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[1993] ZAConAsmRes 24
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Third Draft - Constitution of the Republic of South Africa, 1993 [1993] ZAConAsmRes 24 (20 August 1993)
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THIRD DRAFT PREAMBLE
CHAPTER I
[omissions are indicated by hold lettering and square brackets]; insertions
are indicated by underlining National symbols 2. (1) The design of the national flag of South Africa shall be as set out in Schedule 2. (2) The national anthem of South Africa shall be........ (3) The national coat of arms of South Africa shall be in accordance with the
description set out in Schedule 3. (4) The national seal of South Africa shall be in accordance with the
description set out in Schedule 4. Languages 3. [The text of this provision will be formulated after the committee of the
MPNP has reported.] The supremacy of the Constitution 4. (1) This Constitution shall be the supreme law of the land and any law
inconsistent with its provisions shall, to the extent of
its inconsistency, be
of no force or effect. (2) The provisions of this Constitution binds all the legislative, executive
and judicial organs of the state at all levels of government. CHAPTER 2 Citizenship 5. (1) Every person who is a South African citizen in terms of legislation
applicable on the date of the coming into operation of
this Constitution, shall
retain such citizenship. [omissions are indicated by bold lettering and square brackets]; insertions
are indicated by underlining
(a) a South African citizen; (b) of or over the age of 18 years; and (c) not subject to any of the disqualifications set out in the Electoral Act,
1993,
(a) bind the legislative, executive and, where appropriate, the judicial
branches of government at all levels as well as all statutory
bodies and
functionaries; [omissions are indicated by bold lettering and square brackets]; insertions
are indicated by underlining (b) bind, where just and equitable, other bodies and persons; and (c) be enforced by the designated authority. (2) In the case of an infringement of any provision of this Chapter, the
designated authority may, where appropriate, put any body
or person referred to
in subsection (1)(a) or (b) on terms as to how and within what period such
infringement should be remedied. (3) The provisions of this Chapter shall apply to all laws
in force and all administrative decisions taken during
the period of operation
of this Chapter. (4) All juristic persons shall be entitled to the rights contained in this Chapter to the extent that the nature of these rights permit. (5) (a) Every person who alleges that his or her rights or every
association which alleges that its members' rights entrenched
in this Chapter,
have been infringed or are threatened, shall be entitled to apply to a competent
[designated authority] court for
appropriate relief, which may include a
declaration of rights. (b) Nothing in this subsection shall prevent a person from applying for
relief on behalf of a group or class of persons whose rights
entrenched in this
Chapter are alleged to have been infringed or are
threatened. [omissions are indicated by bold lettering and square brackets]; insertions
are indicated by underlining Religion and Belief 14. (1) Every person shall have the right to freedom of conscience, religion, thought, belief and opinion. (2) Without derogating from the generality of subsection (1), religious
observances may be conducted at State or State-aided institutions
under rules
established by the appropriate authority for that purpose, provided that such
observances are conducted on an equitable
basis and attendance thereat is free
and voluntary. Freedom of Expression 15. Every person shall have the right to freedom of speech and expression
which shall include freedom of the press and other media. Assembly, Demonstration and Petition 16. Every person shall have the right to assemble and demonstrate with others
peacefully and unarmed, and to present petitions. Freedom of Association 17. (1) Every person shall have the right to freedom of
association. (2) Without derogating from the generality of the provisions of section 8(2),
nothing in this section shall permit discrimination
on the ground of
race. Freedom of Movement 18. Every person shall have the right to freedom of movement anywhere within
South Africa. Residence 19. Every person shall have the right freely to choose his or her place of
residence anywhere in South Africa. Citizen's Rights (a) to form, to participate in the activities of and to recruit members for a
political party; (b) to campaign for a political party or cause; and (c) freely to make political choices. (a) to be informed promptly in a language which he or she understands of the
reason for his or her detention; (b) to be detained under conditions consonant with human dignity, including
at least the provision of adequate nutrition, reading
material and medical
treatment at State expense; (c) to consult with a legal practitioner of his or her choice, to be informed
of this right promptly and, where the interests of justice
so require, to be
provided with the services of a legal practitioner by the State; and (d) to be given the opportunity to communicate with, and to be visited by,
his or her spouse, next-of-kin, religious counsellor and
a medical practitioner
of his or her choice. (a) to be informed promptly, in a language which he or she understands, that
he or she has the right to remain silent and to be warned
of the consequences of
making any statement; (b) to be brought before an ordinary court of law as soon as it is reasonably
possible, but not later than 48 hours after the arrest
or the first court day
thereafter, and to be charged or to be informed of the reason for his or her
further detention, failing which
he or she shall be entitled to be released;
and (c) to be released from detention with or without bail, unless the interests
of justice require otherwise. (a) to a public trial by an ordinary court of law within a reasonable time
after having been charged; (b) to be informed with sufficient particularity of the charge; (c) to be presumed innocent and to remain silent during plea proceedings or
trial and not to testify during trial; (d) to adduce and challenge evidence; (e) to be represented by a legal practitioner of his or her choice or, where
the interests of justice so demand, to be provided with
legal representation at
State expense, and to be informed of these rights; (f) not to be convicted of an offence in respect of any act or omission
which was not an offence at the time it was committed,
and not to be sentenced
to a more severe punishment than that which was applicable when the offence was
committed: (g) not to be tried again for any offence of which he or she has previously
been convicted or acquitted; (h) to have recourse by way of appeal or review to a higher court than the
court of first instance; (i) to be tried in a language which he or she understands or, failing this,
to have the proceedings interpreted to him or her; and (j) to be sentenced within a reasonable time after
conviction. 26. No person shall be removed from his or her home, except by order of a
court of law after taking into account all relevant factors,
which may include
the availability of appropriate alternative accommodation and the lawfulness of
the occupation. Economic Activity 27. (1) Every person shall have the right freely to engage in economic
activity and to pursue a livelihood anywhere in South Africa. (2) Nothing in this section shall preclude legislation aimed at the
protection or the improvement of the quality of life, economic
growth, human
development, social justice, basic conditions of employment, fair labour
practices or equal opportunity for all, provided
such legislation is justifiable
in a free, open and democratic society based on the principle of
equality. Labour Relations 28. (1) Workers shall have the right to form and join trade unions, and
employers shall have the right to form and join employers'
organisations. 29. (1) Every person shall have the right to acquire, hold and dispose of
rights in property. (2) Expropriation of property by the State shall be permissible
in the public interest and shall be subject either to
agreed compensation or,
failing agreement, to compensation to be determined by a court of law as just
and equitable, taking into
account all relevant factors, including the use to
which the property is being put, the history of its acquisition, its market
value,
the value of the owner's investment in it and the interests of those
affected. (3) Nothing in this section shall preclude measures aimed at restoring rights
in land to or compensating persons who have been dispossessed
of rights in land
as a consequence of any racially discriminatory policy, where such restoration
or compensation is feasible. Environment 30. Every person shall have the right to an environmnent which is safe and
not detrimental to his or her health or well-being. Children 31. Every child shall have the right to security, basic nutrition and basic
health services and not to be subject to neglect, abuse
or child labour. Language and Culture 32. Every person shall have the right to use the language and to participate
in the cultural life of his or her choice. Education
(a) to basic education and to equal access to educational
institutions; (b) to instruction in the language of his or her choice where this is
reasonably practicable; and (c) to establish, where practicable, educational institutions based on a
common culture, language or religion, provided that there
shall be no
discrimination on the ground of race or
colour. (a) shall be permissible only to the extent that it is - (i) reasonable; and (ii) justifiable in a free, open and democratic society based on the
principle of equality; and (b) shall not negate the essential content of the right in
question. (2) Any such suspension shall comply with the following requirements: (a) A state of emergency may be declared only where the security of the State
is threatened by war, invasion, general insurrection
or disorder or at a time of
natural disaster, and if such declaration is necessary to restore peace or
order. (b) The declaration of a state of emergency and any action, whether a regulation or otherwise, taken in consequence of that declaration, shall cease to be valid in law unless the declaration is ratified by a majority of the total number of the directly elected members of [the legislature] Parliament within fourteen days of the declaration. (c) No state of emergency shall endure for longer than six months provided that it may be renewed, subject to the ratification of such renewal in the manner referred to in paragraph (b). (d) The Supreme Court shall be competent to enquire into the validity of any
declaration of a state of emergency, any renewal thereof,
and any action,
whether a regulation or otherwise, taken under such
declaration. (a) the creation of retrospective crimes; (b) the indemnification of the State or persons acting under its authority
for unlawful actions taken during the state of emergency,:
or (c) the suspension of this section. (a) an adult family member or friend of the detainee shall be notified of the
detention as soon as is reasonably possible; (b) the names of all detainees and a reference to the measures in terms of which they are being detained shall be published in the Government Gazette within five days of their detention; (c) the detention of a detainee shall, as soon as is reasonably possible but not later than ten days after his or her detention, be reviewed by a court of law, which may order the release of such a detainee if satisfied that such detention is not necessary to restore peace or order. The State shall submit written reasons to justify the detention of the detainee to the court, and shall furnish the detainee with such reasons not later than two days before the review; (d) a detainee shall be entitled to appear before the court in person, to be represented by legal counsel, and to make representations against his or her continued detention; (e) a detainee shall be entitled at all reasonable times to have access to a
legal representative of his or her choice; (f) a detainee shall be entitled at all times to have access to a medical practitioner of his or her choice; and (g) if detained for longer than ten days, the detainee shall be entitled to
apply to a court of law for his or her release from detention
at any stage after
the expiry of a period of ten days from the date of determination of the review
procedure provided for in paragraph
(c). (2) Save as provided for in this Chapter, no rule of the common law, custom or legislation shall limit any right entrenched in this Chapter.
(a) a right entrenched in section 21; or CHAPTER 4
(3) The Speaker, or in his or her absence the Deputy Speaker, shall preside over meetings of the National Assembly. (4) The Speaker or Deputy Speaker shall vacate his or her office if he or
she (5) If the office of Speaker or Deputy Speaker becomes
vacant, the National Assembly shall in like manner elect
a member to fill the
vacancy. (a) at the date of such nomination or election is serving a sentence of
imprisonment of more than twelve months without the option
of a fine;
or (b) at any time after the adoption of this Constitution, is convicted of an
offence in South Africa or outside of South Africa if
such conduct would have
constituted an offence within South Africa, and for which he or she has been
sentenced to imprisonment of
more than 12 months without the option of a fine,
unless he or she has received a pardon; or (c) is an unrehabilitated insolvent; or (d) is unsound mind and has been so declared by a competent court; or (e) [is a remunerated employee of any public service within the Republic] holds any office of profit under the Republic: provided that the following persons shall be deemed not to hold an office of profit for the purposes
of this paragraph: (i) a Minister or Deputy Minister. (ii) a person in receipt of a pension paid from the national revenue fund
or the revenue fund of an SPR.. (iii) a part-time or pensioned member of an existing or dissolved South
African security force, or a member of such force: (iv) a lawfully appointed -justice of the peace or appraiser (v) a member of any council, board, committee, commission of enquiry or
similar body established under law or a select committee of
the National
Assembly, who receives remuneration not in excess of an amount equal to his or
her salary as a member of the National
Assembly. (a) ceases to be eligible for membership of the National Assembly; or (b) ceases to be a member of the political party which nominated him or her
to sit in the National Assembly; or (c) resigns his or her seat in writing addressed to the Speaker; or (d) absent himself or herself voluntarily from the National Assembly for
15 [30] consecutive sitting days, without having obtained leave in
the manner and on grounds specified in the rules and standing orders
of the
National Assembly; or (e) becomes a member of the Senate, an SPR Legislature or of a local
government. (a) at the Houses of Parliament in Cape Town, unless the Speaker, in
accordance with the rules and orders of the National Assembly directs
otherwise on the grounds of public interest, security or convenience; (b) in a session convened by the Chief Justice to be held as soon as
reasonably possible after the election of the National Assembly
and not later
than 10 days after such election, and such session shall terminate on such date
as the National Assembly may determine
by resolution; (c) in ordinary session on such dates as the National Assembly may determine
by resolution, and such session shall terminate on such
date as the National
Assembly may determine by resolution; (d) in such special sessions as may be directed by proclamation in the
Government Gazette by the President from time to time. (a) ceases to qualify [be eligible] for membership of the
Senate; or (b) resigns his or her seat in writing addressed to the President of the
Senate; or (c) absent himself or herself voluntarily from the Senate for 30 consecutive
sitting days, without having obtained the leave of the
Senate on grounds
specified in its rules and standing orders; or (d) becomes a member of the National Assembly, an SPR legislature or a local
government. (a) at the Houses of Parliament in Cape Town, unless the President of the
Senate, in accordance with the rules and orders of the Senate,
directs otherwise on the grounds of public interest, security or
convenience; (b) in a session convened by the Chief Justice to be held as soon as reasonably possible after the election of the Senate and not later than 10 days after such election, and such session shall terminate on such date as the Senate may determine by resolution; (c) in ordinary session on such dates as the Senate may determine by resolution, and such session shall terminate on such date as the Senate may determine by resolution; (d) in such special sessions as may be directed by proclamation in the
Government Gazette by the President from time to time.
Rules and orders and committees (3) The National Assembly and the Senate may jointly make rules and orders concerning the order and conduct of their joint proceedings, including all
matters CHAPTER 5
(2) The Constitutional Assembly shall adopt a new constitutional text
in (2) The Constitutional Assembly shall, with the concurrence of at least two thirds of all its members, appoint an independent panel of five [persons] South African citizens being recognised constitutional experts not being members of any legislature and not holding office in any political party, to advise it and the Chairperson on constitutional matters and to perform such other tasks as are provided for in this Constitution. (3) If the Constitutional Assembly fails to reach agreement upon the panel
of constitutional experts in accordance with the requirements
of subsection (2),
a panel with the qualifications referred to in subsection (2) shall be appointed
consisting of a nominee of each
party holding at least 40 seats in the
Constitutional Assembly. Adoption of a new constitutional text 68. (1) A new constitutional text shall be adopted by the Constitutional
Assembly within two years from the commencement of the
first session of
Parliament. (2) A new constitutional text shall be approved by two thirds of all the
members of the Constitutional Assembly. (3) Should the Constitutional Assembly fail to adopt a new constitutional
text by the required two thirds majority, but a draft of
the new constitutional
text is supported by a majority of its members, such draft shall be referred to
the panel of constitutional
experts by the Chairperson for its advice, to be
given within 30 days of such referral, on amendments within the framework of the
Constitutional Principles which might secure a majority necessary for the
approval of the constitutional text. (4) Should a draft prepared in accordance with the unanimous advice of the
panel of constitutional experts in terms of subsection
(3) not be submitted to
the Constitutional Assembly within 30 days, or, should such draft, after being
so submitted, not be supported
by the required two-thirds majority in the
Constitutional Assembly, a constitutional text may be accepted by a majority of
the members
of the Constitutional Assembly. (5) The President shall refer a constitutional text accepted in terms of subsection (4) after it has been certified by the Constitutional Court to be in compliance with the Constitutional Principles set out in Schedule 7, to a national referendum. (6) The question put before the electorate in the referendum shall be the acceptance or rejection of such draft constitutional text. (7) The constitutional text presented to the electorate in the referendum shall, if approved by a majority of sixty per cent of the votes cast in the referendum, become the Constitution of South Africa. (8) If the new constitutional text is not approved in the referendum contemplated in subsection (7), or if a new constitutional text is not adopted in terms of this Constitution within two years, Parliament shall be dissolved by the President and a general election shall be held for a new Parliament in accordance with the provisions of this Constitution. (9) A Constitutional Assembly, composed of the newly elected National Assembly, and the Senate, shall within a period of one year after its first session, approve and pass the new constitutional text by an ordinary majority. (10) The newly elected Parliament shall be convened in accordance with the
provisions of sections 46(1) and 54(1), and shall conduct
its proceedings in
accordance with the provisions of this Constitution other than the provisions of
subsections (1) to (8) hereof. Amendment of this Chapter 69. (1) No amendments to the provisions of this Chapter shall be permitted in
so far as they relate to - (a) the Constitutional Principles set out in Schedule 7; (h) the requirement that the new constitutional text or texts shall comply
with the Constitutional Principles, and that such text
or texts shall be
certified by the Constitutional Court as being in compliance therewith. (2) All other provisions of Chapter 5 shall be capable of being amended by a
two thirds majority of the total number of members of
the Constitutional
Assembly. CHAPTER 6 [Sections 70 - 861 CHAPTER 7 [Sections 86 - 91] CHAPTER 8
CHAPTER 9 SPRs
which are defined in Schedule 1. SPR legislatures
[(2)](3) The legislature of each SPR shall consist of the members elected at the time of the election of Parliament according to a system of proportional representation on SPR party lists as provided for in Schedule 5. [(3)](4) The number of seats in an SPR legislature shall be determined
by dividing the total number of votes cast in the SPR in the election
held in
terms of subsection (2) by 50 000, approximated to the nearest complement:
provided that no SPR legislature shall have less
than 30 nor more than 100
seats. Sessions of SPR Legislatures 102. (1) An SPR legislature shall sit: (a) At a place fixed by the Provisional Secretary of such SPR appointed by
the Transitional Executive Council under the provisions
of the Transitional
Executive Council Act, 1993, unless and until the legislature of the SPR directs
that the sessions shall be held at a different place; (b) In a session convened and presided over by the Provisional Secretary
referred to in subparagraph (a) and commencing as soon as
reasonably possible
after the election of the SPR legislature, but not later than 7 days after such
election, and such session shall
terminate on such date as the SPR legislature
may determine; (c) In such special sessions as may be directed by proclamation by the
Premier from time to time. (2) During such sessions the SPR legislature shall sit on such days and
during such times of the day or night as it by its rules and
standing orders may
provide. (3) The Premier may alter the date of commencement of any session directed in
terms of subsection (1) (c) if he or she considers it
desirable to do so on the
grounds of public interest or convenience. Qualifications for Election to SPR Legislatures
she: (a) is ordinarily resident within the boundaries of the SPR; and (b) is qualified to stand for election as a member of the National
Assembly. (a) ceases to be eligible to be a member of the SPR legislature; or (b) ceases to be a member of the party which nominated him or her for
election to the SPR legislature; or (c) resigns his or her seat in writing addressed to the Premier of the SPR;
or (d) absent himself or herself voluntarily from the SPR legislature for 30
consecutive sitting days, without having obtained the leave
of the SPR
legislature on grounds specified in its rules and standing orders. SPR executives [To be revisited when Chapter 6 has been completed.] 113. (1) [The executive of an SPR shall be elected by the SPR legislature according to the principle of proportional representation, each voter having one transferable vote, and shall consist of ten members.] (2) [The executive of an SPR shall from among its own number elect a Premier.] (3) Each member of the executive shall be responsible for the administration of one or more of the departments of the SPR to be established by the Premier. (4) [The Premier shall determine how responsibility for the administration of departments shall be allocated to members of the executive.] (5) Every member of an SPR executive shall make and subscribe to an oath or solemn affirmation in the terms set out in Schedule 6 before the Chief Justice, or a judge designated by the Chief Justice for this purpose. (6) T[here shall be paid to t]he Premier[s], members of an SPR executive and legislature shall be paid out of and as a charge on the SPR Revenue Fund such salary and allowances and pensions, as may be determined from time to time by resolutions of the SPR legislature. (7) After consultation with the Commission on SPR Government an SPR executive shall appoint a Secretary of the SPR legislature and other officers of the SPR Legislature. Functioning of SPR executives 114 to 117. [The details of the functioning of SPR executives will be dealt with in conjunction with Chapter 6.1 Areas of competence of SPR Governments 118. (1) Subject to the provisions of subsection (2) an SPR government shall have exclusive legislative competences, including all necessary ancillary powers pertaining thereto, in the following functional areas: (a) The appropriation of SPR revenue and moneys for financing the government and services of the SPR (b) SPR planning and development (c) Town planning (d) Firefighting, ambulance services and other civil protection services (e) Language policy and languages for official use in the SPR (f) SPR cultural affairs (g) Traditional authorities and indigenous law. (h) Markets and pounds (i) Road traffic (j) Delivery of water, electricity and other essential services (k) SPR tourism and recreation (1) SPR public media (m) SPR roads (n) SPR public transport (o) Casinos, racing and gambling (2) An SPR legislature may by resolution decline to accept any of the exclusive competences referred to in subsection (1) if it is unable to exercise such competences by reason of lack of administrative, infrastructural or related capacities, but may at any time thereafter require Parliament to transfer any such competence to it. (3) Parliament shall not legislate on matters falling within the functional areas specified in subsection (1) unless - (a) it is necessary to set [for the setting of] minimum standards across the nation for the [or effective exercise of control over the quality and] delivery of public services; or (b) it is necessary for the maintenance of essential national standards, the maintenance of economic unity, the maintenance of national security or the prevention of unreasonable action taken by one SPR which is prejudicial to the interests of another SPR or the country as a whole; or (c) uniformity [of minimum standards] across the nation is required for a Particular function [regarding a matter falling within such functional area]; or (d) it [may be] is neccesary for the determination of national economic policies, the promotion of inter-SPR commerce and the protection of the common market in respect of the mobility of goods, services, capital and labour. (4) An SPR government shall, subject to the provisions of subsection (5), have full legislative competence for SPR purposes, and Parliament shall, subject to the provisions of subsection (7), have concurrent legislative competence in the following functional areas: (a) Subject to the provisions of section 121, taxation for SPR purposes (b) Local government (c) Housing (d) Education (e) Health services (f) Welfare services (g) Agriculture (h) Fish and game preservation (i) The environment (j) Public works (k) SPR and local policing (l) SPR correctional services. (5) If Parliament exercises its concurrent legislative competence in terms of subsection (4), the legislative competence of an SPR government shall be constrained only to the extent that the relevant parliamentary legislation deals with such matters and expressly or by necessary implication limits the legislative competence of SPR governments. (6) Whilst this Constitution remains in force, and subject to its provisions, the legislative competences of an SPR referred to in subsections (1) and (4) shall not be amended or diminished without the consent of such SPR legislature. (7) Parliament shall not exercise its powers under subsection (3) or subsection (4) so as to encroach upon the geographical, functional or institutional integrity of an SPR or in a manner which would deprive an SPR government substantially of any of its competences in terms of subsection (4). (8) Executive power relating to all functional areas in which an SPR government has legislative competence, shall vest in the SPR executive. Continuation, transfer and consolidation of existing administrative responsibility 119. (1) The National Government and SPR governments shall co-operate with each other, and shall, each within their respective areas of competence, rationalise the administrations and institutions referred to in subsection (3) (a), and establish administrations and employ the personnel needed for the performance of their functions. (2) The National Government and SPR governments in rationalising the administrations and institutions as contemplated in subsection (1) shall, in the event of any disagreement between them, have regard to the advice and recommendations of the Commission on SPR Government established in terms of section 127 of this Constitution. (3) Until changes are made as a result of the rationalisation or consolidation of administrations and institutions as contemplated in subsection (1) - (a) Administrations and institutions of Provincial Governments, selfgoverning territories, and Transkei, Bophuthatswana, Venda and Ciskei, if reincorporated, which immediately before the coming into force of this Constitution were established within the boundaries of an SPR, and performed functions within such boundaries, shall continue to perform such functions; (b) The Government of the SPR concerned shall be responsible for and shall exercise control over the performance of those functions referred to in subparagraph (a) and which fall within the scope of the functional areas referred to in sections 118(1) and 118(4), and the National Government shall be responsible for and exercise control over the performance of all other functions; (c) A department of state of the Republic of South Africa referred to in section 24(1) of the Republic of South Africa Constitution Act, 1983, and which was immediately before the coming into force of this Constitution responsible for the performance of functions within the boundaries of an SPR shall continue to be responsible for the performance of such functions; (d) The National Government shall be responsible for the performance of and shall exercise control over the functions referred to in subparagraph (c); (e) Personnel of all administrations and institutions referred to in this section shall continue in the posts they occupied immediately before the coming into operation of this Constitution, and shall continue to perform the functions which they previously performed; (f) The personnel referred to in subparagraph (e), who perform functions in terms of that subparagraph and subparagraph (b) on the instructions of an SPR government, shall be deemed to be in the employ of, and shall be entitled to be remunerated by it on the same basis as they were previously being remunerated, for as long as they continue to perform such functions on the instructions of that SPR government; (g) The personnel referred to in subparagraph (e) who perform functions in terms of that subparagraph and subparagraphs (b) and (d) on the instructions of the National Government, shall be deemed to be in the employ of and shall be entitled to be remunerated by the National Government, on the same basis as they were previously being remunerated, for as long as they continue to perform such functions on the instructions of the National Government. Administration of existing laws 120. (1) Existing laws applicable in an SPR governing the operation of the institutions for which the SPR government assumes responsibility and control in terms of section 119, shall continue to govern those matters until they are amended or repealed by the competent legislature, and references in such laws to any government or organ of government shall be deemed to be references mutatis mutandis to the government or relevant organ of government of the SPR. (2) The powers, functions and obligations relating to the legislative and executive competence of the SPR arising from the provisions of the laws referred to in subsection (1), shall vest mutatis mutandis in the legislature and executive of the SPR. (3) Parliament and the legislatures of the SPRs shall, each within their respective areas of competence, undertake the consolidation and unification of the laws referred to in subsection (1) as expeditiously as possible. SPR finance and fiscal affairs 121. (1) An SPR shall be entitled to an equitable share of revenue collected nationally in order to enable it and the local governments within its boundaries to provide basic services and to execute their functions and powers. (2) The Financial and Fiscal Commission established in terms of Chapter 11 shall make recommendations to the National Assembly regarding equitable fiscal and financial allocations to the SPRs from revenue collected nationally, taking into account the national interest, the provisions of subsection (1), economic disparities between the SPRS, as well as the population and developmental needs, administrative responsibilities and other legitimate interests of each SPR. (3) An SPR Revenue Fund shall be established in every SPR, into which shall be paid all revenues raised by or accruing to the SPR. (4) An SPR government shall not be competent to raise loans for current expenditure. (5) An SPR government shall be competent to raise loans for capital expenditure with the consent of the national executive given on the advice of the Financial and Fiscal Commission. (6) An SPR government shall be competent to levy such taxes and surcharges as may be recommended by the Financial and Fiscal Commission and approved by the National Assembly, which approval shall not unreasonably be withheld. (7) An SPR government shall not be entitled to raise taxes detrimentally affecting national economic policies, inter-SPR commerce, or the national mobility of goods, services, capital and labour. (8) Allocations by the national government to local governments shall ordinarily be made only via an SPR government. Effect of laws of SPR legislature 122. (1) A law made by an SPR legislature shall have effect in and for the SPR as long and as far only as it is not repugnant to any Act of Parliament duly passed within the competence of Parliament in terms of this Constitution. (2) The provisions of a law made by an SPR legislature shall be construed as being repugnant to an Act of Parliament only if such provisions are expressly or by necessary implication inconsistent with an Act of Parliament. Recommendations to Parliament 123. An SPR legislature may recommend to Parliament the passing of any law relating to any matter in respect of which such legislature is not competent to make laws. SPR Constitutions 124. (1) An SPR legislature may, subject to the provisions of this Constitution, adopt a constitution for the SPR by a two thirds majority of all its members. (2) An SPR legislature may make such arrangements as it deems appropriate for the negotiation and drafting of an SPR constitution. (3) An SPR constitution adopted by an SPR legislature shall not be inconsistent with the Constitutional Principles enumerated in Schedule 7 or the provisions of the new constitutional text adopted in terms of Chapter 5. (4) An SPR constitution shall be developed in consultation with the Commission on SPR Government established in terms of section 127. (5) An SPR constitution adopted prior to the adoption of a new constitutional text in terms of Chapter 5 shall be approved and come into operation in terms of a resolution of the Constitutional Assembly passed by two thirds of its members. (6) An SPR constitution adopted by an SPR legislature may be referred to the Constitutional Court by the chairperson of the Constitutional Assembly after being petitioned by one third of the members of the Constitutional Assembly in order to obtain an opinion from the Court as to whether such constitution, if adopted, would conform with the Constitutional Principles. (7) An SPR constitution which is not in force prior to the new constitutional text intended in Chapter 5, shall be approved and come into operation in terms of such new constitutional text. Development of constitutional provisions regarding SPR Government 125. (1) The development of a system of SPR government shall receive the priority attention of the Constitutional Assembly and in this regard it shall take into consideration the recommendations of the Commission on SPR Government referred to in section 127 and the views expressed thereon by the executives of the various SPRs. (2) The Commission's recommendations to the Constitutional Assembly regarding any matter that falls within the ambit of its objects in terms of section 128 shall include draft provisions for the national Constitution. (3) The Constitutional Assembly shall deal with such draft provisions in the same manner as it is required to deal with other constitutional provisions. (4) Draft provisions recommended by the Commission which are not adopted by the Constitutional Assembly, shall lapse, except if a majority of the members of the Constitutional Assembly present and voting resolve that the recommended provisions be referred back to the Commission for further consideration. (5) Draft provisions referred back to the Commission may again be presented to the Constitutional Assembly, provided that if amended in one or more substantive section regarding the acceptance, rejection or referral of the recommendations of the Commission shall apply mutatis mutandis. Election of new SPR Governments 126. An SPR government may at any time after the coming into force of an SPR constitution contemplated in section 124 or of the constitutional dispensation contemplated in section 125, petition the Constitutional Assembly to determine by resolution that an election for the establishment of a new SPR legislature and executive in that SPR, or in an SPR incorporating that SPR in whole or in part, shall be held. Commission on SPR Government Establishment of Commission on SPR Government 127. A Commission on SPR Government shall be appointed by the President in terms of this Constitution within 30 days of its coming into operation. Objects and functions of the Commission 128. (1) The objects and functions of the Commission regarding the establishment of SPR government in terms of this Chapter are to - (a) advise the National Government and SPR governments on the establishment and consolidation of administrative institutions and structures in the SPRs and on any matter arising out of the provisions of section 118; and (b) make recommendations to the National Government and SPR governments on the rationalisation of statutory enactments and public sector resources directed at facilitating the introduction and maintenance of a system of SPR government. (2) The objects and functions of the Commission regarding the constitution making process provided for in Chapter 5 are to submit recommendations to the Constitutional Assembly in the form of draft constitutional provisions regarding - (a) the finalisation of the number and the boundaries of the SPR's of the Republic of South Africa; (b) the constitutional dispensations of such SPRS, including the constitutional structures within such SPRs as well as the method of their election and their authority, functions and procedures; (c) measures, including transitional measures, that provide for the phasing in of new SPR constitutional dispensations; (d) the final delimitation of powers and functions between national and SPR institutions of government with due regard to the criteria that are set out in subsection (3); (e) fiscal arrangements between the institutions of national government and those of SPR government; (f) the powers and functions of local governments; and (g) any matter which the Commission considers to be relevant or ancillary to its functions. (3) In carrying out its functions the Commission shall. inter alia, take into consideration - (a) The provisions of this Constitution; (b) The Constitutional Principles enumerated in Schedule 7; (c) Historical boundaries, including those set out in Schedule 1, former provincial boundaries, magisterial and district boundaries and infrastructures; (d) Administrative considerations, including the availability or non-availability of infrastructures and nodal points for services; (e) The need to rationalise existing structures; (f) Cost-effectiveness of government, administration and the delivery of services; (g) The need to minimise inconvenience; (h) Demographic considerations; (i) Economic viability; (j) Developmental potential;
(k) Cultural and language realities. Constitution and impartiality of the Commission 129. (1) The Commission shall be appointed by the President for the period during which this Constitution is in force, and shall consist of not less than 10, nor more than 15 full-time members, as the President may determine. (2) At least one member of the Commission shall be appointed from each SPR with the approval of the Premier of the SPR. (3) Members of the Commission shall perform their duties fairly, impartially and independently. (4) Members shall not perform or commit themselves to perform remunerative work outside their official duties. (5) A member of the Commission shall not hold office in any political party or political organisation. (6) It shall be an offence [subject to penalties prescribed by law to attempt] to influence or attempt to influence a member to act otherwise than in accordance with the provisions of subsection (3). Chairperson and deputy chairperson 130. (1) The President shall designate one of the members of the Commission as chairperson and another as deputy chairperson. (2) (a) When the chairperson is absent or not able to perform his or her functions as chairperson, or where there is a vacancy in the office of chairperson, the deputy chairperson shall act as chairperson, and if the chairperson as well as the deputy chairperson are absent or not able to perform the functions of the chairperson, the Commission shall elect another member to act as chairperson. (b) Such member shall while acting as chairperson have all the powers and perform all the duties of the chairperson. Vacation of office and filling of vacancies 131. (1) Members of the Commission shall vacate their offices if they resign or if they become disqualified to hold office for the same considerations and in the same fashion as would apply to a judge of the Supreme Court. [(2) Any person who has ceased to be a member of the Commission by reason of the effluxion of time may be reappointed.] (2) If a member of the Commission ceases to hold office, the President may, subject to section 129 appoint a person to fill the vacancy. Meetings of the Commission 132. (1) The first meeting of the Commission shall be held within 30 days of its appointment at a time and place to be determined by the Chairperson, and subsequent meetings will be held at a time and place determined by the Commission or, if authorised thereto by the Commission, by the Chairperson. (2) A quorum for a meeting of the Commission shall not be less than one half of all its members. (3) A decision of a majority of the members of the Commission shall constitute a decision of the Commission and in the event of an equality of votes the chairperson shall have a casting vote in addition to his or her deliberative vote. (4) All the decisions of the Commission shall be recorded. Committees 133. (1) The Commission may establish committees from among its number. (2) Any such committee shall consist of such number of members as the Commission may determine. (3) The Commission shall designate one of the members of the committee as chairperson thereof, and if any such chairperson is absent from a meeting of the committee the members present shall elect one from among their number to act as chairperson. (4) (a) The Commission may, subject to such directions as it may issue from time to time- (i) delegate any power granted to it by or under section 128 to such a committee; and (ii) grant authority that a duty assigned to it by or in terms of section 128 may be performed by such a committee. (b) The Commission shall not be divested of a power so delegated and the performance of a duty so authorised, and may amend or set aside any decision of a committee. Co-option of persons to serve on or advise committees 134. (1) A committee may co-opt any person to serve on a committee or to attend a particular meeting thereof in connection with a particular matter dealt with by the committee. (2) Such a person may take part in the proceedings of the committee in connection with the matter or at the meeting in respect of which he or she has been co‑opted, but shall not be entitled to vote. Remuneration and allowances of members of the Commission and other persons 135. Members of the Commission and persons referred in section 134 who are not in the employment of the State, shall be paid, from moneys appropriated by Parliament for that purpose, such remuneration and allowances as the Minister of Finance may determine. Appointment of Staff 136. The Commission may appoint such staff as it may deem necessary for the efficient performance of its functions and administration, and may, in consultation with the Commission for Administration, determine the remuneration and conditions of service of such staff. Regulations
(a) procedures in connection with any function of the Commission: and (b) any other matter in connection with the achievement of the objects of the Commission. CHAPTER 10 Local Government General provisions regarding the powers, functions and structures of local government; The comprehensive powers, functions and other features of local government shall be set out in parliamentary statutes and/or SPR legislation. CHAPTER II Finance Provisions relating to existing debts and liabilities of the state; the national and SPR revenue funds, taxation, appropriation and financial procedures and legislation; the Auditor-General; the Reserve Bank; the Financial and Fiscal Commission representative of the SPRS. CHAPTER 12 General and transitional provisions Provisions relating to: The legal system (continuation of statutory and common law subject to the Constitution, unification of provincial ordinances, TBVC laws and laws of the self-governing territories with national and SPR law, recognition of indigenous law); the status of international law; the independence and impartiality of the Commission for Administration and the security forces; civil society; method of publication of notices, etc.; affirmation in lieu of oath; construction of certain references; definitions and terminology; short title, commencement and duration of the Constitution; the prescription of penalties by Parliament. continuation of the electoral system used for the first election SCHEDULE 1 The National Territory and boundaries and Designations of SPRs SCHEDULE 2 Design of the National Flag SCHEDULE 3 The National Coat of Arms SCHEDULE 4 The National Seat
System for the Election of the National Assembly and SPR
Legislatures
be filled from regional party lists from an SPR, the number of
votes cast in the SPR shall be divided by the total number of votes
cast
nationally and be multiplied by 200. Fractions shall be approximated to the
nearest complement. (3) Each voter shall be entitled to cast one vote only. (a) in respect of the national list of candidates in the election of
the National Assembly; and (b) in respect of the regional list of candidates for the SPR in which
the vote was cast in the election of the National Assembly; and (c) in respect of the party's list of candidates in the election of
the SPR legislature of the SPR in which the vote was cast. SCHEDULE 6 Oath or Affrimation of the President or Acting President
Constitutional Principles I The Constitution of South Africa shall provide for the establishment of one sovereign state, a common South African citizenship and a democratic system of government committed to achieving equality between men and women and people of all races.
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At each level of government there shall be democratic representation. This principle shall not derogate from the provisions of Principle Xll.
Each level of government shall have appropriate and adequate legislative and
executive powers and functions that will enable each
level to function
effectively. 'me allocation of powers between different levels of government
shall be made on a basis which is
conducive to financial viability at each level
of government and to effective public administration, and which promotes
national
unity, legitimate SPR autonomy and cultural diversity. xviii
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Signature and Enrolment of SPR Legislation 109. (1) Any valid Act of an SPR legislature which has been duly passed by
such legislature, signed by the Premier, and published
in the SPR Gazette shall
be lodged in the office of the Registrar of the Appellate Division of the
Supreme Court and such copy shall
be conclusive evidence Amendments to the
Constitution which alter the powers, boundaries, functions or institutions of
SPRs shall
in addition to any other procedures specified in the Constitution for
constitutional amendments, also require the approval of a specified
majority of
the legislatures of the SPRS, alternatively, if there is such a chamber, a
specified majority of a chamber of Parliament
composed of SPR representatives,
and if the amendment concerns specific SPRs only, the approval of the
legislatures of such SPRs
will also be needed. xix
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9.1 for the purposes of SPR planning and development and the delivery of services; and 9.2 in respect of aspects of government dealing with the specific socio‑economic and cultural needs and the general well being of the inhabitants of the SPR.
resolved by a court on a construction of the Constitution, precedence shall be given to the legislative powers of the national government.
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SCHEDULE 8 |