkei Constitution Amendment Act, 1975
The whole
Act 3 of 1976
Transkei Constitution Amendment Act, 1976
The whole
Act 65 of 1976
Financial Relations Act, 1976
The whole, except sections 27 and 28
Act 100 of 1976
Status of Transkei Act, 1976
The whole
Act 30 of 1977
Constitution Amendment Act, 1977
The whole
Act 31 of 1977
Financial Relations Amendment Act, 1977
The whole
Act 89 of 1977
Status of Bophuthatswana Act, 1977
The whole
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Act 8 of 1978
Bophuthatswana Border Extension Act, 1978
The whole
Act 13 of 1978
National States Citizenship Amendment Act, 1978
The whole
Act 36 of 1978
Alteration of Provincial Act, 1978
The whole
Act 107 of 1979
Status of Venda Act, 1979
The whole
Act 2 of 1980
Borders of Particular States Extension Act, 1980
The whole
Act 70 of 1980
Republic of South Africa Constitution Amendment Act, 1980
The whole
Act 101 of 1980
Republic of South Africa Constitution Fifth Amendment Act, 1980
The whole
Act 77 of 1981
Borders of Particular States Extension Amendment Act, 1981
The whole
Act 101 of 1981
Republic of South Africa Constitution Second Amendment Act, 1981
The whole
Act 102 of 1981
Financial Relations Amendment Act, 1981
The whole
Act 110 of 1981
Status of Ciskei Act, 1981
The whole
Act 34 of 1982
Financial Relations Amendment Act, 1982
The whole
Act 25 of 1983
Borders of Particular States Extension Amendment Act, 1983
The whole
Act 88 of 1983
Provincial Affairs Act, 1983
The whole, except section 5
Act 109 of 1983
Borders of Particular States Extension Second Amendment Act, 1983
The whole
Act 110 of 1983
Republic of South Africa Constitution Act, 1983
The whole
Act 105 of 1984
Constitution Amendment Act, 1984
The whole, except sections 12, 13 and 14
Act 114 of 1984
Financial Relations Amendment Act, 1984
The whole
Act 3 of 1985
Financial Relations Amendment Act, 1985
The whole
Act 26 of 1985
Alteration of Provincial Boundaries Act, 1985
The whole
Act 104 of 1985
Constitutional Affairs Amendment Act, 1985
The whole
Act 69 of 1986
Provincial Government Act, 1986
The whole, except section 20
Act 80 of 1986
Joint Executive Authority for KwaZulu and Natal Act, 1986
The whole
Act 112 of 1986
Borders of Particular States Extension Amendment Act, 1986
The whole
Act 20 of 1987
Constitution Amendment Act, 1987
The whole
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Act 32 of 1987
Constitutional Laws Amendment Act, 1987
Sections 18, 19, 20, 31 and 32
Act 43 of 1988
Constitutional Laws Amendment Act, 1988
Sections 10, 11, 12 and 13
Act 50 of 1988
Constitution Amendment Act, 1988
The whole
Act 59 of 1988
Borders of Particular States Extension Act, 1988
The whole
Act 85 of 1988
National States Constitution Amendment Act, 1988
The whole
Act 86 of 1988
Promotion of Constitutional Development Act, 1988
The whole
Act 101 of 1988
Constitution Third Amendment Act, 1988
The whole
Act 42 of 1989
Incorporation of Certain Land in the Republic of South Africa Act, 1989
The whole
Act 71 of 1989
Constitution Fourth Amendment Act, 1989
The whole
Act 61 of 1990
Constitution Amendment Act, 1990
The whole
Act 111 of 1990
National States Constitution Amendment Act, 1990
The whole
Act 59 of 1991
Provincial Matters Amendment Act, 1991
The whole
Act 62 of 1991
Financial Relations Amendment Act, 1991
The whole
Act 74 of 1991
Joint Executive Authority for KwaZulu and Natal Amendment Act, 1991
The whole
Act 146 of 1992
Constitution Second Amendment Act, 1992
The whole
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Act 149 of 1992
Constitution Amendment Act, 1992
The whole
Act 82 of 1993
Constitution Amendment Act, 1993
The whole
PRETORIA 19 APRIL 1994
JOINT STATEMENT BY THE STATE PRESIDENT, MR F W DE KLERK, LEADER OF THE
NATIONAL PARTY, MR N R MANDELA, PRESIDENT OF THE AFRICAN NATIONAL CONGRESS AND CHIEF
MINISTER M G BUTHELEZI, PRESIDENT OF THE INKATHA FREEDOM PARTY
Delegations led by the State President, Mr F W de Klerk, Leader of the
National Party, Mr N R Mandela, President of the African National Congress and Chief
Minister M G Buthelezi, President of the Inkatha Freedom Party, met this morning at the
Union Buildings and reached agreement on the attached Memorandum of Agreement.
The Agreement follows intensive discussions between the parties yesterday
and during the preceding days. The parties would, in particular, like to extend their warm
thanks to Prof W A J Okumu of Kenya who played an important and helpful role in this
process.
The parties expressed their satisfaction that the Agreement will
substantially contribute to their common goal of creating circumstances which will be
conducive to the holding of a free, fair and peaceful election. It will help to ensure
much greater inclusivity in the election process and will significantly address the
underlying causes of tension and violence, particularly in KwaZulu/Natal and the East
Rand.
The repeated the urgent appeal to their followers and to all South
Africans which they made after the Skukuza summit on 8 April to end violence, to exercise
maximum restraint and to pursue their objectives by peaceful means.
MEMORANDUM OF AGREEMENT FOR RECONCILIATION AND PEACE BETWEEN THE INKATHA
FREEDOM PARTY/KWAZULU GOVERNMENT AND THE AFRICAN NATIONAL CONGRESS AND THE SOUTH AFRICAN
GOVERNMENT/NATIONAL PARTY.
We, the undersigned, pledge ourselves to Peace and Reconciliation in South
Africa and agree to commit ourselves to the following:
1. The Inkatha Freedom Party agrees to participate in the April 26-28,
1994 elections for both the National Assembly and Provincial Legislatures.
2. All the undersigned parties reject violence and will therefore do
everything in their power to ensure free and fair elections throughout the Republic of
South Africa.
3. The undersigned parties agree to recognise and protect the institution,
status and role of the constitutional position of the King of the Zulus nd the Kingdom of
KwaZulu, which institutions shall be provided for in the Provincial Constitution of
KwaZulu/Natal immediately after the holding of the said elections. The 1993 Constitution
shall for this purpose be amended before 27 April in accordance with Addendum
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A.
4. Any outstanding issues in respect of the King of the Zulus and the 1993
Constitution as amended will be addressed by way of international mediation which will
commence as soon as possible after the said elections.
5. The South African Government undertakes to place the necessary
facilities at the disposal of the Independent Electoral Commission (IEC) as it may require
in order to facilitate the full participation of the IFP in the April 26-28, 1994
election.
6. The undersigned parties will facilitate proper provision for:
i) Registration of the IFP
ii) The IFP Candidates list
iii) Marking by voters of ballot papers.
The undersigned parties hereby undertake to abide by the technical
arrangements to be made by the Independent Electoral Commission to mplement the matters
referred to in subparagraphs (i), (ii) and (iii) above in accordance with the details set
out in Addendum B.
This agreement shall be implemented with immediate effect.
SIGNED BY:
MANGOSUTHO G BUTHELEZI President: Inkatha Freedom Party and Chief Minister
of the KwaZulu Government
STATE PRESIDENT F W DE KLERK South African Government/National Party
PRESIDENT N MANDELA African National Congress
WITNESSED BY: PROF W A J OKUMU
19 April 1994
ADDENDUM A
Amendment of section 160 of Act 200 of 1993.
1. Section 160 of the Constitution is hereby amended by the substitution
for the proviso to subsection (3) of the following proviso:
"Provided that a provincial constitution may - (a) provide for
legislative and executive structures and procedures different from those provided for in
this Constitution in respect of a province; and, (b) where applicable, provide for the
institution, role, authority and status of a traditional monarch in the province, and
shall make such provision for the Zulu Monarch in the case of the province of
KwaZulu/Natal".
Amendment of Schedule 4 to Act 200 of 1993
2. Schedule 4 to the Constitution is hereby amended by the addition of the
following paragraph to constitutional principle XIII:
"Provisions in a provincial constitution relating to the institution,
role, authority and status of a traditional monarch shall be recognised and protected in
the Constitution".
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