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EMBARGOED UNTIL TABLING IN THE
NEGOTIATING
COUNCIL
TWENTY SIXTH REPORT OF THE TECHNICAL
COMMITTEE ON
CONSTITUTIONAL ISSUES
TO THE NEGOTIATING COUNCIL
15 NOVEMBER
1993
CONSTITUTION OF THE REPUBLIC OF SOUTH
AFRICA
1993
ACT
To introduce a new Constitution for the Republic of South Africa
and to provide for masters incidental thereto.
PREAMBLE
In humble submission to Almighty God,
We the people of South
Africa declare that -
WHEREAS there is a need to create a new
order in which all South Africans will be entitled to a common South African
citizenship in a sovereign
and democratic constitutional state in which there is
equality between men and women and people of all races so that all citizens
shall be able to enjoy and exercise their fundamental rights and
freedoms;
AND WHEREAS in order to secure the achievement of
this goal, elected representatives of all the people of South Africa should be
mandated to
adopt a new Constitution in accordance with a solemn pact recorded
as Constitutional Principles;
AND WHEREAS it is necessary for such
purposes that provision should be made for the promotion of national unity and
the restructuring and continued
governance of South Africa while an elected
Constitutional Assembly draws up a final Constitution;
NOW
THEREFORE the following provisions are adopted as the Constitution of the
Republic of South Africa:
CHAPTER 1
Formal and Constituent
Provisions
National symbols
2. (1) The national anthem and the
design of the flag of the Republic shall be as set out in a Proclamation by the
State President in the
Government Gazette acting in terms of an Act of
Parliament.
(2) The coat of arms and the seal of the Republic
existing on the date of the coming into operation of this Constitution, shall
continue
to be the coat of arms and the seal of the
Republic.
Languages
3. (1) Afrikaans, English,
siNdebele, sePedi, seSotho, siSwati, xiTsonga, seTswana, tshiVenda, siXhosa and
siZulu shall be the
official South African languages at national level and
conditions shall be created for their development and for the promotion of
their
equal use and enjoyment.
(2) Rights relating to language and the status
of languages existing at the commencement of this Constitution shall not be
diminished,
and Parliament shall make provision for rights relating to language
and the status of languages existing only at regional level,
to be extended
nationally in accordance with the principles set out in subsection
(9),
(3) Wherever practicable, a person shall have the right to use
and to be addressed in his or her dealings with all public administrations
at
the national level in any official South African language of his or her
choice.
(4) Regional differentiation in relation to language policy and
practice shall be permissible.
(5) A provincial legislature may, by a two
thirds majority, determine any language referred to in subsection (1) to be an
official
language for the whole or any part of the province and for any or all
functions within the competence of that legislature, save that
neither the
rights relating to language nor the status of an official language existing in
any area or in relation to any function
at the time of the coming into operation
of this Constitution, may be diminished.
(6) Wherever practicable, a
person shall have the right to use and to be addressed in his or her dealings
with all public administrations
at provincial level in any one of the official
languages of his or her choice determined by law in terms of subsection
(5).
(7) A member of Parliament may address Parliament in the official
South African language of his or her choice.
(8) Parliament and any
provincial legislature may, subject to the provisions of this section, make
provision by legislation for the
use of official languages for the purposes of
the functioning of government, taking into account questions of usage,
practicality
and expense.
(9) Legislation, as well as official policy and
practice in relation to the use of languages at all levels of government shall
be
subject to and based on the provisions of this section and the following
principles:
(a) the creation of conditions for the development and for the promotion of
the equal use and enjoyment of all official South African
languages:
(b) the extension of those rights relating to language and the status of
languages which at the date of commencement of this Constitution
are restricted
to certain regions;
(c) the prevention of the use of any language for the purposes of
exploitation, domination or division;
(d) the promotion of multilingualism and the provision of translation
facilities;
(e) respect for languages spoken in the Republic other than the official
languages and the encouragement of their use in appropriate
circumstances;
and
(f) Non-diminution of rights relating to language and the status of
languages existing at the commencement of this Constitution.
(10)
Legislation shall provide for the establishment by the Senate of an independent
Pan South African Language Board to promote
respect for the principles referred
to in subsection (1) and to further the development of the official South
African languages.
(11) The Pan South African Language Board shall be
consulted and invited to make recommendations in relation to any proposed
legislation
contemplated in this section.
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Signature and enrolment of Acts
64. (1) Any
valid Act of Parliament which has been duly passed by Parliament,
signed by the President, and published in the Government Gazette shall be
enrolled in the
office of the Registrar of the Appellate Division of the Supreme Court in
such official
South African languages as may be required in terms of
section 3, and such copies shall be conclusive evidence of the provisions of
the Act.
(2) In case of conflict between the copies of an Act
enrolled in terms of subsection (1), the copy signed by the President shall
prevail.
(3) The public shall have the right of
access to the copies of Acts of Parliament enrolled in terms of subsection
(1) subject to such regulations as may be prescribed by Parliament to
protect the safety and durability of the said copies and the convenience
of the Registrar's staff.
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Signature and Enrolment of provincial
legislation
110. (1) Any valid law of a provincial legislature
which has been duly passed by such legislature, shall be signed by the Premier,
published in the Provincial Gazette, enrolled in the office of the
Registrar of the Appellate Division of the Supreme Court in such official
South African languages as may be required in terms of section 3. and
such copy shall be conclusive evidence of the provisions of the
law.
(2) In case of conflict between the copies of a law enrolled in
terms of subsection (1). the copy signed by the Premier shall
prevail.
(3) The public shall have the right of access to the
copies of the laws of a provincial legislature enrolled in terms of
subsection (1) subject to such regulations as may be prescribed by
Parliament to protect the safety and durability of the said copies and
the convenience of the Registrar's staff.
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The supremacy of the Constitution
4. (1) This
Constitution shall be the supreme law of the Republic and any law or act
inconsistent with its provisions shall, subject to section 88(5) and (6) and
section 91(4) be of no force or effect, to the extent of its
inconsistency.
(2) The provisions of this Constitution binds all the
legislative, executive and judicial organs of state at all levels of
government.
CHAPTER 2
Citizenship and the
Franchise
Citizenship
5. (1) There shall be a South African
citizenship, and the acquisition, loss and restoration of South African
citizenship shall be regulated
by Act of Parliament.
(2) Every person who is a South African citizen shall, subject to the
Provisions of this Constitution, exercise franchise rights in South
Africa and
enjoy all other rights, privileges and benefits and be subject to all duties,
obligations and responsibilities of citizenship
in South Africa as are accorded
or imposed upon him or her in terms of this Constitution.
The
franchise
- Every
person who is -
(a) a South African citizen or a person who in terms of the Electoral
Act, 1993-5 is qualified to vote;
(b) of or over the age of 18 years; and
(c) not subject to any disqualification as may be prescribed by
law,
shall be entitled to vote in elections of members of the
National Assembly, the legislature of a province or a local government in
accordance
with the laws governing that Particular
election.
SCHEDULE 7
Constitutional Principles
I
The Constitution of South Africa shall provide for the establishment of
one sovereign state, a common South African citizenship and
a democratic system
of government committed to achieving equality between men and women and people
of all races.
II
Everyone shall enjoy all universally accepted fundamental rights,
freedoms and civil liberties, which shall be provided for and protected
by
entrenched and justiciable provisions in the Constitution drafted after
having given due consideration to inter alia the fundamental rights
contained in Chapter 3 of this Constitution.
III
The Constitution shall prohibit racial, gender and all other forms of
discrimination and promote racial and gender equality and national
unity.
IV
The Constitution shall be the supreme law of the land. It shall be
binding on all organs of state at all levels of government.
V
The legal system shall ensure the equality of all before the law and an
equitable legal process. Equality before the law includes
laws, programmes or
activities that have as their object the amelioration of the conditions of the
disadvantaged, including those
disadvantaged on the grounds of race, colour or
gender.
VI
There shall be a separation of powers between the
legislature, executive and judiciary, with appropriate checks and balances to
ensure
accountability, responsiveness and openness.
VII
The judiciary shall be appropriately qualified, independent and impartial
and shall have the power and jurisdiction to safeguard and
enforce the
Constitution and all fundamental rights.
VIII
There shall be representative government embracing multi-party democracy,
regular elections, universal adult suffrage, a common voters'
roll, and in
general, proportional representation.
IX
Provision shall be made for freedom of information so that there can be
open and accountable administration at all levels of government.
X
Formal legislative procedures shall be adhered to by legislative organs
at all levels of government.
XI
The diversity of language
and culture shall be acknowledged and protected, and conditions for their
promotion shall be encouraged.
This principle shall not derogate from the
Provisions of Principle III.
XII
Collective rights of self-determination in forming, joining and
maintaining organs of civil society, including linguistic, cultural
and
religious associations, shall, on the basis of non-discrimination and free
association, be recognised and protected.
XIII
The institution, status and role of traditional leadership, according to
indigenous law, shall be recognised and protected in the
Constitution.
Indigenous law, like common law, shall be recognised and applied by the courts
subject to the provisions of the fundamental
rights contained in the
Constitution and to legislation dealing specifically therewith.
XIV
Provision shall be made for participation of minority political parties
in the legislative process in a manner consistent with democracy.
XV
Amendments to the Constitution shall require special procedures involving
special majorities.
XVI
Government shall be structured at national, provincial and local
levels.
XVII
At each level of government there shall be democratic representation.
This principle shall not derogate from the provisions of Principle
XIII.
XVIII
The powers, boundaries and functions of national and provincial
governments shall be defined in the Constitution. Amendments to the
Constitution which alter the powers, boundaries, functions or institutions of
provinces shall in addition to any other procedures
specified in the
Constitution for constitutional amendments, also require the approval of a
special majority of the legislatures
of the provinces, alternatively, if there
is such a chamber, a special majority of a chamber of Parliament composed of
provincial
representatives, and if the amendment concerns specific provinces
only, the approval of the legislatures of such provinces will also
be needed.
Provision shall be made for obtaining the views of a Provincial legislature
concerning all constitutional amendments regarding its
powers, boundaries and
functions.
XIX
The powers and functions of the national and provincial levels of
government shall include exclusive and concurrent powers as well
as the power to
perform functions for other levels of government on an agency or delegation
basis.
XX
Each level of government shall have appropriate and adequate legislative
and executive powers and functions that will enable each
level to function
effectively. The allocation of powers between different levels of government
shall be made on a basis which is
conducive to financial viability at each level
of government and to effective public administration, and which recognises the
need
for and promotes national unity, and legitimate provincial autonomy and
acknowledges cultural diversity.
XXI
The following criteria shall be applied in the allocation of powers to
the national government and the provincial governments:
1. The level at which decisions can be taken most effectively in
respect of the quality and rendering of services, shall be the level
responsible and accountable for the quality and the rendering of the services
and such level shall
accordingly be empowered by the Constitution to do so.
- Where
it is necessary for the maintenance of essential national standards, for
the establishment of minimum standards required for the rendering of
services, the maintenance of economic unity, the maintenance of national
security or the prevention of unreasonable action taken by one province
which is
prejudicial to the interests of another province or the country as a whole, the
Constitution shall empower the national
government to intervene through
legislation or such other steps as may be defined in the
Constitution.
- Where
there is necessity for South Africa to speak with one voice, or to act as a
single entity - in particular in relation to other
states - powers should be
allocated to the national government.
- Where
uniformity across the nation is required for a particular function, the
legislative power over that function should be allocated
predominantly, if not
wholly, to the national government.
[5. Where minimum standards across the nation are required for the
rendering of services, the power to set such standards should be
allocated to the national government.]
- The
determination of national economic policies, and the power to promote
inter‑provincial commerce and to protect the common
market in respect of
the mobility of goods, services, capital and labour, should be allocated to the
national government.
- provincial
governments shall have powers, either exclusively or concurrently with the
national government, inter alia -
6.1 for the purposes of
provincial planning and development and the rendering of services;
and
6.2 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 province.
- Where
mutual co-operation is essential or desirable or where it is required to
guarantee equality of opportunity or access to a government
service, the powers
should be allocated concurrently to the national government and the provincial
governments.
- The
Constitution shall specify how powers which are not specifically allocated in
the Constitution to the national government or to
a provincial government, shall
be dealt with as necessary ancillary powers pertaining to the powers and
functions allocated either
to the national or provincial
governments.
XXII
The national government shall not exercise its powers (exclusive or
concurrent) so as to encroach upon the geographical, functional
or institutional
integrity of the provinces.
XXIII
In the event of a dispute concerning the legislative powers allocated by
the Constitution concurrently to the national and provincial
governments which
cannot be resolved by a court on a construction of the Constitution, precedence
shall be given to the legislative
powers of the national government.
XXIV
A framework for local government powers, duties, functions and structures
shall be set out in the Constitution. The comprehensive
powers, duties,
functions and other features of local government shall be set out in
parliamentary statutes or in provincial legislation
or in both.
XXV
National and provincial governments shall have fiscal powers and
functions which will be defined in the Constitution. The framework
for local
government referred to in Principle XXIV shall make provision for appropriate
fiscal powers and functions for different
categories of local
government.
XXVI
Each level of government shall have a constitutional right to an equitable
share of revenue collected nationally so as to ensure that
provinces and local
governments are able to provide basic services and execute the functions
allocated to them.
XXVII
A Financial and Fiscal Commission, in which [representing inter
aria] each [of the] province shall be represented, recommend
equitable fiscal and financial allocations to the provincial and local
governments from revenue collected nationally, after taking into account the
national interest, economic disparities between the provinces
as well as the
population and developmental needs, administrative responsibilities and other
legitimate interests of each of the
provinces.
XXVIII
[Notwithstanding the provision of any other clause,] The right of
employers and employees to join and form employer organisations and trade unions
and to engage in collective bargaining
shall be recognised and protected.
Provision shall be made that every person shall have the right to fair labour
practices.
XXIX
The independence and impartiality of a Commission for Administration, a
Reserve Bank, and Auditor-General and Ombudsman shall be provided
for and
safeguarded by the Constitution in the interests of the maintenance of effective
public finance and administration and a
high standard of professional ethics in
the Civil Service.
XXX
- There
shall be an efficient, non-partisan, career-orientated public service broadly
representative of the South African community
functioning on a basis of fairness
and which shall serve all members or the public in an unbiased and impartial
manner, and shall,
in the exercise of its powers and in compliance with its
duties, loyally execute the lawful policies of the government of the day
in the
Performance of its administrative functions. The structures and functions of
the public service, as well as the conditions
of service of its members. shall
be regulated by law.
- Every
member of the public service shall be entitled to a fair
pension.
XXXI
Every member of the security forces (police, military and intelligence), and
the security forces as a whole, shall be required to
perform their duties and
functions and exercise their powers in the national interest and shall be
prohibited from furthering or
prejudicing party political interest.
XXXII
The Constitution shall provide that until 30 April 1999 the national
executive shall be composed and shall function substantially
in the manner
provided for in Chapter 6 of this Constitution.
SCHEDULE 9
Agriculture
Casinos, racing, gambling and wagering
Cultural
affairs
Education at all levels, excluding university and technikon
education.
Health services
Housing
Language policy and
the regulation of the use of official languages within a province, subject to
section 3.
[Language policy and language/s as languages of record for
use in provincial administrations]
Local government subject to the
Provision of Chapter 10
Nature conservation, excluding national parks,
national botanical gardens and marine resources
Police subject to the
provisions of Chapter 13
Provincial public media
Public
Transport
Regional planning and development
Road traffic
regulation
Roads
Tourism
Trade and industrial
promotion
Traditional authorities
Urban and rural
development
Welfare services
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