SOUTH AFRICA
[a108y1996]
[ASSENTED TO 16 DECEMBER 1996]
[DATE OF COMMENCEMENT: 4 FEBRUARY 1997]
(Unless otherwise indicated - see also s. 243 (5))
(English text signed by the President)
ACT
To introduce a new Constitution for the Republic of South Africa and to provide for matters incidental thereto.
CONTENTS
Sections
Preamble
CHAPTER 1 Founding Provisions 1-6
CHAPTER 2 Bill of Rights 7-39
CHAPTER 3 Co-operative Government 40-41
CHAPTER 4 Parliament 42-82
CHAPTER 5 The President and National Executive 83-102
CHAPTER 6 Provinces 103-150
CHAPTER 7 Local Government 151-164
CHAPTER 8 Courts and Administration of Justice 165-180
CHAPTER 9 State Institutions Supporting Constitutional Democracy 181-194
CHAPTER 10 Public Administration 195-197
CHAPTER 11 Security Services 198-210
CHAPTER 12 Traditional Leaders 211-212
CHAPTER 13 Finance 213-230
CHAPTER 14 General Provisions 231-243
SCHEDULE 1 National Flag
SCHEDULE 1A Geographical Areas of Provinces
SCHEDULE 2 Oaths and Solemn Affirmations
SCHEDULE 3 Election Procedures
SCHEDULE 4 Functional Areas of Concurrent National and Provincial Legislative Competence
SCHEDULE 5 Functional Areas of Exclusive Provincial Legislative Competence
SCHEDULE 6 Transitional Arrangements
SCHEDULE 6A .....
SCHEDULE 6B
SCHEDULE 7 Laws Repealed
We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united in our diversity.
We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to-
Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;
Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;
Improve the quality of life of all citizens and free the potential of each person; and
Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.
May God protect our people.
Nkosi Sikelel' iAfrika. Morena boloka setjhaba sa heso.
God seën Suid-Afrika. God bless South Africa.
Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.
The Republic of South Africa is one, sovereign, democratic state founded on the following values:
(a) Human dignity, the achievement of equality and the advancement of human rights and freedoms.
(b) Non-racialism and non-sexism.
(c) Supremacy of the constitution and the rule of law.
(d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.
This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.
(1) There is a common South African citizenship.
(2) All citizens are-
(a) equally entitled to the rights, privileges and benefits of citizenship; and
(b) equally subject to the duties and responsibilities of citizenship.
(3) National legislation must provide for the acquisition, loss and restoration of citizenship.
The national anthem of the Republic is determined by the President by proclamation.
The national flag of the Republic is black, gold, green, white, red and blue, as described and sketched in Schedule 1.
(1) The official languages of the Republic are Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu.
(2) Recognising the historically diminished use and status of the indigenous languages of our people, the state must take practical and positive measures to elevate the status and advance the use of these languages.
(3) (a) The national government and provincial governments may use any particular official languages for the purposes of government, taking into account usage, practicality, expense, regional circumstances and the balance of the needs and preferences of the population as a whole or in the province concerned; but the national government and each provincial government must use at least two official languages.
(b) Municipalities must take into account the language usage and preferences of their residents.
(4) The national government and provincial governments, by legislative and other measures, must regulate and monitor their use of official languages. Without detracting from the provisions of subsection (2), all official languages must enjoy parity of esteem and must be treated equitably.
(5) A Pan South African Language Board established by national legislation must-
(a) promote, and create conditions for, the development and use of-
(i) all official languages;
(ii) the Khoi, Nama and San languages; and
(iii) sign language; and
(b) promote and ensure respect for
(i) all languages commonly used by communities in South Africa, including German, Greek, Gujarati, Hindi, Portuguese, Tamil, Telegu and Urdu; and
(ii) Arabic, Hebrew, Sanskrit and other languages used for religious purposes in South Africa.
(1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.
(2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights.
(3) The rights in the Bill of Rights are subject to the limitations contained or referred to in section 36, or elsewhere in the Bill.
(1) The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.
(2) A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.
(3) When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court
(a) in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and
(b) may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36 (1).
(4) A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person.
(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.
Everyone has inherent dignity and the right to have their dignity respected and protected.
Everyone has the right to life.
(1) Everyone has the right to freedom and security of the person, which includes the right-
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman or degrading way.
(2) Everyone has the right to bodily and psychological integrity, which includes the right-
(a) to make decisions concerning reproduction;
(b) to security in and control over their body; and
(c) not to be subjected to medical or scientific experiments without their informed consent.
No one may be subjected to slavery, servitude or forced labour.
Everyone has the right to privacy, which includes the right not to have-
(a) their person or home searched;
(b) their properly searched;
(c) their possessions seized; or
(d) the privacy of their communications infringed.
(1) Everyone has the right to freedom of conscience, religion, thought, belief and opinion.
(2) Religious observances may be conducted at state or state-aided institutions, provided that
(a) those observances follow rules made by the appropriate public authorities;
(b) they are conducted on an equitable basis; and
(c) attendance at them is free and voluntary.
(3) (a) This section does not prevent legislation recognising-
(i) marriages concluded under any tradition, or a system of religious, personal or family law; or
(ii) systems of personal and family law under any tradition, or adhered to by persons professing a particular religion.
(b) Recognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution.
(1) Everyone has the right to freedom of expression, which includes-
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to-
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.
Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.
Everyone has the right to freedom of association.
(1) Every citizen is free to make political choices, which includes the right-
(a) to form a political party;
(b) to participate in the activities of, or recruit members for, a political party; and
(c) to campaign for a political party or cause.
(2) Every citizen has the right to free, fair and regular elections for any legislative body established in terms of the Constitution.
(3) Every adult citizen has the right-
(a) to vote in elections for any legislative body established in terms of the Constitution, and to do so in secret; and
(b) to stand for public office and, if elected, to hold office.
No citizen may be deprived of citizenship.
(1) Everyone has the right to freedom of movement.
(2) Everyone has the right to leave the Republic.
(3) Every citizen has the right to enter, to remain in and to reside anywhere in, the Republic.
(4) Every citizen has the right to a passport.
Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law.
(1) Everyone has the right to fair labour practices.
(2) Every worker has the right-
(a) to form and join a trade union;
(b) to participate in the activities and programmes of a trade union; and
(c) to strike.
(3) Every employer has the right-
(a) to form and join an employers' organisation; and
(b) to participate in the activities and programmes of an employers' organisation.
(4) Every trade union and every employers' organisation has the right-
(a) to determine its own administration, programmes and activities;
(b) to organise; and
(c) to form and join a federation.
(5) Every trade union, employers' organisation and employer has the right to engage in collective bargaining. National legislation may be enacted to regulate collective bargaining. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36 (1).
(6) National legislation may recognise union security arrangements contained in collective agreements. To the extent that the legislation may limit a right in this Chapter the limitation must comply with section 36 (1).
Everyone has the right-
(a) to an environment that is not harmful to their health or well-being; and
(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that-
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.
(1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.
(2) Property may be expropriated only in terms of law of general application-
(a) for a public purpose or in the public interest; and
(b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.
(3) The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including-
(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and
(e) the purpose of the expropriation.
(4) For the purposes of this section-
(a) the public interest includes the nation's commitment to land reform, and to reforms to bring about equitable access to all South Africa's natural resources; and
(b) property is not limited to land.
(5) The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.
(6) A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.
(7) A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.
(8) No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36 (1).
(9) Parliament must enact the legislation referred to in subsection (6).
(1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.
(3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.
(1) Everyone has the right to have access to-
(a) health care services, including reproductive health care;
(b) sufficient food and water; and
(c) social security, including, if they are unable to support themselves and their dependents, appropriate social assistance.
(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.
(3) No one may be refused emergency medical treatment.
(1) Every child has the right-
(a) to a name and a nationality from birth;
(b) to family care or parental care, or to appropriate alternative care when removed from the family environment;
(c) to basic nutrition, shelter, basic health care services and social services;
(d) to be protected from maltreatment, neglect, abuse or degradation;
(e) to be protected from exploitative labour practices;
(f) not to be required or permitted to perform work or provide services that-
(i) are inappropriate for a person of that child's age; or
(ii) place at risk the child's well-being, education, physical or mental health or spiritual, moral or social development;
(g) not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only for the shortest appropriate period of time, and has the right to be-
(i) kept separately from detained persons over the age of 18 years; and
(ii) treated in a manner, and kept in conditions, that take account of the child's age;
(h) to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result; and
(i) not to be used directly in armed conflict, and to be protected in times of armed conflict.
(2) A child's best interests are of paramount importance in every matter concerning the child.
(3) In this section 'child' means a person under the age of 18 years.
(1) Everyone has the right-
(a) to a basic education, including adult basic education; and
(b) to further education, which the state, through reasonable measures, must make progressively available and accessible.
(2) Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account-
(a) equity;
(b) practicability; and
(c) the need to redress the results of past racially discriminatory laws and practices.
(3) Everyone has the right to establish and maintain, at their own expense, independent educational institutions that-
(a) do not discriminate on the basis of race;
(b) are registered with the state; and
(c) maintain standards that are not inferior to standards at comparable public educational institutions.
(4) Subsection (3) does not preclude state subsidies for independent educational institutions.
Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.
(1) Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community-
(a) to enjoy their culture, practise their religion and use their language; and
(b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.
(2) The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.
(1) Everyone has the right of access to-
(a) any information held by the state; and
(b) any information that is held by another person and that is required for the exercise or protection of any rights.
(2) National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.
(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.
(2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.
(3) National legislation must be enacted to give effect to these rights, and must-
(a) provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal;
(b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and
(c) promote an efficient administration.
Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.
(1) Everyone who is arrested for allegedly committing an offence has the right-
(a) to remain silent;
(b) to be informed promptly-
(i) of the right to remain silent; and
(ii) of the consequences of not remaining silent;
(c) not to be compelled to make any confession or admission that could be used in evidence against that person;
(d) to be brought before a court as soon as reasonably possible, but not later than-
(i) 48 hours after the arrest; or
(ii) the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day;
(e) at the first court appearance after being arrested, to be charged or to be informed of the reason for the detention to continue, or to be released; and
(f) to be released from detention if the interests of justice permit, subject to reasonable conditions.
(2) Everyone who is detained, including every sentenced prisoner, has the right-
(a) to be informed promptly of the reason for being detained;
(b) to choose, and to consult with, a legal practitioner, and to be informed of this right promptly;
(c) to have a legal practitioner assigned to the detained person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
(d) to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released;
(e) to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment; and
(f) to communicate with, and be visited by, that person's-
(i) spouse or partner;
(ii) next of kin;
(iii) chosen religious counsellor; and
(iv) chosen medical practitioner.
(3) Every accused person has a right to a fair trial, which includes the right-
(a) to be informed of the charge with sufficient detail to answer it;
(b) to have adequate time and facilities to prepare a defence;
(c) to a public trial before an ordinary court;
(d) to have their trial begin and conclude without unreasonable delay;
(e) to be present when being tried;
(f) to choose, and be represented by, a legal practitioner, and to be informed of this right promptly;
(g) to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
(h) to be presumed innocent, to remain silent, and not to testify during the proceedings;
(i) to adduce and challenge evidence;
(j) not to be compelled to give self-incriminating evidence;
(k) to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings interpreted in that language;
(l) not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted;
(m) not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted;
(n) to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and
(o) of appeal to, or review by, a higher court.
(4) Whenever this section requires information to be given to a person, that information must be given a language that the person understands.
(5) Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.
(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including-
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.
(1) A state of emergency may be declared only in terms of an Act of Parliament, and only when-
(a) the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and
(b) the declaration is necessary to restore peace and order.
(2) A declaration of a state of emergency, and any legislation enacted or other action taken in consequence of that declaration, may be effective only-
(a) prospectively; and
(b) for no more than 21 days from the date of the declaration, unless the National Assembly resolves to extend the declaration. The Assembly may extend a declaration of a state of emergency for no more than three months at a time. The first extension of the state of emergency must be by a resolution adopted with a supporting vote of a majority of the members of the Assembly. Any subsequent extension must be by a resolution adopted with a supporting vote of at least 60 per cent of the members of the Assembly. A resolution in terms of this paragraph may be adopted only following a public debate in the Assembly.
(3) Any competent court may decide on the validity of-
(a) a declaration of a state of emergency;
(b) any extension of a declaration of a state of emergency; or
(c) any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency.
(4) Any legislation enacted in consequence of a declaration of a state of emergency may derogate from the Bill of Rights only to the extent that-
(a) the derogation is strictly required by the emergency; and
(b) the legislation-
(i) is consistent with the Republic's obligations under international law applicable to states of emergency;
(ii) conforms to subsection (5); and
(iii) is published in the national Government Gazette as soon
as reasonably possible after being enacted.
(5) No Act of Parliament that authorises a declaration of a state of emergency, and no legislation enacted or other action taken in consequence of a declaration, may permit or authorise-
(a) indemnifying the state, or any person, in respect of any unlawful act;
(b) any derogation from this section; or
(c) any derogation from a section mentioned in column 1 of the Table of Non-Derogable Rights, to the extent indicated opposite that section in column 3 of the Table.
Table of Non-Derogable Rights
1 2 3
Section number Section title Extent to which the right is non-derogable
9 Equality With respect to unfair discrimination solely on
the grounds of race, colour, ethnic or social
origin, sex, religion or language
10 Human dignity Entirely
11 Life Entirely
12 Freedom and security of With respect to subsections (1) (d) and (e) and
the person (2) (c).
13 Slavery servitude and With respect to slavery and servitude
forced labour
28 Children With respect to:
- subsection (1) (d) and (e);
- the rights in subparagraphs (i) ond (ii) of
subsection (1) (g); and
- subsection (l) (i) in respect of children of 15
years ond younger.
35 Arrested, detained and With respect to:
accused persons
- subsections (1) (a), (b) ond (c) ond (2) (d);
- the rights in paragraphs (a) to (o) of
subsection (3), excluding paragraphs (d);
- subsection (4); and
- subsection (5) with respect to the exclusion of
evidence if the admission of that evidence
would render the trial unfair.
(6) Whenever anyone is detained without trial in consequence of a derogation of rights resulting from a declaration of a state of emergency, the following conditions must be observed:
(a) An adult family member or friend of the detainee must be contacted as soon as reasonably possible, and informed that the person has been detained.
(b) A notice must be published in the national Government Gazette within five days of the person being detained, stating the detainee's name and place of detention and referring to the emergency measure in terms of which that person has been detained.
(c) The detainee must be allowed to choose, and be visited at any reasonable time by, a medical practitioner.
(d) The detainee must be allowed to choose, and be visited at any reasonable time by, a legal representative.
(e) A court must review the detention as soon as reasonably possible, but no later than 10 days after the date the person was detained, and the court must release the detainee unless it is necessary to continue the detention to restore peace and order.
(f) A detainee who is not released in terms of a review under paragraph (e), or who is not released in terms of a review under this paragraph, may apply to a court for a further review of the detention at any time after 10 days have passed since the previous review, and the court must release the detainee unless it is still necessary to continue the detention to restore peace and order.
(g) The detainee must be allowed to appear in person before any court considering the detention, to be represented by a legal practitioner at those hearings, and to make representations against continued detention.
(h) The state must present written reasons to the court to justify the continued detention of the detainee, and must give a copy of those reasons to the detainee at least two days before the court reviews the detention.
(7) If a court releases a detainee, that person may not be detained again on the same grounds unless the state first shows a court good cause for re-detaining that person.
(8) Subsections (6) and (7) do not apply to persons who are not South African citizens and who are detained in consequence of an international armed conflict. Instead, the state must comply with the standards binding on the Republic under international humanitarian law in respect of the detention of such persons.
Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are-
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in their own name;
(c) anyone acting as a member of, or in the interest of, a group or class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members.
(1) When interpreting the Bill of Rights, a court, tribunal or forum-
(a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.
(2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.
(3) The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.
(1) In the Republic, government is constituted as national, provincial and local spheres of government which are distinctive, interdependent and interrelated.
(2) All spheres of government must observe and adhere to the principles in this Chapter and must conduct their activities within the parameters that the Chapter provides.
(1) All spheres of government and all organs of state within each sphere must-
(a) preserve the peace, national unity and the indivisibility of the Republic;
(b) secure the well-being of the people of the Republic;
(c) provide effective, transparent, accountable and coherent government for the Republic as a whole;
(d) be loyal to the Constitution, the Republic and its people;
(e) respect the constitutional status, institutions, powers and functions of government in the other spheres;
(f) not assume any power or function except those conferred on them in terms of the Constitution;
(g) exercise their powers and perform their functions in a manner that does not encroach on the geographical, functional or institutional integrity of government in another sphere; and
(h) co-operate with one another in mutual trust and good faith by-
(i) fostering friendly relations;
(ii) assisting and supporting one another;
(iii) informing one another of, and consulting one another on, matters of common interest;
(iv) co-ordinating their actions and legislation with one another;
(v) adhering to agreed procedures; and
(vi) avoiding legal proceedings against one another.
(2) An Act of Parliament must-
(a) establish or provide for structures and institutions to promote and facilitate intergovernmental relations; and
(b) provide for appropriate mechanisms and procedures to facilitate settlement of intergovernmental disputes.
(3) An organ of state involved in an intergovernmental dispute must make every reasonable effort to settle the dispute by means of mechanisms and procedures provided for that purpose, and must exhaust all other remedies before it approaches a court to resolve the dispute.
(4) If a court is not satisfied that the requirements of subsection (3) have been met, it may refer a dispute back to the organs of state involved.
(1) Parliament consists of-
(a) the National Assembly; and
(b) the National Council of Provinces.
(2) The National Assembly and the National Council of Provinces participate in the legislative process in the manner set out in the Constitution.
(3) The National Assembly is elected to represent the people and to ensure government by the people under the Constitution. It does this by choosing the President, by providing a national forum for public consideration of issues, by passing legislation and by scrutinizing and overseeing executive action.
(4) The National Council of Provinces represents the provinces to ensure that provincial interests are taken into account in the national sphere of government. It does this mainly by participating in the national legislative process and by providing a national forum for public consideration of issues affecting the provinces.
(5) The President may summon Parliament to an extraordinary sitting at at any time conduct special business.
(6) The seat of Parliament is Cape Town, but an Act of Parliament enacted in accordance with section 76 (1) and (5) may determine that the seat of Parliament is elsewhere.
In the Republic, the legislative authority-
(a) of the national sphere of government is vested in Parliament, as set out in section 44;
(b) of the provincial sphere of government is vested in the provincial legislatures, as set out in section 104; and
(c) of the local sphere of government is vested in the Municipal Councils, as set out in section 156.
(1) The national legislative authority as vested in Parliament-
(a) confers on the National Assembly the power-
(i) to amend the Constitution;
(ii) to pass legislation with regard to any matter, including a matter within a functional area listed in Schedule 4, but excluding, subject to subsection (2), a matter within a functional area listed in Schedule 5; and
(iii) to assign any of its legislative powers, except the power to amend the Constitution, to any legislative body in another sphere of government; and
(b) confers on the National Council of Provinces the power-
(i) to participate in amending the Constitution in accordance with section 74;
(ii) to pass, in accordance with section 76, legislation with regard to any matter within a functional area listed in Schedule 4 and any other matter required by the Constitution to be passed in accordance with section 76; and
(iii) to consider, in accordance with section 75, any other legislation passed by the National Assembly.
(2) Parliament may intervene, by passing legislation in accordance with section 76 (1), with regard to a matter falling within a functional area listed in Schedule 5, when it is necessary-
(a) to maintain national security;
(b) to maintain economic unity;
(c) to maintain essential national standards;
(d) to establish minimum standards required for the rendering of services; or
(e) to prevent unreasonable action taken by a province which is prejudicial to the interests of another province or to the country as a whole.
(3) Legislation with regard to a matter that is reasonably necessary for, or incidental to, the effective exercise of a power concerning any matter listed in Schedule 4 is, for all purposes, legislation with regard to a matter listed in Schedule 4.
(4) When exercising its legislative authority; Parliament is bound only by the Constitution, and must act in accordance with, and within the limits of, the Constitution.
(1) The National Assembly and the National Council of Provinces must establish a joint rules committee to make rules and orders concerning the joint business of the Assembly and Council, including rules and orders-
(a) to determine procedures to facilitate the legislative process, including setting a time limit for completing any step in the process;
(b) to establish joint committees composed of representatives from both the Assembly and the Council to consider and report on Bills envisaged in sections 74 and 75 that are referred to such a committee;
(c) to establish a joint committee to review the Constitution at least annually; and
(d) to regulate the business of-
(i) the joint rules committee;
(ii) the Mediation Committee;
(iii) the constitutional review committee; and
(iv) any joint committees established in terms of paragraph (b).
(2) Cabinet members, members of the National Assembly and delegates to the National Council of Provinces have the same privileges and immunities before a joint committee of the Assembly and the Council as they have before the Assembly or the Council.
(1) The National Assembly consists of no fewer than 350 and no more than 400 women and men elected as members in terms of an electoral system that-
(a) is prescribed by national legislation;
(b) is based on the national common voters roll;
(c) provides for a minimum voting age of 18 years; and
(d) results, in general, in proportional representation(1) The National Assembly consists of no fewer than 350 and no more than 400 women and men elected as members in terms of an electoral system that-
(a) is prescribed by national legislation;
(b) is based on the national common voters roll;
(c) provides for a minimum voting age of 18 years; and
(d) results, in general, in proportional representation(1) The National Assembly consists of no fewer than 350 and no more than 400 women and men elected as members in terms of an electoral system that-
(a) is prescribed by national legislation;
(b) is based on the national common voters roll;
(c) provides for a minimum voting age of 18 years; and
(d) results, in general, in proportional representation(1) The National Assembly consists of no fewer than 350 and no more than 400 women and men elected as members in terms of an electoral system that-
(a) is prescribed by national legislation;
(b) is based on the national common voters roll;
(c) provides for a minimum voting age of 18 years; and
(d) results, in general, in proportional representation
(1) The National Assembly consists of no fewer than 350 and no more than 400 women and men elected as members in terms of an electoral system that-
(a) is prescribed by national legislation;
(b) is based on the national common voters roll;
(c) provides for a minimum voting age of 18 years; and
(d) results, in general, in proportional representation.
(2) An Act of Parliament must provide a formula for determining the number of members of the National Assembly.
(1) Every citizen who is qualified to vote for the National Assembly is eligible to be a member of the Assembly, except-
(a) anyone who is appointed by, or is in the service of, the state and receives remuneration for that appointment or service, other than-
(i) the President, Deputy President, Ministers and Deputy Ministers; and
(ii) other office-bearers whose functions are compatible with the functions of a member of the Assembly, and have been declared compatible with those functions by national legislation;
(b) permanent delegates to the National Council of Provinces or members of a provincial legislature or a Municipal Council;
(c) unrehabilitated insolvents;
(d) anyone declared to be of unsound mind by a court of the Republic; or
(e) anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 months' imprisonment without the option of a fine, either in the Republic, or outside the Republic if the conduct constituting the offence would have been an offence in the Republic, but no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired. A disqualification under this paragraph ends five years after the sentence has been completed.
(2) A person who is not eligible to be a member of the National Assembly in terms of subsection (1) (a) or (b) may be a candidate for the Assembly, subject to any limits or conditions established by national legislation.
(3) A person loses membership of the National Assembly if that person-
(a) ceases to be eligible;
(b) is absent from the Assembly without permission in circumstances for which the rules and orders of the Assembly prescribe loss of membership; or
(c) ceases to be a member of the party that nominated that person as a member of the Assembly.
(4) Vacancies in the National Assembly must be filled in terms of national legislation.
Before members of the National Assembly begin to perform their functions in the Assembly, they must swear or affirm faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2.
(1) The National Assembly is elected for a term of five years.
(2) If the National Assembly is dissolved in terms of section 50, or when its term expires, the President, by proclamation, must call and set dates for an election, which must be held within 90 days of the date the Assembly was dissolved or its term expired. A proclamation calling and setting dates for an election may be issued before or after the expiry of the term of the National Assembly.
(3) If the result of an election of the National Assembly is not declared within the period established in terms of section 190, or if an election is set aside by a court, the President, by proclamation, must call and set dates for another election, which must be held within 90 days of the expiry of that period or of the date on which the election was set aside.
(4) The National Assembly remains competent to function from the time it is dissolved or its term expires, until the day before the first day of polling for the next Assembly.
(1) The President must dissolve the National Assembly if-
(a) the Assembly has adopted a resolution to dissolve with a supporting vote of a majority of its members; and
(b) three years have passed since the Assembly was elected.
(2) The Acting President must dissolve the National Assembly if-
(a) there is a vacancy in the office of President; and
(b) the Assembly fails to elect a new President within 30 days after the vacancy occurred.
(1) After an election, the first sitting of the National Assembly must take place at a time and on a date determined by the Chief Justice, but not more than 14 days after the election result has been declared. The Assembly may determine the time and duration of its other sittings and its recess periods.
(2) The President may summon the National Assembly to an extraordinary sitting at any time to conduct special business.
(3) Sittings of the National Assembly are permitted at places other than the seat of Parliament only on the grounds of public interest, security or convenience, and if provided for in the rules and orders of the Assembly.
(1) At the first sitting after its election, or when necessary to fill a vacancy, the National Assembly must elect a Speaker and a Deputy Speaker from among its members.
(2) The Chief Justice must preside over the election of a Speaker, or designate another judge to do so. The Speaker presides over the election of a Deputy Speaker.
(3) The procedure set out in Part A of Schedule 3 applies to the election of the Speaker and the Deputy Speaker.
(4) The National Assembly may remove the Speaker or Deputy Speaker from office by resolution. A majority of the members of the Assembly must be present when the resolution is adopted.
(5) In terms of its rules and orders, the National Assembly may elect from among its members other presiding officers to assist the Speaker and the Deputy Speaker.
(1) Except where the Constitution provides otherwise-
(a) a majority of the members of the National Assembly must be present before a vote may be taken on a Bill or an amendment to a Bill;
(b) at least one third of the members must be present before a vote may be taken on any other question before the Assembly; and
(c) all questions before the Assembly are decided by a majority of the votes cast.
(2) The member of the National Assembly presiding at a meeting of the Assembly has no deliberative vote, but-
(a) must cast a deciding vote when there is an equal number of votes on each side of a question; and
(b) may cast a deliberative vote when a question must be decided with a supporting vote of at least two thirds of the members of the Assembly.
The President and any member of the Cabinet or any Deputy Minister who is not a member of the National Assembly may, subject to the rules and orders of the Assembly, attend and speak in the Assembly, but may not vote.
(1) In exercising its legislative power, the National Assembly may-
(a) consider, pass, amend or reject any legislation before the Assembly; and ,
(b) initiate or prepare legislation, except money Bills.
(2) The National Assembly must provide for mechanisms-
(a) to ensure that all executive organs of state in the national sphere of government are accountable to it; and
(b) to maintain oversight of-
(i) the exercise of national executive authority, including the implementation of legislation; and
(ii) any organ of state.
The National Assembly or any of its committees may-
(a) summon any person to appear before it to give evidence on oath or affirmation, or to produce documents;
(b) require any person or institution to report to it;
(c) compel, in terms of national legislation or the rules and orders, any person or institution to comply with a summons or requirement in terms of paragraph (a) or (b); and
(d) receive petitions, representations or submissions from any interested persons or institutions.
(1) The National Assembly may-
(a) determine and control its internal arrangements, proceedings and procedures; and
(b) make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement.
(2) The rules and orders of the National Assembly must provide for-
(a) the establishment, composition, powers, functions, procedures and duration of its committees;
(b) the participation in the proceedings of the Assembly and its committees of minority parties represented in the Assembly, in a manner consistent with democracy;
(c) financial and administrative assistance to each party represented in the Assembly in proportion to its representation, to enable the party and its leader to perform their functions in the Assembly effectively; and
(d) the recognition of the leader of the largest opposition party in the Assembly as the Leader of the Opposition.
(1) Cabinet members, Deputy Ministers and members of the National Assembly-
(a) have freedom of speech in the Assembly and in its committees, subject to its rules and orders; and
(b) are not liable to civil or criminal proceedings, arrest, imprisonment or damages for-
(i) anything that they have said in, produced before or submitted to
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the Assembly or any of its committees; or
(ii) anything revealed as a result of anything that they have said in, produced before or submitted to the Assembly or any of its committees.
(2) Other privileges and immunities of the National Assembly, Cabinet members and members of the Assembly may be prescribed by national legislation.
(3) Salaries, allowances and benefits payable to members of the National Assembly are a direct charge against the National Revenue Fund.
(1) The National Assembly must-
(a) facilitate public involvement in the legislative and other processes of the Assembly and its committees; and
(b) conduct its business in an open manner, and hold its sittings, and those of its committees, in public, but reasonable measures may be taken-
(i) to regulate public access, including access of the media, to the Assembly and its committees; and
(ii) to provide for the searching of any person and, where appropriate, the refusal of entry to, or the removal of, any person.
(2) The National Assembly may not exclude the public, including the media, from a sitting of a committee unless it is reasonable and justifiable to do so in an open and democratic society.
(1) The National Council of Provinces is composed of a single delegation from each province consisting of ten delegates.
(2) The ten delegates are-
(a) four special delegates consisting of-
(i) the Premier of the province or, if the Premier is not available, any member of the provincial legislature designated by the Premier either generally or for any specific business before the National Council of Provinces; and
(ii) three other special delegates; and
(b) six permanent delegates appointed in terms of section 61 (2).
(3) The Premier of a province, or if the Premier is not available, a member of the province's delegation designated by the Premier, heads the delegation.
(1) Parties represented in a provincial legislature are entitled to delegates in the province's delegation in accordance with the formula set out in Part B of Schedule 3.
(2) (a) A provincial legislature must, within 30 days after the result of an election of that legislature is declared-
(i) determine, in accordance with national legislation, how many of each party's
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delegates are to be permanent delegates and how many are to be special delegates; and
(ii) appoint the permanent delegates in accordance with the nominations of the parties.
(b) ......
(3) The national legislation envisaged in subsection (2) (a) must ensure the participation of minority parties in both the permanent and special delegates' components of the delegation in a manner consistent with democracy.
(4) The legislature, with the concurrence of the Premier and the leaders of the parties entitled to special delegates in the province's delegation, must designate special delegates, as required from time to time, from among the members of the legislature.
(1) A person nominated as a permanent delegate must be eligible to be a member of the provincial legislature.
(2) If a person who is a member of a provincial legislature is appointed as a permanent delegate, that person ceases to be a member of the legislature.
(3) Permanent delegates are appointed for a term that expires-
(a) immediately before the first sitting of the provincial legislature after its next election.
(b) ......
(4) A person ceases to be a permanent delegate if that person-
(a) ceases to be eligible to be a member of the provincial legislature for any reason other than being appointed as a permanent delegate;
(b) becomes a member of the Cabinet;
(c) has lost the confidence of the provincial legislature and is recalled by the party that nominated that person;
(d) ceases to be a member of the party that nominated that person and is recalled by that party; or
(e) is absent from the National Council of Provinces without permission in circumstances for which the rules and orders of the Council prescribe loss of office as a permanent delegate.
(5) Vacancies among the permanent delegates must be filled in terms of national legislation.
(6) Before permanent delegates begin to perform their functions in the National Council of Provinces, they must swear or affirm faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2.
(1) The National Council of Provinces may determine the time and duration of its sittings and its recess periods.
(2) The President may summon the National Council of Provinces to an extraordinary sitting at any time to conduct special business.
(3) Sittings of the National Council of Provinces are permitted at places other than the seat of Parliament only on the grounds of public interest, security or convenience, and if provided for in the rules and orders of the Council.
(1) The National Council of Provinces must elect a Chairperson and two Deputy Chairpersons from among the delegates.
(2) The Chairperson and one of the Deputy Chairpersons are elected from among the permanent delegates for five years unless their terms as delegates expire earlier.
(3) The other Deputy Chairperson is elected for a term of one year, and must be succeeded by a delegate from another province, so that every province is represented in turn.
(4) The Chief Justice must preside over the election of the Chairperson, or designate another judge to do so. The Chairperson presides over the election of the Deputy Chairpersons.
(5) The procedure set out in Part A of Schedule 3 applies to the election of the Chairperson and the Deputy Chairpersons.
(6) The National Council of Provinces may remove the Chairperson or a Deputy Chairperson from office.
(7) In terms of its rules and orders, the National Council of Provinces may elect from among the delegates other presiding officers to assist the Chairperson and Deputy Chairpersons.
(1) Except where the Constitution provides otherwise-
(a) each province has one vote, which is cast on behalf of the province by the head of its delegation; and
(b) all questions before the National Council of Provinces are agreed when at least five provinces vote in favour of the question.
(2) An Act of Parliament, enacted in accordance with the procedure established by either subsection (1) or subsection (2) of section 76, must provide for a uniform procedure in terms of which provincial legislatures confer authority on their delegations to cast votes on their behalf.
(1) Cabinet members and Deputy Ministers may attend, and may speak in, the National Council of Provinces, but may not vote.
(2) The National Council of Provinces may require a Cabinet member, a Deputy Minister or an official in the national executive or a provincial executive to attend a meeting of the Council or a committee of the Council.
Not more than ten part-time representatives designated by organised local government in terms of section 163, to represent the different categories of municipalities, may participate when necessary in the proceedings of the National Council of Provinces, but may not vote.
In exercising its legislative power, the National Council of Provinces may-
(a) consider, pass, amend, propose amendments to or reject any legislation before the Council, in accordance with this Chapter; and
(b) initiate or prepare legislation falling within a functional area listed in Schedule 4 or other legislation referred to in section 76 (3), but may not initiate or prepare money Bills.
The National Council of Provinces or any of its committees may-
(a) summon any person to appear before it to give evidence on oath or affirmation or to produce documents;
(b) require any institution or person to report to it;
(c) compel, in terms of national legislation or the rules and orders, any person or institution to comply with a summons or requirement in terms of paragraph (a) or (b); and
(d) receive petitions, representations or submissions from any interested persons or institutions.
(1) The National Council of Provinces may-
(a) determine and control its internal arrangements, proceedings and procedures; and
(b) make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement.
(2) The rules and orders of the National Council of Provinces must provide for-
(a) the establishment, composition, powers, functions, procedures and duration of its committees;
(b) the participation of all the provinces in its proceedings in a manner consistent with democracy; and
(c) the participation in the proceedings of the Council and its committees of minority parties represented in the Council, in a manner consistent with democracy, whenever a matter is to be decided in accordance with section 75.
(1) Delegates to the National Council of Provinces and the persons referred to in sections 66 and 67-
(a) have freedom of speech in the Council and in its committees, subject to its rules and orders; and
(b) are not liable to civil or criminal proceedings, arrest, imprisonment or damages for-
(i) anything that they have said in, produced before or submitted to the Council or any of its committees; or
(ii) anything revealed as a result of anything that they have said in, produced before or submitted to the Council or any of its committees.
(2) Other privileges and immunities of the National Council of Provinces, delegates to the Council and persons referred to in sections 66 and 67 may be prescribed by national legislation.
(3) Salaries, allowances and benefits payable to permanent members of the National Council of Provinces are a direct charge against the National Revenue Fund.
(1) The National Council of Provinces must-
(a) facilitate public involvement in the legislative and other processes of the Council and its committees; and
(b) conduct its business in an open manner, and hold its sittings, and those of its committees, in public, but reasonable measures may be taken-
(i) to regulate public access, including access of the media, to the Council and its committees; and
(ii) to provide for the searching of any person and, where appropriate, the refusal of entry to, or the removal of, any person.
(2) The National Council of Provinces may not exclude the public, including the media, from a sitting of a committee unless it is reasonable and justifiable to do so in an open and democratic society.
(1) Any Bill may be introduced in the National Assembly.
(2) Only a Cabinet member or a Deputy Minister, or a member or committee of the National Assembly, may introduce a Bill in the Assembly, but only the Cabinet member responsible for national financial matters may introduce the following Bills in the Assembly:
(a) a money Bill; or
(b) a Bill which provides for legislation envisaged in section 214.
(3) A Bill referred to in section 76 (3), except a Bill referred to in subsection (2) (a) or (b) of this section, may be introduced in the National Council of Provinces.
(4) Only a member or committee of the National Council of Provinces may introduce a Bill in the Council.
(5) A Bill passed by the National Assembly must be referred to the National Council of Provinces if it must be considered by the Council. A Bill passed by the Council must be referred to the Assembly.
(1) Section 1 and this subsection may be amended by a Bill passed by-
(a) the National Assembly, with a supporting vote of at least 75 per cent of its members; and
(b) the National Council of Provinces, with a supporting vote of at least six provinces.
(2) Chapter 2 may be amended by a Bill passed by-
(a) the National Assembly, with a supporting vote of at least two thirds of its members; and
(b) the National Council of Provinces, with a supporting vote of at least six provinces.
(3) Any other provision of the Constitution may be amended by a Bill passed-
(a) by the National Assembly, with a supporting vote of at least two thirds of its members; and
(b) also by the National Council of Provinces, with a supporting vote of at least six provinces, if the amendment-
(i) relates to a matter that affects the Council;
(ii) alters provincial boundaries, powers, functions or institutions; or
(iii) amends a provision that deals specifically with a provincial matter.
(4) A Bill amending the Constitution may not include provisions other than constitutional amendments and matters connected with the amendments.
(5) At least 30 days before a Bill amending the Constitution is introduced in terms of section 73 (2), the person or committee intending to introduce the Bill must-
(a) publish in the national Government Gazette, and in accordance with the rules and orders of the National Assembly, particulars of the proposed amendment for public comment;
(b) submit, in accordance with the rules and orders of the Assembly, those particulars to the provincial legislatures for their views; and
(c) submit, in accordance with the rules and orders of the National Council of Provinces, those particulars to the Council for a public debate, if the proposed amendment is not an amendment that is required to be passed by the Council.
(6) When a Bill amending the Constitution is introduced, the person or committee introducing the Bill must submit any written comments received from the public and the provincial legislatures-
(a) to the Speaker for tabling in the National Assembly; and .
(b) in respect of amendments referred to in subsection (1), (2) or (3) (b), to the Chairperson of the National Council of Provinces for tabling in the Council.
(7) A Bill amending the Constitution may not be put to the vote in the National Assembly within 30 days of-
(a) its introduction, if the Assembly is sitting when the Bill is introduced; or
(b) its tabling in the Assembly, if the Assembly is in recess when the Bill is introduced.
(8) If a Bill referred to in subsection (3) (b), or any part of the Bill, concerns only a specific province or provinces, the National Council of Provinces may not pass the Bill or the relevant part unless it has been approved by the legislature or legislatures of the province or provinces concerned.
(9) A Bill amending the Constitution that has been passed by the National Assembly and, where applicable, by the National Council of Provinces, must be referred to the President for assent.
(1) When the National Assembly passes a Bill other than a Bill to which the procedure set out in section 74 or 76 applies, the Bill must be referred to the National Council of Provinces and dealt with in accordance with the following procedure:
(a) The Council must-
(i) pass the Bill;
(ii) pass the Bill subject to amendments proposed by it; or
(iii) reject the Bill.
(b) If the Council passes the Bill without proposing amendments, the Bill must be submitted to the President for assent.
(c) If the Council rejects the Bill or passes it subject to amendments, the Assembly must reconsider the Bill, taking into account any amendment proposed by the Council, and may-
(i) pass the Bill again, either with or without amendments; or
(ii) decide not to proceed with the Bill.
(d) A Bill passed by the Assembly in terms of paragraph (c) must be submitted to the President for assent.
(2) When the National Council of Provinces votes on a question in terms of this section, section 65 does not apply; instead-
(a) each delegate in a provincial delegation has one vote;
(b) at least one third of the delegates must be present before a vote may be taken on the question; and
(c) the question is decided by a majority of the votes cast, but if there is an equal number of votes on each side of the question, the delegate presiding must cast a deciding vote.
(1) When the National Assembly passes a Bill referred to in subsection (3), (4) or (5), the Bill must be referred to the National Council of Provinces and dealt with in accordance with the following procedure:
(a) The Council must-
(i) pass the Bill;
(ii) pass an amended Bill; or
(iii) reject the Bill.
(b) If the Council passes the Bill without amendment, the Bill must be submitted to the President for assent.
(c) If the Council passes an amended Bill, the amended Bill must be referred to the Assembly, and if the Assembly passes the amended Bill, it must be submitted to the President for assent.
(d) If the Council rejects the Bill, or if the Assembly refuses to pass an amended Bill referred to it in terms of paragraph (c), the Bill and, where applicable, also the amended Bill, must be referred to the Mediation Committee, which may agree on-
(i) the Bill as passed by the Assembly;
(ii) the amended Bill as passed by the Council; or
(iii) another version of the Bill.
(e) If the Mediation Committee is unable to agree within 30 days of the Bill's referral to it, the Bill lapses unless the Assembly again passes the Bill, but with a supporting vote of at least two thirds of its members.
(f) If the Mediation Committee agrees on the Bill as passed by the Assembly, the Bill must be referred to the Council, and if the Council passes the Bill, the Bill must be submitted to the President for assent.
(g) If the Mediation Committee agrees on the amended Bill as passed by the Council, the Bill must be referred to the Assembly, and if it is passed by the Assembly, it must be submitted to the President for assent.
(h) If the Mediation Committee agrees on another version of the Bill, that version of the Bill must be referred to both the Assembly and the Council, and if it is passed by the Assembly and the Council, it must be submitted to the President for assent.
(i) If a Bill referred to the Council in terms of paragraph (f) or (h) is not passed by the Council, the Bill lapses unless the Assembly passes the Bill with a supporting vote of at least two thirds of its members.
(j) If a Bill referred to the Assembly in terms of paragraph (g) or (h) is not passed by the Assembly, that Bill lapses, but the Bill as originally passed by the Assembly may again be passed by the Assembly, but with a supporting vote of at least two thirds of its members.
(k) A Bill passed by the Assembly in terms of paragraph (e), (i) or (j) must be submitted to the President for assent.
(2) When the National Council of Provinces passes a Bill referred to in subsection (3), the Bill must be referred to the National Assembly and dealt with in accordance with the following procedure:
(a) The Assembly must-
(i) pass the Bill;
(ii) pass an amended Bill; or
(iii) reject the Bill.
(b) A Bill passed by the Assembly in terms of paragraph (a) (i) must be submitted to the President for assent.
(c) If the Assembly passes an amended Bill, the amended Bill must be referred to the Council, and if the Council passes the amended Bill, it must be submitted to the President for assent.
(d) If the Assembly rejects the Bill, or if the Council refuses to pass an amended Bill referred to it in terms of paragraph (c), the Bill and, where applicable, also the amended Bill must be referred to the Mediation Committee, which may agree on-
(i) the Bill as passed by the Council;
(ii) the amended Bill as passed by the Assembly; or
(iii) another version of the Bill.
(e) If the Mediation Committee is unable to agree within 30 days of the Bill's referral to it, the Bill lapses.
(f) If the Mediation Committee-agrees on the Bill as passed by the Council, the Bill must be referred to the Assembly, and if the Assembly passes the Bill, the Bill must be submitted to the President for assent.
(g) If the Mediation Committee agrees on the amended Bill as passed by the Assembly, the Bill must be referred to the Council, and if it is passed by the Council, it must be submitted to the President for assent.
(h) If the Mediation Committee agrees on another version of the Bill, that version of the Bill must be referred to both the Council and the Assembly, and if it is passed by the Council and the Assembly, it must be submitted to the President for assent.
(i) If a Bill referred to the Assembly in terms of paragraph (f) or (h) is not passed by the Assembly, the Bill lapses.
(3) A Bill must be dealt with in accordance with the procedure established by either subsection (1) or subsection (2) if it falls within a functional area listed in Schedule 4 or provides for legislation envisaged in any of the following sections:
(a) Section 65 (2);
(b) section 163;
(c) section 182;
(d) section 195 (3) and (4);
(e) section 196; and
(f) section 197.
(4) A Bill must be dealt with in accordance with the procedure established by subsection (1) if it provides for legislation-
(a) envisaged in section 44 (2) or 220 (3); or
(b) envisaged in Chapter 13, and which includes any provision affecting the financial interests of the provincial sphere of government.
(5) A Bill envisaged in section 42 (6) must be dealt with in accordance with the procedure established by subsection (1), except that-
(a) when the National Assembly votes on the Bill, the provisions of section 53 (1) do not apply; instead, the Bill may be passed only if a majority of the members of the Assembly vote in favour of it; and
(b) if the Bill is referred to the Mediation Committee, the following rules apply:
(i) If the National Assembly considers a Bill envisaged in subsection (1) (g) or (h), that Bill may be passed only if a majority of the members of the Assembly vote in favour of it.
(ii) If the National Assembly considers or reconsiders a Bill envisaged in subsection (1) (e), (i) or (j), that Bill may be passed only if at least two thirds of the members of the Assembly vote in favour of it.
(6) This section does not apply to money Bills.
(1) A Bill is a money Bill if it-
(a) appropriates money;
(b) imposes national taxes, levies, duties or surcharges;
(c) abolishes or reduces, or grants exemptions from, any national taxes, levies, duties or surcharges; or
(d) authorises direct charges against the National Revenue Fund, except a Bill envisaged in section 214 authorising direct charges.
(2) A money Bill may not deal with any other matter except-
(a) a subordinate matter incidental to the appropriation of money;
(b) the imposition, abolition or reduction of national taxes, levies, duties or surcharges;
(c) the granting of exemption from national taxes, levies, duties or surcharges; or
(d) the authorisation of direct charges against the National Revenue Fund.
(3) All money Bills must be considered in accordance with the procedure established by section 75. An Act of Parliament must provide for a procedure to amend money Bills before Parliament.
(1) The Mediation Committee consists of-
(a) nine members of the National Assembly elected by the Assembly in accordance with a procedure that is prescribed by the rules and orders of the Assembly and results in the representation of parties in substantially the same proportion that the parties are represented in the Assembly; and
(b) one delegate from each provincial delegation in the National Council of Provinces, designated by the delegation.
(2) The Mediation Committee has agreed on a version of a Bill, or decided a question, when that version, or one side of the question, is supported by-
(a) at least five of the representatives of the National Assembly; and
(b) at least five of the representatives of the National Council of Provinces.
(1) The President must either assent to and sign a Bill passed in terms of this Chapter or, if the President has reservations about the constitutionality of the Bill, refer it back to the National Assembly for reconsideration.
(2) The joint rules and orders must provide for the procedure for the reconsideration of a Bill by the National Assembly and the participation of the National Council of Provinces in the process.
(3) The National Council of Provinces must participate in the reconsideration of a Bill that the President has referred back to the National Assembly if-
(a) the President's reservations about the constitutionality of the Bill relate to a procedural matter that involves the Council; or
(b) section 74 (1), (2) or (3) (b) or 76 was applicable in the passing of the Bill.
(4) If, after reconsideration, a Bill fully accommodates the President's reservations, the President must assent to and sign the Bill; if not, the President must either-
(a) assent to and sign the Bill; or
(b) refer it to the Constitutional Court for a decision on its constitutionality.
(5) If the Constitutional Court decides that the Bill is constitutional, the President must assent to and sign it.
(1) Members of the National Assembly may apply to the Constitutional Court for an order declaring that all or part of an Act of Parliament is unconstitutional.
(2) An application-
(a) must be supported by at least one third of the members of the National Assembly; and
(b) must be made within 30 days of the date on which the President assented to and signed the Act.
(3) The Constitutional Court may order that all or part of an Act that is the subject of an application in terms of subsection (1) has no force until the Court has decided the application if-
(a) the interests of justice require this; and
(b) the application has a reasonable prospect of success.
(4) If an application is unsuccessful, and did not have a reasonable prospect of success, the Constitutional Court may order the applicants to pay costs.
A Bill assented to and signed by the President becomes an Act of Parliament, must be published promptly, and takes effect when published or on a date determined in terms of the Act.
th15_03.15;
The signed copy of an Act of Parliament is conclusive evidence of the provisions of that Act and, after publication, must be entrusted to the Constitutional Court for safekeeping.
The President-
(a) is the Head of State and head of the national executive;
(b) must uphold, defend and respect the Constitution as the supreme law of the Republic; and
(c) promotes the unity of the nation and that which will advance the Republic.
(1) The President has the powers entrusted by the Constitution and legislation, including those necessary to perform the functions of Head of State and head of the national executive.
(2) The President is responsible for-
(a) assenting to and signing Bills;
(b) referring a Bill back to the National Assembly for reconsideration of the Bill's constitutionality;
(c) referring a Bill to the Constitutional Court for a decision on the Bill's constitutionality;
(d) summoning the National Assembly, the National Council of Provinces or Parliament to an extraordinary sitting to conduct special business;
(e) making any appointments that the Constitution or legislation requires the President to make, other than as head of the national executive;
(f) appointing commissions of inquiry;
(g) calling a national referendum in terms of an Act of Parliament;
(h) receiving and recognising foreign diplomatic and consular representatives;
(i) appointing ambassadors, plenipotentiaries, and diplomatic and consular representatives;
(j) pardoning or reprieving offenders and remitting any fines, penalties or forfeitures; and
(k) conferring honours.
(1) The executive authority of the Republic is vested in the President.
(2) The President exercises the executive authority, together with the other members of the Cabinet, by-
(a) implementing national legislation except where the Constitution or an Act of Parliament provides otherwise;
(b) developing and implementing national policy;
(c) co-ordinating the functions of state departments and administrations;
(d) preparing and initiation legislation; and
(e) performing any other executive function provided for in the Constitution or in national legislation.
(1) At its first sitting after its election, and whenever necessary to fill a vacancy, the National Assembly must elect a woman or a man from among its members to be the President.
(2) The Chief Justice must preside over the election of the President, or designate another judge to do so. The procedure set out in Part A of Schedule 3 applies to the election of the President.
(3) An election to fill a vacancy in the office of President must be held at a time and on a date determined by the Chief Justice, but not more than 30 days after the vacancy occurs.
When elected President, a person ceases to be a member of the National Assembly and, within five days, must assume office by swearing or affirming faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2.
(1) The President's term of office begins on assuming office and ends upon a vacancy occurring or when the person next elected President assumes office.
(2) No person may hold office as President for more than two terms, but when a person is elected to fill a vacancy in the office of President, the period between that election and the next election of a President is not regarded as a term.
(1) The National Assembly, by a resolution adopted with a supporting vote of at least two thirds of its members, may remove the President from office only on the grounds of-
(a) a serious violation of the Constitution or the law;
(b) serious misconduct; or
(c) inability to perform the functions of office.
(2) Anyone who has been removed from the office of President in terms of subsection (1) (a) or (b) may not receive any benefits of that office, and may not serve in any public office.
(1) When the President is absent from the Republic or otherwise unable to fulfil the duties of President, or during a vacancy in the office of President, an office-bearer in the order below acts as President:
(a) The Deputy President.
(b) A Minister designated by the President.
(c) A Minister designated by the other members of the Cabinet.
(d) The Speaker, until the National Assembly designates one of its other members.
(2) An Acting President has the responsibilities, powers and functions of the President.
(3) Before assuming the responsibilities, powers and functions of the President, the Acting President must swear or affirm faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2.
(4) A person who as Acting President has sworn or affirmed faithfulness to the Republic need not repeat the swearing or affirming procedure for any subsequent term as acting President during the period ending when the person next elected President assumes office.
(1) The Cabinet consists of the President, as head of the Cabinet, a Deputy President and Ministers.
(2) The President appoints the Deputy President and Ministers, assigns their powers and functions, and may dismiss them.
(3) The President-
(a) must select the Deputy President from among the members of the National Assembly;
(b) may select any number of Ministers from among the members of the Assembly; and
(c) may select no more than two Ministers from outside the Assembly.
(4) The President must appoint a member of the Cabinet to be the leader of government business in the National Assembly.
(5) The Deputy President must assist the President in the execution of the functions of government.
(1) The Deputy President and Ministers are responsible for the powers and functions of the executive assigned to them by the President.
(2) Members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions.
(3) Members of the Cabinet must-
(a) act in accordance with the Constitution; and
(b) provide Parliament with full and regular reports concerning matters under their control.
(1) The President may appoint-
(a) any number of Deputy Ministers from among the members of the National Assembly; and
(b) no more than two Deputy Ministers from outside the Assembly,
to assist the members of the Cabinet, and may dismiss them.
(2) Deputy Ministers appointed in terms of subsection (1) (b) are accountable to Parliament for the exercise of their powers and the performance of their functions.
When an election of the National Assembly is held, the Cabinet, the Deputy President, Ministers and any Deputy Ministers remain competent to function until the person elected President by the next Assembly assumes office.
Before the Deputy President, Ministers and any Deputy Ministers begin to perform their functions, they must swear or affirm faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2.
(1) Members of the Cabinet and Deputy Ministers must act in accordance with a code of ethics prescribed by national legislation.
(2) Members of the Cabinet and Deputy Ministers may not-
(a) undertake any other paid work;
(b) act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or
(c) use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person.
The President by proclamation may transfer to a member of the Cabinet-
(a) the administration of any legislation entrusted to another member; or
(b) any power or function entrusted by legislation to another member.
The President may assign to a Cabinet member any power or function of another member who is absent from office or is unable to exercise that power or perform that function.
A Cabinet member may assign any power or function that is to be exercised or performed in terms of an Act of Parliament to a member of a provincial Executive Council or to a Municipal Council. An assignment-
(a) must be in terms of an agreement between the relevant Cabinet member and the Executive Council member or Municipal Council;
(b) must be consistent with the Act of Parliament in terms of which the relevant power or function is exercised or performed; and
(c) takes effect upon proclamation by the President.
(1) When a province cannot or does not fulfil an executive obligation in terms of the Constitution or legislation, the national executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation, including-
(a) issuing a directive to the provincial executive, describing the extent of the failure to fulfil its obligations and stating any steps required to meet its obligations; and
(b) assuming responsibility for the relevant obligation in that province to the extent necessary to-
(i) maintain essential national standards or meet established minimum standards for the rendering of a service;
(ii) maintain economic unity;
(iii) maintain national security; or
(iv) prevent that province from taking unreasonable action that is prejudicial to the interests of another province or to the country as a whole.
(2) If the national executive intervenes in a province in terms of subsection (1) (b)-
(a) it must submit a written notice of the intervention to the National Council of Provinces within 14 days after the intervention began;
(b) the intervention must end if the Council disapproves the intervention within 180 days after the intervention began or by the end of that period has not approved the intervention; and
(c) the Council must, while the intervention continues, review the intervention regularly and may make any appropriate recommendations to the national executive.
(3) National legislation may regulate the process established by this section.
(1) A decision by the President must be in writing if it-
(a) is taken in terms of legislation; or
(b) has legal consequences.
(2) A written decision by the President must be countersigned by another Cabinet member if that decision concerns a function assigned to that other Cabinet member.
(3) Proclamations, regulations and other instruments of subordinate legislation must be accessible to the public.
(4) National legislation may specify the manner in which, and the extent to which, instruments mentioned in subsection (3) must be-
(a) tabled in Parliament; and
(b) approved by Parliament.
(1) If the National Assembly, by a vote supported by a majority of its members, passes a motion of no confidence in the Cabinet excluding the President, the President must reconstitute the Cabinet.
(2) If the National Assembly, by a vote supported by a majority of its members, passes a motion of no confidence in the President, the President and the other members of the Cabinet and any Deputy Ministers must resign.
(1) The Republic has the following provinces:
(a) Eastern Cape;
(b) Free State;
(c) Gauteng;
(d) KwaZulu-Natal;
(e) Limpopo;
(f) Mpumalanga;
(g) Northern Cape;
(h) North West;
(i) Western Cape
(2) The geographical areas of the respective provinces comprise the sum of the indicated geographical areas reflected in the various maps referred to in the Notice listed in Schedule 1A.
(3) (a) Whenever the geographical area of a province is re-determined by an amendment to the Constitution, an Act of Parliament may provide for measures to regulate, within a reasonable time, the legal, practical and any other consequences of the re-determination.
(b) An Act of Parliament envisaged in paragraph (a) may be enacted and implemented before such amendment to the Constitution takes effect, but any provincial functions, assets, rights, obligations, duties or liabilities may only be transferred in terms of that Act after that amendment to the Constitution takes effect.
(1) The legislative authority of a province is vested in its provincial legislature, and confers on the provincial legislature the power-
(a) to pass a constitution for its province or to amend any constitution passed by it in terms of sections 142 and 143;
(b) to pass legislation for its province with regard to-
(i) any matter within a functional area listed in Schedule 4;
(ii) any matter within a functional area listed in Schedule 5;
(iii) any matter outside those functional areas, and that is expressly assigned to the province by national legislation; and
(iv) any matter for which a provision of the Constitution envisages the enactment of provincial legislation; and
(c) to assign any of its legislative powers to a Municipal Council in that province.
(2) The legislature of a province, by a resolution adopted with a supporting vote of at least two thirds of its members, may request Parliament to change the name of that province.
(3) A provincial legislature is bound only by the Constitution and, if it has passed a constitution for its province, also by that constitution, and must act in accordance with, and within the limits of, the Constitution and that provincial constitution.
(4) Provincial legislation with regard to a matter that is reasonably necessary for, or incidental to, the effective exercise of a power concerning any matter listed m Schedule 4, is for all purposes legislation with regard to a matter listed in Schedule 4.
(5) A provincial legislature may recommend to the National Assembly legislation concerning any matter outside the authority of that legislature, or in respect of which an Act of Parliament prevails over a provincial law.
(1) A provincial legislature consists of women and men elected as members in terms of an electoral system that-
(a) is prescribed by national legislation;
(b) is based on that province's segment of the national common voters roll;
(c) provides for a minimum voting age of 18 years; and
(d) results, in general, in proportional representation.
(2) A provincial legislature consists of between 30 and 80 members. The number of members, which may differ among the provinces, must be determined in terms of a formula prescribed by national legislation.
(1) Every citizen who is qualified to vote for the National Assembly is eligible to be a member of a provincial legislature, except-
(a) anyone who is appointed by, or is in the service of, the state and receives remuneration for that appointment or service, other than-
(i) the Premier and other members of the Executive Council of a province; and
(ii) other office-bearers whose functions are compatible with the functions of a member of a provincial legislature, and have been declared compatible with those functions by national legislation;
(b) members of the National Assembly, permanent delegates to the National Council of Provinces or members of a Municipal Council;
(c) unrehabilitated insolvents;
(d) anyone declared to be of unsound mind by a court of the Republic; or
(e) anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 months' imprisonment without the option of a fine, either in the Republic, or outside the Republic if the conduct constituting the offence would have been an offence in the Republic, but no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired. A disqualification under this paragraph ends five years after the sentence has been completed.
(2) A person who is not eligible to be a member of a provincial legislature in terms of subsection (1) (a) or (b) may be a candidate for the legislature, subject to any limits or conditions established by national legislation.
(3) A person loses membership of a provincial legislature if that person-
(a) ceases to be eligible;
(b) is absent from the legislature without permission in circumstances for which the rules and orders of the legislature prescribe loss of membership; or
(c) ceases to be a member of the party that nominated that person as a member of the legislature.
Before members of a provincial legislature begin to perform their functions in the legislature, they must swear or affirm faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2.
(1) A provincial legislature is elected for a term of five years.
(2) If a provincial legislature is dissolved in terms of section 109, or when its term expires, the Premier of the province, by proclamation, must call and set dates for an election, which must be held within 90 days of the date the legislature was dissolved or its term expired. A proclamation calling and setting dates for an election may be issued before or after the expiry of the term of a provincial legislature.
(3) If the result of an election of a provincial legislature is not declared within the period referred to in section 190, or if an election is set aside by a court, the President, by proclamation, must call and set dates for another election, which must be held within 90 days of the expiry of that period or of the date on which the election was set aside.
(4) A provincial legislature remains competent to function from the time it is dissolved or its term expires, until the day before the first day of polling for the next legislature.
(1) The Premier of a province must dissolve the provincial legislature if-
(a) the legislature has adopted a resolution to dissolve with a supporting vote of a majority of its members; and
(b) three years have passed since the legislature was elected.
(2) An Acting Premier must dissolve the provincial legislature if-
(a) there is a vacancy in the office of Premier; and
(b) the legislature fails to elect a new Premier within 30 days after the vacancy occurred.
(1) After an election, the first sitting of a provincial legislature must take place at a time and on a date determined by a judge designated by the Chief Justice, but not more than 14 days after the election result has been declared. A provincial legislature may determine the time and duration of its other sittings and its recess periods.
(2) The Premier of a province may summon the provincial legislature to an extraordinary sitting at any time to conduct special business.
(3) A provincial legislature may determine where it ordinarily will sit.
(1) At the first sitting after its election, or when necessary to fill a vacancy, a provincial legislature must elect a Speaker and a Deputy Speaker from among its members.
(2) A judge designated by the Chief Justice must preside over the election of a Speaker. The Speaker presides over the election of a Deputy Speaker.
(3) The procedure set out in Part A of Schedule 3 applies to the election of Speakers and Deputy Speakers.
(4) A provincial legislature may remove its Speaker or Deputy Speaker from office by resolution. A majority of the members of the legislature must be present when the resolution is adopted.
(5) In terms of its rules and orders, a provincial legislature may elect from among its members other presiding officers to assist the Speaker and the Deputy Speaker.
(1) Except where the Constitution provides otherwise-
(a) a majority of the members of a provincial legislature must be present before a vote may be taken on a Bill or an amendment to a Bill;
(b) at least one third of the members must be present before a vote may be taken on any other question before the legislature; and
(c) all questions before a provincial legislature are decided by a majority of the votes cast.
(2) The member presiding at a meeting of a provincial legislature has no deliberative vote, but-
(a) must cast a deciding vote when there is an equal number of votes on each side of a question; and
(b) may cast a deliberative vote when a question must be decided with a supporting vote of at least two thirds of the members of the legislature.
A province's permanent delegates to the National Council of Provinces may attend, and may speak in, their provincial legislature and its committees, but may not vote. The legislature may require a permanent delegate to attend the legislature or its committees.
(1) In exercising its legislative power, a provincial legislature may-
(a) consider, pass, amend or reject any Bill before the legislature; and
(b) initiate or prepare legislation, except money Bills.
(2) A provincial legislature must provide for mechanisms-
(a) to ensure that all provincial executive organs of state in the province are accountable to it; and
(b) to maintain oversight of-
(i) the exercise of provincial executive authority in the province, including the implementation of legislation; and
(ii) any provincial organ of state.
A provincial legislature or any of its committees may-
(a) summon any person to appear before it to give evidence on oath or affirmation, or to produce documents;
(b) require any person or provincial institution to report to it;
(c) compel, in terms of provincial legislation or the rules and orders, any person or institution to comply with a summons or requirement in terms of paragraph (a) or (b); and
(d) receive petitions, representations or submissions from any interested persons or institutions.
(1) A provincial legislature may-
(a) determine and control its internal arrangements, proceedings and procedures; and
(b) make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement.
(2) The rules and orders of a provincial legislature must provide for-
(a) the establishment, composition, powers, functions, procedures and duration of its committees;
(b) the participation in the proceedings of the legislature and its committees of minority parties represented in the legislature, in a manner consistent with democracy;
(c) financial and administrative assistance to each party represented in the legislature, in proportion to its representation, to enable the party and its leader to perform their functions in the legislature effectively; and
(d) the recognition of the leader of the largest opposition party in the legislature, as the Leader of the Opposition.
(1) Members of a provincial legislature and the province's permanent delegates to the National Council of Provinces-
(a) have freedom of speech in the legislature and in its committees, subject to its rules and orders; and
(b) are not liable to civil or criminal proceedings, arrest, imprisonment or damages for-
(i) anything that they have said in, produced before or submitted to the legislature or any of its committees; or
(ii) anything revealed as a result of anything that they have said in, produced before or submitted to the legislature or any of its committees.
(2) Other privileges and immunities of a provincial legislature and its members may be prescribed by national legislation.
(3) Salaries, allowances and benefits payable to members of a provincial legislature are a direct charge against the Provincial Revenue Fund.
(1) A provincial legislature must-
(a) facilitate public involvement in the legislative and other processes of the legislature and its committees; and
(b) conduct its business in an open manner, and hold its sittings, and those of its committees, in public, but reasonable measures may be taken-
(i) to regulate public access, including access of the media, to the legislature and its committees; and
(ii) to provide for the searching of any person and, where appropriate, the refusal of entry to, or the removal of, any person.
(2) A provincial legislature may not exclude the public, including the media, from a sitting of a committee unless it is reasonable and justifiable to do so in an open and democratic society.
Only members of the Executive Council of a province or a committee or member of a provincial legislature may introduce a Bill in the legislature; but only the member of the Executive Council who is responsible for financial matters in the province may introduce a money Bill in the legislature.
(1) A Bill is a money Bill if it-
(a) appropriates money;
(b) imposes provincial taxes, levies, duties or surcharges;
(c) abolishes or reduces, or grants exemptions from, any provincial taxes, levies, duties or surcharges; or
(d) authorises direct charges against a Provincial Revenue Fund.
(2) A money Bill may not deal with any other matter except-
(a) a subordinate matter incidental to the appropriation of money;
(b) the imposition, abolition or reduction of provincial taxes, levies, duties or surcharges;
(c) the granting of exemption from provincial taxes, levies, duties or surcharges; or
(d) the authorisation of direct charges against a Provincial Revenue Fund.
(3) A provincial Act must provide for a procedure by which the province's legislature may amend a money Bill.
(1) The Premier of a province must either assent to and sign a Bill passed by the provincial legislature in terms of this Chapter or, if the Premier has reservations about the constitutionality of the Bill, refer it back to the legislature for reconsideration.
(2) If, after reconsideration, a Bill fully accommodates the Premier's reservations, the Premier must assent to and sign the Bill; if not, the Premier must either-
(a) assent to and sign the Bill; or
(b) refer it to the Constitutional Court for a decision on its constitutionality.
(3) If the Constitutional Court decides that the Bill is constitutional, the Premier must assent to and; sign it.
(1) Members of a provincial legislature may apply to the Constitutional Court for an order declaring that all or part of a provincial Act is unconstitutional.
(2) An application-
(a) must be supported by at least 20 per cent of the members of the legislature; and
(b) must be made within 30 days of the date on which the Premier assented to and signed the Act.
(3) The Constitutional Court may order that all or part of an Act that is the subject of an application in terms of subsection (1) has no force until the Court has decided the application if-
(a) the interests of justice require this; and
(b) the application has a reasonable prospect of success.
(4) If an application is unsuccessful, and did not have a reasonable prospect of success, the Constitutional Court may order the applicants to pay costs.
A Bill assented to and signed by the Premier of a province becomes a provincial Act, must be published promptly and takes effect when published or on a date determined in terms of the Act.
The signed copy of a provincial Act is conclusive evidence of the provisions of that Act and, after publication, must be entrusted to the Constitutional Court for safekeeping.
(1) The executive authority of a province is vested in the Premier of that province.
(2) The Premier exercises the executive authority, together with the other members of the Executive Council, by-
(a) implementing provincial legislation in the province;
(b) implementing all national legislation within the functional areas listed in Schedule 4 or 5 except where the Constitution or an Act of Parliament provides otherwise;
(c) administering in the province, national legislation outside the functional areas listed in Schedules 4 and 5, the administration of which has been assigned to the provincial executive in terms of an Act of Parliament;
(d) developing and implementing provincial policy;
(e) co-ordinating the functions of the provincial administration and its departments;
(f) preparing and initiating provincial legislation; and
(g) performing any other function assigned to the provincial executive in terms of the Constitution or an Act of Parliament.
(3) A province has executive authority in terms of subsection (2) (b) only to the extent that the province has the administrative capacity to assume effective responsibility. The national government, by legislative and other measures, must assist provinces to develop the administrative capacity required for the effective exercise of their powers and performance of their functions referred to in subsection (2).
(4) Any dispute concerning the administrative capacity of a province in regard to any function must be referred to the National Council of Provinces for resolution within 30 days of the date of the referral to the Council.
(5) Subject to section 100, the implementation of provincial legislation in a province is an exclusive provincial executive power.
(6) The provincial executive must act in accordance with-
(a) the Constitution; and
(b) the provincial constitution, if a constitution has been passed for the province.
A member of the Executive Council of a province may assign any power or function that is to be exercised or performed in terms of an Act of Parliament or a provincial Act, to a Municipal Council. An assignment-
(a) must be in terms of an agreement between the relevant Executive Council member and the Municipal Council;
(b) must be consistent with the Act in terms of which the relevant power or function is exercised or performed; and
(c) takes effect upon proclamation by the Premier.
(1) The Premier of a province has the powers and functions entrusted to that office by the Constitution and any legislation.
(2) The Premier of a province is responsible for-
(a) assenting to and signing Bills;
(b) referring a Bill back to the provincial legislature for reconsideration of the Bill's constitutionality;
(c) referring a Bill to the Constitutional Court for a decision on the Bill's constitutionality;
(d) summoning the legislature to an extraordinary sitting to conduct special business;
(e) appointing commissions of inquiry; and
(f) calling a referendum in the province in accordance with national legislation.
(1) At its first sitting after its election, and whenever necessary to fill a vacancy, a provincial legislature must elect a woman or a man from among its members to be the Premier of the province.
(2) A judge designated by the Chief Justice must preside over the election of the Premier. The procedure set out in Part A of Schedule 3 applies to the election of the Premier.
(3) An election to fill a vacancy in the office of Premier must be held at a time and on a date determined by the Chief Justice, but not later than 30 days after the vacancy occurs.
A Premier-elect must assume office within five days of being elected, by swearing or affirming faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2.
(1) A Premier's term of office begins when the Premier assumes office and ends upon a vacancy occurring or when the person next elected Premier assumes office.
(2) No person may hold office as Premier for more than two terms, but when a person is elected to fill a vacancy in the office of Premier, the period between that election and the next election of a Premier is not regarded as a term.
(3) The legislature of a province, by a resolution adopted with a supporting vote of at least two thirds of its members, may remove the Premier from office only on the grounds of-
(a) a serious violation of the Constitution or the law;
(b) serious misconduct; or
(c) inability to perform the functions of office.
(4) Anyone who has been removed from the office of Premier in terms of subsection (3) (a) or (b) may not receive any benefits of that office, and may not serve in any public office.
(1) When the Premier is absent or otherwise unable to fulfil the duties of the office of Premier, or during a vacancy in the office of Premier, an office-bearer in the order below acts as the Premier:
(a) A member of the Executive Council designated by the Premier.
(b) A member of the Executive Council designated by the other members of the Council.
(c) The Speaker, until the legislature designates one of its other members.
(2) An Acting Premier has the responsibilities, powers and functions of the Premier.
(3) Before assuming the responsibilities, powers and functions of the Premier, the Acting Premier must swear or affirm faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2.
(1) The Executive Council of a province consists of the Premier, as head of the Council, and no fewer than five and no more than ten members appointed by the Premier from among the members of the provincial legislature.
(2) The Premier of a province appoints the members of the Executive Council, assigns their powers and functions, and may dismiss them.
(1) The members of the Executive Council of a province are responsible for the functions of the executive assigned to them by the Premier.
(2) Members of the Executive Council of a province are accountable collectively and individually to the legislature for the exercise of their powers and the performance of their functions.
(3) Members of the Executive Council of a province must-
(a) act in accordance with the Constitution and, if a provincial constitution has been passed for the province, also that constitution; and
(b) provide the legislature with full and regular reports concerning matters under their control.
When an election of a provincial legislature is held, the Executive Council and its members remain competent to function until the person elected Premier by the next legislature assumes office.
Before members of the Executive Council of a province begin to perform their functions, they must swear or affirm faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2.
(1) Members of the Executive Council of a province must act in accordance with a code of ethics prescribed by national legislation.
(2) Members of the Executive Council of a province may not-
(a) undertake any other paid work;
(b) act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or
(c) use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person.
The Premier by proclamation may transfer to a member of the Executive Council-
(a) the administration of any legislation entrusted to another member; or
(b) any power or function entrusted by legislation to another member.
The Premier of a province may assign to a member of the Executive Council any power or function of another member who is absent from office or is unable to exercise that power or perform that function.
(1) When a municipality cannot or does not fulfil an executive obligation in terms of the Constitution or legislation, the relevant provincial executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation, including-
(a) issuing a directive to the Municipal Council, describing the extent of the failure to fulfil its obligations and stating any steps required to meet its obligations;
(b) assuming responsibility for the relevant obligation in that municipality to the extent necessary to-
(i) maintain essential national standards or meet established minimum standards for the rendering of a service;
(ii) prevent that Municipal Council from taking unreasonable action that is prejudicial to the interests of another municipality or to the province as a whole; or
(iii) maintain economic unity; or
(c) dissolving the Municipal Council and appointing an administrator until a newly elected Municipal Council has been declared elected, if exceptional circumstances warrant such a step.
(2) If a provincial executive intervenes in a municipality in terms of subsection (1) (b)-
(a) it must submit a written notice of the intervention to-
(i) the Cabinet member responsible for local government affairs; and
(ii) the relevant provincial legislature and the National Council of Provinces,
within 14 days after the intervention began;
(b) the intervention must end if-
(i) the Cabinet member responsible for local government affairs disapproves the intervention within 28 days after the intervention began or by the end of that period has not approved the intervention; or
(ii) the Council disapproves the intervention within 180 days after the intervention began or by the end of that period has not approved the intervention; and
(c) the Council must, while the intervention continues, review the intervention regularly and may make any appropriate recommendations to the provincial executive.
(3) If a Municipal Council is dissolved in terms of subsection (1) (c)-
(a) the provincial executive must immediately submit a written notice of the dissolution to-
(i) the Cabinet member responsible for local government affairs; and
(ii) the relevant provincial legislature and the National Council of Provinces; and
(b) the dissolution takes effect 14 days from the date of receipt of the notice by the Council unless set aside by that Cabinet member or the Council before the expiry of those 14 days.
(4) If a municipality cannot or does not fulfil an obligation in terms of the Constitution or legislation to approve a budget or any revenue-raising measures necessary to give effect to the budget, the relevant provincial executive must intervene by taking any appropriate steps to ensure that the budget or those revenue-raising measures are approved, including dissolving the Municipal Council and-
(a) appointing an administrator until a newly elected Municipal Council has been declared elected; and
(b) approving a temporary budget or revenue-raising measures to provide for the continued functioning of the municipality.
(5) If a municipality, as a result of a crisis in its financial affairs, is in serious or persistent material breach of its obligations to provide basic services or to meet its financial commitments, or admits that it is unable to meet its obligations or financial commitments, the relevant provincial executive must-
(a) impose a recovery plan aimed at securing the municipality's ability to meet its obligations to provide basic services or its financial commitments, which-
(i) is to be prepared in accordance with national legislation; and
(ii) binds the municipality in the exercise of its legislative and executive authority, but only to the extent necessary to solve the crisis in its financial affairs; and
(b) dissolve the Municipal Council, if the municipality cannot or does not approve legislative measures, including a budget or any revenue-raising measures, necessary to give effect to the recovery plan, and-
(i) appoint an administrator until a newly elected Municipal Council has been declared elected; and
(ii) approve a temporary budget or revenue-raising measures or any other measures giving effect to the recovery plan to provide for the continued functioning of the municipality; or
(c) if the Municipal Council is not dissolved in terms of paragraph (b), assume responsibility for the implementation of the recovery plan to the extent that the municipality cannot or does not otherwise implement the recovery plan.
(6) If a provincial executive intervenes in a municipality in terms of subsection (4) or (5), it must submit a written notice of the intervention to-
(a) the Cabinet member responsible for local government affairs; and
(b) the relevant provincial legislature and the National Council of Provinces,
within seven days after the intervention began.
(7) If a provincial executive cannot or does not or does not adequately exercise the powers or perform the functions referred to in subsection (4) or (5), the national executive must intervene in terms of subsection (4) or (5) in the stead of the relevant provincial executive.
(8) National legislation may regulate the implementation of this section, including the processes established by this section.
(1) A decision by the Premier of a province must be in writing if it-
(a) is taken in terms of legislation; or
(b) has legal consequences.
(2) A written decision by the Premier must be countersigned by another Executive Council member if that decision concerns a function assigned to that other member.
(3) Proclamations, regulations and other instruments of subordinate legislation of a province must be accessible to the public.
(4) Provincial legislation may specify the manner in which, and the extent to which, instruments mentioned in subsection (3) must be-
(a) tabled in the provincial legislature; and
(b) approved by the provincial legislature.
(1) If a provincial legislature, by a vote supported by a majority of its members, passes a motion of no confidence in the province's Executive Council excluding the Premier, the Premier must reconstitute the Council.
(2) If a provincial legislature, by a vote supported by a majority of its members, passes a motion of no confidence in the Premier, the Premier and the other members of the Executive Council must resign.
A provincial legislature may pass a constitution for the province or, where applicable, amend its constitution, if at least two thirds of its members vote in favour of the Bill.
(1) A provincial constitution, or constitutional amendment, must not be inconsistent with this Constitution, but may provide for-
(a) provincial legislative or executive structures and procedures that differ from those provided for in this Chapter; or
(b) the institution, role, authority and status of a traditional monarch, where applicable.
(2) Provisions included in a provincial constitution or constitutional amendment in terms of paragraph (a) or (b) of subsection (1)-
(a) must comply with the values in section 1 and with Chapter 3; and
(b) may not confer on the province any power or function that falls-
(i) outside the area of provincial competence in terms of Schedules 4 and 5; or
(ii) outside the powers and functions conferred on the province by other sections of the Constitution.
(1) If a provincial legislature has passed or amended a constitution, the Speaker of the legislature must submit the text of the constitution or constitutional amendment to the Constitutional Court for certification.
(2) No text of a provincial constitution or constitutional amendment becomes law until the Constitutional Court has certified-
(a) that the text has been passed in accordance with section 142; and
(b) that the whole text complies with section 143.
(1) The Premier of a province must assent to and sign the text of a provincial constitution or constitutional amendment that has been certified by the Constitutional Court.
(2) The text assented to and signed by the Premier must be published in the national Government Gazette and takes effect on publication or on a later date determined in terms of that constitution or amendment.
(3) The signed text of a provincial constitution or constitutional amendment is conclusive evidence of its provisions and, after publication, must be entrusted to the Constitutional Court for safekeeping.
(1) This section applies to a conflict between national legislation and provincial legislation falling within a functional area listed in Schedule 4.
(2) National legislation that applies uniformly with regard to the country as a whole prevails over provincial legislation if any of the following conditions is met:
(a) The national legislation deals with a matter that cannot be regulated effectively by legislation enacted by the respective provinces individually.
(b) The national legislation deals with a matter that, to be dealt with effectively, requires uniformity across the nation, and the national legislation provides that uniformity by establishing-
(i) norms and standards;
(ii) frameworks; or
(iii) national policies.
(c) The national legislation is necessary for-
(i) the maintenance of national security;
(ii) the maintenance of economic unity;
(iii) the protection of the common market in respect of the mobility of goods, services, capital and labour;
(iv) the promotion of economic activities across provincial boundaries;
(v) the promotion of equal opportunity or equal access to government services; or
(vi) the protection of the environment.
(3) National legislation prevails over provincial legislation if the national legislation is aimed at preventing unreasonable action by a province that-
(a) is prejudicial to the economic, health or security interests of another province or the country as a whole; or
(b) impedes the implementation of national economic policy.
(4) When there is a dispute concerning whether national legislation is necessary for a purpose set out in subsection (2) (c) and that dispute comes before a court for resolution, the court must have due regard to the approval or the rejection of the legislation by the National Council of Provinces.
(5) Provincial legislation prevails over national legislation if subsection (2) or (3) does not apply.
(6) A law made in terms of an Act of Parliament or a provincial Act can prevail only if that law has been approved by the National Council of Provinces.
(7) If the National Council of Provinces does not reach a decision within 30 days of its first sitting after a law was referred to it, that law must be considered for all purposes to have been approved by the Council.
(8) If the National Council of Provinces does not approve a law referred to in subsection (6), it must, within 30 days of its decision, forward reasons for not approving the law to the authority that referred the law to it.
(1) If there is a conflict between national legislation and a provision of a provincial constitution with regard to-
(a) a matter concerning which this Constitution specifically requires or envisages the enactment of national legislation, the national legislation prevails over the affected provision of the provincial constitution;
(b) national legislative intervention in terms of section 44 (2), the national legislation prevails over the provision of the provincial constitution; or
(c) a matter within a functional area listed in Schedule 4, section 146 applies as if the affected provision of the provincial constitution were provincial legislation referred to in that section.
(2) National legislation referred to in section 44 (2) prevails over provincial legislation in respect of matters within the functional areas listed in Schedule 5.
If a dispute concerning a conflict cannot be resolved by a court, the national legislation prevails over the provincial legislation or provincial constitution.
A decision by a court that legislation prevails over other legislation does not invalidate that other legislation, but that other legislation becomes inoperative for as long as the conflict remains.
When considering an apparent conflict between national and provincial legislation, or between national legislation and a provincial constitution, every court must prefer any reasonable interpretation of the legislation or constitution that avoids a conflict, over any alternative interpretation that results in a conflict.
(1) The local sphere of government consists of municipalities, which must be established for the whole of the territory of the Republic.
(2) The executive and legislative authority of a municipality is vested in its Municipal Council.
(3) A municipality has the right to govern, on its own initiative, the local government affairs of its community, subject to national and provincial legislation, as provided for in the Constitution.
(4) The national or a provincial government may not compromise or impede a municipality's ability or right to exercise its powers or perform its functions.
(1) The objects of local government are-
(a) to provide democratic and accountable government for local communities;
(b) to ensure the provision of services to communities in a sustainable manner;
(c) to promote social and economic development;
(d) to promote a safe and healthy environment; and
(e) to encourage the involvement of communities and community organisations in the matters of local government.
(2) A municipality must strive, within its financial and administrative capacity, to achieve the objects set out in subsection (1).
A municipality must-
(a) structure and manage its administration and budgeting and planning processes to give priority to the basic needs of the community, and to promote the social and economic development of the community; and
(b) participate in national and provincial development programmes.
(1) The national government and provincial governments, by legislative and other measures, must support and strengthen the capacity of municipalities to manage their own affairs, to exercise their powers and to perform their functions.
(2) Draft national or provincial legislation that affects the status, institutions, powers or functions of local government must be published for public comment before it is introduced in Parliament or a provincial legislature, in a manner that allows organised local government, municipalities and other interested persons an opportunity to make representations with regard to the draft legislation.
(1) There are the following categories of municipality:
(a) Category A: A municipality that has exclusive municipal executive and legislative authority in its area.
(b) Category B: A municipality that shares municipal executive and legislative authority in its area with a category C municipality within whose area it falls.
(c) Category C: A municipality that has municipal executive and legislative authority in an area that includes more than one municipality.
(2) National legislation must define the different types of municipality that may be established within each category.
(3) National legislation must-
(a) establish the criteria for determining when an area should have a single category A municipality or when it should have municipalities of both category B and category C;
(b) establish criteria and procedures for the determination of municipal boundaries by an independent authority; and
(c) subject to section 229, make provision for an appropriate division of powers and functions between municipalities when an area has municipalities of both category B and category C. A division of powers and functions between a category B municipality and a category C municipality may differ from the division of powers and functions between another category B municipality and that category C municipality.
(4) The legislation referred to in subsection (3) must take into account the need to provide municipal services in an equitable and sustainable manner.
(5) Provincial legislation must determine the different types of municipality to be established in the province.
(6) Each provincial government must establish municipalities in its province in a manner consistent with the legislation enacted in terms of subsections (2) and (3) and, by legislative or other measures, must-
(a) provide for the monitoring and support of local government in the province; and
(b) promote the development of local government capacity to enable municipalities to perform their functions and manage their own affairs.
(7) The national government, subject to section 44, and the provincial governments have the legislative and executive authority to see to the effective performance by municipalities of their functions in respect of matters listed in Schedules 4 and 5, by regulating the exercise by municipalities of their executive authority referred to in section 156 (1).
(1) A municipality has executive authority in respect of, and has the right to administer-
(a) the local government matters listed in Part B of Schedule 4 and Part B of Schedule 5; and
(b) any other matter assigned to it by national or provincial legislation.
(2) A municipality may make and administer by-laws for the effective administration of the matters which it has the right to administer.
(3) Subject to section 151 (4), a by-law that conflicts with national or provincial legislation is invalid. If there is a conflict between a bylaw and national or provincial legislation that is inoperative because of a conflict referred to in section 149, the by-law must be regarded as valid for as long as that legislation is inoperative.
(4) The national government and provincial governments must assign to a municipality, by agreement and subject to any conditions, the administration of a matter listed in Part A of Schedule 4 or Part A of Schedule 5 which necessarily relates to local government, if-
(a) that matter would most effectively be administered locally; and
(b) the municipality has the capacity to administer it.
(5) A municipality has the right to exercise any power concerning a matter reasonably necessary for, or incidental to, the effective performance of its functions.
(1) A Municipal Council consists of-
(a) members elected in accordance with subsections (2) and (3); or
(b) if provided for by national legislation-
(i) members appointed by other Municipal Councils to represent those other Councils; or
(ii) both members elected in accordance with paragraph (a) and members appointed in accordance with subparagraph (i) of this paragraph.
(2) The election of members to a Municipal Council as anticipated in subsection (1) (a) must be in accordance with national legislation, which must prescribe a system-
(a) of proportional representation based on that municipality's segment of the national common voters roll, and which provides for the election of members from lists of party candidates drawn up in a party's order of preference; or
(b) of proportional representation as described in paragraph (a) combined with a system of ward representation based on that municipality's segment of the national common voters roll.
(3) An electoral system in terms of subsection (2) must result, in general, in proportional representation.
(4) If the electoral system includes ward representation, the delimitation of wards must be done by an independent authority appointed in terms of, and operating according to, procedures and criteria prescribed by national legislation.
(5) A person may vote in a municipality only if that person is registered on that municipality's segment of the national common voters roll.
(6) The national legislation referred to in subsection (1) (b) must establish a system that allows for parties and interests reflected within the Municipal Council making the appointment, to be fairly represented in the Municipal Council to which the appointment is made.
(1) Every citizen who is qualified to vote for a Municipal Council is eligible to be a member of that Council, except-
(a) anyone who is appointed by, or is in the service of, the municipality and receives remuneration for that appointment or service, and who has not been exempted from this disqualification in terms of national legislation;
(b) anyone who is appointed by, or is in the service of, the state in another sphere, and receives remuneration for that appointment or service, and who has been disqualified from membership of a Municipal Council in terms of national legislation;
(c) anyone who is disqualified from voting for the National Assembly or is disqualified in terms of section 47(1) (c), (d) or (e) from being a member of the Assembly;
(d) a member of the National Assembly, a delegate to the National Council of Provinces or a member of a provincial legislature; but this disqualification does not apply to a member of a Municipal Council representing local government in the National Council; or
(e) a member of another Municipal Council; but this disqualification does not apply to a member of a Municipal Council representing that Council in another Municipal Council of a different category.
(2) A person who is not eligible to be a member of a Municipal Council in terms of subsection (1) (a), (b), (d) or (e) may be a candidate for the Council, subject to any limits or conditions established by national legislation.
(3) Vacancies in a Municipal Council must be filled in terms of national legislation.
(1) The term of a Municipal Council may be no more than five years, as determined by national legislation.
(2) If a Municipal Council is dissolved in terms of national legislation, or when its term expires, an election must be held within 90 days of the date that Council was dissolved or its term expired.
(3) A Municipal Council, other than a Council that has been dissolved following an intervention in terms of section 139, remains competent to function from the time it is dissolved or its term expires, until the newly elected Council has been declared elected.
(1) A Municipal Council-
(a) makes decisions concerning the exercise of all the powers and the performance of all the functions of the municipality;
(b) must elect its chairperson;
(c) may elect an executive committee and other committees, subject to national legislation; and
(d) may employ personnel that are necessary for the effective performance of its functions.
(2) The following functions may not be delegated by a Municipal Council:
(a) The passing of by-laws;
(b) the approval of budgets;
(c) the imposition of rates and other taxes, levies and duties; and
(d) the raising of loans.
(3) (a) A majority of the members of a Municipal Council must be present before a vote may be taken on any matter.
(b) All questions concerning matters mentioned in subsection (2) are determined by a decision taken by a Municipal Council with a supporting vote of a majority of its members.
(c) All other questions before a Municipal Council are decided by a majority of the votes cast.
(4) No by-law may be passed by a Municipal Council unless-
(a) all the members of the Council have been given reasonable notice; and
(b) the proposed by-law has been published for public comment.
(5) National legislation may provide criteria for determining-
(a) the size of a Municipal Council;
(b) whether Municipal Councils may elect an executive committee or any other committee; or
(c) the size of the executive committee or any other committee of a Municipal Council.
(6) A Municipal Council may make by-laws which prescribe rules and orders for-
(a) its internal arrangements;
(b) its business and proceedings; and
(c) the establishment, composition, procedures, powers and functions of its committees.
(7) A Municipal Council must conduct its business in an open manner, and may close its sittings, or those of its committees, only when it is reasonable to do so having regard to the nature of the business being transacted.
(8) Members of a Municipal Council are entitled to participate in its proceedings and those of its committees in a manner that-
(a) allows parties and interests reflected within the Council to be fairly represented;
(b) is consistent with democracy; and
(c) may be regulated by national legislation.
Provincial legislation within the framework of national legislation may provide for privileges and immunities of Municipal Councils and their members.
(1) A municipal by-law may be enforced only after it has been published in the official gazette of the relevant province.
(2) A provincial official gazette must publish a municipal by-law upon request by the municipality.
(3) Municipal by-laws must be accessible to the public.
An Act of Parliament enacted in accordance with the procedure established by section 76 must-
(a) provide for the recognition of national and provincial organisations representing municipalities; and
(b) determine procedures by which local government may-
(i) consult with the national or a provincial government;
(ii) designate representatives to participate in the National Council of Provinces; and
(iii) participate in the process prescribed in the national legislation envisaged in section 221 (1) (c).
Any matter concerning local government not dealt with in the Constitution may be prescribed by national legislation or by provincial legislation within the framework of national legislation.
(1) The judicial authority of the Republic is vested in the courts.
(2) The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.
(3) No person or organ of state may interfere with the functioning of the courts.
(4) Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.
(5) An order or decision issued by a court binds all persons to whom and organs of state to which it applies.
The courts are-
(a) the Constitutional Court;
(b) the Supreme Court of Appeal;
(c) the High Courts, including any high court of appeal that may be established by an Act of Parliament to hear appeals from High Courts;
(d) the Magistrates' Courts; and
(e) any other court established or recognised in terms of an Act of Parliament, including any court of a status similar to either the High Courts or the Magistrates' Courts.
(1) The Constitutional Court consists of the Chief Justice of South Africa, the Deputy Chief Justice and nine other judges.
(2) A matter before the Constitutional Court must be heard by at least eight judges.
(3) The Constitutional Court
(a) is the highest court in all constitutional matters;
(b) may decide only constitutional matters, and issues connected with decisions on constitutional matters; and
(c) makes the final decision whether a matter is a constitutional matter or whether an issue is connected with a decision on a constitutional matter.
(4) Only the constitutional Court may-
(a) decide disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of state;
(b) decide on the constitutionality of any parliamentary or provincial Bill, but may do so only in the circumstances anticipated in section 79 or 121;
(c) decide applications envisaged in section 80 or 122;
(d) decide on the constitutionality of any amendment Constitution;
(e) decide that Parliament or the President has failed to fulfil a constitutional obligation; or
(f) certify a provincial constitution in terms of section 144.
(5) The Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, a High Court, or a court of similar status, before that order has any force.
(6) National legislation or the rules of the Constitutional Court must allow a person, when it is in the interests of justice and with leave of the Constitutional Court-
(a) to bring a matter directly to the Constitutional Court; or
(b) to appeal directly to the Constitutional Court from any other court.
(7) A constitutional matter includes any issue involving the interpretation, protection or enforcement of the Constitution.
(1) The Supreme Court of Appeal consists of a President, a Deputy President and the number of judges of appeal determined in terms an Act of Parliament.
(2) A matter before the Supreme Court of Appeal must be decided by the number of judges determined in terms of an Act of Parliament.
(3) The Supreme Court of Appeal may decide appeals in any matter.It is the highest court of appeal except in constitutional matters, and may decide only-
(a) appeals;
(b) issues connected with appeals; and
(c) any other matter that may be referred to it in circumstances defined by an Act of Parliament.
A High Court may decide-
(a) any constitutional matter except a matter that-
(i) only the Constitutional Court may decide; or
(ii) is assigned by an Act of Parliament to another court of a status similar to a High Court; and
(b) any other matter not assigned to another court by an Act of Parliament.
Magistrates' Courts and all other courts may decide any matter determined by an Act of Parliament, but a court of a status lower than a High Court may not enquire into or rule on the constitutionality of any legislation or any conduct of the President.
All courts function in terms of national legislation, and their rules and procedures must be provided for in terms of national legislation.
(1) When deciding a constitutional matter within its power, a court-
(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and
(b) may make any order that is just and equitable, including-
(i) an order limiting the retrospective effect of the declaration of invalidity; and
(ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.
(2) (a) The Supreme Court of Appeal, a High Court or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President, but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court.
(b) A court which makes an order of constitutional invalidity may grant a temporary interdict or other temporary relief to a party, or may adjourn the proceedings, pending a decision of the Constitutional Court on the validity of that Act or conduct.
(c) National legislation must provide for the referral of an order of constitutional invalidity to the Constitutional Court.
(d) Any person or organ of state with a sufficient interest may appeal, or apply, directly to the Constitutional Court to confirm or vary an order of constitutional invalidity by a court in terms of this subsection.
The Constitutional Court, Supreme Court of Appeal and High Courts have the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice.
(1) Any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer. Any person to be appointed to the Constitutional Court must also be a South African citizen.
(2) The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.
(3) The President as head of the national executive, after consulting the Judicial Service Commission and the leader of parties represented in the National Assembly, appoints the Chief Justice and the Deputy Chief Justice and, after consulting the Judicial Service Commission, appoints the President and Deputy President of the Supreme Court of Appeal.
(4) The other judges of the Constitutional Court are appointed by the President, as head of the national executive, after consulting the Chief Justice and the leaders of parties represented in the National Assembly, in accordance with the following procedure:
(a) The Judicial Service Commission must prepare a list of nominees with three names more than the number of appointments to be made, and submit the list to the President.
(b) The President may make appointments from the list, and must advise the Judicial Service Commission, with reasons, if any of the nominees are unacceptable and any appointment remains to be made.
(c) The Judicial Service Commission must supplement the list with further nominees and the President must make the remaining appointments from the supplemented list.
(5) At all times, at least four members of the Constitutional Court must be persons who were judges at the time they were appointed to the Constitutional Court.
(6) The President must appoint the judges of all other courts on the advice of the Judicial Service Commission.
(7) Other judicial officers must be appointed in terms of an Act of Parliament which must ensure that the appointment, promotion, transfer or dismissal of, or disciplinary steps against, these judicial officers take place without favour or prejudice.
(8) Before judicial officers begin to perform their functions, they must take an oath or affirm, in accordance with Schedule 2, that they will uphold and protect the Constitution.
(1) The President may appoint a woman or a man to be an acting judge of the Constitutional Court if there is a vacancy or if a judge is absent. The appointment must be made on the recommendation of the Cabinet member responsible for the administration of justice acting with the concurrence of the Chief Justice.
(2) The Cabinet member responsible for the administration of justice must appoint acting judges to other courts after consulting the senior judge of the court on which the acting judge will serve.
(1) A Constitutional Court judge holds office for a non-renewable term of 12 years, or until he or she attains the age of 70, whichever occurs first, except where an Act of Parliament extends the term of office of a Constitutional Court judge.
(2) Other judges hold office until they are discharged from active service in terms of an Act of Parliament.
(3) The salaries, allowances and benefits of judges may not be reduced.
(1) A judge may be removed from office only if-
(a) the Judicial Service Commission funds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct; and
(b) the National Assembly calls for that judge to be removed, by a resolution adopted with a supporting vote of at least two thirds of its members.
(2) The President must remove a judge from office upon adoption of a resolution calling for that judge to be removed.
(3) The President, on the advice of the Judicial Service Commission, may suspend a judge who is the subject of a procedure in terms of subsection (1).
(1) There is a Judicial Service Commission consisting of-
(a) the Chief Justice, who presides at meetings of the Commission;
(b) the President of the Supreme Court of Appeal;
(c) one Judge President designated by the Judges President;
(d) the Cabinet member responsible for the administration of justice, or an alternate designated by that Cabinet member;
(e) two practising advocates nominated from within the advocates' profession to represent the profession as a whole, and appointed by the President;
(f) two practising attorneys nominated from within the attorneys' profession to represent the profession as a whole, and appointed by the President;
(g) one teacher of law designated by teachers of law at South African universities;
(h) six persons designated by the National Assembly from among its members, at least three of whom must be members of opposition parties represented in the Assembly;
(i) four permanent delegates to the National Council of Provinces designated together by the Council with a supporting vote of at least six provinces;
(j) four persons designated by the President as head of the national executive, after consulting the leaders of all the parties in the National Assembly; and
(k) when considering matters relating to a specific High Court, the Judge President of that Court and the Premier of the province concerned, or an alternate designated by each of them.
(2) If the number of persons nominated from within the advocates' or attorneys' profession in terms of subsection (1) (e) or (f) equals the number of vacancies to be filled, the President must appoint them. If the number of persons nominated exceeds the number of vacancies to be filled, the President, after consulting the relevant; profession, must appoint sufficient of the nominees to fill the vacancies, taking into account the need to ensure that those appointed represent the profession as a whole.
(3) Members of the Commission designated by the National Council of Provinces serve until they are replaced together, or until any vacancy occurs in their number. Other members who were designated or nominated to the Commission serve until they are replaced by those who designated or nominated them.
(4) The Judicial Service Commission has the powers and functions assigned to it in the Constitution and national legislation.
(5) The Judicial Service Commission may advise the national government on any matter relating to the judiciary or the administration of justice, but when it considers any matter except the appointment of a judge, it must sit without the members designated in terms of subsection (1) (h) and (i).
(6) The Judicial Service Commission may determine its own procedure, but decisions of the Commission must be supported by a majority of its members.
(7) If the Chief Justice or the President of the Supreme Court of Appeal is temporarily unable to serve on the Commission, the Deputy Chief Justice or the Deputy President of the Supreme Court of Appeal, as the case may be, acts as his or her alternate on the Commission.
(8) The President and the persons who appoint, nominate or designate the members of the Commission in terms of subsection (1) (c), (e), (f) and (g), may, in the same manner appoint, nominate or designate an alternate for each of those members, to serve on the Commission whenever the member concerned is temporarily unable to do so by reason of his or her incapacity or absence from the Republic or for any other sufficient reason.
(1) There is a single national prosecuting authority in the Republic, structured in terms of an Act of Parliament, and consisting of-
(a) a National Director of Public Prosecutions, who is the head of the prosecuting authority, and is appointed by the President, as head of the national executive; and
(b) Directors of Public Prosecutions and prosecutors as determined by an Act of Parliament.
(2) The prosecuting authority has the power to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings.
(3) National legislation must ensure that the Directors of Public Prosecutions-
(a) are appropriately qualified; and
(b) are responsible for prosecutions in specific jurisdictions, subject to subsection (5).
(4) National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice.
(5) The National Director of Public Prosecutions-
(a) must determine, with the concurrence of the Cabinet member responsible for the administration of justice, and after consulting the Directors of Public Prosecutions, prosecution policy, which must be observed in the prosecution process;
(b) must issue policy directives which must be observed in the prosecution process;
(c) may intervene in the prosecution process when policy directives are not complied with; and
(d) may review a decision to prosecute or not to prosecute, after consulting the relevant Director of Public Prosecutions and after taking representations within a period specified by the National Director of Public Prosecutions, from the following:
(i) The accused person.
(ii) The complainant.
(iii) Any other person or party whom the National Director considers to be relevant.
(6) The Cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority.
(7) All other matters concerning the prosecuting authority must be determined by national legislation.
National legislation may provide for any matter concerning the administration of justice that is not dealt with in the Constitution, including-
(a) training programmes for judicial officers;
(b) procedures for dealing with complaints about judicial officers; and
(c) the participation of people other than judicial officers in court decisions.
(1) The following state institutions strengthen constitutional democracy in the Republic:
(a) The Public Protector.
(b) The South African Human Rights Commission.
(c) The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities.
(d) The Commission for Gender Equality.
(e) The Auditor-General.
(f) The Electoral Commission.
(2) These institutions are independent, and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice.
(3) Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions.
(4) No person or organ of state may interfere with the functioning of these institutions.
(5) These institutions are accountable to the National Assembly, and must report on their activities and the performance of their functions to the Assembly at least once a year.
(1) The Public Protector has the power, as regulated by national legislation-
(a) to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice;
(b) to report on that conduct; and
(c) to take appropriate remedial action.
(2) The Public Protector has the additional powers and functions prescribed by national legislation.
(3) The Public Protector may not investigate court decisions.
(4) The Public Protector must be accessible to all persons and communities.
(5) An report issued by the Public Protector must be open to the public unless exceptional circumstances, to be determined in terms of national legislation, require that a report be kept confidential.
(1) The South African Human Rights Commission must-
(a) promote respect for human rights and a culture of human rights;
(b) promote the protection, development and attainment of human rights; and
(c) monitor and assess the observance of human rights in the Republic.
(2) The South African Human Rights Commission has the powers, as regulated by national legislation, necessary to perform its functions, including the power-
(a) to investigate and to report on the observance of human rights;
(b) to take steps to secure appropriate redress where human rights have been violated;
(c) to carry out research; and
(d) to educate.
(3) Each year, the South African Human Rights Commission must require relevant organs of state to provide the Commission with information on the measures that they have taken towards the realisation of the rights in the Bill of Rights concerning housing, health care, food, water, social security, education and the environment.
(4) The South African Human Rights Commission has the additional powers and functions prescribed by national legislation.
(1) The primary objects of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities are-
(a) to promote respect for the rights of cultural, religious and linguistic communities;
(b) to promote and develop peace, friendship, humanity, tolerance and national unity among cultural, religious and linguistic communities, on the basis of equality, non-discrimination and free association; and
(c) to recommend the establishment or recognition, in accordance with national legislation, of a cultural or other council or councils for a community or communities in South Africa.
(2) The Commission has the power, as regulated by national legislation, necessary to achieve its primary objects, including the power to monitor, investigate, research, educate, lobby, advise and report on issues concerning the rights of cultural, religious and linguistic communities.
(3) The Commission may report any matter which falls within its powers and functions to the South African Human Rights Commission for investigation.
(4) The Commission has the additional powers and functions prescribed by national legislation.
(1) The number of members of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities and their appointment and terms of office must be prescribed by national legislation.
(2) The composition of the Commission must-
(a) be broadly representative of the main cultural, religious and linguistic communities in South Africa; and
(b) broadly reflect the gender composition of South Africa.
(1) The Commission for Gender Equality must promote respect for gender equality and the protection, development and attainment of gender equality.
(2) The Commission for Gender Equality has the power, as regulated by national legislation, necessary to perform its functions, including the power to monitor, investigate, research, educate, lobby, advise and report on issues concerning gender equality.
(3) The Commission for Gender Equality has the additional and functions prescribed by national legislation.
(1) The Auditor-General must audit and report on the accounts, financial statements and financial management of-
(a) all national and provincial state departments and administrations;
(b) all municipalities; and
(c) any other institution or accounting entity required by national or provincial legislation to be audited by the Auditor-General.
(2) In addition to the duties prescribed in subsection (1), and subject to any legislation, the Auditor-General may audit and report on the accounts, financial statements and financial management of-
(a) any institution funded from the National Revenue Fund or a Provincial Revenue Fund or by a municipality; or
(b) any institution that is authorised in terms of any law to receive money for a public purpose.
(3) The Auditor-General must submit audit reports to any legislature that has a direct interest in the audit, and to any other authority prescribed by national legislation. All reports must be made public.
(4) The Auditor-General has the additional powers and functions prescribed by national legislation.
The Auditor-General must be appointed for a fixed, non-renewable term of between five and ten years.
(1) The Electoral Commission must-
(a) manage elections of national, provincial and municipal legislative bodies in accordance with national legislation;
(b) ensure that those elections are free and fair; and
(c) declare the results of those elections within a period that must be prescribed by national legislation and that is as short as reasonably possible.
(2) The Electoral Commission has the additional powers and functions prescribed by national legislation.
The Electoral Commission must be composed of at least three persons. The number of members and their terms of office must be prescribed by national legislation.
National legislation must establish an independent authority to regulate broadcasting in the public interest, and to ensure fairness and a diversity of views broadly representing South African society.
(1) The Public Protector and the members of any Commission established by this Chapter must be women or men who-
(a) are South African citizens;
(b) are fit and proper persons to hold the particular office; and
(c) comply with any other requirements prescribed by national legislation.
(2) The need for a Commission established by this Chapter to reflect broadly the race and gender composition of South Africa must be considered when members are appointed.
(3) The Auditor-General must be a woman or a man who is a South African citizen and a fit and proper person to hold that office. Specialised knowledge of, or experience in, auditing, state finances and public administration must be given due regard in appointing the Auditor-General.
(4) The President, on the recommendation of the National Assembly, must appoint the Public Protector, the Auditor-General and the members of-
(a) the South African Human Rights Commission;
(b) the Commission for Gender Equality; and
(c) the Electoral Commission.
(5) The National Assembly must recommend persons-
(a) nominated by a committee of the Assembly proportionally composed of members of all parties represented in the Assembly; and
(b) approved by the Assembly by a resolution adopted with a supporting vote-
(i) of at least 60 per cent of the members of the Assembly, if the recommendation concerns the appointment of the Public Protector or the Auditor-General; or
(ii) of a majority of the members of the Assembly, if the recommendation concerns the appointment of a member of a Commission.
(6) The involvement of civil society in the recommendation process may be provided for as envisaged in section 59 (1) (a).
(1) The Public Protector, the Auditor-General or a member of a Commission established by this Chapter may be removed from office only on-
(a) the ground of misconduct, incapacity or incompetence;
(b) a finding to that effect by a committee of the National Assembly; and
(c) the adoption by the Assembly of a resolution calling for that person's removal from office
(2) A resolution of the National Assembly concerning the removal from office of-
(a) the Public Protector or the Auditor-General must be adopted with a supporting vote of at least two thirds of the members of the Assembly; or
(b) a member of a Commission must be adopted with a supporting vote of a majority of the members of the Assembly.
(3) The President
(a) may suspend a person from office at any time after the start of the proceedings of a committee of the National Assembly for the removal of that person; and
(b) must remove a person from office upon adoption by the Assembly of the resolution calling for that person's removal.
(1) Public administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles:
(a) A high standard of professional ethics must be promoted and maintained.
(b) Efficient, economic and effective use of resources must be promoted.
(c) Public administration must be development-oriented.
(d) Services must be provided impartially, fairly, equitably and without bias.
(e) People's needs must be responded to, and the public must be encouraged to participate in policy-making.
(f) Public administration must be accountable.
(g) Transparency must be fostered by providing the public with timely, accessible and accurate information.
(h) Good human-resource management and career-development practices, to maximise human potential, must be cultivated.
(i) Public administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness, and the need to redress the imbalances of the past to achieve broad representation.
(2) The above principles apply to-
(a) administration in every sphere of government;
(b) organs of state; and
(c) public enterprises.
(3) National legislation must ensure the promotion of the values and principles listed in subsection (1).
(4) The appointment in public administration of a number of persons on policy considerations is not precluded, but national legislation must regulate these appointments in the public service.
(5) Legislation regulating public administration may differentiate between different sectors, administrations or institutions.
(6) The nature and functions of different sectors, administrations or institutions of public administration are relevant factors to be taken into account in legislation regulating public administration.
(1) There is a single Public Service Commission for the Republic.
(2) The Commission is independent and must be impartial, and must exercise its powers and perform its functions without fear, favour or prejudice in the interest of the maintenance of effective and efficient public administration and a high standard of professional ethics in the public service. The Commission must be regulated by national legislation.
(3) Other organs of state, through legislative and other measures, must assist and protect the Commission to ensure the independence, impartiality, dignity and effectiveness of the Commission. No person or organ of state may interfere with the functioning of the Commission.
(4) The powers and functions of the Commission are-
(a) to promote the values and principles set out in section 195, throughout the public service;
(b) to investigate, monitor and evaluate the organisation and administration, and the personnel practices, of the public service;
(c) to propose measures to ensure effective and efficient performance within the public service;
(d) to give directions aimed at ensuring that personnel procedures relating to recruitment, transfers, promotions and dismissals comply with the values and principles set out in section 195;
(e) to report in respect of its activities and the performance of its functions, including any finding it may make and directions and advice it may give, and to provide an evaluation of the extent to which the values and principles set out in section 195 are complied with; and
(f) either of its own accord or on receipt of any complaint-
(i) to investigate and evaluate the application of personnel and public administration practices, and to report to the relevant executive authority and legislature;
(ii) to investigate grievances of employees in the public service concerning official acts or omissions, and recommend appropriate remedies;
(iii) to monitor and investigate adherence to applicable procedures in the public service; and
(iv) to advise national and provincial organs of state regarding personnel practices in the public service, including those relating to the recruitment, appointment, transfer, discharge and other aspects of the careers of employees in the public service.
(g) to exercise or perform the additional powers or functions prescribed by an Act of Parliament.
(5) The Commission is accountable to the National Assembly.
(6) The Commission must report at least once a year in terms of subsection (4) (e)-
(a) to the National Assembly; and
(b) in respect of its activities in a province, to the legislature of that province.
(7) The Commission has the following 14 commissioners appointed by the President:
(a) Five commissioners approved by the National Assembly in accordance with subsection (8) (a); and
(b) one commissioner for each province nominated by the Premier of the province in accordance with subsection (8) (b).
(8) (a) A commissioner appointed in terms of subsection (7) (a) must be-
(i) recommended by a committee of the National Assembly that is proportionally composed of members of all parties represented in the Assembly; and
(ii) approved by the Assembly by a resolution adopted with a supporting vote of a majority of its members.
(b) A commissioner nominated by the Premier of a province must be-
(i) recommended by a committee of the provincial legislature that is proportionally composed of members of all parties represented in the legislature; and
(ii) approved by the legislature by a resolution adopted with a supporting vote of a majority of its members.
(9) An Act of Parliament must regulate the procedure for the appointment of commissioners.
(10) A commissioner is appointed for a term of five years, which is renewable for one additional term only, and must be a woman or a man who is-
(a) a South African citizen; and
(b) a fit and proper person with knowledge of, or experience in, administration, management or the provision of public services.
(11) A commissioner may be removed from office only on-
(a) the ground of misconduct, incapacity or incompetence;
(b) a finding to that effect by a committee of the National Assembly or, in the case of a commissioner nominated by the Premier of a province, by a committee of the legislature of that province; and
(c) the adoption by the Assembly or the provincial legislature concerned, of a resolution with a supporting vote of a majority of its members calling for the commissioner's removal from office.
(12) The President must remove the relevant commissioner from office upon-
(a) the adoption by the Assembly of a resolution calling for that commissioner's removal; or
(b) written notification by the Premier that the provincial legislature has adopted a resolution calling for that commissioner's removal.
(13) Commissioners referred to in subsection (7) (b) may exercise the powers and perform the functions of the Commission in their provinces as prescribed by national legislation.
(1) Within public administration there is a public service for the Republic, which must function, and be structured, in terms of national legislation, and which must loyally execute the lawful policies of the government of the day.
(2) The terms and conditions of employment in the public service must be regulated by national legislation. Employees are entitled to a fair pension as regulated by national legislation.
(3) No employee of the public service may be favoured or prejudiced only because that person supports a particular political party or cause.
(4) Provincial governments are responsible for the recruitment, appointment, promotion, transfer and dismissal of members of the public service in their administrations within a framework of uniform norms and standards applying to the public service.
The following principles govern national security in the Republic:
(a) National security must reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life.
(b) The resolve to live in peace and harmony precludes any South African citizen from participating in armed conflict, nationally or internationally, except as provided for in terms of the Constitution or national legislation.
(c) National security must be pursued in compliance with the law, including international law.
(d) National security is subject to the authority of Parliament and the national executive.
(1) The security services of the Republic consist of a single defence force, a single police service and any intelligence services established in terms of the Constitution.
(2) The defence force is the only lawful military force in the Republic.
(3) Other than the security services established in terms of the Constitution, armed organisations or services may be established only in terms of national legislation.
(4) The security services must be structured and regulated by national legislation.
(5) The security services must act, and must teach and require their members to act, in accordance with the Constitution and the law, including customary international law and international agreements binding on the Republic.
(6) No member of any security service may obey a manifestly illegal order.
(7) Neither the security services, nor any of their members, may, in the performance of their functions-
(a) prejudice a political party interest that is legitimate in terms of the Constitution; or
(b) further, in a partisan manner, any interest of a political party.
(8) To give effect to the principles of transparency and accountability, multi-party parliamentary committees, have oversight of all security services in a manner determined by national legislation or the rules and orders of Parliament.
(1) The defence force must be structured and managed as a disciplined military force.
(2) The primary object of the defence force is to defend and protect the Republic, its territorial integrity and its people in accordance with the Constitution and the principles of international law regulating the use of force.
(1) A member of the Cabinet must be responsible for defence.
(2) Only the President, as head of the national executive, may authorise the employment of the defence force-
(a) in co-operation with the police service;
(b) in defence of the Republic; or
(c) in fulfilment of an international obligation.
(3) When the defence force is employed for any purpose mentioned in subsection (2), the President must inform Parliament, promptly and in appropriate detail, of-
(a) the reasons for the employment of the defence force;
(b) any place where the force is being employed;
(c) the number of people involved; and
(d) the period for which the force is expected to be employed.
(4) If Parliament does not sit during the first seven days after the defence force is employed as envisaged in subsection (2), the President must provide the information required in subsection (3) to the appropriate oversight committee.
(1) The President as head of the national executive is Commander-in-Chief of the defence force, and must appoint the Military Command of the defence force.
(2) Command of the defence force must be exercised in accordance with the directions of the Cabinet member responsible for defence, under the authority of the President.
(1) The President as head of the national executive may declare a state of national defence, and must inform Parliament promptly and in appropriate detail of-
(a) the reasons for the declaration;
(b) any place where the defence force is being employed; and
(c) the number of people involved.
(2) If Parliament is not sitting when a state of national defence is declared, the President must summon Parliament to an extraordinary sitting within seven days of the declaration.
(3) A declaration of a state of national defence lapses unless it is approved by Parliament within seven days of the declaration.
A civilian secretariat for defence must be established by national legislation to function under the direction of the Cabinet member responsible for defence.
(1) The national police service must be structured to function in the national, provincial and, where appropriate, local spheres of government.
(2) National legislation must establish the powers and functions of the police service and must enable the police service to discharge its responsibilities effectively, taking into account the requirements of the provinces.
(3) The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.
(1) A member of the Cabinet must be responsible for policing and must determine national policing policy after consulting the provincial governments and taking into account the policing needs and priorities of the provinces as determined by the provincial executives.
(2) The national policing policy may make provision for different policies in respect of different provinces after taking into account the policing needs and priorities of these provinces.
(3) Each province is entitled-
(a) to monitor police conduct;
(b) to oversee the effectiveness and efficiency of the police service, including receiving reports on the police service;
(c) to promote good relations between the police and the community;
(d) to assess the effectiveness of visible policing; and
(e) to liaise with the Cabinet member responsible for policing with respect to crime and policing in the province.
(4) A provincial executive is responsible for policing functions-
(a) vested in it by this Chapter;
(b) assigned to it in terms of national legislation; and
(c) allocated to it in the national policing policy.
(5) In order to perform the functions set out in subsection (3), a province-
(a) may investigate, or appoint a commission of inquiry into, any complaints of police inefficiency or a breakdown in relations between the police and any community; and
(b) must make recommendations to the Cabinet member responsible for policing.
(6) On receipt of a complaint lodged by a provincial executive, an independent police complaints body established by national legislation must investigate any alleged misconduct of, or offence committed by, a member of the police service in the province.
(7) National legislation must provide a framework for the establishment, powers, functions and control of municipal police services.
(8) A committee composed of the Cabinet member and the members of the Executive Councils responsible for policing must be established to ensure effective co-ordination of the police service and effective co-operation among the spheres of government.
(9) A provincial legislature may require the provincial commissioner of the province to appear before it or any of its committees to answer questions.
(1) The President as head of the national executive must appoint a woman or a man as the National Commissioner of the police service, to control and manage the police service.
(2) The National Commissioner must exercise control over and manage the police service in accordance with the national policing policy and the directions of the Cabinet member responsible for policing.
(3) The National Commissioner, with the concurrence of the provincial executive, must appoint a woman or a man as the provincial commissioner for that province, but if the National Commissioner and the provincial executive are unable to agree on the appointment, the Cabinet member responsible for policing must mediate between the parties.
(4) The provincial commissioners are responsible for policing in their respective provinces-
(a) as prescribed by national legislation; and
(b) subject to the power of the National Commissioner to exercise control over and manage the police service in terms of subsection (2).
(5) The provincial commissioner must report to the provincial legislature annually on policing in the province, and must send a copy of the report to the National Commissioner.
(6) If the provincial commissioner has lost the confidence of the provincial executive, that executive may institute appropriate proceedings for the removal or transfer of, or disciplinary action against, that commissioner, in accordance with national legislation.
A civilian secretariat for the police service must be established by national legislation to function under the direction of the Cabinet member responsible for policing.
(1) Any intelligence service, other than any intelligence division of the defence force or police service, may be established only by the President, as head of the national executive, and only in terms of national legislation.
(2) The President as head of the national executive must appoint a woman or a man as head of each intelligence service established in terms of subsection (1), and must either assume political responsibility for the control and direction of any of those services, or designate a member of the Cabinet to assume that responsibility.
National legislation must regulate the objects, powers and functions of the intelligence services, including any intelligence division of the defence force or police service, and must provide for-
(a) the co-ordination of all intelligence services; and
(b) civilian monitoring of the activities of those services by an inspector appointed by the President, as head of the national executive, and approved by a resolution adopted by the National Assembly with a supporting vote of at least two thirds of its members.
(1) The institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution.
(2) A traditional authority that observes a system of customary law may function subject to any applicable legislation and customs, which includes amendments to, or repeal of, that legislation or those customs.
(3) The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.
(1) National legislation may provide for a role for traditional leadership as an institution at local level on matters affecting local communities.
(2) To deal with matters relating to traditional leadership, the role of traditional leaders, customary law and the customs of communities observing a system of customary law-
(a) national or provincial legislation may provide for the establishment of houses of traditional leaders; and
(b) national legislation may establish a council of traditional leaders.
(1) There is a National Revenue Fund into which all money received by the national government must be paid, except money reasonably excluded by an Act of Parliament.
(2) Money may be withdrawn from the National Revenue Fund only-
(a) in terms of an appropriation by an Act of Parliament; or
(b) as a direct charge against the National Revenue Fund, when it is provided for in the Constitution or an Act of Parliament.
(3) A province's equitable share of revenue raised nationally is a direct charge against the National Revenue Fund.
[Date of commencement of section 213: 1 January 1998.]
(1) An Act of Parliament must provide for-
(a) the equitable division of revenue raised nationally among the national, provincial and local spheres of government;
(b) the determination of each province's equitable share of the provincial share of that revenue; and
(c) any other allocations to provinces, local government or municipalities from the national government's share of thee revenue, and any conditions on which those allocations may be made.
(2) The Act referred to in subsection (1) may be enacted only after the provincial governments, organised local government and the Financial and Fiscal Commission have been consulted, and any recommendations of the Commission have been considered, and must take into account-
(a) the national interest;
(b) any provision that must be made in respect of the national debt and other national obligations;
(c) the needs and interests of the national government, determined by objective criteria;
(d) the need to ensure that the provinces and municipalities are able to provide basic services and perform the functions allocated to them;
(e) the fiscal capacity and efficiency of the provinces and municipalities;
(f) developmental and other needs of provinces, local government and municipalities;
(g) economic disparities within and among the provinces;
(h) obligations of the provinces and municipalities in terms of national legislation;
(i) the desirability of stable and predictable allocations of revenue shares; and
(j) the need for flexibility in responding to emergencies or other temporary needs, and other factors based on similar objective criteria.
[Date of commencement of section 214: 1 January 1998.]
(1) National, provincial and municipal budgets and budgetary processes must promote transparency, accountability and the effective financial management of the economy, debt and the public sector.
(2) National legislation must prescribe-
(a) the form of national, provincial and municipal budgets;
(b) when national and provincial budgets must be tabled; and
(c) that budgets in each sphere of government must show the sources of revenue and the way in which proposed expenditure will comply with national legislation.
(3) Budgets in each sphere of government must contain-
(a) estimates of revenue and expenditure, differentiating between capital and current expenditure;
(b) proposals for financing any anticipated deficit for the period to which they apply; and
(c) an indication of intentions regarding borrowing and other forms of public liability that will increase public debt during the ensuing year.
[Date of commencement of section 215: 1 January 1998.]
(1) National legislation must establish a national treasury and prescribe measures to ensure both transparency and expenditure control in each sphere of government, by introducing-
(a) generally recognised accounting practice;
(b) uniform expenditure classifications; and
(c) uniform treasury norms and standards.
(2) The national treasury must enforce compliance with the measures established in terms of subsection (1), and may stop the transfer of funds to an organ of state if that organ of state commits a serious or persistent material breach of those measures.
(3) A decision to stop the transfer of funds due to a province in terms of section 214 (1) (b) may be taken only in the circumstances mentioned in subsection (2) and-
(a) may not stop the transfer of funds for more than 120 days; and
(b) may be enforced immediately, but will lapse retrospectively unless Parliament approves it following a process substantially the same as that established in terms of section 76 (1) and prescribed by the joint rules and orders of Parliament. This process must be completed within 30 days of the decision by the national treasury.
(4) Parliament may renew a decision to stop the transfer of funds for no more than 120 days at a time, following the process established in terms of subsection (3).
(5) Before Parliament may approve or renew a decision to stop the transfer of funds to a province-
(a) the Auditor-General must report to Parliament; and
(b) the province must be given an opportunity to answer the allegations against it, and to state its case, before a committee.
[Date of commencement of section 216: 1 January 1998.]
(1) When an organ of state in the national, provincial or local sphere of government, or any other institution identified in national legislation, contracts for goods or services, it must do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective.
(2) Subsection (1) does not prevent the organs of state or institutions referred to in that subsection from implementing a procurement policy providing for-
(a) categories of preference in the allocation of contracts; and
(b) the protection or advancement of persons, or categories of persons, disadvantaged by unfair discrimination.
(3) National legislation must prescribe a framework within which the policy referred to in subsection (2) must be implemented.
(1) The national government, a provincial government or a municipality may guarantee a loan only if the guarantee complies with any conditions set out in national legislation.
(2) National legislation referred to in subsection (1) may be enacted only after any recommendations of the Financial and Fiscal Commission have been considered.
(3) Each year, every government must publish a report on the guarantees it has granted.
[Date of commencement of section 218: 1 January 1998.]
(1) An Act of Parliament must establish a framework for determining-
(a) the salaries, allowances and benefits of members of the National Assembly, permanent delegates to the National Council of Provinces, members of the Cabinet, Deputy Ministers, traditional leaders and members of any councils of traditional leaders; and
(b) the upper limit of salaries, allowances or benefits of members of provincial legislatures, members of Executive Councils and members of Municipal Councils of the different categories.
(2) National legislation must establish an independent commission to make recommendations concerning the salaries, allowances and benefits referred to in subsection.
(3) Parliament may pass the legislation referred to in subsection (1) only after considering any recommendations of the commission established in terms of subsection (2).
(4) The national executive, a provincial executive, a municipality or any other relevant authority may implement the national legislation referred to in subsection (1) only after considering any recommendations of the commission established in terms of subsection (2).
(5) National legislation must establish frameworks for determining the salaries, allowances and benefits of judges, the Public Protector, the Auditor-General, and members of any commission provided for in the Constitution, including the broadcasting authority referred to in section 192.
(1) There is a Financial and Fiscal Commission for the Republic which makes recommendations envisaged in this Chapter, or in national legislation, to Parliament, provincial legislatures and any other authorities determined by national legislation.
(2) The Commission is independent and subject only to the Constitution and the law, and must be impartial.
(3) The Commission must function in terms of an Act of Parliament and, in performing its functions, must consider all relevant factors, including those listed in section 214 (2).
(1) The Commission consists of the following women and men appointed by the President, as head of the national executive:
(a) A chairperson and deputy chairperson;
(b) three persons selected, after consulting the Premiers, from a list compiled in accordance with a process prescribed by national legislation;
(c) two persons selected, after consulting organised local government, from a list compiled in accordance with a process prescribed by national legislation; and
(d) two other persons.
(1A) National legislation referred to in subsection (1) must provide for the participation of-
(a) the Premiers in the compilation of a list envisaged in subsection (1) (b); and
(b) organised local government in the compilation of a list envisaged in subsection (1) (c).
(2) Members of the Commission must have appropriate expertise.
(3) Members serve for a term established in terms of national legislation. The President may remove a member from office on the ground of misconduct, incapacity or incompetence.
The Commission must report regularly both to Parliament and to the provincial legislatures.
The South African Reserve Bank is the central bank of the Republic and is regulated in terms of an Act of Parliament.
(1) The primary object of the South African Reserve Bank is to protect the value of the currency in the interest of balanced and sustainable economic growth in the Republic.
(2) The South African Reserve Bank, in pursuit of its primary object, must perform its functions independently and without fear, favour or prejudice, but there must be regular consultation between the Bank and the Cabinet member responsible for national financial matters.
The powers and functions of the South African Reserve Bank are those customarily exercised and performed by central banks, which powers and functions must be determined by an Act of Parliament and must be exercised or performed subject to the conditions prescribed in terms of that Act.
(1) There is a Provincial Revenue Fund for each province into which all money received by the provincial government must be paid, except money reasonably excluded by an Act of Parliament.
(2) Money may be withdrawn from a Provincial Revenue Fund only-
(a) in terms of an appropriation by a provincial Act; or
(b) as a direct charge against the Provincial Revenue Fund, when it is provided for in the Constitution or a provincial Act.
(3) Revenue allocated through a province to local government in that province in terms of section 214 (1), is a direct charge against that province's Revenue Fund.
(4) National legislation may determine a framework within which-
(a) a provincial Act may in terms of subsection (2) (b) authorise the withdrawal of money as a direct charge against a Provincial Revenue Fund; and
(b) revenue allocated through a province to local government in that province in terms of subsection (3) must be paid to municipalities in the province.
[Date of commencement of section 226: 1 January 1998.]
(1) Local government and each province-
(a) is entitled to an equitable share of revenue raised nationally to enable it to provide basic services and perform the functions allocated to it; and
(b) may receive other allocations from national government revenue, either conditionally or unconditionally.
(2) Additional revenue raised by provinces or municipalities may not be deducted from their share of revenue raised nationally, or from other allocations made to them out of national government revenue. Equally, there is no obligation on the national government to compensate provinces or municipalities that do not raise revenue commensurate with their fiscal capacity and tax base.
(3) A province's equitable share of revenue raised nationally must be transferred to the province promptly and without deduction, except when the transfer has been stopped in terms of section 216.
(4) A province must provide for itself any resources that it requires, in terms of a provision of its provincial constitution, that are additional to its requirements envisaged in the Constitution.
[Date of commencement of section 227: 1 January 1998.]
(1) A provincial legislature may impose-
(a) taxes, levies and duties other than income tax, value-added tax, general sales tax, rates on property or customs duties; and
(b) flat-rate surcharges on any tax, levy or duty that is imposed by national legislation, other than on corporate income tax, value-added tax, rates on property or customs duties.
(2) The power of a provincial legislature to impose taxes, levies, duties and surcharges-
(a) may not be exercised m a way that materially and unreasonably prejudices national economic policies, economic activities across provincial boundaries, or the national mobility of goods, services, capital or labour; and
(b) must be regulated in terms of an Act of Parliament, which may be enacted only after any recommendations of the Financial and Fiscal Commission have been considered.
[Date of commencement of section 228: 1 January 1998.]
(1) Subject to subsections (2), (3) and (4), a municipality may impose-
(a) rates on property and surcharges on fees for services provided by or on behalf of the municipality; and
(b) if authorised by national legislation, other taxes, levies and duties appropriate to local government or to the category of local government into which that municipality falls, but no municipality may impose income tax, value-added tax, general sales tax or customs duty.
(2) The power of a municipality to impose rates on property, surcharges on fees for services provided by or on behalf of the municipality, or other taxes, levies or duties-
(a) may not be exercised in a way that materially and unreasonably prejudices national economic policies, economic activities across municipal boundaries, or the national mobility of goods, services, capital or labour; and
(b) may be regulated by national legislation.
(3) When two municipalities have the same fiscal powers and functions with regard to the same area, an appropriate division of those powers and functions must be made in terms of national legislation. The division may be made only after taking into account at least the following criteria:
(a) The need to comply with sound principles of taxation.
(b) The powers and functions performed by each municipality.
(c) The fiscal capacity of each municipality.
(d) The effectiveness and efficiency of raising taxes, levies and duties.
(e) Equity.
(4) Nothing in this section precludes the sharing of revenue raised in terms of this section between municipalities that have fiscal power and functions in the same area.
(5) National legislation envisaged in this section may be enacted only after organised local government and the Financial and Fiscal Commission have been consulted, and any recommendations of the Commission have been considered.
[Date of commencement of section 229: 1 January 1998.]
(1) A province may raise loans for capital or current expenditure in accordance with national legislation, but loans for current expenditure may be raised only when necessary for bridging purposes during a fiscal year.
(2) National legislation referred to in subsection (1) may be enacted only after any recommendations of the Financial and Fiscal Commission have been considered.
[Date of commencement of section 230: 1 January 1998.]
230A Municipal loans
(1) A Municipal Council may, in accordance with national legislation-
(a) raise loans for capital or current expenditure for the municipality, but loans for current expenditure may be raised only when necessary for bridging purposes during a fiscal year; and
(b) bind itself and a future Council in the exercise of its legislative and executive authority to secure loans or investments for the municipality.
(2) National legislation referred to in subsection (1) may be enacted only after any recommendations of the Financial and Fiscal Commission have been considered.
(1) The negotiating and signing of all international agreements is the responsibility of the national executive.
(2) An international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces, unless it is an agreement referred to in subsection (3).
(3) An international agreement of a technical, administrative or executive nature, or an agreement which does not require either ratification or accession, entered into by the national executive, binds the Republic without approval by the National Assembly and the National Council of Provinces, but must be tabled in the Assembly and the Council within a reasonable time.
(4) Any international agreement becomes law in the Republic when it is enacted into law by national legislation; but a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.
(5) The Republic is bound by international agreements which were binding on the Republic when this Constitution took effect.
Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.
When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.
In order to deepen the culture of democracy established by the Constitution, Parliament may adopt Charters of Rights consistent with the provisions of the Constitution.
The right of the South African people as a whole to self-determination, as manifested in this Constitution, does not preclude, within the framework of this right, recognition of the right of self-determination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way, determined by national legislation.
To enhance multi-party democracy, national legislation must provide for the funding of political parties participating in national and provincial legislatures on an equitable and proportional basis.
All constitutional obligations must be performed diligently and without delay.
An executive organ of state in any sphere of government may-
(a) delegate any power or function that is to be exercised or performed in terms of legislation to any other executive organ of state, provided the delegation is consistent with the legislation in terms of which the power is exercised or the function is performed; or
(b) exercise any power or perform any function for any other executive organ of state on an agency or delegation basis.
In the Constitution, unless the context indicates otherwise-
'national legislation' includes-
(a) subordinate legislation made in terms of an Act of Parliament; and
(b) legislation that was in force when the Constitution took effect and that is administered by the national government;
'organ of state' means-
(a) any department of state or administration in the national, provincial or local sphere of government; or
(b) any other functionary or institution-
(i) exercising a power or performing a function in terms of the Constitution or a provincial constitution; or
(ii) exercising a public power or performing a public function in terms of any legislation,
but does not include a court or a judicial officer;
'provincial legislation' includes-
(a) subordinate legislation made in terms of a provincial Act; and
(b) legislation that was in force when the Constitution took effect and that is administered by a provincial government.
In the event of an inconsistency between different texts of the Constitution, the English text prevails.
Schedule 6 applies to the transition to the new constitutional order established by this Constitution, and any matter incidental to that transition.
The laws mentioned in Schedule 7 are repealed, subject to section 243 and Schedule 6.
(1) This Act is called the Constitution of the Republic of South Africa, 1996, and comes into effect as soon as possible on a date set by the President by proclamation, which may not be a date later than 1 July 1997.
(2) The President may set different dates before the date mentioned in subsection (1) in respect of different provisions of the Constitution.
(3) Unless the context otherwise indicates, a reference in a provision of the Constitution to a time when the Constitution took effect must be construed as a reference to the time when that provision took effect.
(4) If a different date is set for any particular provision of the Constitution in terms of subsection (2), any corresponding provision of the Constitution of the Republic of South Africa, 1993 (Act 200 of 1993), mentioned in the proclamation, is repealed with effect from the same date.
(5) Sections 213, 214, 215, 216, 218, 226, 227, 228, 229 and 230 come into effect on 1 January 1998, but this does not preclude the enactment in terms of this Constitution of legislation envisaged in any of these provisions before that date. Until that date any corresponding and incidental provisions of the Constitution of the Republic of South Africa, 1993, remain in force.
(1) The national flag is rectangular; it is one and a half times longer than it is wide.
(2) It is black, gold, green, white, chilli red and blue.
(3) It has a green Y-shaped band that is one fifth as wide as the flag. The centre lines of the band start in the top and bottom corners next to the flag post, converge in the centre of the flag, and continue horizontally to the middle of the free edge.
(4) The green band is edged, above and below in white, and towards the flag post end, in gold. Each edging is one fifteenth as wide as the flag.
(5) The triangle next to the flag post is black.
(6) The upper horizontal band is chilli red and the lower horizontal band is blue. These bands are each one third as wide as the flag.
Schedule 1A
GEOGRAPHICAL AREAS OF PROVINCES
The Province of the Eastern Cape
Map No. 3 of Schedule 1 to Notice 1998 of 2005
Map No. 6 of Schedule 2 to Notice 1998 of 2005
Map No. 7 of Schedule 2 to Notice 1998 of 2005
Map No. 8 of Schedule 2 to Notice 1998 of 2005
Map No. 9 of Schedule 2 to Notice 1998 of 2005
Map No. 10 of Schedule 2 to Notice 1998 of 2005
Map No. 11 of Schedule 2 to Notice 1998 of 2005
The Province of the Free State
Map No. 12 of Schedule 2 to Notice 1998 of 2005
Map No. 13 of Schedule 2 to Notice 1998 of 2005
Map No. 14 of Schedule 2 to Notice 1998 of 2005
Map No. 15 of Schedule 2 to Notice 1998 of 2005
Map No. 16 of Schedule 2 to Notice 1998 of 2005
The Province of Gauteng
[Demarcation of the Province of Gauteng amended by the Constitution Sixteenth Amendment Act of 2009.]
Map No. 4 in Notice 1490 of 2008
[Reference to Map No. 4 substituted by s. 1 (a) of the Constitution Sixteenth Amendment Act of 2009.]
Map No. 17 of Schedule 2 to Notice 1998 of 2005
Map No. 18 of Schedule 2 to Notice 1998 of 2005
Map No. 19 of Schedule 2 to Notice 1998 of 2005
Map No. 20 of Schedule 2 to Notice 1998 of 2005
Map No. 21 of Schedule 2 to Notice 1998 of 2005
The Province of KwaZulu-Natal
[Demarcation of the Province of KwaZulu-Natal substituted by the Constitution Thirteenth Amendment Act of 2007.]
Map No. 22 of Schedule 2 to Notice 1998 of 2005
Map No. 23 of Schedule 2 to Notice 1998 of 2005
Map No. 24 of Schedule 2 to Notice 1998 of 2005
Map No. 25 of Schedule 2 to Notice 1998 of 2005
Map No. 26 of Schedule 2 to Notice 1998 of 2005
Map No. 27 of Schedule 2 to Notice 1998 of 2005
Map No. 28 of Schedule 2 to Notice 1998 of 2005
Map No. 29 of Schedule 2 to Notice 1998 of 2005
Map No. 30 of Schedule 2 to Notice 1998 of 2005
Map No. 31 of Schedule 2 to Notice 1998 of 2005
Map No. 32 of Schedule 2 to Notice 1998 of 2005
The Province of Limpopo
Map No. 33 of Schedule 2 to Notice 1998 of 2005
Map No. 34 of Schedule 2 to Notice 1998 of 2005
Map No. 35 of Schedule 2 to Notice 1998 of 2005
Map No. 36 of Schedule 2 to Notice 1998 of 2005
Map No. 37 of Schedule 2 to Notice 1998 of 2005
The Province of Mpumalanga
Map No. 38 of Schedule 2 to Notice 1998 of 2005
Map No. 39 of Schedule 2 to Notice 1998 of 2005
Map No. 40 of Schedule 2 to Notice 1998 of 2005
The Province of the Northern Cape
Map No. 41 of Schedule 2 to Notice 1998 of 2005
Map No. 42 of Schedule 2 to Notice 1998 of 2005
Map No. 43 of Schedule 2 to Notice 1998 of 2005
Map No. 44 of Schedule 2 to Notice 1998 of 2005
Map No. 45 of Schedule 2 to Notice 1998 of 2005
The Province of North West
[Demarcation of the Province of North West amended by the Constitution Sixteenth Amendment Act of 2009.]
Map No. 5 in Notice 1490 of 2008
[Reference to Map No. 5 substituted by s. 1 (b) of the Constitution Sixteenth Amendment Act of 2009.]
Map No. 46 of Schedule 2 to Notice 1998 of 2005
Map No. 47 of Schedule 2 to Notice 1998 of 2005
Map No. 48 of Schedule 2 to Notice 1998 of 200
The Province of the Western Cape
Map No. 49 of Schedule 2 to Notice 1998 of 2005
Map No. 50 of Schedule 2 to Notice 1998 of 2005
Map No. 51 of Schedule 2 to Notice 1998 of 2005
Map No. 52 of Schedule 2 to Notice 1998 of 2005
Map No. 53 of Schedule 2 to Notice 1998 of 2005
Map No. 54 of Schedule 2 to Notice 1998 of 2005
1 Oath or solemn affirmation of President and Acting President
The President or Acting President, before the Chief Justice, or another judge designated by the Chief Justice, must swear/affirm as follows:
In the presence of everyone assembled here, and in full realisation of the high calling I assume as President/Acting President of the Republic of South Africa, I, A.B., swear/ solemnly affirm that I will be faithful to the Republic of South Africa, and will obey, observe, uphold and maintain the Constitution and all other law of the Republic; and I solemnly and sincerely promise that I will always-
promote all that will advance the Republic, and oppose all that may harm it;
protect and promote the rights of all South Africans;
discharge my duties with all my strength and talents to the best of my knowledge and ability and true to the dictates of my conscience;
do justice to all; and
devote myself to the well-being of the Republic and all of its people
(In the case of an oath: So help me God.)
2 Oath or solemn affirmation of Deputy President
The Deputy President, before the Chief Justice or another judge designated by the Chief Justice, must swear/affirm as follows:
In the presence of everyone assembled here, and in full realisation of the high calling I assume as Deputy President of the Republic of South Africa, I, A.B., swear/solemnly affirm that I will be faithful to the Republic of South Africa and will obey, observe, uphold and maintain the Constitution and all other law of the Republic; and I solemnly and sincerely promise that I will always-
promote all that will advance the Republic, and oppose all that may harm it;
be a true and faithful counsellor;
discharge my duties with all my strength and talents to the best of my knowledge and ability and true to the dictates of my conscience;
do justice to all; and
devote myself to the well-being of the Republic and all of its people.
(In the case of an oath: So help me God.)
3 Oath or solemn affirmation of Ministers and Deputy Ministers
Each Minister and Deputy Minister, before the Chief Justice or another judge designated by the Chief Justice, must swear/affirm as follows
I, A.B., swear/solemnly affirm that I will be faithful to the Republic of South Africa and will obey, respect and uphold the Constitution and all other law of the Republic; and I undertake to hold my office as Minister/Deputy Minister with honour and dignity; to be a true and faithful counsellor; not to divulge directly or indirectly any secret matter entrusted to me; and to perform the functions of my office conscientiously and to the best of my ability.
(In the case of an oath: So help me God.),
4 Oath or solemn affirmation of members of the National Assembly, permanent delegates to the National Council of Provinces and members of the provincial legislatures
(1) Members of the National Assembly, permanent delegates to the National Council of Provinces and members of provincial legislatures, before the Chief Justice or a judge designated by the Chief Justice, must swear or affirm as follows:
I, A.B., swear/solemnly affirm that I will be faithful to the Republic of South Africa and will obey, respect and uphold the Constitution and all other law of the Republic; and I solemnly promise to perform my functions as a member of the National Assembly/ permanent delegate to the National Council of Provinces/member of the legislature of the province of C.D. to the best of my ability.
(In the case of an oath: So help me God.)
(2) Persons filling a vacancy in the National Assembly, a permanent delegation to the National Council of Provinces or a provincial legislature may swear or affirm in terms of subitem (1) before the presiding officer of the Assembly, Council or legislature, as the case may be.
5 Oath or solemn affirmation of Premiers, Acting Premiers and members of provincial Executive Councils
The Premier or Acting Premier of a province, and each member of the Executive Council of a province, before the Chief Justice or a judge designated by the Chief Justice, must swear/affirm as follows:
I, A.B., swear/solemnly affirm that I will be faithful to the Republic of South Africa and will obey, respect and uphold the Constitution and all other law of the Republic; and I undertake to hold my office as Premier/Acting Premier/ member of the Executive Council of the province of C.D. with honour and dignity; to be a true and faithful counsellor; not to divulge directly or indirectly any secret matter entrusted to me; and to perform the functions of my office conscientiously and to the best of my ability.
(In the case of an oath: So help me God.)
6 Oath or solemn affirmation of Judicial Officers
(1) Each judge or acting judge, before the Chief Justice or another judge designated by the Chief Justice, must swear or affirm as follows:
I, A.B., swear/solemnly affirm that, as a Judge of the Constitutional Court/Supreme Court of Appeal/High Court/ E.F. Court, I will be faithful to the Republic of South Africa, will uphold and protect the Constitution and the human rights entrenched in it, and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law.
(In the case of an oath: So help me God.)
(2) A person appointed to the office of Chief Justice who is not already a judge at the time of that appointment must swear or affirm before the Deputy Chief Justice, or failing that judge, the next most senior available judge of the Constitutional Court.
(3) Judicial officers, and acting judicial officers, other than judges, must swear/affirm in terms of national legislation.
The procedure see out in this Schedule applies whenever-
(a) the National Assembly meets to elect the President, or the Speaker or Deputy Speaker of the Assembly;
(b) the National Council of Provinces meets to elect its Chairperson or a Deputy Chairperson; or ;
(c) a provincial legislature meets to elect the Premier of the province or the Speaker or Deputy Speaker of the legislature.
The person presiding at a meeting to which this Schedule applies must call for the nomination of candidates at the meeting.
(1) A nomination must be made on the form prescribed by the rules mentioned in item 9.
(2) The form on which a nomination is made must be signed-
(a) by two members of the National Assembly, if the President or the Speaker or Deputy Speaker of the Assembly is to be elected;
(b) on behalf of two provincial delegations, if the Chairperson or a Deputy Chairperson of the National Council of Provinces is to be elected; or
(c) by two members of the relevant provincial legislature, if the Premier of the province or the Speaker or Deputy Speaker of the legislature is to be elected.
(3) A person who is nominated must indicate acceptance of the nomination by signing either the nomination form or any other form of written confirmation.
At a meeting to which this Schedule applies, the person presiding must announce the names of the persons who have been nominated as candidates, but may not permit any debate.
If only one candidate is nominated, the person presiding must declare that candidate elected.
If more the one candidate is nominated-
(a) a vote must be taken at the meeting by secret ballot;
(b) each member present, or if it is a meeting of the National Council of Provinces each province represented, at the meeting may cast one vote; and
(c) the person presiding must declare elected the candidate who receives a majority of the votes.
(1) If no candidate receives a majority of the votes, the candidate who receives the lowest number of votes must be eliminated and a further vote taken on the remaining candidates in accordance with item 6. This procedure must be repeated until a candidate receives a majority of the votes.
(2) When applying subitem (1), if two or more candidates each have the lowest number of votes, a separate vote must be taken on those candidates, and repeated as often as may be necessary to determine which candidate is to be eliminated.
(1) If only two candidates are nominated, or if only two candidates remain after an elimination procedure has been applied, and those two candidates receive the same number of votes, a further meeting must be held within seven days, at a time determined by the person presiding.
(2) If a further meeting is held in terms of subitem (1), the procedure prescribed in this Schedule must be applied at that meeting as if it were the first meeting for the election in question.
[Item 9 substituted by s. 19 of the Constitution Sixth Amendment Act of 2001.]
The previous text:
" (1) The President of the Constitutional Court must make rules prescribing-
(a) the procedure for meetings to which this Schedule applies;
(b) the duties of any person presiding at a meeting, and of any person assisting the person presiding;
(c) the form on which nominations must be submitted; and
(d) the manner in which voting is to be conducted.
(2) These rules must be made known in the way that the President of the Constitutional Court determines."
9 Rules
(1) The Chief Justice must make rules prescribing-
(a) the procedure for meetings to which this Schedule applies;
(b) the duties of any person presiding at a meeting, and of any person assisting the person presiding;
(c) the form on which nominations must be submitted; and
(d) the manner in which voting is to be conducted.
(2) These Rules must be made known in the way that the Chief Justice determines.
1. The number of delegates in a provincial delegation to the National Council of Provinces to which a party is entitled, must be determined by multiplying the number of seats the party holds in the provincial legislature by ten and dividing the result by the number of seats in the legislature plus one.
2. If a calculation in terms of item 1 yields a surplus not absorbed by the delegates allocated to a party in terms of that item, the surplus must compete with similar surpluses accruing to any other party or parties, and any undistributed delegates in the delegation must be allocated to the party or parties in the sequence of the highest surplus.
3. If the competing surpluses envisaged in item 2 are equal, the undistributed delegates in the delegation must be allocated to the party or parties with the same surplus in the sequence from the highest to the lowest number of votes that have been recorded for those parties during the last election for the provincial legislature concerned.
4. If more than one party with the same surplus recorded the same number of votes during the last election for the provincial legislature concerned, the legislature concerned most allocate the undistributed delegates in the delegation to the party or parties with the same surplus in a manner which is consistent with democracy.
Administration of indigenous forests
Agriculture
Airports other than international and national airports
Animal control and diseases
Casinos, racing, gambling and wagering, excluding lotteries and sports pools
Consumer protection
Cultural matters
Disaster management
Education at all levels, excluding tertiary education
Environment
Health services
Housing
Indigenous law and customary law, subject to Chapter 12 of the Constitution
Industrial promotion
Language policy and the regulation of official languages to the extent that the provisions of section 6 of the Constitution expressly confer upon the provincial legislatures legislative competence
Media services directly controlled or provided by the provincial government, subject to section 192
Nature conservation, excluding national parks, national botanical gardens and marine resources
Police to the extent that the provisions of Chapter 11 of the Constitution confer upon the provincial legislatures legislative competence
Pollution control
Population development
Property transfer fees
Provincial public enterprises in respect of the functional areas in this Schedule and Schedule 5
Public transport
Public works only in respect of the needs of provincial government departments in the discharge of their responsibilities to administer functions specifically assigned to them in terms of the Constitution or any other law
Regional planning and development
Road traffic regulation
Soil conservation
Tourism
Trade
Traditional leadership, subject to Chapter ter 12 of the Constitution
Urban an rural development
Vehicle licensing
Welfare services
The following local government matters to the extent set out in section 155 (6) (a) and (7):
Air pollution
Building regulations
Child care facilities
Electricity and gas reticulation
Firefighting services
Local tourism
Municipal airports
Municipal planning
Municipal health services
Municipal public transport
Municipal public works only in respect of the needs of municipalities in the discharge of their responsibilities to administer functions specifically assigned to them under this Constitution or any other law
Pontoons, ferries, jetties, piers and harbours, excluding the regulation of international and national shipping and matters related thereto
Stormwater management systems in built-up areas
Trading regulations
Water and sanitation services limited to potable water supply systems and domestic waste-water and sewage disposal systems
Abattoirs
Ambulance services
Archives other than national archives
Libraries other than national libraries
Liquor licences
Museums other than national museums
Provincial planning
Provincial cultural matters
Provincial recreation and amenities
Provincial sport
Provincial roads and traffic
Veterinary services, excluding regulation of the profession
The following local government matters to the extent set out for provinces in section 155 (6) (a) and (7):
Beaches and amusement facilities
Billboards and the display of advertisements in public places
Cemeteries, funeral parlours and crematoria
Cleansing
Control of public nuisances
Control of undertakings that sell liquor to the public
Facilities for the accommodation, care and burial of animals
Fencing and fences
Licensing of dogs
Licensing and control of undertakings that sell food to the public
Local amenities
Local sport facilities
Markets
Municipal abattoirs
Municipal parks and recreation
Municipal roads
Noise pollution
Pounds
Public places
Refuse removal, refuse dumps and solid waste disposal
Street trading
Street lighting
Traffic and parking
In this Schedule, unless inconsistent with the context-
'homeland' means a part of the Republic which, before the previous Constitution took effect, was dealt with in South African legislation as an independent or a self-governing territory;
'new Constitution' means the Constitution of the Republic of South Africa, 1996;
'old order legislation' means legislation enacted before the previous Constitution took effect;
'previous Constitution' means the Constitution of the Republic of South Africa, 1993 (Act 200 of 1993).
(1) All law that was in force when the new Constitution took effect, continues in force, subject to-
(a) any amendment or repeal; and
(b) consistency with the new Constitution.
(2) Old order legislation that continues in force in terms of subitem (1)-
(a) does not have a wider application, territorially or otherwise, than it had before the previous Constitution took effect unless subsequently amended to have a wider application; and
(b) continues to be administered by the authorities that administered it when the new Constitution took effect, subject to the new Constitution.
(1) Unless inconsistent with the context or clearly inappropriate, a reference in any legislation that existed when the new Constitution took effect-
(a) to the Republic of South Africa or a homeland (except when it refers to a territorial area), must be construed as a reference to the Republic of South Africa under the new Constitution;
(b) to Parliament, the National Assembly or the Senate, must be construed as a reference to Parliament, the National Assembly or the National Council of Provinces under the new Constitution;
(c) to the President, an Executive Deputy President, a Minister, a Deputy Minister or the Cabinet, must be construed as a reference to the President, the Deputy President, a Minister, a Deputy Minister o' the Cabinet under the new Constitution, subject to item 9 of this Schedule;
(d) to the President of the Senate, must be construed as a reference to the Chairperson of the National Council of Provinces;
(e) to a provincial legislature, Premier, Executive Council or member of an Executive Council of a province, must be construed as a reference to a provincial legislature, Premier, Executive Council or member of an Executive Council under the new Constitution, subject to item 12 of this Schedule; or
(f) to an official language or languages, must be construed as a reference to any of the official languages under the new Constitution.
(2) Unless inconsistent with the context or clearly inappropriate, a reference in any remaining old order legislation-
(a) to a Parliament, a House of a Parliament or a legislative assembly or body of the Republic or of a homeland, must be construed as a reference to-
(i) Parliament under the new Constitution, if the administration of that legislation has been allocated or assigned in terms of the previous Constitution or this Schedule to the national executive; or
(ii) the provincial legislature of a province, if the administration of that legislation has been allocated or assigned in terms of the previous Constitution or this Schedule to a provincial executive; or
(b) to a State President, Chief Minister, Administrator or other chief executive, Cabinet, Ministers' Council or executive council of the Republic or of a homeland, must be construed as a reference to-
(i) the President under the new Constitution, if the administration of that legislation has been allocated or assigned in terms of the previous Constitution or this Schedule to the national executive; or
(ii) the Premier of a province under the new Constitution, if the administration of that legislation has been allocated or assigned in terms of the previous Constitution or this Schedule to a provincial executive.
(1) Anyone who was a member or office-bearer of the National Assembly when the new Constitution took effect, becomes a member or office-bearer of the National Assembly under the new Constitution, and holds office as a member or office-bearer in terms of the new Constitution.
(2) The National Assembly as constituted in terms of subitem (1) must be regarded as having been elected under the new Constitution for a term that expires on 30 April 1999.
(3) The National Assembly consists of 400 members for the duration of its term that expires on 30 April 1999, subject to section 49 (4) of the new Constitution.
(4) The rules and orders of the National Assembly in force when the new Constitution took effect, continue in force, subject to any amendment or repeal.
(1) Any unfinished business before the National Assembly when the new Constitution takes effect must be proceeded with in terms of the new Constitution.
(2) Any unfinished business before the Senate when the new Constitution takes effect must be referred to the National Council of Provinces, and the Council must proceed with that business in terms of the new Constitution.
(1) No election of the National Assembly may be held before 30 April 1999 unless the Assembly is dissolved in terms of section 50 (2) after a motion of no confidence in the President in terms of section 102 (2) of the new Constitution.
(2) Section 50 (1) of the new Constitution is suspended until 30 April 1999.
(3) Despite the repeal of the previous Constitution, Schedule 2 to that Constitution, as amended by Annexure A to this Schedule, applies-
(a) to the first election of the National Assembly under the new Constitution;
(b) to the loss of membership of the Assembly in circumstances other than those provided for in section 47 (3) of the new Constitution; and
(c) to the filling of vacancies in the Assembly, and the supplementation, review and use of party lists for the filling of vacancies, until the second election of the Assembly under the new Constitution.
(4) Section 47 (4) of the new Constitution is suspended until the second election of the National Assembly under the new Constitution.
(1) For the period which ends immediately before the first sitting of a provincial legislature held after its first election under the new Constitution-
(a) the proportion of party representation in the province's delegation to the National Council of Provinces must be the same as the proportion in which the province's 10 senators were nominated in terms of section 48 of the previous Constitution; and
(b) the allocation of permanent delegates and special delegates to the parties represented in the provincial legislature, is as follows:
PROVINCE PERMANENT SPECIAL
DELEGATES DELEGATES
1. Eastern Cape ANC 5 ANC 4
NP 1
2. Free State ANC 4 ANC 4
FF1
NP 1
3. Gauteng ANC 3 ANC 3
DP 1
FF 1
NP 1 NP 1
4. KwaZulu-Natal ANC 1 ANC 2
DP 1
IFP 3 IFP 2
NP 1
5. Mpumalonga ANC 4 ANC 4
FF 1
NP 1
6. Northern Cape ANC 3 ANC 2
FF 1
NP 2 NP 2
7. Northern Province ANC 6 ANC 4
8. North West ANC 4 ANC 4
FF 1
NP 1
9 Western Cape ANC 2 ANC 1
DP 1
NP 3 NP 3
(2) A party represented in a provincial legislature-
(a) must nominate its permanent delegates from among the persons who were senators when the new Constitution took effect and are available to serve as permanent delegates; and
(b) may nominate other persons as permanent delegates only if none or an insufficient number of its former senators are available.
(3) A provincial legislature must appoint its permanent delegates in accordance with the nominations of the parties.
(4) Subitems (2) and (3) apply only to the first appointment of permanent delegates to the National Council of Provinces.
(5) Section 62 (1) of the new Constitution does not apply to the nomination and appointment of former senators as permanent delegates in terms of this item.
(6) The rules and orders of the Senate in force when the new Constitution took effect, must be applied in respect of the business of the National Council to the extent that they can be applied, subject to any amendment or repeal.
(1) A former senator who is not appointed as a permanent delegate to the National Council of Provinces is entitled to become a full voting member of the legislature of the province from which that person was nominated as a senator in terms of section 48 of the previous Constitution.
(2) If a former senator elects not to become a member of a provincial legislature that person is regarded as having resigned as a senator the day before the new Constitution took effect.
(3) The salary, allowances and benefits of a former senator appointed as a permanent delegate or as a member of a provincial legislature may not be reduced by reason only of that appointment.
(1) Anyone who was the President, an Executive Deputy President, a Minister or a Deputy Minister under the previous Constitution when the new Constitution took effect, continues in and holds that office in terms of the new Constitution, but subject to subitem (2).
(2) Until 30 April 1999, sections 84, 89, 90, 91, 93 and 96 of the new Constitution must be regarded to read as set out in Annexure B to this Schedule.
(3) Subitem (2) does not prevent a Minister who was a senator when the new Constitution took effect, from continuing as a Minister referred to in section 91 (1) (a) of the new Constitution, as that section reads in Annexure B.
(1) Anyone who was a member or office-bearer of a province's legislature when the new Constitution took effect, becomes a member or office-bearer of the legislature for that province under the new Constitution, and holds office as a member or office-bearer in terms of the new Constitution and any provincial constitution that may be enacted.
(2) A provincial legislature as constituted in terms of subitem (1) must be regarded as having been elected under the new Constitution for a term that expires on 30 April 1999.
(3) For the duration of its term that expires on 30 April 1999, and subject to section 108 (4), a provincial legislature consists of the number of members determined for that legislature under the previous Constitution plus the number of former senators who became members of the legislature in terms of item 8 of this Schedule.
(4) The rules and orders of a provincial legislature in force when the new Constitution took effect, continue in force, subject to any amendment or repeal.
(1) Despite the repeal of the previous Constitution, Schedule 2 to that Constitution, as amended by Annexure A to this Schedule, applies-
(a) to the first election of a provincial legislature under the new Constitution;
(b) to the loss of membership of a legislature in circumstances other than those provided for in section 106 (3) of the new Constitution; and
(c) to the filling of vacancies in a legislature, and the supplementation, review and use of party lists far the filling of vacancies, until the second election of the legislature under the new Constitution.
(2) Section 106 (4) of the new Constitution is suspended in respect of a provincial legislature until the second election of the legislature under the new Constitution.
(1) Anyone who was the Premier or a member of the Executive Council of a province when the new Constitution took effect, continues in and holds that office in terms of the new Constitution and any provincial constitution that may be enacted, but subject to subitem (2).
(2) Until the Premier elected after the first election of a province's legislature under the new Constitution assumes office, or the province enacts its constitution, whichever occurs first, sections 132 and 136 of the new Constitution must be regarded to read as set out in Annexure C to this Schedule.
A provincial constitution passed before the new Constitution took effect must comply with section 143 of the new Constitution.
(1) Legislation with regard to a matter within a functional area listed in Schedule 4 or 5 to the new Constitution and which, when the new Constitution took effect, was administered by an authority within the national executive, may be assigned by the President, by proclamation, to an authority within a provincial executive designated by the Executive Council of the province.
(2) To the extent that it is necessary for an assignment of legislation under subitem (1) to be effectively carried out, the President, by proclamation, may-
(a) amend or adapt the legislation to regulate its interpretation or application;
(b) where the assignment does not apply to the whole of any piece of legislation, repeal and re-enact, with or without any amendments or adaptations referred to in paragraph (a), those provisions to which the assignment applies or to the extent that the assignment applies to them; or
(c) regulate any other matter necessary as a result of the assignment, including the transfer or secondment of staff, or the transfer of assets, liabilities, rights and obligations, to or from the national or a provincial executive or any department of state, administration, security service or other institution.
(3) (a) A copy of each proclamation issued in terms of subitem (1) or (2) must be submitted to the National Assembly and the National Council of Provinces within 10 days of the publication of the proclamation.
(b) If both the National Assembly and the National Council by resolution disapprove the proclamation or any provision of it, the proclamation or provision lapses, but without affecting-
(i) the validity of anything done in terms of the proclamation or provision before it lapsed; or
(ii) a right or privilege acquired or an obligation or liability incurred before it lapsed.
(4) When legislation is assigned under subitem (1), any reference in the legislation to an authority administering it, must be construed as a reference to the authority to which it has been assigned.
(5) Any assignment of legislation under section 235 (8) of the previous Constitution, including any amendment, adaptation or repeal and re-enactment of any legislation and any other action taken under that section, is regarded as having been done under this item.
(1) An authority within the national executive that administers any legislation falling outside Parliament's legislative power when the new Constitution takes effect, remains competent to administer that legislation until it is assigned to an authority within a provincial executive in terms of item 14 of this Schedule.
(2) Subitem (1) lapses two years after the new Constitution took effect.
(1) Every court, including courts of traditional leaders, existing when the new Constitution took effect, continues to function and to exercise jurisdiction in terms of the legislation applicable to it, and anyone holding office as a judicial officer continues to hold office in terms of the legislation applicable to that office, subject to-
(a) any amendment or repeal of that legislation; and
(b) consistency with the new Constitution.
(2) (a) The Constitutional Court established by the previous Constitution becomes the Constitutional Court under the new Constitution.
(b)...
(3) (a) The Appellate Division of the Supreme Court of South Africa becomes the Supreme Court of Appeal under the new Constitution.
(b)...
(4) (a) A provincial or local division of the Supreme Court of South Africa or a supreme court of a homeland or a general division of such a court, becomes a High Court under the new Constitution without any alteration in its area of jurisdiction, subject to any rationalisation contemplated in subitem (6).
(b) Anyone holding office or deemed to hold office as the Judge President, the Deputy Judge President or a judge of a court referred to in paragraph (a) when the new Constitution takes effect, becomes the Judge President, the Deputy Judge President or a judge of such a court under the new Constitution, subject to any rationalisation contemplated in subitem (6).
(5) Unless inconsistent with the context or clearly inappropriate, a reference in any legislation or process to-
(a) the Constitutional Court under the previous Constitution, must be construed as a reference to the Constitutional Court under the new Constitution;
(b) the Appellate Division of the Supreme Court of South Africa, must be construed as a reference to the Supreme Court of Appeal; and
(c) a provincial or local division of the Supreme Court of South Africa or a supreme court of a homeland or general division of that court, must be construed as a reference to a High Court.
(6) (a) As soon as is practical after the new Constitution took effect all courts, including their structure, composition, functioning and jurisdiction, and all relevant legislation, must be rationalised with a view to establishing a judicial system suited to the requirements of the new Constitution.
(b) The Cabinet member responsible for the administration of justice, acting after consultation with the Judicial Service Commission, must manage the rationalisation envisaged in paragraph (a).
(7) (a) Anyone holding office, when the Constitution of the Republic of South Africa Amendment Act, 2001, takes effect, as-
(i) the President of the Constitutional Court, becomes the Chief Justice as contemplated in section 167 (1) of the new Constitution;
(ii) the Deputy President of the Constitutional Court, becomes the Deputy Chief Justice as contemplated in section 167
(1) of the new Constitution;
(iii) the Chief Justice, becomes the President of the Supreme Court of Appeal as contemplated in section 168 (1) of the new Constitution; and
(iv) the Deputy Chief Justice, becomes the Deputy President of the Supreme Court of Appeal as contemplated in section 168 (1) of the new Constitution.
(b) All rules, regulations or directions made by the President of the Constitutional Court or the Chief Justice in force immediately before the Constitution of the Republic of South Africa Amendment Act, 2001, takes effect, continue in force until repealed or amended.
(c) Unless inconsistent with the context or clearly inappropriate, a reference in any law or process to the Chief Justice or to the President of the Constitutional Court, must be construed as a reference to the Chief Justice as contemplated in section 167 (1) of the new Constitution.
All proceedings which were pending before a court when the new Constitution took effect, must be disposed of as if the new Constitution had not been enacted, unless the interests of justice require otherwise.
(1) Section 108 of the previous Constitution continues in force until the Act of Parliament envisaged in section 179 of the new Constitution takes effect. This subitem does not affect the appointment of the National Director of Public Prosecutions in terms of section 179.
(2) An attorney-general holding office when the new Constitution takes effect, continues to function in terms of the legislation applicable to that office, subject to subitem (1).
A person who continues in office in terms of this Schedule and who has taken the oath of office or has made a solemn affirmation under the previous Constitution, is not obliged to repeat the oath of office or solemn affirmation under the new Constitution.
(1) In this section 'constitutional institution' means-
(a) the Public Protector;
(b) the South African Human Rights Commission;
(c) the Commission on Gender Equality;
(d) the Auditor-General;
(e) the South African Reserve Bank;
(f) the Financial and Fiscal Commission;
(g) the Judicial Service Commission; or
(h) the Pan South African Language Board.
(2) A constitutional institution established in terms of the previous Constitution continues to function in terms of the legislation applicable to it, and anyone holding office as a commission member, a member of the board of the Reserve Bank or the Pan South African Language Board, the Public Protector or the Auditor-General when the new Constitution takes effect, continues to hold office in terms of the legislation applicable to that office, subject to-
(a) any amendment or repeal of that legislation; and
(b) consistency with the new Constitution.
(3) Sections 199 (1), 200 (1), (3) and (5) to (11) and 201 to 206 of the previous Constitution continue in force until repealed by an Act of Parliament passed in terms of section 75 of the new Constitution.
(4) The members of the Judicial Service Commission referred to in section 105 (1) (h) of the previous Constitution cease to be members of the Commission when the members referred to in section 178 (1) (i) of the new Constitution are appointed.
(5) (a) The Volkstaat Council established in terms of the previous Constitution continues to function in terms of the legislation applicable to it, and anyone holding office as a member of the Council when the new Constitution takes effect, continues to hold office in terms of the legislation applicable to that office, subject to-
(i) any amendment or repeal of that legislation; and
(ii) consistency with the new Constitution.
(b) Sections 184A and 184B (1) (a), (b) and (d) of the previous Constitution continue in force until repealed by an Act of Parliament passed in terms of section 75 of the new Constitution.
(1) Where the new Constitution requires the enactment of national or provincial legislation, that legislation must be enacted by the relevant authority within a reasonable period of the date the new Constitution took effect.
(2) Section 198 (b) of the new Constitution may not be enforced until the legislation envisaged in that section has been enacted.
(3) Section 199 (3) (a) of the new Constitution may not be enforced before the expiry of three months after the legislation envisaged in that section has been enacted.
(4) National legislation envisaged in section 217 (3) of the new Constitution must be enacted within three years of the date on which the new Constitution took effect, but the absence of this legislation during this period does not prevent the implementation of the policy referred to in section 217 (2).
(5) Until the Act of Parliament referred to in section 65 (2) of the new Constitution is enacted each provincial legislature may determine its own procedure in terms of which authority is conferred on its delegation to cast votes on its behalf in the National Council of Provinces.
(6) Until the legislation envisaged in section 229 (1) (b) of the new Constitution is enacted, a municipality remains competent to impose any tax, levy or duty which it was authorised to impose when the Constitution took effect.
(1) Notwithstanding the other provisions of the new Constitution and despite the repeal of the previous Constitution, all the provisions relating to amnesty contained in the previous Constitution under the heading 'National Unity and Reconciliation' are deemed to be part of the new Constitution for the purposes of the Promotion of National Unity and Reconciliation Act, 1995 (Act 34 of 1995), as amended, including for the purposes of its validity.
(2) For the purposes of subitem (1), the date '6 December 1993' where it appears in the provisions of the previous Constitution under the heading 'National Unity and Reconciliation', must be read as '11 May 1994'.
(1) National legislation envisaged in sections 9 (4), 32 (2) and 33 (3) of the new Constitution must be enacted within three years of the date on which the new Constitution took effect.
(2) Until the legislation envisaged in sections 32 (2) and 33 (3) of the new Constitution is enacted-
(a) section 32 (1) must be regarded to read as follows
'(1) Every person has the right of access to all information held by the state or any of its organs in any sphere of government in so far as that information is required for the exercise or protection of any of their rights. '; and
(b) section 33 (1) and (2) must be regarded to read as follows:
'Every person has the right to-
(a) lawful administrative action where any of their rights or interests is affected or threatened;
(b) procedurally fair administrative action where any of their rights or legitimate expectations is affected or threatened;
(c) be furnished with reasons in writing for administrative action which affects any of their rights or interests unless the reasons for that action have been made public; and
(d) administrative action which is justifiable in relation to the reasons given for it where any of their rights is affected or threatened.'.
(3) Sections 32 (2) and 33 (3) of the new Constitution lapse if the legislation envisaged in those sections, respectively, is not enacted within three years of the date the new Constitution took effect.
(1) Sections 82 (4) (b), 215, 218 (1), 219 (1), 224 to 228, 236 (1), (2), (3), (6), (7) (b) and (8), 237 (1) and (2) (a) and 239 (4) and (5) of the previous Constitution continue in force as if the previous Constitution had not been repealed, subject to-
(a) the amendments to those sections as set out in Annexure D;
(b) any further amendment or any repeal of those sections by an Act of Parliament passed in terms of section 75 of the new Constitution; and
(c) consistency with the new Constitution.
(2) The Public Service Commission and the provincial service commissions referred to in Chapter 13 of the previous Constitution continue to function in terms of that Chapter and the legislation applicable to it as if that Chapter had not been repealed, until the Commission and the provincial service commissions are abolished by an Act of Parliament passed in terms of section 75 of the new Constitution.
(3) The repeal of the previous Constitution does not affect any proclamation issued under section 237 (3) of the previous Constitution, and any such proclamation continues in force, subject to-
(a) any amendment or repeal; and
(b) consistency with the new Constitution
(1) Anyone who, when the new Constitution took effect, was serving a sentence in the Republic of more than 12 months' imprisonment without the option of a fine, is not eligible to be a member of the National Assembly or a provincial legislature.
(2) The disqualification of a person in terms of subitem (1)-
(a) lapses if the conviction is set aside on appeal, or the sentence is reduced on appeal to a sentence that does not disqualify that person; and
(b) ends five years after the sentence has been completed.
(1) Notwithstanding the provisions of sections 151, 155, 156 and 157 of the new Constitution-
(a) the provisions of the Local Government Transition Act, 1993 (Act 209 of 1993), as may be amended from time to time by national legislation consistent with the new Constitution, remain in force in respect of a Municipal Council until a Municipal Council replacing that Council has been declared elected as a result of the first general election of Municipal Councils after the commencement of the new Constitution; and
(b) a traditional leader of a community observing a system of indigenous law and residing on land within the area of a transitional local council, transitional rural council or transitional representative council, referred to in the Local Government Transition Act, 1993, and who has been identified as set out in section 182 of the previous Constitution, is ex officio entitled to be a member of that council until a Municipal Council replacing that council has been declared elected as a result of the first general election of Municipal Councils after the commencement of the new Constitution.
(2) Section 245 (4) of the previous Constitution continues in force until the application of that section lapses. Section 16 (5) and (6) of the Local Government Transition Act, 1993, may not be repealed before 30 April 2000.
Sections 82 and 124 of the new Constitution do not affect the safekeeping of Acts of Parliament or provincial Acts passed before the new Constitution took effect.
(1) On the production of a certificate by a competent authority that immovable property owned by the state is vested in a particular government in terms of section 239 of the previous Constitution, a registrar of deeds must make such entries or endorsements in or on any relevant register, title deed or other document to register that immovable property in the name of that government.
(2) No duty, fee or other charge is payable in respect of a registration in terms of subitem (1).
1. The replacement of item 1 with the following item:
'1. Parties registered in terms of national legislation and contesting an election of the National Assembly, shall nominate candidates for such election on lists of candidates prepared in accordance with this Schedule and national legislation.'.
2. The replacement of item 2 with the following item:
'2. The seats in the National Assembly as determined in terms of section 46 of the new Constitution, shall be filled as follows:
(a) One half of the seats from regional lists submitted by the respective parties, with a fixed number of seats reserved for each region as determined by the Commission for the next election of the Assembly, taking into account available scientifically based data in respect of voters, and representations by interested parties.
(b) The other half of the seats from national lists submitted by the respective parties, or from regional lists where national lists were not submitted.'.
3. The replacement of item 3 with the following item:
'3. The lists of candidates submitted by a party, shall in total contain the names of not more than a number of candidates equal to the number of seats in the National Assembly, and each such list shall denote such names in such fixed order of preference as the party may determine.'.
4. The amendment of item 5 by replacing the words preceding paragraph (a) with the following words:
'5. The seats referred to in item 2 (a) shall be allocated per region to the parties contesting an election, as follows:'.
5. The amendment of item 6-
(a) by replacing the words preceding paragraph (a) with the following words:
'6. The seats referred to in item 2 (b) shall be allocated to the parties contesting an election, as follows:'; and
(b) by replacing paragraph (a) with the following paragraph:
'(a) A quota of votes per seat shall be determined by dividing the total number of votes cast nationally by the number of seats in the National Assembly, plus one, and the result plus one, disregarding fractions, shall be the quota of votes per seat.'.
6. The amendment of item 7 (3) by replacing paragraph (b) with the following paragraph:
'(b) An amended quota of votes per seat shall be determined by dividing the total number of votes cast nationally, minus the number of votes cast nationally in favour of the party referred to in paragraph (a), by the number of seats in the Assembly, plus one, minus the number of seats finally allocated to the said party in terms of paragraph (a).'.
7. The replacement of item 10 with the following item:
'10. The number of seats in each provincial legislature shall be as determined in terms of section 105 of the new Constitution.'.
8. The replacement of item 11 with the following item:
'11. Parties registered in terms of national legislation and contesting an election of a provincial legislature, shall nominate candidates for election to such provincial legislature on provincial lists prepared in accordance with this Schedule and national legislation.'.
9. The replacement of item 16 with the following item:
'16 Designation of representatives
(1) After the counting of votes has been concluded, the number of representatives of each party has been determined and the election result has been declared in terms of section 190 of the new Constitution, the Commission shall, within two days after such declaration, designate from each list of candidates, published in terms of national legislation, the representatives of each party in the legislature.
(2) Following the designation in terms of subitem (1), if a candidate's name appears on more than one list for the National Assembly or on lists for both the National Assembly and a provincial legislature (if an election of the Assembly and a provincial legislature is held at the same time), and such candidate is due for designation as a representative in more than one case, the party which submitted such lists shall, within two days after the said declaration, indicate to the Commission from which list such candidate will be designated or in which legislature the candidate will serve, as the case may be, in which event the candidate's name shall be deleted from the other lists.
(3) The Commission shall forthwith publish the list of names of representatives in the legislature or legislatures.'.
10. The amendment of item 18 by replacing paragraph (b) with the following paragraph:
'(b) a representative is appointed as a permanent delegate to the National Council of Provinces;'.
11. The replacement of item 19 with the following item:
'19. Lists of candidates of a party referred to in item 16 (1) may be supplemented on one occasion only at any time during the first 12 months following the date on which the designation of representatives in terms of item 16 has been concluded, in order to fill casual vacancies: Provided that any such supplementation shall be made at the end of the list.'.
12. The replacement of item 23 with the following item:
'23 Vacancies
(1) In the event of a vacancy in a legislature to which this Schedule applies, the party which nominated the vacating member shall fill the vacancy by nominating a person-
(a) whose name appears on the list of candidates from which the vacating member was originally nominated; and
(b) who is the next qualified and available person on the list.
(2) A nomination to fill a vacancy shall be submitted to the Speaker in writing.
(3) If a party represented in a legislature dissolves or ceases to exist and the members in question vacate their seats in consequence of item 23A (1), the seats in question shall be allocated to the remaining parties mutatis mutandis as if such seats were forfeited seats in terms of item 7 or 14, as the case may be.'.
13. The insertion of the following item after item 23:
'23A Additional ground for loss of membership of legislatures
(1) A person loses membership of a legislature to which this Schedule applies if that person ceases to be a member of the party which nominated that person as a member of the legislature.
(2) Despite subitem (1) any existing political party may at any time change its name.
(3) An Act of Parliament may, within a reasonable period after the new Constitution took effect, be passed in accordance with section 76 (1) of the new Constitution to amend this item and item 23 to provide for the manner in which it will be possible for a member of a legislature who ceases to be a member of the party which nominated that member, to retain membership of such legislature.
(4) An Act of Parliament referred to in subitem (3) may also provide for-
(a) any existing party to merge with another party; or
(b) any party to subdivide into more than one party.'.
14. The deletion of item 24.
15. The amendment of item 25-
(a) by replacing the definition of 'Commission' with the following definition:
'Commission' means the Electoral Commission referred to in section 190 of the new Constitution;'; and
(b) by inserting the following definition after the definition of 'national list':
'new Constitution' means the Constitution of the Republic of South Africa, 1996;'.
16. The deletion of item 26.
1. Section 84 of the new Constitution is deemed to contain the following additional subsection:
'(3) The President must consult the Executive Deputy Presidents-
(a) in the development and execution of the policies of the national government;
(b) in all matters relating to the management of the Cabinet and the performance of Cabinet business;
(c) in the assignment of functions to the Executive Deputy Presidents;
(d) before making any appointment under the Constitution or any legislation, including the appointment of ambassadors or other diplomatic representatives;
(e) before appointing commissions of inquiry;
(f) before calling a referendum; and
(g) before pardoning or reprieving offenders.'.
2. Section 89 of the new Constitution is deemed to contain the following additional subsection:
'(3) Subsections (1) and (2) apply also to an Executive Deputy President.'.
3. Paragraph (a) of section 90 (1) of the new Constitution is deemed to read as follows.
'(a) an Executive Deputy President designated by the President;'.
4. Section 91 of the new Constitution is deemed to read as follows:
'91 Cabinet
(1) The Cabinet consists of the President, the Executive Deputy Presidents and-
(a) not more than 27 Ministers who are members of the National Assembly and appointed in terms of subsections (8) to (12); and
(b) not more than one Minister who is not a member of the National Assembly and appointed in terms of subsection (13), provided the President, acting in consultation with the Executive Deputy Presidents and the leaders of the participating parties, deems the appointment of such a Minister expedient.
(2) Each party holding at least 80 seats in the National Assembly is entitled to designate an Executive Deputy President from among the members of the Assembly.
(3) If no party or only one party holds 80 or more seats in the Assembly, the party holding the largest number of seats and the party holding the second largest number of seats are each entitled to designate one Executive Deputy President from among the members of the Assembly.
(4) On being designated, an Executive Deputy President may elect to remain or cease to be a member of the Assembly.
(5) An Executive Deputy President may exercise the powers and must perform the functions vested in the office of Executive Deputy President by the Constitution or assigned to that office by the President.
(6) An Executive Deputy President holds office-
(a) until 30 April 1999 unless replaced or recalled by the party entitled to make the designation in terms of subsections (2) and (3); or
(b) until the person elected President after any election of the National Assembly held before 30 April 1999, assumes office.
(7) A vacancy in the office of an Executive Deputy President may be filled by the party which designated that Deputy President.
(8) A party holding at least 20 seats in the National Assembly and which has decided to participate in the government of national unity, is entitled to be allocated one or more of the Cabinet portfolios in respect of which Ministers referred to in subsection (1) (a) are to be appointed, in proportion to the number of seats held by it in the National Assembly relative to the number of seats held by the other participating parties.
(9) Cabinet portfolios must be allocated to the respective participating parties in accordance with the following formula:
(a) A quota of seats per portfolio must be determined by dividing the total number of seats in the National Assembly held jointly by the participating parties by the number of portfolios in respect of which Ministers referred to in subsection (1) (a) are to be appointed, plus one.
(b) The result, disregarding third and subsequent decimals, if any, is the quota of seats per portfolio.
(c) The number of portfolios to be allocated to a participating party is determined by dividing the total number of seats held by that party in the National Assembly by the quota referred to in paragraph (b).
(d) The result, subject to paragraph (e), indicates the number of portfolios to be allocated to that party.
(e) Where the application of the above formula yields a surplus not absorbed by the number of portfolios allocated to a party, the surplus competes with other similar surpluses accruing to another party or parties, and any portfolio or portfolios which remain unallocated must be allocated to the party or parties concerned in sequence of the highest surplus.
(10) The President after consultation with the Executive Deputy Presidents and the leaders of the participating parties must-
(a) determine the specific portfolios to be allocated to the respective participating parties in accordance with the number of portfolios allocated to them in terms of subsection (9);
(b) appoint in respect of each such portfolio a member of the National Assembly who is a member of the party to which that portfolio was allocated under paragraph (a), as the Minister responsible for that portfolio;
(c) if it becomes necessary for the purposes of the Constitution or in the interest of good government, vary any determination under paragraph (a), subject to subsection (9);
(d) terminate any appointment under paragraph (b)-
(i) if the President is requested to do so by the leader of the party of which the Minister in question is a member; or
(ii) if it becomes necessary for the purposes of the Constitution or in the interest of good government; or
(e) fill, when necessary, subject to paragraph (b), a vacancy in the office of Minister.
(11) Subsection (10) must be implemented in the spirit embodied in the concept of a government of national unity, and the President and the other functionaries concerned must in the implementation of that subsection seek to achieve consensus at all times: Provided that if consensus cannot be achieved on-
(a) the exercise of a power referred to in paragraph (a), (c) or (d) (ii) of that subsection, the President's decision prevails;
(b) the exercise of a power referred to in paragraph (b), (d) (i) or (e) of that subsection affecting a person who is not a member of the President's party, the decision of the leader of the party of which that person is a member prevails; and
(c) the exercise of a power referred to in paragraph (b) or (e) of that subsection affecting a person who is a member of the President's party, the President's decision prevails.
(12 ) If any determination of portfolio allocations is varied under subsection (10) (c), the affected Ministers must vacate their portfolios but are eligible, where applicable, for reappointment to other portfolios allocated to their respective parties in terms of the varied determination.
(13) The President
(a) in consultation with the Executive Deputy Presidents and the leaders of the participating parties, must-
(i) determine a specific portfolio for a Minister referred to in subsection (1) (b) should it become necessary pursuant to a decision of the President under that subsection;
(ii) appoint in respect of that portfolio a person who is not a member of the National Assembly, as the Minister responsible for that portfolio; and
(iii) fill, if necessary, a vacancy in respect of that portfolio; or
(b) after consultation with the Executive Deputy Presidents and the leaders of the participating parties, must terminate any appointment under paragraph (a) if it becomes necessary for the purposes of the Constitution or in the interest of good government.
(14) Meetings of the Cabinet must be presided over by the President, or, if the President so instructs, by an Executive Deputy President: Provided that the Executive Deputy Presidents preside over meetings of the Cabinet in turn unless the exigencies of government and the spirit embodied in the concept of a government of national unity otherwise demand.
(15) The Cabinet must function in a manner which gives consideration to the consensus-seeking spirit embodied in the concept of a government of national unity as well as the need for effective government.'.
5. Section 93 of the new Constitution is deemed to read as follows:
'93 Appointment of Deputy Ministers
(1) The President may, after consultation with the Executive Deputy Presidents and the leaders of the parties participating in the Cabinet, establish deputy ministerial posts.
(2) A party is entitled to be allocated one or more of the deputy ministerial posts in the same proportion and according to the same formula that portfolios in the Cabinet are allocated.
(3) The provisions of section 91 (10) to (12) apply, with the necessary changes, in respect of Deputy Ministers, and in such application a reference in that section to a Minister or a portfolio must be read as a reference to a Deputy Minister or a deputy ministerial post, respectively.
(4) If a person is appointed as the Deputy Minister of any portfolio entrusted to a Minister-
(a) that Deputy Minister must exercise and perform on behalf of the relevant Minister any of the powers and functions assigned to that Minister in terms of any legislation or otherwise which may, subject to the directions of the President, be assigned to that Deputy Minister by that Minister; and
(b) any reference in any legislation to that Minister must be construed as including a reference to the Deputy Minister acting in terms of an assignment under paragraph (a) by the Minister for whom that Deputy Minister acts.
(5 Whenever a Deputy Minister is absent or for any reason unable to exercise or perform any of the powers or functions of office, the President may appoint any other Deputy Minister or any other person to act in the said Deputy Minister's stead, either generally or in the exercise or performance of any specific power or function.'.
6. Section 96 of the new Constitution is deemed to contain the following additional subsections:
'(3) Ministers are accountable individually to the President and to the National Assembly for the administration of their portfolios, and all members of the Cabinet are correspondingly accountable collectively for the performance of the functions of the national government and for its policies.
(4) Ministers must administer their portfolios in accordance with the policy determined by the Cabinet.
(5) If a Minister fails to administer the portfolio in accordance with the policy of the Cabinet, the President may require the Minister concerned to bring the administration of the portfolio into conformity with that policy.
(6) If the Minister concerned fails to comply with a requirement of the President under subsection (5), the President may remove the Minister from office-
(a) if it is a Minister referred to in section 91 (1) (a), after consultation with the Minister and, if the Minister is not a member of the President's party or is not the leader of a participating party, also after consultation with the leader of that Minister's party; or
(b) if it is a Minister referred to in section 91 (1) (b), after consultation with the Executive Deputy Presidents and the leaders of the participating parties.'.
1. Section 132 of the new Constitution is deemed to read as follows:
'132 Executive Councils
(1) The Executive Council of a province consists of the Premier and not more than 10 members appointed by the Premier in accordance with this section.
(2) A party holding at least 10 per cent of the seats in a provincial legislature and which has decided to participate in the government of national unity, is entitled to be allocated one or more of the Executive Council portfolios in proportion to the number of seats held by it in the legislature relative to the number of seats held by the other participating parties.
(3) Executive Council portfolios must be allocated to the respective participating parties according to the same formula set out in section 91 (9), and in applying that formula a reference in that section to-
(a) the Cabinet, must be read as a reference to an Executive Council;
(b) a Minister, must be read as a reference to a member of an Executive Council; and
(c) the National Assembly, must be read as a reference to the provincial legislature.
(4) The Premier of a province after consultation with the leaders of the participating parties must-
(a) determine the specific portfolios to be allocated to the respective participating parties in accordance with the number of portfolios allocated to them in terms of subsection (3);
(b) appoint in respect of each such portfolio a member of the provincial legislature who is a member of the party to which that portfolio was allocated under paragraph (a), as the member of the Executive Council responsible for that portfolio;
(c) if it becomes necessary for the purposes of the Constitution or in the interest of good government, vary any determination under paragraph (a), subject to subsection (3);
(d) terminate any appointment under paragraph (b)-
(i) if the Premier is requested to do so by the leader of the party of which the Executive Council member in question is a member; or
(ii) if it becomes necessary for the purposes of the Constitution or in the interest of good government;
(e) fill, when necessary, subject to paragraph (b), a vacancy in the office of a member of the Executive Council.
(5) Subsection (4) must be implemented in the spirit embodied in the concept of a government of national unity, and the Premier and the other functionaries concerned must in the implementation of that subsection seek to achieve consensus at all times: Provided that if consensus cannot be achieved on-
(a) the exercise of a power referred to in paragraph (a), (c) or (d) (ii) of that subsection, the Premier's decision prevails;
(b) the exercise of a power referred to in paragraph (b), (d) (i) or (e) of that subsection affecting a person who is not a member of the Premier's party, the decision of the leader of the party of which such person is a member prevails; and
(c) the exercise of a power referred to in paragraph (b) or (e) of that subsection affecting a person who is a member of the Premier's party, the Premier's decision prevails.
(6) If any determination of portfolio allocations is varied under subsection (4) (c), the affected members must vacate their portfolios but are eligible, where applicable, for reappointment to other portfolios allocated to their respective parties in terms of the varied determination.
(7) Meetings of an Executive Council must be presided over by the Premier of the province.
(8) An Executive Council must function in a manner which gives consideration to the consensus-seeking spirit embodied in the concept of a government of national unity, as well as the need for effective government.'.
2. Section 136 of the new Constitution is deemed to contain the following additional subsections:
'(3) Members of Executive Councils are accountable individually to the Premier and to the provincial legislature for the administration of their portfolios, and all members of the Executive Council are correspondingly accountable collectively for the performance of the functions of the provincial government and for its policies.
(4) Members of Executive Councils must administer their portfolios in accordance with the policy determined by the Council.
(5) If a member of an Executive Council fails to administer the portfolio in accordance with the policy of the Council, the Premier may require the member concerned to bring the administration of the portfolio into conformity with that policy.
(6) If the member concerned fails to comply with a requirement of the Premier under subsection (5), the Premier may remove the member from office after consultation with the member, and if the member is not a member of the Premier's party or is not the leader of a participating party, also after consultation with the leader of that member's party.'.
1. The amendment of section 218 of the previous Constitution-
(a) by replacing in subsection (1) the words preceding paragraph (a) with the following words:
'(1) Subject to the directions of the Minister of Safety and Security, the National Commissioner shall be responsible for-';
(b) by replacing paragraph (b) of subsection (1) with the following paragraph:
'(b) the appointment of provincial commissioners;';
(c) by replacing paragraph (d) of subsection (1) with the following paragraph:
'(d) the investigation and prevention of organised crime or crime which requires national investigation and prevention or specialised skills;'; and
(d) by replacing paragraph (k) of subsection (1) with the following paragraph:
'(k) the establishment and maintenance of a national public order policing unit to be deployed in support of and at the request of the Provincial Commissioner;'.
2. The amendment of section 219 of the previous Constitution by replacing in subsection (1) the words preceding paragraph (a) with the following words:
'(1) Subject to section 218 (1), a Provincial Commissioner shall be responsible for-'.
3. The amendment of section 224 of the previous Constitution by replacing the proviso to subsection (2) with the following proviso:
'Provided that this subsection shall also apply to members of any armed force which submitted its personnel list after the commencement of the Constitution of the Republic of South Africa, 1993 (Act 200 of 1993), but before the adoption of the new constitutional text as envisaged in section 73 of that Constitution, if the political organisation under whose authority and control it stands or with which it is associated and whose objectives it promotes did participate in the Transitional Executive Council or did take part in the first election of the National Assembly and the provincial legislatures under the said Constitution.'.
4. The amendment of section 227 of the previous Constitution by replacing subsection (2) with the following subsection:
'(2) The National Defence Force shall exercise its powers and perform its functions solely in the national interest in terms of Chapter 11 of the Constitution of the Republic of South Africa, 1996.'.
5. The amendment of section 236 of the previous Constitution-
(a) by replacing subsection (1) with the following subsection:
'(1) A public service, department of state, administration or security service which immediately before the commencement of the Constitution of the Republic of South Africa, 1996 (hereinafter referred to as 'the new Constitution'), performed governmental functions, continues to function in terms of the legislation applicable to it until it is abolished or incorporated or integrated into any appropriate institution or is rationalised or consolidated with any other institution.';
(b) by replacing subsection (6) with the following subsection:
'(6) (a) The President may appoint a commission to review the conclusion or amendment of a contract, the appointment or promotion, or the award of a term or condition of service or other benefit, which occurred between 27 April 1993 and 30 September 1994 in respect of any person referred to in subsection (2) or any class of such persons.
(b) The commission may reverse or alter a contract, appointment, promotion or award if not proper or justifiable in the circumstances of the case.'; and
(c) by replacing 'this Constitution', wherever this occurs in section 236, with 'the new Constitution'.
6. The amendment of section 237 of the previous Constitution-
(a) by replacing paragraph (a) of subsection (1) with the following paragraph:
'(a) The rationalisation of all institutions referred to in section 236 (1), excluding military forces referred to in section 224 (2), shall after the commencement of the Constitution of the Republic of South Africa, 1996, continue, with a view to establishing-
(i) an effective administration in the national sphere of government to deal with matters within the jurisdiction of the national sphere; and
(ii) an effective administration for each province to deal with matters within the jurisdiction of each provincial government.'; and
(b) by replacing subparagraph (i) of subsection (2) (a) with the following subparagraph:
'(i) institutions referred to in section 236 (1), excluding military forces, shall rest with the national government, which shall exercise such responsibility in co-operation with the provincial governments;'.
7. The amendment of section 239 of the previous Constitution by replacing subsection (4) with the following subsection:
'(4) Subject to and in accordance with any applicable law, the assets, rights, duties and liabilities of all forces referred to in section 224 (2) shall devolve upon the National Defence Force in accordance with the directions of the Minister of Defence.'.
Schedule 6A
[Schedule 6A inserted by s. 6 of the Constitution Tenth Amendment Act of 2003 and repealed by s. 6 of the Constitution Fourteenth Amendment Act of 2008.]
Schedule 6B
[Schedule 6B, previously Schedule 6A, inserted by s. 2 of the Constitution Eighth Amendment Act of 2002, amended by s. 5 of the Constitution Tenth Amendment Act of 2003, renumbered by s. 6 of the Constitution Tenth Amendment Act of 2003 and repealed by s. 5 of the Constitution Fifteenth Amendment Act of 2008.]
NUMBER AND TITLE
YEAR OF LAW
Act 200 of 1993 Constitution of the Republic of South Africa, 1993
Act 2 of 1994 Constitution of the Republic of South Africa Amendment Act,
1994
Act 3 of 1994 Constitution of the Republic of South Africa Second
Amendment Act, 1994
Act 13 of 1994 Constitution of the Republic of South Africa Third
Amendment Act, 1994
Act 14 of 1994 Constitution of the republic of South Africa Fourth
Amendment Act, 1994
Act 24 of 1994 Constitution of the Republic of South Africa Sixth
Amendment Act, 1994
Act 29 of 1994 Constitution of the Republic of South Africa Fifth Amendment
Act, 1994
Act 20 of 1995 Constitution of the Republic of South Africa Amendment Act,
1995
Act 44 of 1995 Constitution of the Republic of South Africa Second
Amendment Act, 1995
Act 7 of 1996 Constitution of the Republic of South Africa Amendment
Act, 1996
Act 26 of 1996 Constitution of the Republic of South Africa Third
Amendment Act, 1996
[a200y1993]
NOTE: The whole of this Act has been repealed by section 242 of the Constitution of the Republic of South Africa, Act 108 of 1996, a provision which will come into operation on a date to be fixed by the President by proclamation in the Gazette.
[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 Sixth Amendment Act 24 of 1994
Constitution of the Republic of South Africa Fifth Amendment Act 29 of 1994
Constitution of the Republic of South Africa Amendment Act 20 of 1995
Constitution of the Republic of South Africa Second Amendment Act 44 of 1995
Constitution of the Republic of South Africa Amendment Act 7 of 1996
Constitution of the Republic of South Africa Third Amendment Act 26 of 1996
also amended by
Constitution of the Republic of South Africa, Act 108 of 1996
[with effect from a date to be proclaimed - see PENDLEX]
ACT
To introduce a new Constitution for the Republic of South Africa and to provide for matters incidental thereto.
TABLE OF CONTENTS
Sections
CHAPTER 1 Constituent and Formal Provisions 1-4
CHAPTER 2 Citizenship and Franchise 5-6
CHAPTER 3 Fundamental Rights 7-35
CHAPTER 4 Parliament 36-67
- The National Assembly 40-47
- The Senate 48-54
- The National Assembly and the Senate 55-67
CHAPTER 5 The Adoption of the new Constitution 68-74
CHAPTER 6 The National Executive 75-95
CHAPTER 7 The Judicial Authority and the Administration of Justice 96-109
CHAPTER 8 The Public Protector, Human Rights Commission,
Commission on Gender Equality and Restitution of
Land Rights
- The Public Protector 110-114
- Human Rights Commission 115-118
- Commission on Gender Equality 119-120
- Restitution of Land Rights 121-123
CHAPTER 9 Provincial Government 124
- Provincial Legislative Authority 125-143
- Provincial Executive Authority 144-154
- Provincial Finance and Fiscal Affairs 155-159
- Provincial Constitutions 160-162
- Commission on Provincial Government 163-173
CHAPTER 10 Local Government 174-180
CHAPTER 11 Traditional Authorities 181-184
CHAPTER 11A Volkstaat Council 184A-184B
CHAPTER 12 Finance
- General Financial Affairs 185-190A
- Auditor-General 191-194
- South African Reserve Bank 195-197
- Financial and Fiscal Commission 198-206
- Commission on Remuneration of Representatives 207-208
CHAPTER 13 Public Service Commission and Public Service
- Public Service Commission 209-211
- The Public Service 212
- Provincial Service Commissions 213
CHAPTER 14 Police and Defence
- South African Police Service 214-223
-South African National Defence Force 224-228
[Heading amended by s. 13 of Act 44 of 1995]
CHAPTER 15 General and Transitional Provisions 229-251
SCHEDULE 1 Part 1: Definitions of Provinces
Part 2: Contentious Areas
SCHEDULE 2 System for 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
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:
(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.
(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.
Cases
(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.
Cases
(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.
Cases
(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.
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.]
Cases
Cases
(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.
Cases
(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.
Cases
Every person shall have the right to life.
Cases
Every person shall have the right to respect for and protection of his or her dignity.
Cases
(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.
Cases
No person shall be subject to servitude or forced labour.
Cases
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.
Cases
(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.
Cases
(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.
Every person shall have the right to assemble and demonstrate with others peacefully and unarmed, and to present petitions.
Cases
Every person shall have the right to freedom of association.
Every person shall have the right to freedom of movement anywhere within the national territory.
Every person shall have the right freely to choose his or her place of residence anywhere in the national territory.
Cases
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.
Cases
(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.
Cases
Every person shall have the right to have justiciable disputes settled by a court of law or, where appropriate, another independent and impartial forum.
Cases
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.
Cases
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.
Cases
(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;
(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.
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(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.
Cases
(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).
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(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.
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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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(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.
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Every person shall have the right to use the language and to participate in the cultural life of his or her choice.
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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.
Cases
(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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(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.
Cases
(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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Parliament shall consist of the National Assembly and the Senate.
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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.
(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).
(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.
(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.]
(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.
(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.]
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.
(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.
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.
(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.
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 National Assembly, other than the Speaker or other presiding member, shall be necessary to constitute a meeting of the National Assembly.
(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.
(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 President 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.
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.
(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).
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.
(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.
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.
(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.]
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.
(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.
(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.
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(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.
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(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.
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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.
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(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.
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.
(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.
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(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.
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.]
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.
Cases
(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.
(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.
(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.
Cases
(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.
(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 any matters pertaining to its functions, and to perform such other tasks as are provided for in this Constitution.
[Sub-s. (2) substituted by s. 1 of Act 24 of 1994.]
(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.
(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, subsections (1) and (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 be voted on within 14 days of the date on which it was submitted to the Constitutional Assembly, and may be passed in terms of subsection (2).
(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) within 14 days of the date of submission of the amended draft text by the panel or, if no amended draft text is submitted by the panel, within 44 days after the date of referral of the draft to the panel in terms of subsection (3).
(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, which shall be called within 14 days after certification by the Constitutional Court, and which shall be held within 90 days of the date on which the referendum is called.
(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, or any amended text, taking into account the reasons of the Constitutional Court, is not supported or approved in terms of subsection (3) or (5), or is not approved in the referendum, in accordance with subsection (8), the President shall dissolve Parliament by proclamation in the Gazette within 14 days after the date of the referendum or after the date on which the relevant text was not supported or approved in terms of subsection (3) or (5), 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.
[S. 73 substituted by s. 1 of Act 26 of 1996.]
(1) If the Constitutional Court finds that a draft of the new constitutional text passed by the Constitutional Assembly in accordance with section 73 (2) or approved by it in accordance with section 73 (5), does not comply with the Constitutional Principles, the Constitutional Court shall refer the draft text back to the Constitutional Assembly together with the reasons for its finding.
(2) The Constitutional Assembly shall within three months of the date of such referral pass an amended text in accordance with section 73 (2) or approve an amended text in accordance with section 73 (5), as the case may be, taking into account the reasons of the Constitutional Court.
(3) The amended text shall be referred to the Constitutional Court for certification in terms of section 71, whereupon the provisions of subsections (1) and (2) of this section again apply, except that the period of three months mentioned in subsection (2) is reduced to a period of one month.
(4) If, in the case of a draft text where section 73 (2) applies, the Constitutional Assembly fails to pass an amended text in accordance with section 73 (2) within the period prescribed in subsection (2) of this section, the provisions of section 73 (3) to (9) shall apply mutatis mutandis.
[S. 73A inserted by s. 2 of Act 26 of 1996.]
Cases
(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.
Cases
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.
The President shall be the Head of State.
(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.
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.
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.
[S. 79 substituted by s. 1 of Act 29 of 1994.]
(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.
Cases
(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.
Cases
(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;
(i) to negotiate and sign international agreements;
(j) to proclaim referenda and plebiscites in terms of this Constitution 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 South African National Defence Force.
[Para. (a) amended by s. 13 of Act 44 of 1995.]
(b) The President may-
(i) with the approval of Parliament, declare a state of national defence;
(ii) employ the South African National Defence Force in accordance with and subject to sections 227 and 228; and
[Sub-para. (ii) amended by s. 13 of Act 44 of 1995.]
(iii) confer upon members of the South African National Defence Force permanent commissions and cancel such commissions.
[Sub-para. (iii) amended by s. 13 of Act 44 of 1995.]
Cases
(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.
(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.
(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.
(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 1994.]
(4) An Acting President shall while acting as President have all the powers and functions vested in the office of 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.
(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) appoint in 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.]
(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).
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.
(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.
(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.]
(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.
(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.
(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.
Cases
Cases
(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.
(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.
Cases
(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.
(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.]
(12) (a) The President shall, at the request of the President of the Constitutional Court, appoint a Deputy President of the Constitutional Court from among the judges of that Court.
(b) A Deputy President of the Constitutional Court may be appointed for the duration of his or her term of office as a judge of the Constitutional Court or for such shorter period as the President may determine.
(c) A Deputy President of the Constitutional Court shall-
(i) in the absence of the President of the Constitutional Court, and if an Acting President of the Constitutional Court has not been appointed in terms of subsection (8), perform the functions of the President of the Constitutional Court; and
(ii) perform such other functions of the President of the Constituional COurt as he or she may assign to him or her.
[Sub-s. (12) added by s. 1 of Act 44 of 1995.]
Cases
(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.
(3) (a) Subject to the provisions of the Constitutional Court Complementary Act, 1995 (Act 13 of 1995), and the rules of the Constitutional Court, matters which come before the Court shall be heard and determined by the President of the Constituional Court and all the judges of the Court.
(b) Whenever a member of the Constitutional Court is absent or unable to perform his of her functions, or if a vacancy among the members of the Court arises, the remaining members of the Court may hear and determine any matter: Provided that no matter shall be heard and determined by less than eight members of the Court.
(c) If, at any stage of a hearing, a member of the Constitutional Court is absent or unable to perform his or her functions, or if a vacancy among the members of the Court arises-
(i) and the remaining members of the Court are not less than eight in number-
(aa) such hearing shall continue before the remaining members of the Court; and
(bb) the decision of the majority of the remaining members of the Court shall, if that majority is also a majority of the members of the Court before whom the hearing commenced, be the decision of the Court; or
(ii) and the remaining members of the Court are less than eight, or if the majority of the remaining members of the Court is not also a majority of the members of the Court before whom the hearing commenced, the proceedings shall be stoppoes and commenced de novo.
[Sub-s. (3) added by s. 2 of Act 44 of 1995.]
Cases
(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).
(7) Any division of the Supreme Court shall have jurisdiction to grant an interim interdict or similar relief, pending the determination by the Constitutional Court of any matter referred to in section 98 (2), notwithstanding that such interdict or releif might have the effect of suspending or otherwise interfering with the application of the provisions of an Act of Parliament.
[Sub-s. (7) added by s. 3 of Act 44 of 1995.]
Cases
(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.
Cases
(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.
Cases
(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.
(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 make recommendations 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.
Cases
(1) The seat of the Constitutional Court shall be Johannesburg.
(2) The seat of the Appellate Division of the Supreme Court shall be Bloemfontein.
(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.
Cases
(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.
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 directives in this regard are applied uniformly and properly, and to ensure that no victimization or improper influencing of magistrates occurs.
(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 and by s. 4 of Act 29 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.
(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.
(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.
(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.
(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.
(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 and by s. 5 of Act 29 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.
(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.
(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.
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.
(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.
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.]
Restitution of Land Rights (ss 121-123)
Cases
(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.
Cases
(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.
Cases
(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.
(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) Mpumalanga;
[Para. (b) amended by s. 13 of Act 44 of 1995.]
(c) KwaZulu/Natal;
[Para. (c) amended by s. 1 of Act 2 of 1994.]
(d) Northern Cape;
(e) Northern Province;
[Para. (e) amended by s. 3 of Act 20 of 1995.]
( f ) North-West;
(g) Free State;
[Para. (g) amended by s. 3 of Act 20 of 1995.]
(h) Gauteng; and
[Para. (h) amended by s. 3 of Act 44 of 1995.]
(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 subsection (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 Gauteng, or its inclusion in the provincial territory of Mpumalanga;
[Para. (b) amended by s. 3 of Act 20 of 1995 and by s. 13 of Act 44 of 1995.]
(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 Mpumalanga as the case may be;
[Sub-para. (i) amended by s. 1 of Act 2 of 1994 and by s. 13 of Act 44 of 1995.]
(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 Province, or its inclusion in the provincial territory of Mpumalanga;
[Para. (a) amended by s. 3 of Act 20 of 1995 and by s. 13 of Act 44 of 1995.]
(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 Mpumalanga, or its inclusion in the provincial territory of the Northern Province;
[Para. (c) amended by s. 3 of Act 20 of 1995 and by s. 13 of Act 44 of 1995.]
(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 Mpumalanga, or its inclusion in the provincial territory of Gauteng;
[Para. (e) amended by s. 3 of Act 20 of 1995 and by s. 13 of Act 44 of 1995.]
(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 Free State, or its inclusion in the provincial territory of Gauteng;
[Para. (f) amended by s. 3 of Act 20 of 1995.]
(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 Gauteng.
[Para. (j) amended by s. 3 of Act 20 of 1995.]
(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 a 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.
Cases
(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.
Cases
(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).
(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.]
(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.
(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.
(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.
(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.
(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.]
(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.
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.
(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.]
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.
(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.
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.
Save where otherwise required in this Constitution, all questions before a provincial legislature shall be determined by a majority of votes cast.
(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.
(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.
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.
(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) (a) A provincial legislature shall appoint a Secretary and such other staff as may be necessary for the discharge of the work of such legislature.
(b) Except in so far as may be otherwise determined by resolution of the provincial legislature concerned, any person who was prior to the date of commencement of the Constitution of the Republic of South Africa Second Amendment Act, 1995, appointed to the staff, or as the Secretary, of a provincial legislature, and who is at such commencement still serving as such, shall be deemed to have been appointed in accordance with paragraph (a).
[Sub-s. (2) substituted by s. 4 of Act 44 of 1995.]
(3) Persons appointed under this section shall be remunerated out of and as a charge on the Provincial Revenue Fund of the province.
Provincial Executive Authority (ss 144-154)
Cases
(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.
(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 such election 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.
(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.
(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.
(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.
Cases
(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 determined by the President.
[Sub-s. (10) substituted by s. 11 of Act 13 of 1994 and by s. 5 of Act 44 of 1995.]
(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.
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.
(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.
(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.
(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.
Cases
(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 therefrom.
[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. 3 (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.]
Cases
(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 no 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.]
(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.]
Cases
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.]
(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.
Cases
(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.
(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.
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.
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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
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.
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.
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.
Cases
(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.
(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.
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 or to a person in its employ: Provided further that section 177 shall apply mutatis mutandis to the appointment and functioning of a committee appointed for this purpose.
[Para. (b) amended by s. 6 of Act 44 of 1995.]
A council of a local government may elect an executive committee according to a system of proportional representation as may be prescribed by law from among its members 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.
[S. 177 amended by s. 1 of Act 7 of 1996.]
Cases
(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).
(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.
[Sub-s. (1) amended by s. 7 (a) of Act 44 of 1995.]
(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 disqualified from becoming a member of the National Assembly in terms of section 42 (1) (a), (b), (c) or (d);
[Para. (c) substituted by s. 7 (b) of Act 44 of 1995.]
(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.
An enforceable code of conduct for members and officials of local governments shall be provided for by law.
Cases
(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.
Cases
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, provided that he or she has been identified in a manner and according to guidelines prescribed by the President by proclamation in the Gazette after consultation with the Council of Traditional Leaders, if then in existence, or if not, with the Houses of Traditional Leaders which have then been established, and shall be eligible to be elected to any office of such local government.
[S. 182 substituted by s. 8 of Act 44 of 1995.]
(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.
Cases
(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, if it is passed by the House in which it was introduced after the chairperson and members of the Council have been elected and the Council has commenced its functions, and if the Council is then able to function, before it is passed by the other House, be referred by the Secretary to Parliament to the Council for its comments.
[Para. (a) substituted by s. 9 of Act 44 of 1995.]
(aA) If the Council is not in existence by 28 February 1996, any parliamentary Bill referred to in paragraph (a) shall, after having been passed by the House in which it was introduced, but before it is passed by the other House, be referred to those Houses contemplated in section 183 which have then been established, and the further provisions of this subsection shall then mutatis mutandis apply.
[Para. (aA) inserted by s. 9 of Act 44 of 1995.]
(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.
[Chapter 11A inserted by s. 9 of Act 2 of 1994.]
(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.]
(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.]
(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.]
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.
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.
(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.
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.
(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.]
(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.
(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.
(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.
(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.
The South African Reserve Bank, established and regulated by an Act of Parliament, shall be the central bank of the Republic.
(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.
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.
There is hereby established a Financial and Fiscal Commission.
(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.
(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.
(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.
(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.
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.
(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.
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.
(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.
(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.
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.
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.
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.
(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 South African National Defence Force referred to in section 226 (1).
[Sub-s. (8) amended by s. 13 of Act 44 of 1995.]
(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.
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.
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.
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.
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.
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);
[NB: Para. (b) has been substituted by Annexure D of Schedule 6 to the Constitution of the Republic of South Africa, Act 108 of 1996, a provision which will be put into operation by proclamation. See PENDLEX.]
(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;
[NB: Para. (d) has been substituted by Annexure D of Schedule 6 to the Constitution of the Republic of South Africa, Act 108 of 1996, a provision which will be put into operation by proclamation. See PENDLEX.]
(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;
[NB: Para. (k) has been substituted by Annexure D of Schedule 6 to the Constitution of the Republic of South Africa, Act 108 of 1996, a provision which will be put into operation by proclamation. See PENDLEX.]
(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
[Sub-para. (i) substituted by s. 6 of Act 29 of 1994.]
(ii) are appropriate for the National Commissioner to take responsibility for.
[NB: Sub-s (1) has been amended by Annexure D of Schedule 6 to the Constitution of the Republic of South Africa, Act 108 of 1996, a provision which will be put into operation by proclamation. See PENDLEX.]
(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.
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.
[NB: Sub-s. (1) has been amended by Annexure D of Schedule 6 to the Constitution of the Republic of South Africa, Act 108 of 1996, a provision which will be put into operation by proclamation. See PENDLEX.]
(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);
[Para. (b) substituted by s. 7 of Act 29 of 1994.]
(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.
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.
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.
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.
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.
[Heading amended by s. 13 of Act 44 of 1995.]
Establishment of South AfricanNational Defence Force
Cases
(1) The South African National Defence Force is hereby established as the only defence force for the Republic.
(2) The South African 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.
NB: Sub-s. (2) has been amended by Annexure D of Schedule 6 to the Constitution of the Republic of South Africa, Act 108 of 1996, a provision which will be put into operation by proclamation. See PENDLEX.]
(3) Save for the South African 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.
[S. 224 amended by s. 13 of Act 44 of 1995.]
Chief of South African National Defence Force and Secretary for Defence
(1) Subject to section 236 (1) and (2), the President shall appoint a Chief of the South African National Defence Force, who shall exercise military executive command of the South African National Defence Force, subject to the directions of the Minister responsible for defence and, during a state of national defence, of the President.
(2) The Minister responsible for defence may appoint a Secretary for Defence who shall exercise such powers and perform such duties as may be provided for in any law.
[S. 225 substituted by s. 10 of Act 44 of 1995.]
Members of South African National Defence Force
(1) The South African 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 South African 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 South African 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 South African 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 South African 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 South African 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.
[S. 226 amended by s. 13 of Act 44 of 1995.]
Functions of South African National Defence Force
(1) The South African 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 South African 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.
[NB: Sub-s. (2) has been substituted by Annexure D of Schedule 6 to the Constitution of the Republic of South Africa, Act 108 of 1996, a provision which will be put into operation by proclamation. See PENDLEX.]
(3) The employment for service, training, organisation and deployment of the South African National Defence Force shall be effected in accordance with the requirements of subsection (2).
[S. 227 amended by s. 13 of Act 44 of 1995.]
Accountability
(1) The Minister responsible for defence shall be accountable to Parliament for the South African National Defence Force.
[Sub-s. (1) amended by s. 13 of Act 44 of 1995.]
(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 South African National Defence Force and to perform such other functions relating to parliamentary supervision of the Force as may be prescribed by law.
[Para. (d) amended by s. 13 of Act 44 of 1995.]
(4) (a) The President shall, when the South African 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.
[Para. (a) amended by s. 13 of Act 44 of 1995.]
(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.
Cases
Continuation of existing laws
Cases
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.
Repeal of laws
Cases
(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.
Continuation of international agreements and status of international law
Cases
(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.
Interpretation
Cases
(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.
(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.
Definitions
Cases
(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);
'South African National Defence Force' means the Defence Force established by section 224 (1);
[Definition of `South African National Defence Force', previously `National Defence Force', amended by s. 13 of Act 44 of 1995.]
'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).
(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.
Transitional arrangements: Legislative authorities
Cases
(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.
Transitional arrangements: Executive authorities
Cases
(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.
(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 areas 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.
(7) (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.
(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.
Transitional arrangements: Public administration
Cases
(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).
[NB: Sub-s. (1) has been substituted by Annexure D of Schedule 6 to the Constitution of the Republic of South Africa, Act 108 of 1996, a provision which will be put into operation by proclamation. See PENDLEX.]
(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 between 27 April 1993 and 30 September 1994 in respect of any person employed at any time during the said period by an institution referred to in subsection (1), or any class of such persons, may, at the instance of any interested party, before 31 December 1996 be referred to a commission appointed by the President and presided over by a judge, for review, and if not proper or justifiable in the circumstances of the case, the commission may reverse or alter the contract, appointment, promotion or award before a date to be determined by the Minister for the Public Service and Administration.
[Sub-s. (6) substituted by s. 1 of Act 20 of 1995 and by s. 2 of Act 7 of 1996.]
[NB: Sub-s. (6) has been substituted by Annexure D of Schedule 6 to the Constitution of the Republic of South Africa, Act 108 of 1996, a provision which will be put into operation by proclamation. See PENDLEX.]
(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 South African 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 South African National Defence Force.
(c) If the number of the members of the South African 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 South African 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 South African 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 South African 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.
[Sub-s. (8) amended by s. 13 of Act 44 of 1995.]
Rationalisation of public administration
Cases
(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).
[NB: Para. (a) has been substituted by Annexure D of Schedule 6 to the Constitution of the Republic of South Africa, Act 108 of 1996, a provision which will be put into operation by proclamation. See PENDLEX.]
(b) All military forces referred to in section 224 (2) shall be rationalised for the purposes of the South African National Defence Force.
[Para. (b) amended by s. 13 of Act 44 of 1995.]
(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
[NB: Sub-para. (i) has been substituted by Annexure D of Schedule 6 to the Constitution of the Republic of South Africa, Act 108 of 1996, a provision which will be put into operation by proclamation. See PENDLEX.]
(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).
(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 South African National Defence Force.
[Sub-para. (ii) amended by s. 13 of Act 44 of 1995.]
(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-
(i) in respect of the South African National Defence Force, on 31 December 1998; and
[Sub-para. (i) amended by s. 13 of Act 44 of 1995.]
(ii) in respect of any other institution, two years from the commencement of this Constitution,
save that any matter properly before the court referred to in paragraph (a) on the dates contemplated in subparagraphs (i) and (ii), respectively, shall be heard and determined as if this subsection and the said Act had not lapsed.
[Para. (e) substituted by s. 2 of Act 20 of 1995.]
Transitional arrangements: Public service commissions
Cases
(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.
(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.
Transitional arrangements: Assets and liabilities
Cases
(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).
(3) (a) All debts and liabilities 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 authority shall be assumed by the national government.
(b) The debts and liabilites referred to in paragraph (a), shall be deemed to be State debt as defined in section 1 of the Exchequer Act, 1975 (Act 66 of 1975).
[Sub-s. (3) substituted by s. 11 of Act 44 of 1995.]
(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 South African National Defence Force.
[Sub-s. (4) amended by s. 13 of Act 44 of 1995.]
[NB: Sub-s. (4) has been substituted by Annexure D of Schedule 6 to the Constitution of the Republic of South Africa, Act 108 of 1996, a provision which will be put into operation by proclamation. See PENDLEX.]
(5) Anything done in terms of this section shall be subject to audit by the Auditor-General.
Transitional arrangements: State Revenue Fund
Cases
(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.
Transitional arrangements: Judiciary
Cases
(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.]
(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 judgespresident 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.
(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.
Rationalisation of court structures
Cases
(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.
Transitional arrangements: Ombudsman
Cases
(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-z][A-Z]), 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).
Transitional arrangements: Auditor-General
Cases
(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-z][A-Z]), 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.
Transitional arrangements: Local government
Cases
(1) Local government shall not be restructured otherwise than in terms of the Local Government Transition Act, 1993 (Act 209 of 1993), in respect of any area in which members of a district council, a metropolitan substructure, a transitional council, a transitional representative council or a transitional rural council as contemplated in the Local Government Transition Act, 1993, have not been elected in terms of that Act.
[Sub-s. (1) substituted by s. 3 (a) of Act 7 of 1996.]
(2) Restructuring of local government which takes place as a result of legislation enacted by a competent authority after an election contemplated in subsection (1) shall be effected in accordance with the principles embodied in Chapter 10 and the Constitution as a whole.
[Sub-s. (2) substituted by s. 3 (a) of Act 7 of 1996.]
(3) (a) For the purposes of the first election of members of a transitional local council or a transitional metropolitan substructure as referred to in the Local Government Transition Act, 1993, after the commencement of this Constitution, the area of jurisdiction of such transitional local council and transitional metropolitan substructure shall be divided into wards in accordance with that Act.
(b) Forty per cent of the members of a transitional local council and a transitional metropolitan substructure 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 Local Government Transition Act, 1993, and sixty per cent of the members shall be elected to represent wards as contemplated in paragraph (a): Provided that-
(i) if such wards are represented by more than one member, all such wards shall be represented by the same number of members; and
(ii) notwithstanding anything to the contrary contained in this Constitution, where the area of jurisdiction of the transitional local council or transitional metropolitan substructure includes-
(aa) 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
(bb) any other area not falling within the area of jurisdiction of the institution or body referred to in item (aa),
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.
(4) Until a period of not less than three years has elapsed from the date on which the members of a district council, a metropolitan substructure, a transitional council, a transitional representative council or a transitional rural council as contemplated in the Local Government Transition Act, 1993, have been elected in terms of that Act, such council or substructure, as the case may be, shall not be disestablished and no change shall be made to the powers, area of jurisdiction, wards or number of seats thereof except in accordance with an Act of Parliament further regulating the local government transition process or by way of proclamation in the Provincial Gazette by the Premier of a province acting in consultation with the Minister for Provincial Affairs and Constitutional Development.
[Sub-s. (4) added by s. 3 (b) of Act 7 of 1996.]
[S. 245 amended by s. 9 of Act 29 of 1994 and substituted by s. 12 of Act 44 of 1995.]
Transitional arrangements: Pensions of political office-bearers
Cases
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.
Special provisions regarding existing educational institutions
Cases
(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.
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.]
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.]
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.
Short title and commencement
Cases
(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 the commencement of such provision.
National Unity and Reconciliation
Cases
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 amended by s. 11 (a) of Act 2 of 1994.]
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
(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:
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.
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.
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.
[Heading amended by s. 3 of Act 20 of 1995.]
(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
(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.
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
(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
(12) Only those areas as described in Proclamation R. 98 of 30 June 1989
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* Stockenström (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
(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
[Heading amended by s. 13 of Act 44 of 1995.]
(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:
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.
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.
(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.
[Heading amended by s. 3 of Act 20 of 1995.]
(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
(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)
[Heading amended by s. 3 of Act 20 of 1995.]
Districts created in terms of the Magistrates' Courts Act, 1944 (Act 32 of 1944)
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
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
(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, Lusikisiki, Mt Ayliff, Mt Frere, Mt Fletcher, Matatiele and Tabankulu districts of Transkei, as they were defined on 26 October 1976.
[Para. (d) substituted by s. 11 (b) of Act 2 of 1994.]
(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 Gauteng
[Para. (f) amended by s. 3 of Act 20 of 1995.]
&n