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Constitution
of the Republic of South Africa, 1996
Preamble
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.
Chapter 1
- Founding Provisions
1. Republic of South Africa
The Republic of South Africa is one, sovereign, democratic state
founded on the following values:
Human dignity, the achievement of
equality and the advancement of human rights and freedoms.
Non-racialism and non-sexism.
Supremacy of the constitution and
the rule of law.
Universal adult suffrage, a national common voters roll,
regular elections and a multi-party system of democratic
government,
to ensure accountability, responsiveness and openness.
2. Supremacy of Constitution
This Constitution is the supreme law of the Republic; law or
conduct inconsistent with it is invalid, and the obligations imposed
by it must be fulfilled.
3. Citizenship
There is a common South African citizenship.
All citizens are
equally entitled to the rights,
privileges and benefits of citizenship; and
equally subject to the duties and responsibilities of
citizenship.
National legislation must provide for the acquisition, loss
and restoration of citizenship.
4. National anthem
The national
anthem of the Republic is determined by the
President by proclamation.
5. National flag
The national flag of the Republic is black, gold, green, white,
red and blue, as described and sketched in Schedule
1.
6. Languages
The official languages of the Republic are Sepedi, Sesotho,
Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English,
isiNdebele,
isiXhosa and isiZulu.
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.
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.
Municipalities must take into account the language usage and
preferences of their residents.
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.
A Pan South African Language Board established by national
legislation must
promote, and create conditions
for, the development and use of
all official languages;
the Khoi, Nama and San
languages; and
sign language ; and
promote and ensure respect for
all languages commonly used by
communities in South Africa, including German, Greek, Gujarati,
Hindi, Portuguese, Tamil, Telegu
and Urdu; and
Arabic, Hebrew, Sanskrit and other languages used for
religious purposes in South Africa.
Chapter 2 - Bill of
Rights
7. Rights
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.
The state must respect, protect, promote and fulfil the
rights in the Bill of Rights.
The rights in the Bill of Rights are subject to the
limitations contained or referred to in section 36, or elsewhere in
the Bill.
8. Application
The Bill of Rights applies to all law, and binds the
legislature, the executive, the judiciary and all organs of state.
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.
When applying a provision of the
Bill of Rights to a natural or juristic person in terms of
subsection (2), a court
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
may develop rules of the common law to limit the right,
provided that the limitation is in accordance with section 36(1).
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.
9. Equality
Everyone is equal before the law and has the right to equal
protection and benefit of the law.
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.
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.
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.
Discrimination on one or more of the grounds listed in
subsection (3) is unfair unless it is established that the
discrimination
is fair.
10. Human dignity
Everyone has inherent dignity and the right to have their dignity
respected and protected.
11. Life
Everyone has the right to life.
12. Freedom and security of the person
Everyone has the right to freedom
and security of the person, which includes the right
not to be deprived of freedom
arbitrarily or without just cause;
not to be detained without trial;
to be free from all forms of
violence from either public or private sources;
not to be tortured in any way;
and
not to be treated or punished in a cruel, inhuman or
degrading way.
Everyone has the right to bodily
and psychological integrity, which includes the right
to make decisions concerning
reproduction;
to security in and control over
their body; and
not to be subjected to medical or scientific experiments
without their informed consent.
13. Slavery, servitude and forced labour
No one may be subjected to slavery, servitude or forced labour.
14. Privacy
Everyone has the right to privacy, which includes the right not to
have
their person or home searched;
their property searched;
their possessions seized; or
the privacy of their communications infringed.
15. Freedom of religion, belief and opinion
Everyone has the right to freedom of conscience, religion,
thought, belief and opinion.
Religious observances may be
conducted at state or state-aided institutions, provided that
those observances follow rules
made by the appropriate public authorities;
they are conducted on an
equitable basis; and
attendance at them is free and voluntary.
This section does not prevent
legislation recognising
marriages concluded under any
tradition, or a system of religious, personal or family law; or
systems of personal and family
law under any tradition, or adhered to by persons professing a
particular religion.
Recognition in terms of paragraph (a) must be consistent
with this section and the other provisions of the Constitution.
16. Freedom of expression
Everyone has the right to freedom
of expression, which includes
freedom of the press and other
media;
freedom to receive or impart
information or ideas;
freedom of artistic creativity;
and
academic freedom and freedom of scientific research.
The right in subsection (1) does
not extend to
propaganda for war;
incitement of imminent violence;
or
advocacy of hatred that is based on race, ethnicity, gender
or religion, and that constitutes incitement to cause harm.
17. Assembly, demonstration, picket and
petition
Everyone has the right, peacefully and unarmed, to assemble, to
demonstrate, to picket and to present petitions.
18. Freedom of association
Everyone has the right to freedom of association.
19. Political rights
Every citizen is free to make
political choices, which includes the right
to form a political party;
to participate in the activities
of, or recruit members for, a political party; and
to campaign for a political party or cause.
Every citizen has the right to free, fair and regular
elections for any legislative body established in terms of the
Constitution.
Every adult citizen has the right
to vote in elections for any
legislative body established in terms of the Constitution, and to
do so in secret; and
to stand for public office and, if elected, to hold office.
20. Citizenship
No citizen may be deprived of citizenship.
21. Freedom of movement and residence
Everyone has the right to freedom of movement.
Everyone has the right to leave the Republic.
Every citizen has the right to enter, to remain in and to
reside anywhere in, the Republic.
Every citizen has the right to a passport.
22. Freedom of trade, occupation and
profession
Every citizen has the right to choose their trade, occupation or
profession freely. The practice of a trade, occupation or profession
may be regulated by law.
23. Labour relations
Everyone has the right to fair labour practices.
Every worker has the right
to form and join a trade union;
to participate in the activities
and programmes of a trade union; and
to strike.
Every employer has the right
to form and join an employers'
organisation; and
to participate in the activities and programmes of an
employers' organisation.
Every trade union and every
employers' organisation has the right
to determine its own
administration, programmes and activities;
to organise; and
to form and join a federation.
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).
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).
24. Environment
Everyone has the right
to an environment that is not
harmful to their health or well-being; and
to have the environment protected,
for the benefit of present and future generations, through
reasonable legislative and other measures
that
prevent pollution and ecological
degradation;
promote conservation; and
secure ecologically sustainable development and use of
natural resources while promoting justifiable economic and social
development.
25. Property
No one may be deprived of property except in terms of law of
general application, and no law may permit arbitrary deprivation of
property.
Property may be expropriated only
in terms of law of general application
for a public purpose or in the
public interest; and
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.
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
the current use of the property;
the history of the acquisition
and use of the property;
the market value of the property;
the extent of direct state
investment and subsidy in the acquisition and beneficial capital
improvement of the property; and
the purpose of the expropriation.
For the purposes of this section
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
property is not limited to land.
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.
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.
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.
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).
Parliament must enact the legislation referred to in
subsection (6).
26. Housing
Everyone has the right to have access to adequate housing.
The state must take reasonable legislative and other
measures, within its available resources, to achieve the progressive
realisation
of this right.
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.
27. Health care, food, water and social
security
Everyone has the right to have
access to
health care services, including
reproductive health care;
sufficient food and water; and
social security, including, if they are unable to support
themselves and their dependants, appropriate social assistance.
The state must take reasonable legislative and other
measures, within its available resources, to achieve the progressive
realisation
of each of these rights.
No one may be refused emergency medical treatment.
28. Children
Every child has the right
to a name and a nationality from
birth;
to family care or parental care,
or to appropriate alternative care when removed from the family
environment;
to basic nutrition, shelter,
basic health care services and social services;
to be protected from
maltreatment, neglect, abuse or degradation;
to be protected from exploitative
labour practices;
not to be required or permitted
to perform work or provide services that
are inappropriate for a person
of that child's age; or
place at risk the child's
well-being, education, physical or mental health or spiritual,
moral or social development;
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
kept separately from detained
persons over the age of 18 years; and
treated in a manner, and kept in
conditions, that take account of the child's age;
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
not to be used directly in armed conflict, and to be
protected in times of armed conflict.
A child's best interests are of paramount importance in every
matter concerning the child.
In this section "child" means a person under the
age of 18 years.
29. Education
Everyone has the right
to a basic education, including
adult basic education; and
to further education, which the state, through reasonable
measures, must make progressively available and accessible.
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
equity;
practicability; and
the need to redress the results of past racially
discriminatory laws and practices.
Everyone has the right to
establish and maintain, at their own expense, independent
educational institutions that
do not discriminate on the basis
of race;
are registered with the state;
and
maintain standards that are not inferior to standards at
comparable public educational institutions.
Subsection (3) does not preclude state subsidies for
independent educational institutions.
30. Language and culture
Everyone has the right to use the language and to participate in
the cultural life of their choice, but no one exercising these rights
may do so in a manner inconsistent with any provision of the Bill of
Rights.
31. Cultural, religious and linguistic
communities
Persons belonging to a cultural,
religious or linguistic community may not be denied the right, with
other members of that community
to enjoy their culture, practise
their religion and use their language; and
to form, join and maintain cultural, religious and
linguistic associations and other organs of civil society.
The rights in subsection (1) may not be exercised in a manner
inconsistent with any provision of the Bill of Rights.
32. Access to information
Everyone has the right of access
to
any information held by the
state; and
any information that is held by another person and that is
required for the exercise or protection of any rights.
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.
33.
Just administrative action
Everyone has the right to administrative action that is
lawful, reasonable and procedurally fair.
Everyone whose rights have been adversely affected by
administrative action has the right to be given written reasons.
National legislation must be
enacted to give effect to these rights, and must
provide for the review of
administrative action by a court or, where appropriate, an
independent and impartial tribunal;
impose a duty on the state to
give effect to the rights in subsections (1) and (2); and
promote an efficient administration.
34. Access to courts
Everyone has the right to have any dispute that can be resolved by
the application of law decided in a fair public hearing before
a
court or, where appropriate, another independent and impartial
tribunal or forum.
35. Arrested, detained and accused persons
Everyone who is arrested for
allegedly committing an offence has the right
to remain silent;
to be informed promptly
of the right to remain silent;
and
of the consequences of not
remaining silent;
not to be compelled to make any
confession or admission that could be used in evidence against that
person;
to be brought before a court as
soon as reasonably possible, but not later than
48 hours after the arrest; or
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;
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
to be released from detention if the interests of justice
permit, subject to reasonable conditions.
Everyone who is detained,
including every sentenced prisoner, has the right
to be informed promptly of the
reason for being detained;
to choose, and to consult with, a
legal practitioner, and to be informed of this right promptly;
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;
to challenge the lawfulness of
the detention in person before a court and, if the detention is
unlawful, to be released;
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
to communicate with, and be
visited by, that person's
spouse or partner;
next of kin;
chosen religious counsellor; and
chosen medical practitioner.
Every accused person has a right
to a fair trial, which includes the right
to be informed of the charge with
sufficient detail to answer it;
to have adequate time and
facilities to prepare a defence;
to a public trial before an
ordinary court;
to have their trial begin and
conclude without unreasonable delay;
to be present when being tried;
to choose, and be represented by,
a legal practitioner, and to be informed of this right promptly;
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;
to be presumed innocent, to
remain silent, and not to testify during the proceedings;
to adduce and challenge evidence;
not to be compelled to give
self-incriminating evidence;
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;
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;
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;
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
of appeal to, or review by, a higher court.
Whenever this section requires information to be given to a
person, that information must be given in a language that the person
understands.
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.
36. Limitation of rights
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
the nature of the right;
the importance of the purpose of
the limitation;
the nature and extent of the
limitation;
the relation between the
limitation and its purpose; and
less restrictive means to achieve the purpose.
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.
37. States of emergency
A state of emergency may be
declared only in terms of an Act of Parliament, and only when
the life of the nation is
threatened by war, invasion, general insurrection, disorder,
natural disaster or other public emergency;
and
the declaration is necessary to restore peace and order.
A declaration of a state of
emergency, and any legislation enacted or other action taken in
consequence of that declaration, may
be effective only
prospectively; and
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.
Any competent court may decide on
the validity of
a declaration of a state of
emergency;
any extension of a declaration of
a state of emergency; or
any legislation enacted, or other action taken, in
consequence of a declaration of a state of emergency.
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
the derogation is strictly
required by the emergency; and
the legislation
is consistent with the
Republic's obligations under international law applicable to
states of emergency;
conforms to subsection (5); and
is published in the national
Government Gazette as soon as reasonably possible after being
enacted.
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
indemnifying the state, or any
person, in respect of any unlawful act;
any derogation from this section;
or
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
Section Number
|
2
Section Title
|
3
Extent to which the right is protected
|
|
9
|
Equality
|
With respect to unfair discrimination solely on the grounds of
race, colour, ethnic or social origin, sex religion or language
|
|
10
|
Human Dignity
|
Entirely
|
|
11
|
Life
|
Entirely
|
|
12
|
Freedom and Security of the person
|
With respect to subsections (1)(d) and (e) and (2)(c).
|
|
13
|
Slavery, servitude and forced labour
|
With respect to slavery and servitude
|
|
28
|
Children
|
With respect to:
- subsection (1)(d) and (e);
- the
rights in subparagraphs (i) and (ii) of subsection (1)(g); and
-
subsection 1(i) in respect of children of 15 years and younger
|
|
35
|
Arrested, detained and accused persons
|
With respect to:
- subsections (1)(a), (b) and (c) and
(2)(d);
- the rights in paragraphs (a) to (o) of subsection
(3), excluding paragraph (d)
- subsection (4); and
-
subsection (5) with respect to the exclusion of evidence if the
admission of that evidence would render the trial unfair.
|
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:
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.
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.
The detainee must be allowed to
choose, and be visited at any reasonable time by, a medical
practitioner.
The detainee must be allowed to
choose, and be visited at any reasonable time by, a legal
representative.
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.
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.
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.
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.
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.
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.
38. Enforcement of rights
Anyone listed in this section has the right to approach a
competent court, alleging that a right in the Bill of Rights has been
infringed
or threatened, and the court may grant appropriate relief,
including a declaration of rights. The persons who may approach a
court
are -
anyone acting in their own
interest;
anyone acting on behalf of another
person who cannot act in their own name;
anyone acting as a member of, or
in the interest of, a group or class of persons;
anyone acting in the public
interest; and
an association acting in the interest of its members.
39. Interpretation of Bill of Rights
When interpreting the Bill of
Rights, a court, tribunal or forum
must promote the values that
underlie an open and democratic society based on human dignity,
equality and freedom;
must consider international law;
and
may consider foreign law.
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.
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.
Chapter 3
- Co-operative Government
40. Government of the Republic
In the Republic, government is constituted as national,
provincial and local spheres of government which are distinctive,
interdependent
and interrelated.
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.
41. Principles of co-operative government and
intergovernmental relations
All spheres of government and all
organs of state within each sphere must
preserve the peace, national
unity and the indivisibility of the Republic;
secure the well-being of the
people of the Republic;
provide effective, transparent,
accountable and coherent government for the Republic as a whole;
be loyal to the Constitution, the
Republic and its people;
respect the constitutional
status, institutions, powers and functions of government in the
other spheres;
not assume any power or function
except those conferred on them in terms of the Constitution;
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
co-operate with one another in
mutual trust and good faith by
fostering friendly relations;
assisting and supporting one
another;
informing one another of, and
consulting one another on, matters of common interest;
co-ordinating their actions and
legislation with one another;
adhering to agreed procedures;
and
avoiding legal proceedings against one another.
An Act of Parliament must
establish or provide for
structures and institutions to promote and facilitate
intergovernmental relations; and
provide for appropriate mechanisms and procedures to
facilitate settlement of intergovernmental disputes.
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.
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.
Chapter 4
- Parliament
42. Composition of Parliament
Parliament consists of
the National Assembly; and
the National Council of Provinces.
The National Assembly and the National Council of Provinces
participate in the legislative process in the manner set out in the
Constitution.
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.
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.
The President may summon Parliament to an extraordinary
sitting at any time to conduct special business.
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.
43. Legislative authority of the
Republic
In the Republic, the legislative authority
of the national sphere of
government is vested in Parliament, as set out in section 44;
of the provincial sphere of
government is vested in the provincial legislatures, as set out in
section 104; and
of the local sphere of government is vested in the Municipal
Councils, as set out in section 156.
44. National legislative authority
The national legislative authority
as vested in Parliament
confers on the National Assembly
the power
to amend the Constitution;
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
to assign any of its legislative
powers, except the power to amend the Constitution, to any
legislative body in another sphere
of government; and
confers on the National Council
of Provinces the power
to participate in amending the
Constitution in accordance with section 74;
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
to consider, in accordance with section 75, any other
legislation passed by the National Assembly.
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
to maintain national security;
to maintain economic unity;
to maintain essential national
standards;
to establish minimum standards
required for the rendering of services; or
to prevent unreasonable action taken by a province which is
prejudicial to the interests of another province or to the country
as a whole.
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.
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.
45. Joint rules and orders and joint
committees
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
to determine procedures to
facilitate the legislative process, including setting a time limit
for completing any step in the process;
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;
to establish a joint committee to
review the Constitution at least annually; and
to regulate the business of
the joint rules committee;
the Mediation Committee;
the constitutional review
committee; and
any joint committees established in terms of paragraph (b).
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.
The National Assembly
46. Composition and election
Subject to Schedule 6A, 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 -
is prescribed by national
legislation;
is based on the national common
voters roll;
provides for a minimum voting age
of 18 years; and
results, in general, in proportional representation.
[Sub-s (1) amended by s. 1 of Act No. 2 of 2003.]
An Act of Parliament must provide a formula for determining
the number of members of the National Assembly.
47. Membership
Every citizen who is qualified to
vote for the National Assembly is eligible to be a member of the
Assembly, except
anyone who is appointed by, or is
in the service of, the state and receives remuneration for that
appointment or service, other
than
the President, Deputy President,
Ministers and Deputy Ministers; and
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;
permanent delegates to the
National Council of Provinces or members of a provincial
legislature or a Municipal Council;
unrehabilitated insolvents;
anyone declared to be of unsound
mind by a court of the Republic; or
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.
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.
A person loses membership of the
National Assembly if that person
ceases to be eligible; or
is absent from the Assembly
without permission in circumstances for which the rules and orders
of the Assembly prescribe loss
of membership; or
ceases to be a member of the party that nominated that
person as a member of the Assembly, unless that member has become a
member
of another party in accordance with Schedule 6A.
[Sub-s. (3) substituted by s. 2. of Act No. 2 of
2003.]
Vacancies in the National Assembly must be filled in terms of
national legislation.
(Sub-s. (4) suspended until second election of
National Assembly. See Sch. 6 item 6 (4).)
48. Oath or affirmation
Before members of the National Assembly begin to perform their
functions in the Assembly, they must swear or affirm faithfulness to
the Republic and obedience to the Constitution, in accordance with
Schedule
2.
49. Duration of National Assembly
The National Assembly is elected for a term of five years.
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.
[Sub-s. (2) substituted by s. 1 of Act No. 2 of
1999.]
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.
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.
50. Dissolution of National Assembly before
expiry of its term
The President must dissolve the
National Assembly if
the Assembly has adopted a
resolution to dissolve with a supporting vote of a majority of its
members; and
three years have passed since the Assembly was elected.
(Sub-s. (1) suspended until 30 April 1999. See Sch 6
item 6 (2).)
The Acting President must dissolve
the National Assembly if
there is a vacancy in the office
of President; and
the Assembly fails to elect a new President within 30 days
after the vacancy occurred.
51. Sittings and recess periods
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.
[Sub-s. (1) substituted by s.1 of Act No. 34 of
2001.]
The President may summon the National Assembly to an
extraordinary sitting at any time to conduct special business.
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.
52. Speaker and Deputy Speaker
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.
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.
[Sub-s. (2) substituted by s.2 of Act No. 34 of
2001.]
The procedure set out in Part A of Schedule
3 applies to the election of the Speaker and the
Deputy Speaker.
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.
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.
53. Decisions
Except where the Constitution
provides otherwise
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;
at least one third of the members
must be present before a vote may be taken on any other question
before the Assembly; and
all questions before the Assembly are decided by a majority
of the votes cast.
The member of the National
Assembly presiding at a meeting of the Assembly has no deliberative
vote, but
must cast a deciding vote when
there is an equal number of votes on each side of a question; and
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.
54. Rights of certain Cabinet members and
Deputy Ministers in the National 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.
[S. 54 substituted by s. 3 of Act No. 34 of 2001.]
55. Powers of National Assembly
In exercising its legislative
power, the National Assembly may
consider, pass, amend or reject
any legislation before the Assembly; and
initiate or prepare legislation, except money Bills.
The National Assembly must provide
for mechanisms
to ensure that all executive
organs of state in the national sphere of government are
accountable to it; and
to maintain oversight of
the exercise of national
executive authority, including the implementation of legislation;
and
any organ of state.
56. Evidence or information before National
Assembly
The National Assembly or any of its committees may
summon any person to appear before
it to give evidence on oath or affirmation, or to produce documents;
require any person or institution
to report to it;
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
receive petitions, representations or submissions from any
interested persons or institutions.
57. Internal arrangements, proceedings and
procedures of National Assembly
The National Assembly may
determine and control its
internal arrangements, proceedings and procedures; and
make rules and orders concerning its business, with due
regard to representative and participatory democracy,
accountability,
transparency and public involvement.
The rules and orders of the
National Assembly must provide for
the establishment, composition,
powers, functions, procedures and duration of its committees;
the participation in the
proceedings of the Assembly and its committees of minority parties
represented in the Assembly, in a
manner consistent with democracy;
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
the recognition of the leader of the largest opposition
party in the Assembly as the Leader of the Opposition.
58. Privilege
Cabinet members, Deputy Ministers
and members of the National Assembly -
have freedom of speech in the
Assembly and in its committees, subject to its rules and orders;
and
are not liable to civil or
criminal proceedings, arrest, imprisonment or damages for
anything that they have said in,
produced before or submitted to the Assembly or any of its
committees; or
anything revealed as a result of anything that they have
said in, produced before or submitted to the Assembly or any of
its
committees.
Other privileges and immunities of the National Assembly,
Cabinet members and members of the Assembly may be prescribed by
national
legislation.
Salaries, allowances and benefits payable to members of the
National Assembly are a direct charge against the National Revenue
Fund.
[S.58 amended by s.4 of Act No. 34 of 2001.]
59. Public access to and involvement in
National Assembly
The National Assembly must
facilitate public involvement in
the legislative and other processes of the Assembly and its
committees; and
conduct its business in an open
manner, and hold its sittings, and those of its committees, in
public, but reasonable measures
may be taken
to regulate public access,
including access of the media, to the Assembly and its committees;
and
to provide for the searching of any person and,where
appropriate, the refusal of entry to, or the removal of, any
person.
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.
National Council of
Provinces
60. Composition of National Council
The National Council of Provinces is composed of a single
delegation from each province consisting of ten delegates.
The ten delegates are
four special delegates consisting
of-
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
three other special delegates;
and
six permanent delegates appointed in terms of section 61(2).
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.
61. Allocation of delegates
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.
A provincial legislature must,
within 30 days after the result of an election of that legislature
is declared-
determine, in accordance with
national legislation, how many of each party's delegates are to be
permanent delegates and how
many are to be special delegates; and
appoint the permanent delegates
in accordance with the nominations of the parties.
If the composition of a
provincial legislature is changed on account of changes of party
membership, mergers between parties,
subdivision of parties or
subdivision and merger of parties within that legislature, it must
be within 30 days after such change-
determine, in accordance with
the national legislation referred to in paragraph (a), how many of
each party's delegates are
to be permanent delegates and how many
are to be special delegates; and
appoint the permanent delegates in accordance with the
nominations of the parties.
[Sub-s. 2 substituted by s. 1 of Act No. 21 of 2002.]
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.
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.
62. Permanent delegates
A person nominated as a permanent delegate must be eligible
to be a member of the provincial legislature.
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.
Permanent delegates are appointed
for a term that expires
immediately before the first
sitting of the provincial legislature after its next election; or
on the day before the appointment of permanent delegates in
accordance with section 61 (2) (b) (ii) takes effect.
[Sub-s. (3) substituted by s. 2 of Act No. 21 of
2002.]
A person ceases to be a permanent
delegate if that person
ceases to be eligible to be a
member of the provincial legislature for any reason other than
being appointed as a permanent delegate;
becomes a member of the Cabinet;
has lost the confidence of the
provincial legislature and is recalled by the party that nominated
that person;
ceases to be a member of the
party that nominated that person and is recalled by that party; or
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.
Vacancies among the permanent delegates must be filled in
terms of national legislation.
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.
63. Sittings of National Council
The National Council of Provinces may determine the time and
duration of its sittings and its recess periods.
The President may summon the National Council of Provinces to
an extraordinary sitting at any time to conduct special business.
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.
64. Chairperson and Deputy Chairpersons
The National Council of Provinces must elect a Chairperson
and two Deputy Chairpersons from among the delegates.
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.
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.
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.
[Sub-s. (4) substituted by s. 5 of Act No. 34 of
2001.]
The procedure set out in Part A of Schedule
3 applies to the election of the Chairperson and
the Deputy Chairpersons.
The National Council of Provinces may remove the Chairperson
or a Deputy Chairperson from office.
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.
65. Decisions
Except where the Constitution
provides otherwise
each province has one vote, which
is cast on behalf of the province by the head of its delegation;
and
all questions before the National Council of Provinces are
agreed when at least five provinces vote in favour of the question.
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.
66. Participation by members of national
executive
Cabinet members and Deputy Ministers may attend, and may
speak in, the National Council of Provinces, but may not vote.
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.
67. Participation by local government
representatives
Not more than ten part-time representatives designated by
organised local government in terms of section 163, to represent the
different
categories of municipalities, may participate when
necessary in the proceedings of the National Council of Provinces,
but may not
vote.
68. Powers of National Council
In exercising its legislative power, the National Council of
Provinces may
consider, pass, amend, propose
amendments to or reject any legislation before the Council, in
accordance with this Chapter; and
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.
69. Evidence or information before National
Council
The National Council of Provinces or any of its committees may
summon any person to appear before
it to give evidence on oath or affirmation or to produce documents;
require any institution or person
to report to it;
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
receive petitions, representations or submissions from any
interested persons or institutions.
70. Internal arrangements, proceedings and
procedures of National Council
The National Council of Provinces
may
determine and control its
internal arrangements, proceedings and procedures; and
make rules and orders concerning its business, with due
regard to representative and participatory democracy,
accountability,
transparency and public involvement.
The rules and orders of the
National Council of Provinces must provide for
the establishment, composition,
powers, functions, procedures and duration of its committees;
the participation of all the
provinces in its proceedings in a manner consistent with democracy;
and
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.
71. Privilege
Delegates to the National Council
of Provinces and the persons referred to in sections 66 and 67
have freedom of speech in the
Council and in its committees, subject to its rules and orders; and
are not liable to civil or
criminal proceedings, arrest, imprisonment or damages for
anything that they have said in,
produced before or submitted to the Council or any of its
committees; or
anything revealed as a result of anything that they have
said in, produced before or submitted to the Council or any of its
committees.
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.
Salaries, allowances and benefits payable to permanent
members of the National Council of Provinces are a direct charge
against
the National Revenue Fund.
72. Public access to and involvement in
National Council
The National Council of Provinces
must
facilitate public involvement in
the legislative and other processes of the Council and its
committees; and
conduct its business in an open
manner, and hold its sittings, and those of its committees, in
public, but reasonable measures
may be taken
to regulate public access,
including access of the media, to the Council and its committees;
and
to provide for the searching of any person and, where
appropriate, the refusal of entry to, or the removal of, any
person.
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.
National Legislative
Process
73. All Bills
Any Bill may be introduced in the National Assembly.
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 Money Bill; or
a Bill which provides for legislation envisaged in section
214.
[Sub-s. (2) substituted by s. 1 (a) of Act No. 61 of
2001.]
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.
[Sub-s. (3) substituted by s. 1 (b) of Act No. 61 of
2001.]
Only a member or committee of the National Council of
Provinces may introduce a Bill in the Council.
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.
74. Bills amending the Constitution
Section 1 and this subsection may
be amended by a Bill passed by -
the National Assembly, with a
supporting vote of at least 75 per cent of its members; and
the National Council of Provinces, with a supporting vote of
at least six provinces.
Chapter 2 may be amended by a Bill
passed by
the National Assembly, with a
supporting vote of at least two thirds of its members; and
the National Council of Provinces, with a supporting vote of
at least six provinces.
Any other provision of the
Constitution may be amended by a Bill passed
by the National Assembly, with a
supporting vote of at least two thirds of its members; and
also by the National Council of
Provinces, with a supporting vote of at least six provinces, if the
amendment
relates to a matter that affects
the Council;
alters provincial boundaries,
powers, functions or institutions; or
amends a provision that deals specifically with a
provincial matter.
A Bill amending the Constitution may not include provisions
other than constitutional amendments and matters connected with the
amendments.
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
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;
submit, in accordance with the
rules and orders of the Assembly, those particulars to the
provincial legislatures for their views;
and
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.
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
to the Speaker for tabling in the
National Assembly; and
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.
A Bill amending the Constitution
may not be put to the vote in the National Assembly within 30 days
of
its introduction, if the Assembly
is sitting when the Bill is introduced; or
its tabling in the Assembly, if the Assembly is in recess
when the Bill is introduced.
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.
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.
75. Ordinary Bills not affecting provinces
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:
The Council must
pass the Bill;
pass the Bill subject to
amendments proposed by it; or
reject the Bill.
If the Council passes the Bill
without proposing amendments, the Bill must be submitted to the
President for assent.
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
pass the Bill again, either with
or without amendments; or
decide not to proceed with the
Bill.
A Bill passed by the Assembly in terms of paragraph (c) must
be submitted to the President for assent.
When the National Council of
Provinces votes on a question in terms of this section, section 65
does not apply; instead
each delegate in a provincial
delegation has one vote;
at least one third of the
delegates must be present before a vote may be taken on the
question; and
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.
76. Ordinary Bills affecting provinces
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:
The Council must
pass the Bill;
pass an amended Bill; or
reject the Bill.
If the Council passes the Bill
without amendment, the Bill must be submitted to the President for
assent.
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.
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
the Bill as passed by the
Assembly;
the amended Bill as passed by
the Council; or
another version of the Bill.
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.
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.
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.
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.
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.
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.
A Bill passed by the Assembly in terms of paragraph (e), (i)
or (j) must be submitted to the President for assent.
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:
The Assembly must
pass the Bill;
pass an amended Bill; or
reject the Bill.
A Bill passed by the Assembly in
terms of paragraph (a)(i) must be submitted to the President for
assent.
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.
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
the Bill as passed by the
Council;
the amended Bill as passed by
the Assembly; or
another version of the Bill.
If the Mediation Committee is
unable to agree within 30 days of the Bill's referral to it, the
Bill lapses.
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.
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.
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.
If a Bill referred to the Assembly in terms of paragraph (f)
or (h) is not passed by the Assembly, the Bill lapses.
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:
Section 65(2);
section 163;
section 182;
section 195(3) and (4);
section 196; and
section 197.
A Bill must be dealt with in
accordance with the procedure established by subsection (1) if it
provides for legislation
envisaged in section 44(2) or
220(3); or
envisaged in Chapter 13, and which includes any provision
affecting the financial interests of the provincial sphere of
government.
[Para. (b) substituted by s. 1 of Act No. 3 of 2003.]
A Bill envisaged in section 42(6)
must be dealt with in accordance with the procedure established by
subsection (1), except that
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
if the Bill is referred to the
Mediation Committee, the following rules apply:
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.
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.
This section does not apply to money Bills.
77. Money Bills
A Bill is a money Bill if it -
appropriates money;
imposes national taxes, levies,
duties or surcharges;
abolishes or reduces, or grants
exemptions from, any national taxes, levies, duties or surcharges;
or
authorises direct charges against the National Revenue Fund,
except a Bill envisaged in section 214 authorising direct charges.
A money Bill may not deal with any
other matter except -
a subordinate matter incidental
to the appropriation of money;
the imposition, abolition or
reduction of national taxes, levies, duties or surcharges;
the granting of exemption from
national taxes, levies, duties or surcharges; or
the authorisation of direct charges against the National
Revenue Fund.
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.
[S. 77 substituted by s. 2 of Act No. 61 of 2001.]
78. Mediation Committee
The Mediation Committee consists
of
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
one delegate from each provincial delegation in the National
Council of Provinces, designated by the delegation.
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
at least five of the
representatives of the National Assembly; and
at least five of the representatives of the National Council
of Provinces.
79. Assent to Bills
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.
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.
The National Council of Provinces
must participate in the reconsideration of a Bill that the President
has referred back to the
National Assembly if
the President's reservations
about the constitutionality of the Bill relate to a procedural
matter that involves the Council;
or
section 74(1), (2) or (3)(b) or 76 was applicable in the
passing of the Bill.
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
assent to and sign the Bill; or
refer it to the Constitutional Court for a decision on its
constitutionality.
If the Constitutional Court decides that the Bill is
constitutional, the President must assent to and sign it.
80. Application by members of National
Assembly to Constitutional Court
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.
An application
must be supported by at least one
third of the members of the National Assembly; and
must be made within 30 days of the date on which the
President assented to and signed the Act.
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
the interests of justice require
this; and
the application has a reasonable prospect of success.
If an application is unsuccessful, and did not have a
reasonable prospect of success, the Constitutional Court may order
the applicants
to pay costs.
81. Publication of Acts
A Bill assented to and signed by the President becomes an Act of
Parliament, must be published promptly, and takes effect when
published
or on a date determined in terms of the Act.
82. Safekeeping of Acts of Parliament
The signed copy of an Act of Parliament is conclusive evidence of
the provisions of that Act and, after publication, must be entrusted
to the Constitutional Court for safekeeping.
Chapter 5
- The President and National Executive
83. The President
The President
is the Head of State and head of
the national executive;
must uphold, defend and respect
the Constitution as the supreme law of the Republic; and
promotes the unity of the nation and that which will advance
the Republic.
84. Powers and functions of President
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.
The President is responsible for
assenting to and signing Bills;
referring a Bill back to the
National Assembly for reconsideration of the Bill's
constitutionality;
referring a Bill to the
Constitutional Court for a decision on the Bill's
constitutionality;
summoning the National Assembly,
the National Council of Provinces or Parliament to an extraordinary
sitting to conduct special
business;
making any appointments that the
Constitution or legislation requires the President to make, other
than as head of the national
executive;
appointing commissions of
inquiry;
calling a national referendum in
terms of an Act of Parliament;
receiving and recognising foreign
diplomatic and consular representatives;
appointing ambassadors,
plenipotentiaries, and diplomatic and consular representatives;
pardoning or reprieving offenders
and remitting any fines, penalties or forfeitures; and
conferring honours.
[General Note: Honourable tributes instituted in
Government Gazette 24155 of 6 December, 2002, Government Gazette
25213 of 25 July,
2003 and Government Gazette 25799 of 2 December,
2003.]
85. Executive authority of the Republic
The executive authority of the Republic is vested in the
President.
The President exercises the
executive authority, together with the other members of the Cabinet,
by
implementing national legislation
except where the Constitution or an Act of Parliament provides
otherwise;
developing and implementing
national policy;
co-ordinating the functions of
state departments and administrations;
preparing and initiating
legislation; and
performing any other executive function provided for in the
Constitution or in national legislation.
86. Election of President
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.
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.
[Sub-s. (2) substituted by s. 6 of Act No. 34 of
2001.]
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.
[Sub-s. (3) substituted by s. 6 of Act No. 34 of
2001.]
87. Assumption of office by President
When elected President, a person ceases to be a member of the
National Assembly and, within five days, must assume office by
swearing
or affirming faithfulness to the Republic and obedience to
the Constitution, in accordance with Schedule 2.
88. Term of office of President
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.
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.
89. Removal of President
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 serious violation of the
Constitution or the law;
serious misconduct; or
inability to perform the functions of office.
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.
90. Acting President
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:
The
Deputy President.
A Minister designated by the
President.
A Minister designated by the
other members of the Cabinet.
The Speaker, until the National Assembly designates one of
its other members.
An Acting President has the responsibilities, powers and
functions of the President.
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.
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.
[Sub-s. (4) added by s. 1 of Act
No. 35 of 1997]
91.
Cabinet
The Cabinet consists of the President, as head of the
Cabinet, a Deputy President and Ministers.
The President appoints the Deputy President and Ministers,
assigns their powers and functions, and may dismiss them.
The President
must select the Deputy President
from among the members of the National Assembly;
may select any number of
Ministers from among the members of the Assembly; and
may select no more than two Ministers from outside the
Assembly.
The President must appoint a member of the Cabinet to be the
leader of government business in the National Assembly.
The Deputy President must assist the President in the
execution of the functions of government.
92. Accountability and responsibilities
The Deputy President and Ministers are responsible for the
powers and functions of the executive assigned to them by the
President.
Members of the Cabinet are accountable collectively and
individually to Parliament for the exercise of their powers and the
performance
of their functions.
Members of the Cabinet must
act in accordance with the
Constitution; and
provide Parliament with full and regular reports concerning
matters under their control.
93.
Deputy Ministers
The President may appoint-
any number of Deputy Ministers
from among the members of the National Assembly; and
no more than two Deputy Ministers from outside the
Assembly,
to assist the members of the Cabinet, and may dismiss
them.
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.
[S. 93 substituted by s. 7 of Act No. 34 of 2001.]
94. Continuation of Cabinet after elections
When an election of the National Assembly is held, the Cabinet,
the Deputy President, Ministers and any Deputy Ministers remain
competent
to function until the person elected President by the next
Assembly assumes office.
95. Oath or affirmation
Before the Deputy President, Ministers and any Deputy Ministers
begin to perform their functions, they must swear or affirm
faithfulness
to the Republic and obedience to the Constitution, in
accordance with Schedule 2.
96. Conduct of Cabinet members and Deputy
Ministers
Members of the Cabinet and Deputy Ministers must act in
accordance with a code of ethics prescribed by national legislation.
Members of the Cabinet and Deputy
Ministers may not
undertake any other paid work;
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
use their position or any information entrusted to them, to
enrich themselves or improperly benefit any other person.
to (6) inclusive.
97. Transfer of functions
The President by proclamation may transfer to a member of the
Cabinet
the administration of any
legislation entrusted to another member; or
any power or function entrusted by legislation to another
member.
98. Temporary assignment of functions
The President may assign to a Cabinet member any power or function
of another member who is absent from office or is unable to exercise
that power or perform that function.
99. Assignment of functions
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
must be in terms of an agreement
between the relevant Cabinet member and the Executive Council member
or Municipal Council;
must be consistent with the Act of
Parliament in terms of which the relevant power or function is
exercised or performed; and
takes effect upon proclamation by the President.
100. National intervention in provincial
administration
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
-
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
assuming responsibility for the
relevant obligation in that province to the extent necessary to
maintain essential national
standards or meet established minimum standards for the rendering
of a service;
maintain economic unity;
maintain national security; or
prevent that province from taking unreasonable action that
is prejudicial to the interests of another province or to the
country
as a whole.
[Sub-s. (1) substituted by s. (2) (b) of Act No. 3 of
2003.]
If the national executive
intervenes in a province in terms of subsection (1)(b)
it must submit a written notice
of the intervention to the National Council of Provinces within 14
days after the intervention
began;
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
the Council must, while the intervention continues, review
the intervention regularly and make any appropriate recommendations
to the national executive.
[Sub-s. (2) substituted by s. (2) (c) of Act No. 3 of
2003.]
National legislation may regulate the process established by
this section.
[S 100 amended by s. (2) (a) of Act No. 3 of 2003.]
101. Executive decisions
A decision by the President must
be in writing if it
is taken in terms of legislation;
or
has legal consequences.
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.
Proclamations, regulations and other instruments of
subordinate legislation must be accessible to the public.
National legislation may specify
the manner in which, and the extent to which, instruments mentioned
in subsection (3) must be
tabled in Parliament; and
approved by Parliament.
102. Motions of no confidence
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.
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.
Chapter 6
- Provinces
103. Provinces
The Republic has the following
provinces:
Eastern Cape
Free State
Gauteng
KwaZulu-Natal
Limpopo
Mpumalanga
Northern Cape
North West
Western Cape.
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.
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.
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.".
[S. 103 amended by s. 3 of Act No. 3 of 2003 and
substituted by s. 1 of Constitution Twelfth Amendment Act of
2005]
Provincial
Legislatures
104. Legislative authority of provinces
The legislative authority of a
province is vested in its provincial legislature, and confers on the
provincial legislature the power
to pass a constitution for its
province or to amend any constitution passed by it in terms of
sections 142 and 143;
to pass legislation for its
province with regard to
any matter within a functional
area listed in Schedule 4;
any matter within a functional
area listed in Schedule 5;
any matter outside those
functional areas, and that is expressly assigned to the province
by national legislation; and
any matter for which a provision
of the Constitution envisages the enactment of provincial
legislation; and
to assign any of its legislative powers to a Municipal
Council in that province.
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.
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.
Provincial legislation with regard to a matter that is
reasonably necessary for, or incidental to, the effective exercise
of a power
concerning any matter listed in Schedule 4, is for all
purposes legislation with regard to a matter listed in Schedule 4.
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.
105. Composition and election of provincial
legislatures
Subject to Schedule 6A, a
provincial legislature consists of women and men elected as members
in terms of an electoral system that
-
is prescribed by national
legislation;
is based on that province's
segment of the national common voters roll;
provides for a minimum voting age
of 18 years; and
results, in general, in proportional representation.
[Sub-s. (1) amended by s. 3 of Act No. 2 of 2003.]
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.
106. Membership
Every citizen who is qualified to
vote for the National Assembly is eligible to be a member of a
provincial legislature, except
anyone who is appointed by, or is
in the service of, the state and receives remuneration for that
appointment or service, other
than
the Premier and other members of
the Executive Council of a province; and
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;
members of the National Assembly,
permanent delegates to the National Council of Provinces or members
of a Municipal Council;
unrehabilitated insolvents;
anyone declared to be of unsound
mind by a court of the Republic; or
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.
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.
A person loses membership of a
provincial legislature if that person
ceases to be eligible; or
is absent from the legislature
without permission in circumstances for which the rules and orders
of the legislature prescribe
loss of membership; or
Ceases to be a member of the party that nominated that
person as a member of the legislature, unless that member has
become a
member of another party in accordance with Schedule 6 A.
[Sub-s. (3) substituted by s. 4 of Act No. 2 of
2003.]
Vacancies in a provincial legislature must be filled in terms
of national legislation.
(Sub -s. (4) suspended until second election of
legislature. See Sch. 6 item 11 (2).)
107. Oath or affirmation
Before members of a provincial legislature begin to perform their
functions in the legislature, they must swear or affirm faithfulness
to the Republic and obedience to the Constitution, in accordance with
Schedule 2.
108. Duration of provincial legislatures
A provincial legislature is elected for a term of five years.
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.
[Sub-s. (2) substituted by s. 1 of Act No. 3 of
1999.]
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.
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.
109. Dissolution of provincial legislatures
before expiry of term
The Premier of a province must
dissolve the provincial legislature if
the legislature has adopted a
resolution to dissolve with a supporting vote of a majority of its
members; and
three years have passed since the legislature was elected.
An Acting Premier must dissolve
the provincial legislature if
there is a vacancy in the office
of Premier; and
the legislature fails to elect a new Premier within 30 days
after the vacancy occurred.
110. Sittings and recess periods
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.
[Sub-s. (1) substituted by s. 8 of Act No. 34 of
2001.]
The Premier of a province may summon the provincial
legislature to an extraordinary sitting at any time to conduct
special business.
A provincial legislature may determine where it ordinarily
will sit.
111. Speakers and Deputy Speakers
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.
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.
[Sub-s. (2) substituted by s. 9 of Act No. 34 of
2001.]
The procedure set out in Part A of Schedule 3 applies to the
election of Speakers and Deputy Speakers.
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.
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.
112. Decisions
Except where the Constitution
provides otherwise
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;
at least one third of the members
must be present before a vote may be taken on any other question
before the legislature; and
all questions before a provincial legislature are decided by
a majority of the votes cast.
The member presiding at a meeting
of a provincial legislature has no deliberative vote, but
must cast a deciding vote when
there is an equal number of votes on each side of a question; and
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.
113. Permanent delegates' rights in
provincial legislatures
A province's permanent delegates to the National Council of
Provinces may attend, and may speak in, their provincial legislature
and
its committees, but may not vote. The legislature may require a
permanent delegate to attend the legislature or its committees.
114. Powers of provincial legislatures
In exercising its legislative
power, a provincial legislature may
consider, pass, amend or reject
any Bill before the legislature; and
initiate or prepare legislation,
except money Bills.
A provincial legislature must
provide for mechanisms
to ensure that all provincial
executive organs of state in the province are accountable to it;
and
to maintain oversight of
the exercise of provincial
executive authority in the province, including the implementation
of legislation; and
any provincial organ of state.
115. Evidence or information before
provincial legislatures
A provincial legislature or any of its committees may
summon any person to appear before
it to give evidence on oath or affirmation, or to produce documents;
require any person or provincial
institution to report to it;
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
receive petitions, representations or submissions from any
interested persons or institutions.
116. Internal arrangements, proceedings and
procedures of provincial legislatures
A provincial legislature may
determine and control its
internal arrangements, proceedings and procedures; and
make rules and orders concerning its business, with due
regard to representative and participatory democracy,
accountability,
transparency and public involvement.
The rules and orders of a
provincial legislature must provide for
the establishment, composition,
powers, functions, procedures and duration of its committees;
the participation in the
proceedings of the legislature and its committees of minority
parties represented in the legislature,
in a manner consistent with
democracy;
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
the recognition of the leader of the largest opposition
party in the legislature, as the Leader of the Opposition.
117. Privilege
Members of a provincial
legislature and the province's permanent delegates to the National
Council of Provinces
have freedom of speech in the
legislature and in its committees, subject to its rules and orders;
and
are not liable to civil or
criminal proceedings, arrest, imprisonment or damages for
anything that they have said in,
produced before or submitted to the legislature or any of its
committees; or
anything revealed as a result of anything that they have
said in, produced before or submitted to the legislature or any of
its committees.
Other privileges and immunities of a provincial legislature
and its members may be prescribed by national legislation.
Salaries, allowances and benefits payable to members of a
provincial legislature are a direct charge against the Provincial
Revenue
Fund.
118. Public access to and involvement in
provincial legislatures
A provincial legislature must
facilitate public involvement in
the legislative and other processes of the legislature and its
committees; and
conduct its business in an open
manner, and hold its sittings, and those of its committees, in
public, but reasonable measures
may be taken
to regulate public access,
including access of the media, to the legislature and its
committees; and
to provide for the searching of any person and, where
appropriate, the refusal of entry to,or the removal of, any
person.
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.
119. Introduction of Bills
Only members of the Executive Council of a province or a committee
or member of a provincial legislature may introduce a Bill in the
legislature; but only the member of the Executive Council who is
responsible for financial matters in the province may introduce
a
money Bill in the legislature.
120. Money Bills
A Bill is a money Bill if it-
appropriates money;
imposes provincial taxes, levies,
duties or surcharges;
abolishes or reduces, or grants
exemptions from, any provincial taxes, levies, duties or
surcharges; or
authorises direct charges against a Provincial Revenue Fund.
A money Bill may not deal with any
other matter except-
a subordinate matter incidental
to the appropriation of money;
the imposition, abolition or
reduction of provincial taxes, levies, duties or surcharges;
the granting of exemption from
provincial taxes, levies, duties or surcharges; or
the authorisation of direct charges against a Provincial
Revenue Fund.
A provincial Act must provide for a procedure by which the
province's legislature may amend a money Bill.
[S. 120 substituted by s. 3 of Act No. 61 of 2001.]
121. Assent to Bills
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.
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
assent to and sign the Bill; or
refer it to the Constitutional Court for a decision on its
constitutionality.
If the Constitutional Court decides that the Bill is
constitutional, the Premier must assent to and sign it.
122. Application by members to Constitutional
Court
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.
An application
must be supported by at least 20
per cent of the members of the legislature; and
must be made within 30 days of the date on which the Premier
assented to and signed the Act.
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
the interests of justice require
this; and
the application has a reasonable prospect of success.
If an application is unsuccessful, and did not have a
reasonable prospect of success, the Constitutional Court may order
the applicants
to pay costs.
123. Publication of provincial Acts
A Bill assented to and signed by the Premier of a province becomes
a provincial Act, must be published promptly and takes effect when
published or on a date determined in terms of the Act.
124. Safekeeping of provincial Acts
The signed copy of a provincial Act is conclusive evidence of the
provisions of that Act and, after publication, must be entrusted
to
the Constitutional Court for safekeeping .
Provincial Executives
125. Executive authority of provinces
The executive authority of a province is vested in the
Premier of that province.
The Premier exercises the
executive authority, together with the other members of the
Executive Council, by
implementing provincial
legislation in the province;
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;
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;
developing and implementing
provincial policy;
co-ordinating the functions of
the provincial administration and its departments;
preparing and initiating
provincial legislation; and
performing any other function assigned to the provincial
executive in terms of the Constitution or an Act of Parliament.
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).
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.
Subject to section 100, the implementation of provincial
legislation in a province is an exclusive provincial executive
power.
The provincial executive must act
in accordance with
the Constitution; and
the provincial constitution, if a constitution has been
passed for the province.
126. Assignment of functions
A member of the Executive Council of a province may assign any
power or function that is to be exercised or performed in terms of
an
Act of Parliament or a provincial Act, to a Municipal Council. An
assignment
must be in terms of an agreement
between the relevant Executive Council member and the Municipal
Council;
must be consistent with the Act in
terms of which the relevant power or function is exercised or
performed; and
takes effect upon proclamation by the Premier.
127. Powers and functions of Premiers
The Premier of a province has the powers and functions
entrusted to that office by the Constitution and any legislation.
The Premier of a province is
responsible for
assenting to and signing Bills;
referring a Bill back to the
provincial legislature for reconsideration of the Bill's
constitutionality;
referring a Bill to the
Constitutional Court for a decision on the Bill's
constitutionality;
summoning the legislature to an
extraordinary sitting to conduct special business;
appointing commissions of
inquiry; and
calling a referendum in the province in accordance with
national legislation.
128. Election of Premiers
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.
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.
[Sub-s. (2) substituted by s. 10 of Act No. 34 of
2001.]
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.
[Sub-s. (3) substituted by s. 10 of Act No. 34 of
2001.]
129. Assumption of office by Premiers
A Premier-elect must assume office within five days of being
elected, by swearing or affirming faithfulness to the Republic and
obedience
to the Constitution, in accordance with Schedule 2.
130. Term of office and removal of Premiers
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.
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.
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 serious violation of the
Constitution or the law;
serious misconduct; or
inability to perform the functions of office.
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.
131. Acting Premiers
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 member of the Executive Council
designated by the Premier.
A member of the Executive Council
designated by the other members of the Council.
The Speaker, until the legislature designates one of its
other members.
An Acting Premier has the responsibilities, powers and
functions of the Premier.
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.
132.
Executive Councils
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.
The Premier of a province appoints the members of the
Executive Council, assigns their powers and functions, and may
dismiss them.
133. Accountability and responsibilities
The members of the Executive
Council of a province are responsible for the functions of the
executive assigned to them by the Premier.
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.
Members of the Executive Council
of a province must
act in accordance with the
Constitution and, if a provincial constitution has been passed for
the province, also that constitution;
and
provide the legislature with full and regular reports
concerning matters under their control.
134. Continuation of Executive Councils after
elections
When an election of a provincial legislature is held, the
Executive Council and its members remain competent to function until
the
person elected Premier by the next legislature assumes office.
135. Oath or affirmation
Before members of the Executive Council of a province begin to
perform their functions, they must swear or affirm faithfulness to
the Republic and obedience to the Constitution, in accordance with
Schedule 2.
136. Conduct of members of Executive
Councils
Members of the Executive Council of a province must act in
accordance with a code of ethics prescribed by national legislation.
Members of the Executive Council
of a province may not
undertake any other paid work;
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
use their position or any information entrusted to them, to
enrich themselves or improperly benefit any other person.
(3)
to (6) inclusive.
137. Transfer of functions
The Premier by proclamation may transfer to a member of the
Executive Council
the administration of any
legislation entrusted to another member; or
any power or function entrusted by legislation to
another member.
138. Temporary assignment of functions
The Premier of a province may assign to a member of the Executive
Council any power or function of another member who is absent from
office or is unable to exercise that power or perform that function.
139. Provincial intervention in local
government
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-
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;
assuming responsibility for the
relevant obligation in that municipality to the extent necessary
to-
maintain essential national
standards or meet established minimum standards for the rendering
of a service;
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
maintain economic unity; or
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.
If a provincial executive
intervenes in a municipality in terms of subsection (1)(b)-
it must submit a written notice
of the intervention to-
the Cabinet member responsible
for local government affairs; and
the relevant provincial
legislature and the National Council of Provinces, within 14 days
after the intervention began;
the intervention must end if-
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
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
the Council must, while the intervention continues, review
the intervention regularly and make any appropriate recommendations
to the provincial executive.
If a Municipal Council is
dissolved in terms of subsection (1) (c) -
the provincial executive must
immediately submit a written notice of the dissolution to-
the Cabinet member responsible
for local government affairs; and
the relevant provincial
legislature and the National Council of provinces; and
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.
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 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-
appointing an administrator until
a newly elected Municipal Council has been declared elected; and
approving a temporary budget or revenue-raising measures to
provide for the continued functioning of the municipality.
If a municipality, as 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-
impose a recovery plan aimed at
securing the municipality's ability to meet its obligations to
provide basic services or its financial
commitments, which-
is to be prepared in accordance
with national legislation; and
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
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-
appoint an administrator until a
newly elected Municipal Council has been declared elected; and
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
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.
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-
the Cabinet member responsible
for local government affairs; and
the relevant provincial legislature and the National Council
of Provinces, within seven days after the intervention began.
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.
National legislation may regulate the implementation of this
section, including the processes established by this section.
[S. 139 substituted by s. 4 of Act No. 3 of 2003.]
140. Executive decisions
A decision by the Premier of a
province must be in writing if it
is taken in terms of legislation;
or
has legal consequences.
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.
Proclamations, regulations and other instruments of
subordinate legislation of a province must be accessible to the
public.
Provincial legislation may specify
the manner in which, and the extent to which, instruments mentioned
in subsection (3) must be
tabled in the provincial
legislature; and
approved by the provincial legislature.
141. Motions of no confidence
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.
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.
Provincial
Constitutions
142. Adoption of provincial constitutions
A provincial legislature may pass a constitution for the province
or, where applicable, amend its constitution, if at least two thirds
of its members vote in favour of the Bill.
143. Contents of provincial constitutions
A provincial constitution, or
constitutional amendment, must not be inconsistent with this
Constitution, but may provide for
provincial legislative or
executive structures and procedures that differ from those provided
for in this Chapter; or
the institution, role, authority and status of a traditional
monarch, where applicable.
Provisions included in a
provincial constitution or constitutional amendment in terms of
paragraphs (a) or (b) of subsection (1)
must comply with the values in
section 1 and with Chapter 3 ; and
may not confer on the province
any power or function that falls
outside the area of provincial
competence in terms of Schedules 4 and 5; or
outside the powers and functions conferred on the province
by other sections of the Constitution.
144. Certification of provincial
constitutions
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.
No text of a provincial
constitution or constitutional amendment becomes law until the
Constitutional Court has certified
that the text has been passed in
accordance with section 142; and
that the whole text complies with section 143.
145. Signing, publication and safekeeping of
provincial constitutions
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.
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.
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.
Conflicting Laws
146. Conflicts between national and
provincial legislation
This section applies to a conflict between national
legislation and provincial legislation falling within a functional
area listed
in Schedule 4.
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:
The national legislation deals
with a matter that cannot be regulated effectively by legislation
enacted by the respective provinces
individually.
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
norms and standards;
frameworks; or
national policies.
The national legislation is
necessary for
the maintenance of national
security;
the maintenance of economic
unity;
the protection of the common
market in respect of the mobility of goods, services, capital and
labour;
the promotion of economic
activities across provincial boundaries;
the promotion of equal
opportunity or equal access to government services; or
the protection of the environment.
National legislation prevails over
provincial legislation if the national legislation is aimed at
preventing unreasonable action
by a province that
is prejudicial to the economic,
health or security interests of another province or the country as
a whole; or
impedes the implementation of national economic policy.
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.
Provincial legislation prevails over national legislation if
subsection (2) or (3) does not apply.
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.
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.
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.
147. Other conflicts
If there is a conflict between
national legislation and a provision of a provincial constitution
with regard to
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;
national legislative intervention
in terms of section 44(2), the national legislation prevails over
the provision of the provincial
constitution; or
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.
National legislation referred to in section 44(2) prevails
over provincial legislation in respect of matters within the
functional
areas listed in Schedule 5.
148. Conflicts that cannot be resolved
If a dispute concerning a conflict cannot be resolved by a court,
the national legislation prevails over the provincial legislation
or
provincial constitution.
149. Status of legislation that does not
prevail
A decision by a court that legislation prevails over other
legislation does not invalidate that other legislation, but that
other
legislation becomes inoperative for as long as the conflict
remains.
150. Interpretation of conflicts
When considering an apparent conflict between national and
provincial legislation, or between national legislation and a
provincial
constitution, every court must prefer any reasonable
interpretation of the legislation or constitution that avoids a
conflict, over
any alternative interpretation that results in a
conflict.
Chapter 7
- Local Government
151. Status of municipalities
The local sphere of government consists of municipalities,
which must be established for the whole of the territory of the
Republic.
The executive and legislative authority of a municipality is
vested in its Municipal Council.
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.
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.
152. Objects of local government
The objects of local government
are -
to provide democratic and
accountable government for local communities;
to ensure the provision of
services to communities in a sustainable manner;
to promote social and economic
development;
to promote a safe and healthy
environment; and
to encourage the involvement of communities and community
organisations in the matters of local government.
A municipality must strive, within its financial and
administrative capacity, to achieve the objects set out in
subsection (1).
153. Developmental duties of municipalities
A municipality must
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
participate in national and provincial development
programmes.
154. Municipalities in co-operative
government
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.
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.
155. Establishment of municipalities
There are the following categories
of municipality:
Category A: A municipality
that has exclusive municipal executive and legislative authority in
its area.
Category B: A municipality
that shares municipal executive and legislative authority in its
area with a category C municipality within whose
area it falls.
Category C: A municipality that has municipal
executive and legislative authority in an area that includes more
than one municipality.
National legislation must define the different types of
municipality that may be established within each category.
National legislation must
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;
establish criteria and procedures
for the determination of municipal boundaries by an independent
authority; and
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.
The legislation referred to in subsection (3) must take into
account the need to provide municipal services in an equitable and
sustainable manner.
Provincial legislation must determine the different types of
municipality to be established in the province.
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
provide for the monitoring and
support of local government in the province; and
promote the development of local government capacity to
enable municipalities to perform their functions and manage their
own
affairs.
[Subs-s. (6A) inserted by s. 1 of Act No. 87 of 1998
and deleted by s. 2 of the Constitution Twelfth Amendment Act, 2005.]
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).
156. Powers and functions of municipalities
A municipality has executive
authority in respect of, and has the right to administer
the local government matters
listed in Part B of Schedule 4 and Part B of Schedule 5; and
any other matter assigned to it by national or provincial
legislation.
A municipality may make and administer by-laws for the
effective administration of the matters which it has the right to
administer.
Subject to section 151(4), a by-law that conflicts with
national or provincial legislation is invalid. If there is a
conflict between
a by-law and national or provincial legislation
that is inoperative because of a conflict referred to in section
149, the by-law
must be regarded as valid for as long as that
legislation is inoperative.
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
that matter would most
effectively be administered locally; and
the municipality has the capacity to administer it.
A municipality has the right to exercise any power concerning
a matter reasonably necessary for, or incidental to, the effective
performance of its functions.
157. Composition and election of Municipal
Councils
Subject to Schedule 6A, a
Municipal Council consists of -
members elected in accordance
with subsections (2), (3), (4) and (5); or
if provided for by national
legislation
members appointed by other
Municipal Councils to represent those other Councils; or
both members elected in accordance with paragraph (a) and
members appointed in accordance with subparagraph (i) of this
paragraph.
[Sub -s. (1) substituted by s. 1 (a) of Act No. 18 of
2002.]
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
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
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.
An electoral system in terms of subsection (2) must result,
in general in proportional representation.
[Sub-s. (3) substituted by s.1 (b) of Act No. 18 0f
2002]
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.
[Sub-s. (4) substituted by s. 2 of Act No. 87 of
1998. Para. (b) deleted by s. 3 of the Constitution Twelfth Amendment
Act, 2005.]
A person may vote in a municipality only if that person is
registered on that municipality's segment of the national common
voters
roll.
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.
158. Membership of Municipal Councils
Every citizen who is qualified to
vote for a Municipal Council is eligible to be a member of that
Council, except
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;
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;
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;
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
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.
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.
159. Terms of Municipal Councils
The term of a Municipal Council may be no more than five
years, as determined by national legislation.
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.
A Municipal Council, other than a Council that has been
dissolved following and 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.
[S. 159 substituted by s. 1 of Act No. 65 of 1998.]
160. Internal procedures
A Municipal Council
makes decisions concerning the
exercise of all the powers and the performance of all the functions
of the municipality;
must elect its chairperson;
may elect an executive committee
and other committees, subject to national legislation; and
may employ personnel that are necessary for the effective
performance of its functions.
The following functions may not be
delegated by a Municipal Council:
The passing of by-laws;
the approval of budgets;
the imposition of rates and other
taxes, levies and duties; and
the raising of loans.
A majority of the members of a
Municipal Council must be present before a vote may be taken on any
matter.
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.
All other questions before a Municipal Council are decided
by a majority of the votes cast.
No by-law may be passed by a
Municipal Council unless
all the members of the Council
have been given reasonable notice; and
the proposed by-law has been published for public comment.
National legislation may provide
criteria for determining
the size of a Municipal Council;
whether Municipal Councils may
elect an executive committee or any other committee; or
the size of the executive committee or any other committee
of a Municipal Council.
A Municipal Council may make
by-laws which prescribe rules and orders for
its internal arrangements;
its business and proceedings; and
the establishment, composition, procedures, powers and
functions of its committees.
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.
Members of a Municipal Council are
entitled to participate in its proceedings and those of its
committees in a manner that
allows parties and interests
reflected within the Council to be fairly represented;
is consistent with democracy; and
may be regulated by national legislation.
161. Privilege
Provincial legislation within the framework of national
legislation may provide for privileges and immunities of Municipal
Councils
and their members.
162. Publication of municipal by-laws
A municipal by-law may be enforced only after it has been
published in the official gazette of the relevant province.
A provincial official gazette must publish a municipal by-law
upon request by the municipality.
Municipal by-laws must be accessible to the public.
163. Organised local government
An Act of Parliament enacted in accordance with the procedure
established by section 76 must
provide for the
recognition of national and provincial organisations representing
municipalities; and
determine procedures by
which local government may-
consult with the
national or a provincial government;
designate
representatives to participate in the National Council of
Provinces; and
participate in the process prescribed in the
national legislation envisaged in section 221 (1) (c).
[Para. (b) substituted by s. 4 of Act No. 61 of
2001.]
164. Other matters
Any matter concerning local government not dealt with in the
Constitution may be prescribed by national legislation or by
provincial
legislation within the framework of national legislation.
Chapter 8 - Courts and
Administration of Justice
165. Judicial authority
The judicial authority of the Republic is vested in the
courts.
The courts are independent and subject only to the
Constitution and the law, which they must apply impartially and
without fear,
favour or prejudice.
No person or organ of state may interfere with the
functioning of the courts.
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.
An order or decision issued by a court binds all persons to
whom and organs of state to which it applies.
166. Judicial system
The courts are
the Constitutional Court;
the Supreme Court of
Appeal;
the High Courts,
including any high court of appeal that may be established by an Act
of Parliament to hear appeals from High Courts;
the Magistrates' Courts;
and
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.
167. Constitutional Court
The Constitutional Court consists of the Chief Justice of
South Africa, the Deputy Chief Justice and nine other judges.
[Sub-s. (1) substituted by s. 11 of Act No. 34 of
2001.]
A matter before the Constitutional Court must be heard by at
least eight judges.
The Constitutional Court
is the highest court in all
constitutional matters;
may decide only constitutional
matters, and issues connected with decisions on constitutional
matters; and
makes the final decision whether a matter is a
constitutional matter or whether an issue is connected with a
decision on a constitutional
matter.
Only the Constitutional Court may
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;
decide on the constitutionality
of any parliamentary or provincial Bill, but may do so only in the
circumstances anticipated in
section 79 or 121;
decide applications envisaged in
section 80 or 122;
decide on the constitutionality
of any amendment to the Constitution;
decide that Parliament or the
President has failed to fulfil a constitutional obligation; or
certify a provincial constitution in terms of section 144.
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.
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
to bring a matter directly to the
Constitutional Court; or
to appeal directly to the Constitutional Court from any
other court.
A constitutional matter includes any issue involving the
interpretation, protection or enforcement of the Constitution.
168. Supreme Court of Appeal
The Supreme Court of Appeal consists of a President, a Deputy
President and the number of judges of appeal determined in terms of
an Act of Parliament.
[Sub-s. (1) substituted by s. 12 of Act No. 34 of
2001.]
A matter before the Supreme Court of Appeal must be decided
by the number of judges determined in terms of an Act of Parliament.
[Sub-s. (2) substituted by s. 12 of Act No. 34 of
2001.]
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
appeals;
issues connected with appeals;
and
any other matter that may be referred to it in circumstances
defined by an Act of Parliament.
169. High Courts
A High Court may decide
any constitutional matter
except a matter that
only the Constitutional
Court may decide; or
is assigned by an Act of
Parliament to another court of a status similar to a High Court;
and
any other matter not assigned to another court by an
Act of Parliament.
170. Magistrates' Courts and other courts
Magistrates' Courts and all other courts may decide any matter
determined by an Act of Parliament, but a court of a status lower
than
a High Court may not enquire into or rule on the
constitutionality of any legislation or any conduct of the President.
171. Court procedures
All courts function in terms of national legislation, and their
rules and procedures must be provided for in terms of national
legislation.
172. Powers of courts in constitutional
matters
When deciding a constitutional
matter within its power, a court
must declare that any law or
conduct that is inconsistent with the Constitution is invalid to
the extent of its inconsistency;
and
may make any order that is just
and equitable, including
an order limiting the
retrospective effect of the declaration of invalidity; and
an order suspending the declaration of invalidity for any
period and on any conditions, to allow the competent authority to
correct the defect.
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.
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.
National legislation must provide
for the referral of an order of constitutional invalidity to the
Constitutional Court.
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.
173. Inherent power
The Constitutional Court, Supreme Court of Appeal and High Courts
have the inherent power to protect and regulate their own process,
and to develop the common law, taking into account the interests of
justice.
174. Appointment of judicial officers
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.
The need for the judiciary to reflect broadly the racial and
gender composition of South Africa must be considered when judicial
officers are appointed.
The President as head of the national executive, after
consulting the Judicial Service Commission and the leaders of
parties represented
in the National Assembly, appoints the 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.
[Sub-s. (3) substituted by s. 13 of Act No. 34 of
2001.]
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:
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.
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.
The Judicial Service Commission must supplement the list
with further nominees and the President must make the remaining
appointments
from the supplemented list.
[Sub-s. (4) substituted by s. 13 of Act No. 34 of
2001.]
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.
The President must appoint the judges of all other courts on
the advice of the Judicial Service Commission.
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.
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.
175. Acting judges
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.
[Sub-s. (1) substituted by s. 14 of Act No. 34 of
2001.]
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.
176. Terms of office and remuneration
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.
[Sub-s. (1) substituted by s. 15 of Act No. 34 of
2001.]
Other judges hold office until they are discharged from
active service in terms of an Act of Parliament.
The salaries, allowances and benefits of judges may not be
reduced.
177. Removal
A judge may be removed from office
only if
the Judicial Service Commission
finds that the judge suffers from an incapacity, is grossly
incompetent or is guilty of gross
misconduct; and
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.
The President must remove a judge from office upon adoption
of a resolution calling for that judge to be removed.
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).
178. Judicial Service Commission
There is a Judicial Service
Commission consisting of
the Chief Justice, who presides
at meetings of the Commission;
the President of the Supreme Court of Appeal;
[Para. (b) substituted by s. 16 (a) of Act No. 34 of
2001.]
one Judge
President designated by the Judges President;
the Cabinet member
responsible for the administration of justice, or an alternate
designated by that Cabinet member;
two practising advocates
nominated from within the advocates' profession to represent the
profession as a whole, and appointed by
the President;
two practising attorneys
nominated from within the attorneys' profession to represent the
profession as a whole, and appointed by
the President;
one teacher of law
designated by teachers of law at South African universities;
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;
four permanent delegates
to the National Council of Provinces designated together by the
Council with a supporting vote of at least
six provinces;
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
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.
[Para. (k) substituted by s. 2 (a) of Act No. 65 of
1998 and by s. 16 (b) of Act No. 34 of 2001.]
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.
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.
The Judicial Service Commission has the powers and functions
assigned to it in the Constitution and national legislation.
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).
The Judicial Service Commission may determine its own
procedure, but decisions of the Commission must be supported by a
majority
of its members.
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.
[Sub-s. (7) added by s. 2 (b) of Act No. 65 of 1998
and substituted by s. 16 (c) of Act No. 34 of 2001.]
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
any other sufficient reason.
[Sub-s. (8) added by s. 2 (b) of Act No. 65 of 1998.]
179. Prosecuting authority
There is a single national
prosecuting authority in the Republic, structured in terms of an Act
of Parliament, and consisting of
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
Directors of Public Prosecutions and prosecutors as
determined by an Act of Parliament.
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.
National legislation must ensure
that the Directors of Public Prosecutions
are appropriately qualified; and
are responsible for prosecutions in specific jurisdictions,
subject to subsection (5).
National legislation must ensure that the prosecuting
authority exercises its functions without fear, favour or prejudice.
The National Director of Public
Prosecutions
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;
must issue policy directives
which must be observed in the prosecution process;
may intervene in the prosecution
process when policy directives are not complied with; and
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:
The accused person.
The complainant.
Any other person or party whom the National Director
considers to be relevant.
The Cabinet member responsible for
the administration of justice must exercise final responsibility
over the prosecuting authority.
All other matters concerning the prosecuting authority must
be determined by national legislation.
180. Other matters concerning administration
of justice
National legislation may provide for any matter concerning the
administration of justice that is not dealt with in the Constitution,
including
training programmes for
judicial officers;
procedures for dealing
with complaints about judicial officers; and
the participation of people other than judicial
officers in court decisions.
Chapter 9
- State institutions supporting constitutional democracy
181. Establishment and governing principles
The following state institutions
strengthen constitutional democracy in the Republic:
The Public Protector.
The South African Human Rights
Commission.
The Commission for the Promotion
and Protection of the Rights of Cultural, Religious and Linguistic
Communities.
The Commission for Gender
Equality.
The Auditor-General.
The Electoral Commission.
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.
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.
No person or organ of state may interfere with the
functioning of these institutions.
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.
Public Protector
182. Functions of Public Protector
The Public Protector has the
power, as regulated by national legislation
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;
to report on that conduct; and
to take appropriate remedial action.
The Public Protector has the additional powers and functions
prescribed by national legislation.
The Public Protector may not investigate court decisions.
The Public Protector must be accessible to all persons and
communities.
Any report issued by the Public Protector must be open to the
public unless exceptional circumstances, to be determined in terms
of national legislation, require that a report be kept confidential.
183. Tenure
The Public Protector is appointed for a non-renewable period of
seven years.
South
African Human Rights Commission
184. Functions of South African Human Rights
Commission
The South African Human Rights
Commission must
promote respect for human rights
and a culture of human rights;
promote the protection,
development and attainment of human rights; and
monitor and assess the observance of human rights in the
Republic.
The South African Human Rights
Commission has the powers, as regulated by national legislation,
necessary to perform its functions,
including the power
to investigate and to report on
the observance of human rights;
to take steps to secure
appropriate redress where human rights have been violated;
to carry out research; and
to educate.
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.
The South African Human Rights Commission has the additional
powers and functions prescribed by national legislation.
Commission for the
Promotion and Protection of the Rights of Cultural, Religious and
Linguistic Communities
185. Functions of Commission
The primary objects of the
Commission for the Promotion and Protection of the Rights of
Cultural, Religious and Linguistic Communities
are
to promote respect for the rights
of cultural, religious and linguistic communities;
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
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.
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.
The Commission may report any matter which falls within its
powers and functions to the South African Human Rights Commission
for
investigation.
The Commission has the additional powers and functions
prescribed by national legislation.
186. Composition of Commission
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.
The composition of the Commission
must-
be broadly representative of the
main cultural, religious and linguistic communities in South
Africa; and
broadly reflect the gender composition of South Africa.
Commission
for Gender Equality
187. Functions of Commission for Gender
Equality
The Commission for Gender Equality must promote respect for
gender equality and the protection, development and attainment of
gender
equality.
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.
The Commission for Gender Equality has the additional powers
and functions prescribed by national legislation.
Auditor-General
188. Functions of Auditor-General
The Auditor-General must audit and
report on the accounts, financial statements and financial
management of
all national and provincial state
departments and administrations;
all municipalities; and
any other institution or accounting entity required by
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
any institution funded from the
National Revenue Fund or a Provincial Revenue Fund or by a
municipality; or
any institution that is authorised in terms of any law to
receive money for a public purpose.
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.
The Auditor-General has the additional powers and functions
prescribed by national legislation.
189. Tenure
The Auditor-General must be appointed for a fixed, non-renewable
term of between five and ten years.
Electoral Commission
190. Functions of Electoral Commission
The Electoral Commission must
manage elections of national,
provincial and municipal legislative bodies in accordance with
national legislation;
ensure that those elections are
free and fair; and
declare the results of those elections within a period that
must be prescribed by national legislation and that is as short as
reasonably possible.
The Electoral Commission has the additional powers and
functions prescribed by national legislation.
191. Composition of Electoral Commission
The Electoral Commission must be composed of at least three
persons. The number of members and their terms of office must be
prescribed
by national legislation.
Independent
Authority to Regulate Broadcasting
192. Broadcasting Authority
National legislation must establish an independent authority to
regulate broadcasting in the public interest, and to ensure fairness
and a diversity of views broadly representing South African society.
General Provisions
193. Appointments
The Public Protector and the
members of any Commission established by this Chapter must be women
or men who
are South African citizens;
are fit and proper persons to
hold the particular office; and
comply with any other requirements prescribed by national
legislation.
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.
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.
The President, on the
recommendation of the National Assembly, must appoint the Public
Protector, the Auditor-General and the members
of
the South African Human Rights
Commission;
the Commission for Gender
Equality; and
the Electoral Commission.
The National Assembly must
recommend persons
nominated by a committee of the
Assembly proportionally composed of members of all parties
represented in the Assembly; and
approved by the Assembly by a
resolution adopted with a supporting vote
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
of a majority of the members of the Assembly, if the
recommendation concerns the appointment of a member of a
Commission.
The involvement of civil society in the recommendation
process may be provided for as envisaged in section 59(1)(a).
194. Removal from office
The Public Protector, the
Auditor-General or a member of a Commission established by this
Chapter may be removed from office only
on
the ground of misconduct,
incapacity or incompetence;
a finding to that effect by a
committee of the National Assembly; and
the adoption by the Assembly of a resolution calling for
that person's removal from office.
A resolution of the National
Assembly concerning the removal from office of
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
a member of a Commission must be adopted with a supporting
vote of a majority of the members of the Assembly.
The President
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
must remove a person from office upon adoption by the
Assembly of the resolution calling for that person's removal.
Chapter 10
- Public Administration
195. Basic values and principles governing public
administration
Public administration must be
governed by the democratic values and principles enshrined in the
Constitution, including the following
principles:
A high standard of professional
ethics must be promoted and maintained.
Efficient, economic and effective
use of resources must be promoted.
Public administration must be
development-oriented.
Services must be provided
impartially, fairly, equitably and without bias.
People's needs must be responded
to, and the public must be encouraged to participate in
policy-making.
Public administration must be
accountable.
Transparency must be fostered by
providing the public with timely, accessible and accurate
information.
Good human-resource management
and career-development practices, to maximise human potential, must
be cultivated.
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.
The above principles apply to
administration in every sphere of
government;
organs of state; and
public enterprises.
National legislation must ensure the promotion of the values
and principles listed in subsection (1).
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.
Legislation regulating public administration may
differentiate between different sectors, administrations or
institutions.
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.
196. Public Service Commission
There is a single Public Service Commission for the Republic.
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.
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.
The powers and functions of the
Commission are -
to promote the values and
principles set out in section 195, throughout the public service;
to investigate, monitor and
evaluate the organisation and administration, and the personnel
practices, of the public service;
to propose measures to ensure
effective and efficient performance within the public service;
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;
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
either of its own accord or on
receipt of any complaint -
to investigate and evaluate the
application of personnel and public administration practices, and
to report to the relevant
executive authority and legislature;
to investigate grievances of
employees in the public service concerning official acts or
omissions, and recommend appropriate
remedies;
to monitor and investigate
adherence to applicable procedures in the public service; and
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; and
to exercise or perform the additional powers or functions
prescribed by and Act of Parliament.
[Para. (g) added by s. 3 of Act No. 65 of 1998.]
The Commission is accountable to
the National Assembly.
The Commission must report at
least once a year in terms of subsection (4)(e)
to the National Assembly; and
in respect of its activities in a province, to the
legislature of that province.
The Commission has the following
14 commissioners appointed by the President:
Five commissioners approved by
the National Assembly in accordance with subsection (8)(a); and
one commissioner for each province nominated by the Premier
of the province in accordance with subsection (8)(b).
A commissioner appointed in terms
of subsection (7)(a) must be -
recommended by a committee of
the National Assembly that is proportionally composed of members
of all parties represented in
the Assembly; and
approved by the Assembly by a
resolution adopted with a supporting vote of a majority of its
members.
A commissioner nominated by the
Premier of a province must be -
recommended by a committee of
the provincial legislature that is proportionally composed of
members of all parties represented
in the legislature; and
approved by the legislature by a resolution adopted with a
supporting vote of a majority of its members.
An Act of Parliament must regulate the procedure for the
appointment of commissioners.
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 South African citizen; and
a fit and proper person with knowledge of, or experience in,
administration, management or the provision of public services.
A commissioner may be removed from
office only on
the ground of misconduct,
incapacity or incompetence;
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
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.
The President must remove the
relevant commissioner from office upon
the adoption by the Assembly of a
resolution calling for that commissioner's removal; or
written notification by the Premier that the provincial
legislature has adopted a resolution calling for that
commissioner's removal.
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.
197. Public Service
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.
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.
No employee of the public service may be favoured or
prejudiced only because that person supports a particular political
party or
cause.
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.
Chapter
11: Security services
198. Governing principles
The following principles govern national security in the Republic:
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.
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.
National security must be
pursued in compliance with the law, including international law.
National security is subject to the authority of
Parliament and the national executive.
199. Establishment, structuring and conduct
of security services
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.
The defence force is the only lawful military force in the
Republic.
Other
than the security services established in terms of the Constitution,
armed organisations or services may be established only
in terms of
national legislation.
The security services must be structured and regulated by
national legislation.
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.
No member of any security service may obey a manifestly
illegal order.
Neither the security services, nor
any of their members, may, in the performance of their functions
prejudice a political party
interest that is legitimate in terms of the Constitution; or
further, in a partisan manner, any interest of a political
party.
To give effect to the principles of transparency and
accountability, multi-party parliamentary committees must have
oversight of
all security services in a manner determined by
national legislation or the rules and orders of Parliament.
Defence
200. Defence force
The defence force must be structured and managed as a
disciplined military force.
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.
201. Political responsibility
A member of the Cabinet must be responsible for defence.
Only the President, as head of the
national executive, may authorise the employment of the defence
force
in co-operation with the police
service;
in defence of the Republic; or
in fulfilment of an international obligation.
When the defence force is employed
for any purpose mentioned in subsection (2), the President must
inform Parliament, promptly and
in appropriate detail, of
the reasons for the employment of
the defence force;
any place where the force is
being employed;
the number of people involved;
and
the period for which the force is expected to be employed.
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.
202. Command of defence force
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.
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.
203. State of national defence
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
the reasons for the declaration;
any place where the defence force
is being employed; and
the number of people involved.
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.
A declaration of a state of national defence lapses unless it
is approved by Parliament within seven days of the declaration.
204. Defence civilian secretariat
A civilian secretariat for defence must be established by national
legislation to function under the direction of the Cabinet member
responsible for defence.
Police
205. Police service
The national police service must be structured to function in
the national, provincial and, where appropriate, local spheres of
government.
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.
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.
206. Political responsibility
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.
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.
Each province is entitled
to monitor police conduct;
to oversee the effectiveness and
efficiency of the police service, including receiving reports on
the police service;
to promote good relations between
the police and the community;
to assess the effectiveness of
visible policing; and
to liaise with the Cabinet member responsible for policing
with respect to crime and policing in the province.
A provincial executive is
responsible for policing functions
vested in it by this Chapter;
assigned to it in terms of
national legislation; and
allocated to it in the national policing policy.
In order to perform the functions
set out in subsection (3), a province
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
must make recommendations to the Cabinet member responsible
for policing.
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.
National legislation must provide a framework for the
establishment, powers, functions and control of municipal police
services.
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.
A provincial legislature may require the provincial
commissioner of the province to appear before it or any of its
committees to
answer questions.
207. Control of police service
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.
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.
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.
The provincial commissioners are
responsible for policing in their respective provinces
as prescribed by national
legislation; and
subject to the power of the National Commissioner to
exercise control over and manage the police service in terms of
subsection
(2).
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.
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.
208. Police civilian secretariat
A civilian secretariat for the police service must be established
by national legislation to function under the direction of the
Cabinet
member responsible for policing.
Intelligence
209. Establishment and control of
intelligence services
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.
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.
210. Powers, functions and monitoring
National legislation must regulate the objects, powers and
functions of the intelligence services, including any intelligence
division
of the defence force or police service, and must provide for
the co-ordination of all
intelligence services; and
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.
Chapter 12
- Traditional Leaders
211. Recognition
The institution, status and role of traditional leadership,
according to customary law, are recognised, subject to the
Constitution.
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.
The courts must apply customary law when that law is
applicable, subject to the Constitution and any legislation that
specifically
deals with customary law.
212. Role of traditional leaders
National legislation may provide for a role for traditional
leadership as an institution at local level on matters affecting
local
communities.
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
national or provincial
legislation may provide for the establishment of houses of
traditional leaders; and
national legislation may establish a council of traditional
leaders.
Chapter 13
- Finance
General Financial
Matters
213. National Revenue Fund
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.
Money may be withdrawn from the
National Revenue Fund only
in terms of an appropriation by
an Act of Parliament; or
as a direct charge against the National Revenue Fund, when
it is provided for in the Constitution or an Act of Parliament.
A province's equitable share of revenue raised nationally is
a direct charge against the National Revenue Fund.
(Date of commencement: 1 January 1998.)
214. Equitable shares and allocations of
revenue
An Act of Parliament must provide
for
the equitable division of revenue
raised nationally among the national, provincial and local spheres
of government;
the determination of each
province's equitable share of the provincial share of that revenue;
and
any other allocations to provinces, local government or
municipalities from the national government's share of that
revenue, and
any conditions on which those allocations may be made.
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
the national interest;
any provision that must be made
in respect of the national debt and other national obligations;
the needs and interests of the
national government, determined by objective criteria;
the need to ensure that the
provinces and municipalities are able to provide basic services and
perform the functions allocated
to them;
the fiscal capacity and
efficiency of the provinces and municipalities;
developmental and other needs of
provinces, local government and municipalities;
economic disparities within and
among the provinces;
obligations of the provinces and
municipalities in terms of national legislation;
the desirability of stable and
predictable allocations of revenue shares; and
the need for flexibility in responding to emergencies or
other temporary needs, and other factors based on similar objective
criteria.
(Date of commencement: 1 January, 1998.)
215. National, provincial and municipal
budgets
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.
National legislation must
prescribe
the form of national, provincial
and municipal budgets;
when national and provincial
budgets must be tabled; and
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.
Budgets in each sphere of
government must contain
estimates of revenue and
expenditure, differentiating between capital and current
expenditure;
proposals for financing any
anticipated deficit for the period to which they apply; and
an indication of intentions regarding borrowing and other
forms of public liability that will increase public debt during the
ensuing year.
(Date of commencement: 1 January, 1998.)
216. Treasury control
National legislation must
establish a national treasury and prescribe measures to ensure both
transparency and expenditure control
in each sphere of government,
by introducing
generally recognised accounting
practice;
uniform expenditure
classifications; and
uniform treasury norms and standards.
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.
[Sub-s (2) substituted by s. 5 (a) of Act No. 61 of
2001.]
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-
may not stop the transfer of
funds for more than 120 days; and
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.
[Sub-s. (3) amended by s. 5 (b) of Act No. 61 of
2001.]
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).
Before Parliament may approve or
renew a decision to stop the transfer of funds to a province
the Auditor-General must report
to Parliament; and
the province must be given an opportunity to answer the
allegations against it, and to state its case, before a committee.
(Date of commencement: 1 January, 1998.)
217. Procurement
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.
Subsection (1) does not prevent
the organs of state or institutions referred to in that subsection
from implementing a procurement
policy providing for
categories of preference in the
allocation of contracts; and
the protection or advancement of persons, or categories of
persons, disadvantaged by unfair discrimination.
National
legislation must prescribe a framework within which the policy
referred to in subsection (2) must be implemented.
[Sub-s. (3) substituted by s. 6 of Act No. 61 of
2001.]
218. Government guarantees
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.
National legislation referred to in subsection (1) may be
enacted only after any recommendations of the Financial and Fiscal
Commission
have been considered.
Each year, every government must publish a report on the
guarantees it has granted.
(Date of commencement: 1 January, 1998.)
219. Remuneration of persons holding public
office
An Act of Parliament must
establish a framework for determining-
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
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.
National legislation must establish an independent commission
to make recommendations concerning the salaries, allowances and
benefits
referred to in subsection (1).
Parliament may pass the legislation referred to in subsection
(1) only after considering any recommendations of the commission
established
in terms of subsection (2).
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).
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.
Financial and Fiscal
Commission
220. Establishment and functions
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.
The Commission is independent and subject only to the
Constitution and the law, and must be impartial.
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).
221. Appointment and tenure of members
The Commission consists of the
following women and men appointed by the President, as head of the
national executive:
A chairperson and deputy
chairperson;
three persons selected, after
consulting the Premiers, from a list compiled in accordance with a
process prescribed by national
legislation;
two persons selected, after
consulting organised local government, from a list compiled in
accordance with a process prescribed
national legislation; and
two other persons.
[Sub-s. (1) amended by s. 2 of Act No. 2 of 1999 and
substituted by s. 7 (a) of Act No. 61 of 2001.]
National legislation referred to
in subsection (1) must provide for the participation of -
the Premiers in the compilation
of a list envisaged in subsection (1) (b); and
organised local government in the compilation of a list
envisaged in subsection (1) (c).
[Sub-s. (1A) inserted by s. 7 (b) of Act No. 61 of
2001.]
Members of the Commission must have appropriate expertise.
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.
222. Reports
The Commission must report regularly both to Parliament and to the
provincial legislatures.
Central Bank
223. Establishment
The South African Reserve Bank is the central bank of the Republic
and is regulated in terms of an Act of Parliament.
224. Primary object
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.
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.
225. Powers and functions
The powers and functions of the South African Reserve Bank are
those customarily exercised and performed by central banks, which
powers
and functions must be determined by an Act of Parliament and
must be exercised or performed subject to the conditions prescribed
in terms of that Act.
Provincial and Local
Financial Matters
226. Provincial Revenue Funds
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.
Money may be withdrawn from a
Provincial Revenue Fund only
in terms of an appropriation by a
provincial Act; or
as a direct charge against the Provincial Revenue Fund, when
it is provided for in the Constitution or a provincial Act.
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.
National legislation may determine
a framework within which-
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
revenue allocated through a province to local government in
that province in terms of subsection (3) must be paid to
municipalities
in the province.
[Sub-s. (4) added by s. 8 of Act No. 61 of 2001.]
(Date of commencement: 1 January 1998.)
227. National sources of provincial and local
government funding
Local government and each province
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
may receive other allocations from national government
revenue, either conditionally or unconditionally.
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.
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.
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: 1 January, 1998.)
228. Provincial taxes
A provincial legislature may
impose
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 custom duties.
[Para. (b) substituted by s. 9 of Act No. 61 of
2001.]
The power of a provincial
legislature to impose taxes, levies, duties and surcharges
may not be exercised in a way
that materially and unreasonably prejudices national economic
policies, economic activities across
provincial boundaries, or the
national mobility of goods, services, capital or labour; and
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: 1 January, 1998.)
229. Municipal fiscal powers and functions
Subject to subsections (2), (3)
and (4), a municipality may impose
rates on property and surcharges
on fees for services provided by or on behalf of the municipality;
and
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.
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
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
may be regulated by national legislation.
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:
The need to comply with sound
principles of taxation.
The powers and functions
performed by each municipality.
The fiscal capacity of each
municipality.
The effectiveness and efficiency
of raising taxes, levies and duties.
Equity.
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.
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.
230. Provincial and municipal loans
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.
National legislation referred to in subsection (1) may be
enacted only after any recommendations of the Financial and Fiscal
Commission
have been considered.
[S. 230 substituted by s. 10 of Act No. 61 of 2001.]
(Date of commencement: 1 January, 1998.)
230A. Municipal loans
A Municipal Council may, in
accordance with national legislation-
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
bind itself and a future Council in the exercise of its
legislative and executive authority to secure loans or investments
for
the municipality.
National legislation referred to in subsection (1) may be
enacted only after any recommendations of the Financial and Fiscal
Commission
have been considered.
[S. 230A inserted by s. 17 of Act No. 34 of 2001.]
Chapter 14
- General provisions
International Law
231. International agreements
The negotiating and signing of all international agreements
is the responsibility of the national executive.
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).
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.
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.
The Republic is bound by international agreements which were
binding on the Republic when this Constitution took effect.
232. Customary international law
Customary international law is law in the Republic unless it is
inconsistent with the Constitution or an Act of Parliament.
233. Application of international law
When interpreting any legislation, every court must prefer any
reasonable interpretation of the legislation that is consistent with
international law over any alternative interpretation that is
inconsistent with international law.
Other matters
234. Charters of Rights
In order to deepen the culture of democracy established by the
Constitution, Parliament may adopt Charters of Rights consistent with
the provisions of the Constitution.
235. Self-determination
The right of the South African people as a whole to
self-determination, as manifested in this Constitution, does not
preclude, within
the framework of this right, recognition of the
notion of the right of self-determination of any community sharing a
common cultural
and language heritage, within a territorial entity in
the Republic or in any other way, determined by national legislation.
236. Funding for political parties
To enhance multi-party democracy, national legislation must
provide for the funding of political parties participating in
national
and provincial legislatures on an equitable and proportional
basis.
237. Diligent performance of obligations
All constitutional obligations must be performed diligently and
without delay.
238. Agency and delegation
An executive organ of state in any sphere of government may
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
exercise any power or perform any function for any
other executive organ of state on an agency or delegation basis.
239. Definitions
In the Constitution, unless the context indicates otherwise
"national legislation" includes
subordinate legislation
made in terms of an Act of Parliament; and
legislation that was in force when the Constitution
took effect and that is administered by the national government;
"organ of state" means
any department of state
or administration in the national, provincial or local sphere of
government; or
any other functionary or
institution
exercising a power or
performing a function in terms of the Constitution or a provincial
constitution; or
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
subordinate legislation
made in terms of a provincial Act; and
legislation that was in force when the Constitution
took effect and that is administered by a provincial government.
240. Inconsistencies between different texts
In the event of an inconsistency between different texts of the
Constitution, the English text prevails.
241. Transitional arrangements
Schedule 6 applies to the transition to the new constitutional
order established by this Constitution, and any matter incidental to
that transition.
242. Repeal of laws
The laws mentioned in Schedule 7 are repealed, subject to section
243 and Schedule 6.
243. Short title and commencement
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.
The President may set different dates before the date
mentioned in subsection (1) in respect of different provisions of
the Constitution.
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.
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.
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.
Schedule 1
- National flag
The national flag is rectangular; it is one and a half times
longer than it is wide.
It is black, gold, green, white,
chilli red and blue.
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.
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.
The triangle next to the flag post
is black.
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 2 amended by s. 2 of Act
No. 35 of 1997 (Eng text only) and substituted by
s. 18 of Act No.
34 of 2001.
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
Map No. 4 of Schedule 1 to Notice 1998 of 2005
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
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
Map No. 5 of Schedule 1 to Notice 1998 of 2005
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
2005
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.
[Schedule 1A inserted by s.4 of the Constitution
Twelfth Amendment Act, 2005 and amended by s. 1(a) and (b) of he
Constitution Thirteenth
Amendment Act, 2007.]
Schedule 2
- Oaths and solemn affirmations
[Schedule 2 amended by s.2 of Act No. 35 of 1997 (Eng text only)
and substituted by s.18 of Act No. 34 of 2001.]
Oath or solemn affirmation of President and Acting President
1. 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.)
Oath or solemn affirmation of Deputy
President
2. 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.)
Oath or solemn affirmation of Ministers and
Deputy Ministers
3. 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.)
Oath or solemn affirmation of members of the
National Assembly, permanent delegates to the National Council of
Provinces and members
of the provincial legislatures
4. (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.
Oath or solemn affirmation of Premiers,
Acting Premiers and members of provincial Executive Councils
5. 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.)
Oath or solemn affirmation of Judicial
Officers
6. (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.
Schedule 3
- Election procedures
[Schedule 3 amended by s. 2 of Act No. 3 of 1999, by s. 19 of Act
No. 34 of 2001 and by s. 3 of Act No. 21 of 2002.]
Part A - Election procedures for constitutional Office-bearers
Application
1. The procedure set out in this Schedule applies whenever
the National Assembly meets to
elect the President, or the Speaker or Deputy Speaker of the
Assembly;
the National Council of Provinces
meets to elect its Chairperson or a Deputy Chairperson; or
a provincial legislature meets to elect the Premier of the
province or the Speaker or Deputy Speaker of the legislature.
Nominations
2. The person presiding at a meeting to which this Schedule
applies must call for the nomination of candidates at the meeting.
Formal requirements
3. (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
by two members of the National
Assembly, if the President or the Speaker or Deputy Speaker of the
Assembly is to be elected;
on behalf of two provincial
delegations, if the Chairperson or a Deputy Chairperson of the
National Council of Provinces is to be
elected; or
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.
Announcement of names of candidates
4. 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.
Single candidate
5. If only one candidate is nominated, the person presiding must
declare that candidate elected.
Election procedure
6. If more than one candidate is nominated
a vote must be taken at the
meeting by secret ballot;
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
the person presiding must declare elected the candidate who
receives a majority of the votes.
Elimination procedure
7. (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.
Further meetings
8. (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.
Rules
9. (1) The Chief Justice must make rules prescribing
the procedure for meetings to
which this Schedule applies;
the duties of any person presiding
at a meeting, and of any person assisting the person presiding;
the form on which nominations must
be submitted; and
the manner in which voting is to be conducted.
(2) These rules must be made known in the way that the Chief
Justice determines.
Part B Formula to Determine Party
Participation in Provincial Delegations to the National Council of
Provinces
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.
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.
If the competing surpluses
envisaged in item 2 are equal, the undistributed delegates in the
delegation must be allocated to the
party or parties, including any
merged party as contemplated in section 61 (2) (b), with the same
surplus in sequence of votes
recorded, starting with the party or
merged party which recorded the highest number of votes, including
combined votes in the case
of a merged party, during the last
election for the provincial legislature concerned, but if any of the
parties with the same surplus-
came into existence on account of
changes of party membership or subdivision of parties within that
legislature as contemplated
in section 61 (2) (b); and
did not participate in the last election for the provincial
legislature concerned,
the legislature must allocate the undistributed delegates in the
delegation to the party or parties with the same surplus in a manner
which is consistent with democracy.
Schedule 4
- Functional areas of concurrent national and provincial legislative
competence
Part A
Administration of indigenous
forests
Agriculture
Airports other than international
and national airports
Animal control and diseases
Casinos, racing, gambling and
wagering, excluding lotteries and sports pools
Consumer protection
Cultural matters
Disaster management
Education at all levels, excluding
tertiary education
Environment
Health services
Housing
Indigenous law and customary law,
subject to Chapter 12 of the Constitution
Industrial promotion
Language policy and the regulation
of official languages to the extent that the provisions of section 6
of the Constitution expressly
confer upon the provincial
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 12 of the Constitution
Urban and rural development
Vehicle licensing
Welfare services
Part B
The following local government matters to the extent set out in
section 155(6)(a) and (7):
Air pollution
Building regulations
Child care facilities
Electricity and gas reticulation
Firefighting services
Local tourism
Municipal airports
Municipal planning
Municipal health services
Municipal public transport
Municipal public works only in
respect of the needs of municipalities in the discharge of their
responsibilities to administer functions
specifically assigned to
them under this Constitution or any other law
Pontoons, ferries, jetties, piers
and harbours, excluding the regulation of international and national
shipping and matters related
thereto
Stormwater management systems in
built-up areas
Trading regulations
Water and sanitation services limited to potable water supply
systems and domestic waste-water and sewage disposal systems
Schedule 5
- Functional areas of exclusive provincial legislative competence
Part A
Abattoirs
Ambulance services
Archives other than national
archives
Libraries other than national
libraries
Liquor licences
Museums other than national
museums
Provincial planning
Provincial cultural matters
Provincial recreation and
amenities
Provincial sport
Provincial roads and traffic
Veterinary services, excluding regulation of the profession
Part B
The following local government matters to the extent set out for
provinces in section 155(6)(a) and (7):
Beaches and amusement facilities
Billboards and the display of
advertisements in public places
Cemeteries, funeral parlours and
crematoria
Cleansing
Control of public nuisances
Control of undertakings that sell
liquor to the public
Facilities for the accommodation,
care and burial of animals
Fencing and fences
Licensing of dogs
Licensing and control of
undertakings that sell food to the public
Local amenities
Local sport facilities
Markets
Municipal abattoirs
Municipal parks and recreation
Municipal roads
Noise pollution
Pounds
Public places
Refuse removal, refuse dumps and
solid waste disposal
Street trading
Street lighting
Traffic and parking
Schedule 6 - Transitional arrangements
[Schedule 6 amended by s. 3 of Act No. 35 of 1997, by s. 5 of Act
No. 65 of 1998 and by s. 20 of Act No. 34 of 2001.]
Definitions
1. 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).
Continuation of existing law
2. (1) All law that was in force when the new Constitution took
effect, continues in force, subject to
any amendment or repeal; and
consistency with the new Constitution.
(2) Old order legislation that continues in force in terms of
subitem
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
continues to be administered by the authorities that
administered it when the new Constitution took effect, subject to
the new Constitution.
Interpretation of existing legislation
3. (1) Unless inconsistent with the context or clearly
inappropriate, a reference in any legislation that existed when the
new Constitution
took effect
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;
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;
to the President, an Executive
Deputy President, a Minister, a Deputy Minister or the Cabinet, must
be construed as a reference
to the President, the Deputy President,
a Minister, a Deputy Minister or the Cabinet under the new
Constitution, subject to item
9 of this Schedule;
to the President of the Senate,
must be construed as a reference to the Chairperson of the National
Council of Provinces;
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
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
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
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
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
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
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
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.
National Assembly
4. (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.
Unfinished business before Parliament
5. (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.
Elections of National Assembly
6. (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
to the first election of the
National Assembly under the new Constitution;
to the loss of membership of the
Assembly in circumstances other than those provided for in section
47(3) of the new Constitution;
and
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.
National Council of Provinces
7. (1) For the period which ends immediately before the first
sitting of a provincial legislature held after its first election
under
the new Constitution
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
the allocation of permanent delegates and special delegates
to the parties represented in the provincial legislature, is as
follows:
|
Province
|
Permanent Delegates
|
Special Delegates
|
|
1. Eastern Cape
|
ANC 5
NP 1
|
ANC 4
|
|
2. Free State
|
ANC 4
FF 1
NP 1
|
ANC 4
|
|
3. Gauteng
|
ANC 3
DP 1
FF 1
NP 1
|
ANC 3
NP 1
|
|
4. KwaZulu-Natal
|
ANC 1
DP 1
IFP 3
NP 1
|
ANC 2
IFP 2
|
|
5. Mpumalanga
|
ANC 4
FF 1
NP 1
|
ANC 4
|
|
6. Northern Cape
|
ANC 3
FF 1
NP 2
|
ANC 2
NP 2
|
|
7. Northern Province
|
ANC 6
|
ANC 4
|
|
8. North West
|
ANC 4
FF 1
NP 1
|
ANC 4
|
|
9. Western Cape
|
ANC 2
DP 1
NP 3
|
ANC 1
NP 3
|
(2) A party represented in a provincial legislature
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
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.
Former senators
8. (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.
National executive
9. (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.
Provincial legislatures
10. (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.
Elections of provincial legislatures
11. (1) Despite the repeal of the previous Constitution, Schedule
2 to that Constitution, as amended by Annexure A to this Schedule,
applies
to the first election of a
provincial legislature under the new Constitution;
to the loss of membership of a
legislature in circumstances other than those provided for in
section 106(3) of the new Constitution;
and
to the filling of vacancies in a legislature, and the
supplementation, review and use of party lists for the filling of
vacancies,
until the second election of the legislature under the
new Constitution.
(2) Section 106(4) of the new Constitution is suspended in respect
of a provincial legislature until the second election of the
legislature
under the new Constitution.
Provincial executives
12. (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.
Provincial constitutions
13. A provincial constitution passed before the new Constitution
took effect must comply with section 143 of the new Constitution.
Assignment of legislation to provinces
14. (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
amend or adapt the legislation to
regulate its interpretation or application;
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
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 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.
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
the validity of anything done in
terms of the proclamation or provision before it lapsed; or
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.
Existing legislation outside Parliament's
legislative power
15. (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.
Courts
16. (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
any amendment or repeal of that
legislation; and
consistency with the new Constitution.
(2)
The Constitutional Court
established by the previous Constitution becomes the Constitutional
Court under the new Constitution.
……
(3)
The Appellate Division of the
Supreme Court of South Africa becomes the Supreme Court of Appeal
under the new Constitution.
……
(4)
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).
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
the Constitutional Court under the
previous Constitution, must be construed as a reference to the
Constitutional Court under the
new Constitution;
the Appellate Division of the
Supreme Court of South Africa, must be construed as a reference to
the Supreme Court of Appeal; and
) 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)
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.
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)
Anyone holding office, when the
Constitution of the Republic of South Africa Amendment Act, 2001,
takes effect, as-
the President of the
Constitutional Court, becomes the Chief Justice as contemplated in
section 167 (1) of the new Constitution;
the Deputy President of the
Constitutional Court, becomes the Deputy Chief Justice as
contemplated in section 167 (1) of the new
Constitution;
the Chief Justice, becomes the
President of the Supreme Court of Appeal as contemplated in section
168 (1) of the new Constitution;
and
the Deputy Chief Justice, becomes
the Deputy President of the Supreme Court of Appeal as contemplated
in section 168 (1) of the
new Constitution.
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.
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.
Cases pending before courts
17. 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.
Prosecuting authority
18. (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).
Oaths and affirmations
19. 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.
Other constitutional institutions
20. (1) In this section "constitutional institution"
means
the Public Protector;
the Human Rights Commission;
the Commission on Gender Equality;
the Auditor-General;
the South African Reserve Bank;
the Financial and Fiscal
Commission;
the Judicial Service Commission;
or
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 -
any amendment or repeal of that
legislation; and
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)
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
any amendment or repeal of that
legislation; and
consistency with the new
Constitution.
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.
Enactment of legislation required by new
Constitution
21. (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.
National unity and reconciliation
22. (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 September
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".
Bill of Rights
23. (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
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
section 33(1) and (2) must be
regarded to read as follows: "Every person has the right to
lawful administrative action
where any of their rights or interests is affected or threatened;
procedurally fair
administrative action where any of their rights or legitimate
expectations is affected or threatened;
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
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.
Public administration and security services
24. (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
the amendments to those sections
as set out in Annexure D;
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
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
any amendment or repeal; and
consistency with the new Constitution.
Additional disqualification for legislatures
25. (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)
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
ends five years after the sentence has been completed.
Local government
26. (1) Notwithstanding the provisions of sections 151, 155, 156
and 157 of the new Constitution -
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;
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.
Safekeeping of Acts of Parliament and
Provincial Acts
27. 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.
Registration of immovable property owned by
the state
28. (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).
ANNEXURE
A
Amendments to Schedule 2 to the
previous Constitution
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:
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.
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 -
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
by replacing paragraph (a) with the following paragraph:
"(a) A quota of votes per seat shall be determined by
dividing the total number of votes cast nationally by the number of
seats
in the National Assembly, plus one, and the result plus one,
disregarding fractions, shall be the quota of votes per seat.".
6. The amendment of item 7(3) by replacing paragraph (b) with the
following paragraph:
"(b) An amended quota of votes per seat shall be
determined by dividing the total number of votes cast nationally,
minus the
number of votes cast nationally in favour of the party
referred to in paragraph (a), by the number of seats in the Assembly,
plus
one, minus the number of seats finally allocated to the said
party in terms of paragraph (a).".
7. The replacement of item 10 with the following item:
"10. The number of seats in each provincial
legislature shall be as determined in terms of section 105 of the new
Constitution.".
8. The replacement of item 11 with the following item:
"11. Parties registered in terms of national
legislation and contesting an election of a provincial legislature,
shall nominate
candidates for election to such provincial legislature
on provincial lists prepared in accordance with this Schedule and
national
legislation.".
9. The replacement of item 16 with the following item:
"Designation of representatives
16. (1) After the counting of votes has been concluded,
the number of representatives of each party has been determined and
the election
result has been declared in terms of section 190 of the
new Constitution, the Commission shall, within two days after such
declaration,
designate from each list of candidates, published in
terms of national legislation, the representatives of each party in
the legislature.
(2) Following the designation in terms of subitem (1), if
a candidate's name appears on more than one list for the National
Assembly
or on lists for both the National Assembly and a provincial
legislature (if an election of the Assembly and a provincial
legislature
is held at the same time), and such candidate is due for
designation as a representative in more than one case, the party
which submitted
such lists shall, within two days after the said
declaration, indicate to the Commission from which list such
candidate will be designated
or in which legislature the candidate
will serve, as the case may be, in which event the candidate's name
shall be deleted from the
other lists.
(3) The Commission shall forthwith publish the list of
names of representatives in the legislature or legislatures.".
10. The amendment of item 18 by replacing paragraph (b) with the
following paragraph:
"(b) a representative is appointed as a permanent
delegate to the National Council of Provinces;".
11. The replacement of item 19 with the following item:
"19. Lists of candidates of a party referred to in
item 16(1) may be supplemented on one occasion only at any time
during the
first 12 months following the date on which the
designation of representatives in terms of item 16 has been
concluded, in order to
fill casual vacancies: Provided that any such
supplementation shall be made at the end of the list.".
12. The replacement of item 23 with the following item:
"Vacancies
23.(1) In the event of a vacancy in a legislature to
which this Schedule applies, the party which nominated the vacating
member shall
fill the vacancy by nominating a person
whose name appears on the
list of candidates from which the vacating member was originally
nominated; and
who is the next qualified and available person on
the list.
(2) A nomination to fill a vacancy shall be submitted to
the Speaker in writing.
(3) If a party represented in a legislature dissolves or
ceases to exist and the members in question vacate their seats in
consequence
of item 23A(1), the seats in question shall be allocated
to the remaining parties mutatis mutandis as if such seats were
forfeited
seats in terms of item 7 or 14, as the case may be.".
13. The insertion of the following item after item 23:
"Additional ground for loss of membership of
legislatures
23A. (1) A person loses membership of a legislature to
which this Schedule applies if that person ceases to be a member of
the party
which nominated that person as a member of the legislature.
(2) Despite subitem (1) any existing political party may
at any time change its name.
(3) An Act of Parliament may, within a reasonable period
after the new Constitution took effect, be passed in accordance with
section
76(1) of the new Constitution to amend this item and item 23
to provide for the manner in which it will be possible for a member
of a legislature who ceases to be a member of the party which
nominated that member, to retain membership of such legislature.
(4) An Act of Parliament referred to in subitem (3) may
also provide for
any existing party to merge with
another party; or
any party to subdivide into more than one party.".
14. The deletion of item 24.
15. The amendment of item 25
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
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.
ANNEXURE
B
Government of National Unity: National Sphere
1. Section 84 of the new Constitution is deemed to contain the
following additional subsection:
"(3) The President must consult the Executive Deputy
Presidents
in the development and execution
of the policies of the national government;
in all matters relating to the
management of the Cabinet and the performance of Cabinet business;
in the assignment of functions to
the Executive Deputy Presidents;
before making any appointment
under the Constitution or any legislation, including the
appointment of ambassadors or other diplomatic
representatives;
before appointing commissions of
inquiry;
before calling a referendum; and
before pardoning or reprieving offenders.".
2. Section 89 of the new Constitution is deemed to contain the
following additional subsection:
"(3) Subsections (1) and (2) apply also to an
Executive Deputy President.".
3. Paragraph (a) of section 90(1) of the new Constitution is
deemed to read as follows:
"(a) an Executive Deputy President designated by the
President;".
4. Section 91 of the new Constitution is deemed to read as
follows:
"Cabinet
91. (1) The Cabinet consists of the President, the
Executive Deputy Presidents and
not more than 27 Ministers who
are members of the National Assembly and appointed in terms of
subsections (8) to (12); and
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
until 30 April 1999 unless
replaced or recalled by the party entitled to make the designation
in terms of subsections (2) and
(3); or
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 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.
The result, disregarding third
and subsequent decimals, if any, is the quota of seats per
portfolio.
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).
The result, subject to paragraph
(e), indicates the number of portfolios to be allocated to that
party.
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
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);
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;
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);
terminate any appointment under
paragraph (b)
if the President is requested to
do so by the leader of the party of which the Minister in question
is a member; or
if it becomes necessary for the
purposes of the Constitution or in the interest of good
government; or
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
the exercise of a power referred
to in paragraph (a), (c) or (d)(ii) of that subsection, the
President's decision prevails;
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
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
in consultation with the
Executive Deputy Presidents and the leaders of the participating
parties, must
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;
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
fill, if necessary, a vacancy in
respect of that portfolio; or
after consultation with the Executive Deputy Presidents and
the leaders of the participating parties, must terminate any
appointment
under paragraph (a) if it becomes necessary for the
purposes of the Constitution or in the interest of good government.
(14) Meetings of the Cabinet must be presided over by the
President, or, if the President so instructs, by an Executive Deputy
President:
Provided that the Executive Deputy Presidents preside over
meetings of the Cabinet in turn unless the exigencies of government
and
the spirit embodied in the concept of a government of national
unity otherwise demand.
(15) The Cabinet must function in a manner which gives
consideration to the consensus-seeking spirit embodied in the concept
of a
government of national unity as well as the need for effective
government.".
5. Section 93 of the new Constitution is deemed to read as
follows:
"Appointment of Deputy Ministers
93. (1) The President may, after consultation with the
Executive Deputy Presidents and the leaders of the parties
participating in
the Cabinet, establish deputy ministerial posts.
(2) A party is entitled to be allocated one or more of
the deputy ministerial posts in the same proportion and according to
the same
formula that portfolios in the Cabinet are allocated.
(3) The provisions of section 91 (10) to (12) apply, with
the necessary changes, in respect of Deputy Ministers, and in such
application
a reference in that section to a Minister or a portfolio
must be read as a reference to a Deputy Minister or a deputy
ministerial
post, respectively.
(4) If a person is appointed as the Deputy Minister of
any portfolio entrusted to a Minister
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
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
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
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.".
ANNEXURE
C
Government of National Unity: Provincial Sphere
1. Section 132 of the new Constitution is deemed to read as
follows:
"Executive Councils
132. (1) The Executive Council of a province consists of
the Premier and not more than 10 members appointed by the Premier in
accordance
with this section.
(2) A party holding at least 10 per cent of the seats in
a provincial legislature and which has decided to participate in the
government
of national unity, is entitled to be allocated one or more
of the Executive Council portfolios in proportion to the number of
seats
held by it in the legislature relative to the number of seats
held by the other participating parties.
(3) Executive Council portfolios must be allocated to the
respective participating parties according to the same formula set
out in
section 91 (9), and in applying that formula a reference in
that section to
the Cabinet, must be read as a
reference to an Executive Council;
a Minister, must be read as a
reference to a member of an Executive Council; and
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
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);
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;
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);
terminate any appointment under
paragraph (b)
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
if it becomes necessary for the
purposes of the Constitution or in the interest of good
government; or
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
the exercise of a power referred
to in paragraph (a), (c) or (d)(ii) of that subsection, the
Premier's decision prevails;
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
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.".
ANNEXURE
D
Public administration and security services: Amendments to
sections of the previous Constitution
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 -
Retention of membership of National Assembly or provincial
legislature, after a change of party membership, mergers between
parties,
subdivision of parties and subdivision and merger of parties
[Schedule 6A inserted by s. 6 of Act No. 2 of 2003]
Definition
1. In this Schedule "legislature" means the National
Assembly or any provincial legislature.
Retention of membership of legislature in
event of change of party membership
2. (1) Subject to item 4, a member of a legislature who becomes a
member of a party (the new party) other than the party which
nominated
that person as a member (the nominating party), whether the
new party participated in an election or not, remains a member of
that
legislature if that member, whether by himself or herself or
together with one or more other members who, during a period referred
to in item 4 (1) (a) or (b), ceased to be members of the nominating
party, represents not less that 10 per cent of the total number
of
seats held by the nominating party in that legislature.
(2) The seat held by a member referred to in subitem (1) is
regarded as having been allocated to the new party which the member
represents.
Retention of membership of legislature in
event of mergers, subdivision and subdivision and merger of parties
3. (1) Subject to item 4, any party (the original party) which is
represented in a legislature may-
merge with another party, whether
that party participated in an election or not; or
subdivide into more than one party or subdivide and any
subdivision may merge with another party, whether that party
participated
in an election or not, it the members of subdivision
leaving the original party represent not less than 10 per cent of
the total
number of seats held by the original party in that
legislature.
(2) If a party merges with another party or subdivides into more
than one party or subdivides and any subdivision merges with another
party in terms of subitem (1), the members concerned remain members
of that legislature and the seats held by them are regarded as
having
been allocated to the party which they represent pursuant to any
merger, subdivision or subdivision and merger contemplated
in subitem
(1).
Period of application of items 2 and 3 and
further requirements
4. (1) The provisions of items 2 and 3 only apply-
for a period of 15 days from the
first to the fifteenth day of September in the second year following
the date of an election of
the legislature; and
for a period of 15 days from the first to the fifteenth day
of September in the fourth year following the date of an election of
the legislature.
(2) For the purpose of subitem (1) "year" means a period
of 365 days.
(3) During each period referred to in subitem (1) (a) and (b) -
a member of legislature may only
once change membership of a party, by informing the Speaker of the
legislature thereof in writing
and by submitting to the Speaker
written confirmation from such other party that he or she has been
accepted as a member of that
party; and
a party may only once -
merge with another party;
subdivide into more than one
party; and
subdivide and any subdivision may merge with another party,
by informing the Speaker of the legislature thereof in writing
and by submitting to the Speaker written confirmation from the other
party of the names of all members involved in the merger or
subdivision, and that the party has accepted the merger; and
no party represented in a
legislature may -
suspend or terminate the party
membership of a member representing that party in that legislature;
or
perform any act whatsoever which may cause such a member to
be disqualified from holding office as such a member,
without the written consent of the member concerned.
(4) A party which has not been registered in terms of any law
applicable to the registration of political parties is regarded as a
party for the purposes of this Schedule, but such a party must apply
for registration as a party in accordance with applicable law
within
the period referred to in subitem (1) (a) or (b). If the party is not
registered within four months after the expiry of that
period, it is
regarded as having ceased to exist, and the seats in question must be
allocated to the remaining parties in accordance
with applicable law.
Composition of legislature maintained until
election or reconstitution in terms of Schedule
5. (1) After the expiry of a period referred to in item 4 (1) (a)
or (b), the composition of a legislature which has been reconstituted
as a result of any conduct in terms of item 2 or 3 is maintained
until the next election of that legislature or until the composition
of the legislature is reconstituted in accordance with item 2 or 3.
(2) Within seven days after the expiry of a period referred to in
item 4 (1) (a) or (b), each party represented in a legislature
contemplated
in subitem (1) must submit a list of its candidates to
the Secretary of the legislature.
(3) The Speaker of a legislature contemplated in subitem (1) must,
within seven days after the expiry of a period referred to in item
4
(1) (a) or (b), publish a notice in the Gazette which must reflect -
the number of seats allocated to
each party represented in that legislature; and
the name of, and party represented by, each member.
Transitional arrangement in respect of
retention of membership of legislature in event of change of party
membership, mergers between
parties, subdivision of parties and
subdivision and merger of parties
6. (1) During the first 15 days immediately following the date of
the commencement of this Schedule -
a member of a legislature may
become a member of another party (the new party), whether the new
party participated in an election
or not, whilst remaining a member
of the legislature concerned and the seat held by that member must
be regarded as having been
allocated to the new party of which that
member has become a member; and
any party which is represented in
a legislature may -
merge with another party, whether
that party participated in an election or not; or
subdivide into more than one party or subdivide and any
subdivision may merge with another party, whether that party
participated
in an election or not,
whilst the members concerned remain members of that legislature
and the seats held by them must be regarded as having been allocated
to the party which they represent pursuant to any merger,
subdivision or subdivision and merger contemplated in this
paragraph.
The provisions of item 4 (3) and (4) and item 5 are also
applicable in respect of subitem (1), and any reference therein to a
period
referred to in item 4 (1) (a) or (b) must be construed as a
reference to the period referred to in subitem (1).
-
Schedule
6B - Loss or retention of membership of Municipal Councils, after a
change of party membership, mergers between parties,
subdivision of
parties and subdivion and merger of parties, and filling of vacancies
[Schedule 6B, formerly Schedule 6A, inserted by s. 2 of Act No. 18
of 2002 and amended by s. 5 of Act No. 2 of 2003.]
Loss or retention of Council membership
1. (1) A councillor not representing a ward ceases to be a member
of a Municipal Council it that councillor, other than in accordance
with item 2, 3 or 7, ceases to be a member of the party which
nominated that councillor as a member that Council.
(2) A
councillor representing a ward in a Municipal Council ceases to be
member of that Council if that councillor, other than in
accordance
with item 2, 3 or 7 -
ceases to be a member of a party
which nominated that councillor as a candidate in the ward election;
or
was not nominated by any party as a candidate in the ward
election and becomes a member of a party.
Retention of Council membership in event of
change of party membership
2. (1) Subject to item 4, a councillor -
not representing a ward, who is a
member of a party represented in that Municipal Council (the
original party) and who becomes a
member of another party (the new
party), whether the new party participated in an election or not,
remains a councillor of that
Council; or
who represents a ward in that
Council, remains a councillor for that ward, if that councillor -
was nominated by a party (the original party) as a candidate
in the ward election and-
(aa) cease to be a member of the original party and
becomes a member of another party (the new party), whether the new
party participated
in an election or not; or
(bb) ceases to be a
member of the original party and does not become a member of anther
party; or
was not nominated by a party as a candidate in the ward
election and becomes a member of a party, whether that party
participated
in an election or not,
if the councillor referred to in paragraphs (a) and (b) (i),
whether by himself or herself or together with one or more other
councilors
who, during a period referred to in item 4 (1) (a) (i) or
(ii) ceased to be members of the original party, represent not less
than
10 per cent of the total number of seats held by the original
party in that Council.
(2) The seat held by a councillor referred to in subitem (1) 9a)
must be regarded as having been allocated to the new party of which
that councillor has become a member.
(3) The ward represented by a councillor referred to in subitem
(1) (b) must be regarded as having been -
allocated to the party of which
that councillor has become a member; or
acquired by that councillor, if such councillor has not
become a member of another party.
Retention of Council in event of mergers,
subdivision and subdivision and merger of parties
3. (1) Subject to item 4, any political party (the original party)
which is represented in a Municipal Council may -
merge with another party, whether
that party participated in a an election or not; or
subdivide into more than one party or subdivide and any one
subdivision may merge with another party, whether that party
participated
in an election or not, if the members of a subdivision
leaving the original party represented not less than 10 per cent of
the
total number of seats held by the original party in respect of
that Council.
(2) If a party merges with another party or subdivides into more
than one party or subdivides and merges with another party in terms
of subitem (1), the councilors concerned remain members of that
Municipal Council and the seats held by them must be regarded as
having been allocated to the new party which they represent pursuant
to any merger, subdivision or subdivision and merger as contemplated
in subitem (1).
Period of application of items 2 and 3 and
further requirements
4. (1)
The provisions of items 2 and 3
only apply -
for a period of 15 days from the
first to the fifteenth day of September in the second year
following the date of an election
of all Municipal Councils; and
for a period of 15 days from the first to the fifteenth day
of September in the fourth year following the date of an election
of all Municipal Councils,
but do not apply during the year ending on 31 December, 2002.
For the purpose of paragraph (a) "year" means a
period of 365 days.
(2) During a period referred to in subitem (1) (a (i) or (ii) -
a councillor may only once -
change membership of a party;
become a member of a party; or
cease to be a member of a party,
by informing an officer designated by the Electoral Commission
thereof in writing, and if that councillor has changed membership
of
a party or has become a member of a party, by submitting to that
officer written confirmation from the party in question that
he or
she has been accepted as a member of that party; and
a party may only once -
merge with another party;
subdivide into more than one
party; or
subdivide and any one sub[Schedule 6B, formerly Schedule 6A,
inserted by s. 2 of Act No. 18 of 2002 and amended by s. 5 of Act
No. 2 of 2003.]
Loss or retention of Council membership
1. (1) A councillor not representing a ward ceases to be a member
of a Municipal Council it that councillor, other than in accordance
with item 2, 3 or 7, ceases to be a member of the party which
nominated that councillor as a member that Council.
(2) A
councillor representing a ward in a Municipal Council ceases to be
member of that Council if that councillor, other than in
accordance
with item 2, 3 or 7 -
ceases to be a member of a party
which nominated that councillor as a candidate in the ward election;
or
was not nominated by any party as a candidate in the ward
election and becomes a member of a party.
Retention of Council membership in event of
change of party membership
2. (1) Subject to item 4, a councillor -
not representing a ward, who is a
member of a party represented in that Municipal Council (the
original party) and who becomes a
member of another party (the new
party), whether the new party participated in an election or not,
remains a councillor of that
Council; or
who represents a ward in that
Council, remains a councillor for that ward, if that councillor -
was nominated by a party (the original party) as a candidate
in the ward election and-
(aa) cease to be a member of the original party and
becomes a member of another party (the new party), whether the new
party participated
in an election or not; or
(bb) ceases to be a
member of the original party and does not become a member of anther
party; or
was not nominated by a party as a candidate in the ward
election and becomes a member of a party, whether that party
participated
in an election or not,
if the councillor referred to in paragraphs (a) and (b) (i),
whether by himself or herself or together with one or more other
councilors
who, during a period referred to in item 4 (1) (a) (i) or
(ii) ceased to be members of the original party, represent not less
than
10 per cent of the total number of seats held by the original
party in that Council.
(2) The seat held by a councillor referred to in subitem (1) 9a)
must be regarded as having been allocated to the new party of which
that councillor has become a member.
(3) The ward represented by a councillor referred to in subitem
(1) (b) must be regarded as having been -
allocated to the party of which
that councillor has become a member; or
acquired by that councillor, if such councillor has not
become a member of another party.
Retention of Council in event of mergers,
subdivision and subdivision and merger of parties
3. (1) Subject to item 4, any political party (the original party)
which is represented in a Municipal Council may -
merge with another party, whether
that party participated in a an election or not; or
subdivide into more than one party or subdivide and any one
subdivision may merge with another party, whether that party
participated
in an election or not, if the members of a subdivision
leaving the original party represented not less than 10 per cent of
the
total number of seats held by the original party in respect of
that Council.
(2) If a party merges with another party or subdivides into more
than one party or subdivides and merges with another party in terms
of subitem (1), the councilors concerned remain members of that
Municipal Council and the seats held by them must be regarded as
having been allocated to the new party which they represent pursuant
to any merger, subdivision or subdivision and merger as contemplated
in subitem (1).
Period of application of items 2 and 3 and
further requirements
4. (1)
The provisions of items 2 and 3
only apply -
for a period of 15 days from the
first to the fifteenth day of September in the second year
following the date of an election
of all Municipal Councils; and
for a period of 15 days from the first to the fifteenth day
of September in the fourth year following the date of an election
of all Municipal Councils,
but do not apply during the year ending on 31 December, 2002.
For the purpose of paragraph (a) "year" means a
period of 365 days.
(2) During a period referred to in subitem (1) (a (i) or (ii) -
a councillor may only once -
change membership of a party;
become a member of a party; or
cease to be a member of a party,
by informing an officer designated by the Electoral Commission
thereof in writing, and if that councillor has changed membership
of
a party or has become a member of a party, by submitting to that
officer written confirmation from the party in question that
he or
she has been accepted as a member of that party; and
a party may only once -
merge with another party;
subdivide into more than one
party; or
subdivide and any one subdivision merge with another party,
by informing an officer designated by the Electoral
Commission thereof in writing, and by submitting to that officer
written confirmation
from the party -
(aa) of the names of all councillors involved in such
merger of subdivision; and
(bb) that it has accepted such merger;
and
no party represented in a
Municipal Council may -
suspend or terminate the party
membership of a councillor representing that party in that Council;
or
perform any act whatsoever which may cause such a councillor
to be disqualified from holding office as such a councillor in that
Council,
without the written consent of the councillor concerned.
Composition of Council maintained until
election or by-election, or reconstitution in terms of Schedule
5. After the expiry of a period referred to in item 4 (1) (a), the
composition of a Municipal Council, which has been reconstituted
as a
result of any conduct in terms of item 2 or 3, is maintained until
the next election of all Municipal Councils or until the
composition
of that Municipal Council is reconstituted in accordance with item 2
or 3 or until a by-election is held in that Municipal
Council.
Reconstitution by Municipal Councils
6.
A Municipal Council referred to in
item 5 which appoints members of another Municipal Council, as
contemplated in section 157 (1)
(b) must within 15 days of the
expiry of a period referred to in item 4 (1) (a) (i) or (ii) apply
again the procedure provided
for in national legislation for
appointing such members to represent the appointing Council.
Within 30 days of the expiry of a
period referred to in 4 (1) (a) (i) of (ii), all the structures and
committees of -
a Category A and a Category B
municipality referred to in item 5 must be reconstituted in
accordance with applicable law; and
a Category C municipality referred to in item 5 must be
reconstituted in accordance with applicable law after all the
appointments
contemplated in paragraph (a) have been made in
respect of that Category C municipality.
Transitional arrangement in respect of
retention of membership of Municipal Councils in event of change of
party membership, merger
between parties, subdivision of parties and
subdivision and merger of parties
7. (1) During the first 15 days immediately following the date of
the commencement of this Schedule -
a councillor who was elected from
the party list of a party represented in a Municipal Council (the
original party) may become a
member of another party (the new
party), whether the new party participated in an election or not,
whilst remaining a councillor
of the Municipal Council concerned and
the seat held by that councillor must be regarded as having been
allocated to the new party
of which that councillor has become a
member;
a councillor who was elected to
represent a ward in a Municipal Council and who -
was nominated by a party as a
candidate in the ward election, may cease to be a member of the
original party and become a member
of the new party, whether the
new party participated in an election or not, or cease to be a
member of the original party and
not become a member of another
party; or
was not nominated by a party as a candidate in the ward
election, may become a member of a party, whether that party
participated
in an election or not,
and the ward represented by such a councillor must be regarded as
having been -
(aa) allocated to the new party of which that councillor
has become a member, or
(bb) acquired by that councillor, it
such councillor has not become a member of a party; and
any political party which
is represented in a Municipal Council may -
merge with another party, whether
that party participated in an election or not; or
subdivide into more than one party or subdivide and any one
subdivision merge with another party, whether that party
participated
in an election or not,
whilst the councilors concerned remain members of that Council
and the seats held by them must be regarded and having been
allocated
to the party which they represent pursuant to any merger,
subdivision or subdivision and merger contemplated in this
paragraph.
(2) The provisions of items 4 (2), 5 and 6 are also applicable in
respect or subitem (1), and any reference therein to a period
referred
to in item 4 (1) (a) (i) or (ii) must be construed as a
reference to the period referred to in subitem (1).
Filling of vacancies
8. Vacancies in a Municipal Council must be filled in terms of
national legislation.
Amendment of Schedule
9. …………
[Item 9 deleted by s. 5 of Act No. 2 of 2003.]
division merge with another party,
by informing an officer designated by the Electoral
Commission thereof in writing, and by submitting to that officer
written confirmation
from the party -
(aa) of the names of all councillors involved in such
merger of subdivision; and
(bb) that it has accepted such merger;
and
no party represented in a
Municipal Council may -
suspend or terminate the party
membership of a councillor representing that party in that Council;
or
perform any act whatsoever which may cause such a councillor
to be disqualified from holding office as such a councillor in that
Council,
without the written consent of the councillor concerned.
Composition of Council maintained until
election or by-election, or reconstitution in terms of Schedule
5. After the expiry of a period referred to in item 4 (1) (a), the
composition of a Municipal Council, which has been reconstituted
as a
result of any conduct in terms of item 2 or 3, is maintained until
the next election of all Municipal Councils or until the
composition
of that Municipal Council is reconstituted in accordance with item 2
or 3 or until a by-election is held in that Municipal
Council.
Reconstitution by Municipal Councils
6.
A Municipal Council referred to in
item 5 which appoints members of another Municipal Council, as
contemplated in section 157 (1)
(b) must within 15 days of the
expiry of a period referred to in item 4 (1) (a) (i) or (ii) apply
again the procedure provided
for in national legislation for
appointing such members to represent the appointing Council.
Within 30 days of the expiry of a
period referred to in 4 (1) (a) (i) of (ii), all the structures and
committees of -
a Category A and a Category B
municipality referred to in item 5 must be reconstituted in
accordance with applicable law; and
a Category C municipality referred to in item 5 must be
reconstituted in accordance with applicable law after all the
appointments
contemplated in paragraph (a) have been made in
respect of that Category C municipality.
Transitional arrangement in respect of
retention of membership of Municipal Councils in event of change of
party membership, merger
between parties, subdivision of parties and
subdivision and merger of parties
7. (1) During the first 15 days immediately following the date of
the commencement of this Schedule -
a councillor who was elected from
the party list of a party represented in a Municipal Council (the
original party) may become a
member of another party (the new
party), whether the new party participated in an election or not,
whilst remaining a councillor
of the Municipal Council concerned and
the seat held by that councillor must be regarded as having been
allocated to the new party
of which that councillor has become a
member;
a councillor who was elected to
represent a ward in a Municipal Council and who -
was nominated by a party as a
candidate in the ward election, may cease to be a member of the
original party and become a member
of the new party, whether the
new party participated in an election or not, or cease to be a
member of the original party and
not become a member of another
party; or
was not nominated by a party as a candidate in the ward
election, may become a member of a party, whether that party
participated
in an election or not,
and the ward represented by such a councillor must be regarded as
having been -
(aa) allocated to the new party of which that councillor
has become a member, or
(bb) acquired by that councillor, it
such councillor has not become a member of a party; and
any political party which
is represented in a Municipal Council may -
merge with another party, whether
that party participated in an election or not; or
subdivide into more than one party or subdivide and any one
subdivision merge with another party, whether that party
participated
in an election or not,
whilst the councilors concerned remain members of that Council
and the seats held by them must be regarded and having been
allocated
to the party which they represent pursuant to any merger,
subdivision or subdivision and merger contemplated in this
paragraph.
(2) The provisions of items 4 (2), 5 and 6 are also applicable in
respect or subitem (1), and any reference therein to a period
referred
to in item 4 (1) (a) (i) or (ii) must be construed as a
reference to the period referred to in subitem (1).
Filling of vacancies
8. Vacancies in a Municipal Council must be filled in terms of
national legislation.
Amendment of Schedule
9. …………
[Item 9 deleted by s. 5 of Act No. 2 of 2003.]
Schedule 7
- Laws repealed
|
Number and Year of Law
|
Title
|
|
Act 200 of 1993
|
Constitution of the Republic of South Africa, 1993
|
|
Act 2 of 1994
|
Constitution of the Republic of South Africa Amendment Act,
1994
|
|
Act 3 of 1994
|
Constitution of the Republic of South Africa Second Amendment
Act, 1994
|
|
Act 13 of 1994
|
Constitution of the Republic of South Africa Third Amendment
Act, 1994
|
|
Act 14 of 1994
|
Constitution of the Republic of South Africa Fourth Amendment
Act, 1994
|
|
Act 24 of 1994
|
Constitution of the Republic of South Africa Sixth Amendment
Act, 1994
|
|
Act 29 of 1994
|
Constitution of the Republic of South Africa Fifth Amendment
Act, 1994
|
|
Act 20 of 1995
|
Constitution of the Republic of South Africa Amendment Act,
1995
|
|
Act 44 of 1995
|
Constitution of the Republic of South Africa Second Amendment
Act, 1995
|
|
Act 7 of 1996
|
Constitution of the Republic of South Africa Amendment Act,
1996
|
|
Act 26 of 1996
|
Constitution of the Republic of South Africa Third Amendment
Act, 1996
|
|
