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The
Legal Framework / Aspects juridiques
PREAMBLE
We,
the people of South Africa,
Recognise
the injustices of our past;
Honour
those who suffered for justice and freedom in our land; 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;
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
Sikelela iAfrika. Morena boloke sechaba sa heso. God seën
Suid-Afrika. God bless South Africa. Mudzimu
fhatutshedza Afrika. Hosi katekisa Afrika.
Chapter
1
Founding
Provisions
Republic
of South Africa
1.
The Republic of South Africa is one sovereign democratic state
founded on the following values:
(a)
A commitment to promote and protect human dignity, to achieve
equality and to advance human rights and freedoms.
(b)
A commitment to promote non-racialism and non-sexism.
(c)
Supremacy of the Constitution.
(d)
Universal adult suffrage, a common voters roll, regular elections,
and a multi-party system of democratic government, to
ensure accountability, responsiveness and openness.
Supremacy
of the Constitution
2.
This Constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid.
Citizenship
3.
(1) There is a common South African citizenship.
(2)
All citizens are equally -
(a)
entitled to the rights, privileges and benefits of citizenship;
and
(b)
subject to the duties and responsibilities of citizenship.
(3)
National legislation must provide for the acquisition, loss and
restoration of citizenship.
National
Anthem
4.
The national anthem of the Republic is as determined by the President
by proclamation in the national Government Gazette.
National
flag
5.
The national flag is black, gold, green, white, red and blue,
as described and sketched in Schedule 1.
Languages
6.
(1) The official languages of the Republic are Afrikaans, English,
isiNdebele, Sesotho sa Leboa, Sesotho, Siwati, Xitsonga, Setswana,
Tshivenda, isiXhosa and isiZulu.
(2)
The Pan South African Language Board must promote the conditions
for the development and use of the official languages.
(3)
The Pan South African Language Board is also responsible for promoting
respect for and the development of languages including German,
Greek, Gujarati, Hindi, Portuguese, Tamil, Telegu, Urdu, Khoi,
San and sign language and other languages commonly used by communities
in South Africa, and Arabic, Hebrew, Sanskrit and other languages
used for religious purposes.
(4)
National and provincial government may use particular official
languages for the purposes of government taking into account usage,
practicality and expense.
Chapter
2
Bill
of Rights
Rights
7.
(1) This Bill of Rights is a cornerstone of democracy in South
Africa. It enshrines the rights of all people in our country and
affirms the democratic values of human dignity, equality and freedom.
(2)
The state must respect, protect, promote, and fulfil the rights
in this Bill of Rights.
(3)
The rights in the Bill of Rights are subject only to the limitations
that are set out in section 35, or contained or referred to elsewhere
in it.
Application
8.
(1) The Bill of Rights applies to all law and binds the legislature,
the executive, the judiciary, and all other organs of state.
(2)
A right in the Bill of Rights binds all natural and juristic persons,
if applicable.
(3)
When a right in the Bill of Rights binds a natural or juristic
person, and there is no law of general application that grants
a remedy based on that right, a court must develop the common
law to grant a remedy based on that right. In granting a remedy,
the court may formulate rules that limit the right, provided that
the limitation is in accordance with section 35 (1).
(4)
Juristic persons are entitled to the rights in the Bill of Rights
to the extent required by the nature of the rights and of the
juristic persons.
Equality
9.
(1) Everyone is equal before the law and has the right to equal
protection and benefit of the law.
(2)
Equality includes the full and equal enjoyment of all rights and
freedoms. To promote the achievement of equality, legislative
and other measures designed to protect or advance persons, or
categories of persons, who are disadvantaged by unfair discrimination
may be taken.
(3)
The state may not unfairly discriminate directly or indirectly
against anyone on one or more grounds, including race, gender,
sex, pregnancy, marital status, ethnic or social origin, colour,
sexual orientation, age, disability, religion, conscience, belief,
culture, language, and birth.
(4)
No person may unfairly discriminate directly or indirectly against
anyone on one or more grounds in terms of subsection (3).
The state must adopt national legislation to prevent or prohibit
unfair discrimination. In applying section 8(3) to the right in
this subsection, courts may develop the common law only to the
extent that the required national legislation does not provide
a remedy based on this right.
(5)
Discrimination on one or more of the grounds listed in subsection
(3) is unfair unless it is established that the discrimination
is fair.
Human
dignity
10.
Everyone has inherent dignity and the right to have their dignity
respected and protected.
Life
11.
Everyone has the right to life.
Freedom
and security of the person
12.
(1) Everyone has the right to freedom and security of the person,
which includes the right -
(a)
not to be deprived of liberty arbitrarily or without just cause;
(b)
not to be detained without trial;
(c)
to be free from all forms of violence from both public and private
sources;
(d)
not to be tortured in any way; and
(e)
not to be treated or punished in a cruel, inhuman or degrading
way.
(2)
Everyone has the right to bodily and psychological integrity,
which includes the right -
(a)
to make decisions concerning reproduction;
(b)
to security in and control over their body; and
(c)
not to be subjected to medical or scientific experiments without
their informed consent.
Slavery,
servitude and forced labour
13.
No one may be subjected to slavery, servitude or forced labour.
Privacy
14.
Everyone has the right to privacy, which includes the right not
to have -
(a)
their person or home searched;
(b)
their property searched;
(c)
their possessions seized; or
(d)
the privacy of their communications infringed.
Freedom
of religion, belief and opinion
15.
(1) Everyone has the right to freedom of conscience, religion,
thought, belief and opinion.
(2)
Religious observances may be conducted at state or state-aided
institutions provided that -
(a)
those observances follow rules made by the appropriate public
authorities;
(b)
they are conducted on an equitable basis; and
(c)
attendance at them is free and voluntary.
(3)
(a) This section does not prevent legislation recognising -
(i)
marriages concluded under any tradition or a system of religious,
personal or family law; or
(ii)
systems of personal and family law under any tradition or adhered
to by persons professing a particular religion.
(b)
Marriages, or systems of personal and family law, recognised by
legislation referred to in paragraph (a) must be consistent
with the provisions of the Constitution.
Freedom
of expression
16.
(1) Everyone has the right to freedom of expression, which includes
-
(a)
freedom of the press and other media;
(b)
freedom to receive and impart information and ideas;
(c)
freedom of artistic creativity; and
(d)
academic freedom and freedom of scientific research.
(2)
The right in subsection (1) does not extend to -
(a)
propaganda for war;
(b)
incitement of imminent violence; or
(c)
advocacy of hatred that is based on race, ethnicity, gender or
religion, and that constitutes incitement to cause harm.
Assembly,
demonstration and petition
17.
Everyone has the right, peacefully and unarmed, to assemble, to
demonstrate, to picket, and to present petitions.
Freedom
of association
18.
Everyone has the right to freedom of association.
Political
rights
19.
(1) Every citizen is free to make political choices, which includes
the right -
(a)
to form a political party;
(b)
to participate in the activities of, or recruit members for, a
political party; and
(c)
to campaign for a political party or cause.
(2)
Every citizen has the right to free, fair and regular elections
for any legislative body established in terms of the Constitution.
(3)
Every adult citizen has the right -
(a)
to vote in elections for any legislative body established in terms
of the Constitution, and to do so in secret; and
(b)
to stand for public office and, if elected, to hold office.
Citizenship
20.
No citizen may be deprived of citizenship.
Freedom
of movement and residence
21.
(1) Everyone has the right to freedom of movement.
(2)
Everyone has the right to leave the Republic.
(3)
Every citizen has the right to enter, to remain in, and to reside
anywhere in the Republic.
(4)
Every citizen has the right to a passport.
Freedom
of occupation
22.
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.
Labour
relations
23.
(1) Everyone has the right to fair labour practices.
(2)
Every worker has the right -
(a)
to form and join a trade union;
(b)
to participate in the activities and programmes of a trade union;
and
(c)
to strike.
(3)
Every employer has the right -
(a)
to form and join an employers' organisation;
(b)
to participate in the activities and programmes of an employers'
organisation; and
[(c)
to lock-out.]
(4)
Every trade union and every employers' organisation has the right
-
(a)
to determine its own administration, programmes and activities;
(b)
to organise;
(c)
to bargain collectively; and
(d)
to form and join a federation.
(5)
The provisions of the Bill of Rights do not prevent legislation
recognising union security arrangements contained in collective
agreements.
Environment
24.
Everyone has the right -
(a)
to an environment that is not harmful to their health or well-being;
and
(b)
to have the environment protected, for the benefit of present
and future generations, through reasonable legislative and other
measures that -
(i)
prevent pollution and ecological degradation;
(ii)
promote conservation; and
(iii)
secure ecologically sustainable development and use of natural
resources while promoting justifiable economic and social development.
Property
25.
(1) No one may be deprived of property except in accordance with
law of general application, and no law may permit
arbitrary deprivation of property.
(2)
Property may be expropriated only in terms of a law of general
application -
(a)
for public purposes or in the public interest; and
(b)
subject to compensation, the amount, timing and manner of which
must be agreed, or decided by a court.
(3)
The amount, timing and manner of compensation must be just and
equitable, reflecting an equitable balance between the
public interest and the interests of those affected, having regard
to all relevant factors, including
(a)
the current use of the property;
(b)
the history of the acquisition and use of the property;
(c)
the market value of the property;
(d)
the extent of state investment and subsidy in the acquisition
and beneficial improvement of the property; and
(e)
the purpose of the expropriation.
(4)
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.
(5)
The state must take reasonable legislative and other measures,
within its available resources, to foster conditions which enable
citizens to gain access to land on an equitable basis.
(6)
A person or community whose tenure of land is legally insecure
as a result of past racially discriminatory law or practice is
entitled, subject to and in accordance with an Act of Parliament,
either legally to secure the legal right to that land, or to comparable
redress subject to and in accordance with an Act of Parliament.
(7)
A person or community dispossessed of property after 19 June 1913
as a result of past racially discriminatory law or practice is
entitled, subject to and in accordance with an Act of Parliament,
either to restitution of that property, or to equitable redress
subject to and in accordance with an Act of Parliament.
(8)
No provision of this section may unreasonably impede the state
from taking reasonable legislative and other measures to achieve
land reform [and or in order to] redress the results of past racial
discrimination.
Housing
26.
(1) Everyone has the right to have access to adequate housing.
(2)
The state must take reasonable legislative and other measures,
within its available resources, to achieve the progressive realisation
of this right.
(3)
No one may be evicted from their home, or have their home demolished,
without an order of court made after considering all the relevant
circumstances. No legislation may permit arbitrary evictions.
Health
care, food, water, and social security
27.
(1) Everyone has the right to have access to -
(a)
health care services, including reproductive health care;
(b)
sufficient food and water; and
(c)
social security including, if they are unable to support themselves
and their dependants, appropriate social assistance.
(2)
The state must take reasonable legislative and other measures,
within its available resources, to achieve the progressive realisation
of each of these rights.
(3)
No one may be refused emergency medical treatment.
Children
28.
(1) Every child has the right -
(a)
to a name and a nationality from birth;
(b)
to family care, parental care, or appropriate alternative care
when removed from the family environment;
(c)
to basic nutrition, shelter, basic health care services, and social
services;
(d)
to be protected from maltreatment, neglect, abuse, or degradation;
(e)
to be protected from exploitative labour practices;
(f)
not to be required or permitted to perform work or provide services
that are inappropriate for a person of that child's age, or that
place at risk the child's well-being, education, physical or mental
health, or spiritual, moral, or social development;
(g)
not to be detained except as a measure of last resort, in which
case, in addition to the rights the child enjoys under sections
12 and 34, the child may be detained only for the shortest appropriate
period of time, and has the right to be -
(i)
kept separately from other detained persons over the age of 18
years; and
(ii)
treated in a manner, and kept in conditions, that take account
of the child's age;
(h)
to have a legal practitioner assigned to the child by the state
and at state expense in civil proceedings affecting the child,
if substantial injustice would otherwise result; and
(i)
not to be used directly in armed conflict, and to be protected
in times of armed conflict.
(2)
A child's best interest is of paramount importance in every matter
concerning the child.
(3)
In this section, "child" means a person under the age of 18 years.
Education
29.
(1) Everyone has the right -
(a)
to a basic education, including adult basic education, in a state
or state-aided institution;
(b)
to further education, which the state must take reasonable and
progressive legislative and other measures to make generally available
and accessible; and
(c)
to choose instruction in any language where instruction in that
language can be reasonably provided at state or state-aided institutions.
(2)
Everyone has the right to establish and maintain, at their own
expense, private educational institutions that -
(a)
do not discriminate on the basis of race;
(b)
are registered with the state; and
(c)
maintain standards that are not inferior to standards at comparable
state-aided educational institutions.
Language
and culture
30.
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.
Access
to information
31.
(1) Everyone has the right of access to -
(a)
any information held by the state; and
(b)
any information that is held by another person that is required
for the exercise or protection of any rights.
(2)
The state must give effect to the rights in subsection (1) by
way of national legislation. This legislation may provide for
reasonable measures to alleviate the administrative and financial
burden on the state.
Just
administrative action
32.
(1) Everyone has the right to administrative action that is lawful,
reasonable and procedurally fair.
(2)
Everyone whose rights have been adversely affected by administrative
action has the right to be given written reasons for the administrative
action.
(3)
The state must give effect to the rights in subsections (1) and
(2) by way of national legislation.
(4)
The legislation referred to in subsection (3) must -
(a)
provide for the review of the administrative action by a court
of law or, where appropriate, an independent and impartial tribunal;
(b)
impose a duty on the state, and the organs of state, to give effect
to the rights in subsections (1) and (2);
(c)
be justifiable in an open and democratic society based on human
dignity, equality and freedom; and
(d)
promote an efficient administration.
Access
to courts
33.
Everyone has the right to have any dispute that can be resolved
by law decided in a fair, public hearing in a court or, where
appropriate, another independent and impartial forum.
Arrested,
detained and accused persons
34.
(1) Everyone who is arrested for allegedly committing an offence
has the right-
(a)
to remain silent;
(b)
to be informed promptly -
(i)
of the right to remain silent; and
(ii)
of the consequences of not remaining silent;
(c)
not to be compelled to make any confession or admission that could
be used in evidence against that person;
(d)
to be brought before a court as soon as reasonably possible, but
not later than 48 hours after the arrest, but if that period expires
outside ordinary court hours, to be brought before a court on
the first court day after the end of that period;
(e)
at the first court appearance after being arrested, to be released
unless charged and the court orders further detention; and
(f)
to be released from detention if the interests of justice permit,
subject to reasonable conditions.
(2)
Everyone who is detained, including every sentenced prisoner,
has the right-
(a)
to be informed promptly of the reason for being detained;
(b)
to choose and to consult with a legal practitioner, and to be
informed of this right promptly;
(c)
to have a legal practitioner assigned to the detained person by
the state, and at state expense, if substantial injustice would
otherwise result, and to be informed of this right promptly;
(d)
to challenge the lawfulness of the detention in person before
a court and, if the detention is unlawful, to be released;
(e)
to conditions of detention that are consistent with human dignity,
including at least the provision of adequate accommodation, nutrition,
reading material, exercise and medical treatment at state expense;
and
(f)
to communicate with, and be visited by, that person's
(i)
spouse or partner;
(ii)
next of kin;
(iii)
chosen religious counsellor; and
(iv)
chosen medical practitioner.
(3)
Every accused has a right to a fair trial, which includes the
right -
(a)
to be informed of the charge with sufficient details to answer
it;
(b)
to have adequate time and facilities to prepare a defence;
(c)
to a public trial in an ordinary court;
(d)
to have their trial begin and conclude without unreasonable delay;
(e)
to be present when being tried;
(f)
to choose, and be represented by, a legal practitioner, and to
be informed of this right;
(g)
to have a legal practitioner assigned to the accused by the state
and at state expense if substantial injustice would otherwise
result, and to be informed of this right;
(h)
to be presumed innocent, and to remain silent, and not to testify
during the proceedings;
(i)
to adduce and challenge evidence;
(j)
not to be compelled to give self-incriminating evidence;
(k)
to be tried in a language that the accused person understands
or, if that is not practicable, to have the proceedings interpreted
in that language;
(l)
not to be convicted for an act or omission that was not an offence
under either national or international law at the time it was
committed or omitted;
(m)
not to be tried for an offence in respect of an act or omission
for which that person has previously been either acquitted or
convicted;
(n)
to the benefit of the least severe of the prescribed punishments
if the prescribed punishment for the offence has been changed
between the time that the offence was committed and the time of
sentencing; and
(o)
of appeal to, or review by, a higher court.
(4)
Whenever this section requires information to be given to a person,
that information must be given in a language that the person understands.
(5)
Evidence obtained in a manner that violates any right in the Bill
of Rights must be excluded if the admission of that evidence
would render the trial unfair or otherwise be detrimental to the
administration of justice.
Limitation
of rights
35.
(1) The rights in the Bill of Rights may be limited only in terms
of law of general application to the extent that the limitation
is reasonable and justifiable in an open and democratic society
based on human dignity, equality and freedom, having regard to
all relevant factors including-
(a)
the nature of the right;
(b)
the importance of the purpose of the limitation;
(c)
the nature and extent of the limitation;
(d)
the relation between the limitation and its purpose; and
(e)
less restrictive means to achieve the purpose.
(2)
Except as provided in subsection (1) or in any other provision
of the Constitution, no law may limit any right entrenched in
the Bill of Rights.
States
of emergency
36.
(1) A state of emergency may be declared only in terms of an Act
of Parliament and only when -
(a)
the life of the nation is threatened by war, invasion, general
insurrection, disorder, natural disaster, or other public emergency;
and
(b)
the declaration is necessary to restore peace or order.
(2)
A declaration of a state of emergency, and any legislation enacted
or other action taken in consequence of that declaration, may
be effective only -
(a)
prospectively from the date of the declaration; and
(b)
for no more than 21 days from the date of the declaration, unless
the National Assembly resolves to extend the declaration.
The National 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 by a majority
of the members of the National Assembly.
Any subsequent extension must be by a resolution adopted by at
least 60 per cent of the members of the Assembly. A resolution
in terms of this paragraph may be adopted only following a public
debate in the Assembly.
(3)
Any High Court may enquire into the validity of -
(a)
a declaration of a state of emergency;
(b)
any extension of a declaration of a state of emergency; or
(c)
any legislation enacted, or other action taken, in consequence
of a declaration of a state of emergency.
(4)
Any legislation enacted in consequence of a declared state of
emergency may derogate from the Bill of Rights only to the extent
that -
(a)
the derogation is strictly required by the emergency; and
(b)
the legislation -
(i)
is consistent with the Republic's obligations under international
law applicable to states of emergency;
(ii)
conforms to subsection (5); and
(iii)
is published in the national Government Gazette immediately after
being enacted.
(5)
No Act that authorises a declaration of a state of emergency,
and no legislation enacted or other action taken in consequence
of a declaration, may permit or authorise -
(a)
indemnifying the state, or any person, for any unlawful act;
(b)
any derogation from this section; or
(c)
any derogation from a section mentioned in column 1 of the Table
of Non-Derogable Rights, to the extent indicated opposite that
section in column 3 of that table.
| Section
Number |
Section
Title |
Extent
to which the right is protected |
| 9 |
Equality |
With
the respect to race and sex only |
| 10 |
Human
Dignity |
Entirely |
| 11 |
Life |
Entirely |
| 12 |
Freedom
and the security of the person |
With
respect to subsection (1)(d), (1)(e) and (2)(c) only |
| 13 |
Slavery,
servitude and forced labour |
With
respect to slavery and servitude only |
| 28 |
Children |
With
respect to subsection (1)(d), (1)(e), (1)(g)(i) and (1)(g)
only |
34
|
Arrested,
detained and accused persons
|
With
respect to the following subsections only:
(1)(a), (b) and (c)
(2)(d)
(3)(a), (b), (c), (e), (f), (g), (h), (i), (j), (k), (l),
(m) and (o)
(4) |
(6)
Whenever anyone is detained without trial in consequence of a
derogation of rights resulting from a declaration of a state of
emergency, the following conditions must be observed -
(a)
an adult family member or friend of the detainee must be contacted
as soon as reasonably possible, and told that the person has been
detained;
(b)
a notice must be published in the national Government Gazette
within five days of the person being detained, stating the detainee's
name and place of detention and referring to the emergency measure
in terms of which that person has been detained;
(c)
the detainee must be allowed to choose, and be visited at any
reasonable time by, a medical practitioner;
(d)
the detainee must be allowed to choose, and be visited at any
reasonable time by, a legal representative;
(e)
a court must review the detention as soon as reasonably possible,
but no later than 10 days after the date the person was detained,
and the court must release the detainee unless it is necessary
to continue the detention to restore peace and order;
(f)
a detainee who is not released in terms of 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 any time
more than 10 days after the previous review, and in either case,
the court must release the detainee unless it is necessary to
continue the detention to restore peace and order;
(g)
the detainee must be allowed to appear in person before any court
considering the detention, to be represented by a legal practitioner
at those hearings, and to make representations against continued
detention; and
(h)
the state must present written reasons to the court to justify
the continued detention of the detainee, and must give a copy
of those reasons to the detainee at least two days before the
court reviews the detention.
(7)
If a court releases a detainee, that person may not be detained
again on the same grounds unless the state first shows a court
good cause for re-detaining that person.
(8)
Subsections (6) and (7) do not apply to persons who are not citizens
of South Africa 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 those persons.
Enforcement
of rights
37.
Anyone listed in this section has the right to apply to 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 apply for relief
are -
(a)
anyone acting in their own interest;
(b)
anyone acting on behalf of another person who cannot act in their
own name;
(c)
anyone acting as a member of, or in the interest of, a group or
a class of persons;
(d)
anyone acting in the public interest; and
(e)
an association acting in the interest of its members.
Interpretation
of Bill of Rights
38.
(1) When interpreting the Bill of Rights, every court -
(a)
must promote the values that underlie an open and democratic society
based on human dignity, equality and freedom;
(b)
must consider international law; and
(c)
may consider foreign law.
(2)
When interpreting any legislation, and when developing the common
law or customary law, every court must promote the spirit, purport,
and objects of the Bill of Rights.
(3)
The Bill of Rights does not deny the existence of any other rights
or freedoms that are recognised or conferred by common law, customary
law or legislation, to the extent that they are consistent with
the Bill.
Chapter
3
Principles
of Co-operative Government
Basic
Structure
39
(1) Governance of the Republic is constituted as distinctive but
interdependent spheres: national, provincial and local.
(2)
A spirit of co-operation must be observed and practised among
all spheres of governance, in the interest of -
(a)
preserving peace, national unity and the indivisibility of the
Republic;
(b)
securing the well-being of the people of the Republic; and
(c)
providing effective, transparent, accountable and coherent government
for the Republic as a whole.
(3)
Government within each sphere must conduct itself in a spirit
of mutual respect and trust, reflecting their mutual obligation
to
-
(a)
foster friendly relations;
(b)
support and assist each other;
(c)
consult on matters of common interest;
(d)
co-ordinate actions with each other in terms of agreed procedures;
and
(e)
cultivate mutual trust and co-operation.
Inter-governmental
co-operation
40.
(1) Government must observe and adhere to the spirit of co-operative
governance. In particular, government within each sphere -
(a)
must be loyal to the Constitution, the Republic, and its people;
(b)
must respect the constitutional status, institutions, powers and
functions of government in the other spheres;
(c)
may assume only the powers and functions conferred on it in terms
of the Constitution; and
(d)
may not exercise any power or function in a manner that encroaches
on the geographical, functional or institutional integrity of
government in another sphere.
(2)
National legislation may establish structures and institutions
to promote and facilitate inter-governmental relations.
(3)
National legislation must provide for appropriate mechanisms and
procedures to facilitate settlement of inter-governmental disputes.
(4)
An organ of state involved in an inter-governmental 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 competent court
to resolve the dispute.
(5)
If a competent court determines that the requirements of subsection
(4) have not been satisfied, it may refer a dispute back to the
organs of state involved.
Chapter
4
Parliament
Composition
of Parliament
41.
(1) Parliament consists of -
(a)
the National Assembly; and
(b)
the National Council of Provinces.
(2)
The National Assembly and the National Council of Provinces participate
in the legislative process in the manner set out in the Constitution.
(3)
The National Assembly is elected to represent the people and to
ensure government by the people under the Constitution. It does
this by choosing the President, by providing a national forum
for public consideration of issues, by passing legislation and
by scrutinising and overseeing executive action.
(4)
The National Council of Provinces represents the provinces to
ensure that provincial interests are taken into account in the
national sphere of government. It does this mainly by participating
in the national legislative process and by providing a national
forum for public consideration of issues affecting the provinces.
Legislative
authority of Republic
42.
The legislative authority of the Republic -
(a)
in the national sphere of government is vested in Parliament,
as set out in section 43;
(b)
in the provincial sphere of government is vested in the provincial
legislature of a province, as set out in section 102; and
(c)
in the local sphere of government is vested in the municipal councils,
as set out in section 150.
National
legislative authority
43.
(1) The national legislative authority as vested in Parliament
-
(a)
confers on the National Assembly the power -
(i)
to amend the Constitution;
(ii)
to pass legislation with regard to any matter, including a matter
within the functional areas listed in Schedule 4, but excluding
a matter within the exclusive legislative powers of the provinces;
and
(iii)
to assign any of its legislative powers to any legislature in
another sphere of government; and
(b)
confers on the National Council of Provinces the power -
(i)
to participate in amending the Constitution, in accordance with
section 72;
(ii)
to pass legislation with regard to any matter within a functional
area listed in Schedule 4 and any other legislation determined
by the Constitution, in accordance with section 74; and
(iii)
to consider legislation passed by the National Assembly and falling
outside the functional areas listed in Schedule 4, in accordance
with section 73.
(2)
Legislation that is reasonably necessary for, or incidental to,
the effective exercise of the power of the National Council of
Provinces to legislate with regard to a matter within a functional
area listed in Schedule 4, falls within that functional area.
(3)
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.
The
National Assembly
Composition
and election
44.
(1) The National Assembly consists of between 350 and 400 women
and men elected as members in terms of an electoral system that
-
(a)
is prescribed by national legislation;
(b)
is based on a common voters roll;
(c)
provides for a minimum voting age of 18 years; and
(d)
results, in general, in proportional representation.
(2)
National legislation must determine the number of members of the
National Assembly.
Membership
45.
(1) Every citizen who is qualified to vote for the National Assembly
is eligible to be a member of the Assembly, except -
(a)
anyone who is appointed by, or is in the service of, the state
and receives remuneration for that appointment or service,
other than -
(i)
the President, Deputy President, Ministers and Deputy Ministers;
and
(ii)
other office-bearers whose functions are compatible with the functions
of a member of the Assembly, and have been declared compatible
with those functions by national legislation;
(b)
permanent delegates to the National Council of Provinces, or members
of a provincial legislature or a municipal council;
(c)
unrehabilitated insolvents;
(d)
anyone declared to be of unsound mind by a court of the Republic;
or
(e)
anyone who, after this section took effect, has been convicted
of an offence and sentenced to more than 12 months imprisonment
without the option of a fine, either in the Republic, or outside
the Republic if the conduct constituting the offence would have
been an offence in the Republic; but, no one may be regarded as
having been sentenced until an appeal against the
conviction or sentence has been determined, or until the time
for an appeal has expired. A disqualification under this paragraph
ends five years after the sentence has been completed.
(2)
A person who is not eligible to be a member of the National Assembly
in terms of subsection (1) (a) or (b) may be a candidate for the
Assembly, subject to any limits or conditions established by national
legislation.
(3)
A person loses membership of the National Assembly if that person
-
(a)
ceases to be eligible; or
(b)
is absent from the Assembly without permission in circumstances
for which the rules and orders of the Assembly prescribe loss
of membership.
(4)
Vacancies in the National Assembly must be filled in terms of
national legislation.
Oath
or affirmation
46.
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.
Duration
of National Assembly
47.
(1) The National Assembly is elected for a term of five years.
(2)
If the National Assembly is dissolved in terms of section 48,
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.
(3)
If the result of an election of the National Assembly is not declared
within the period established in terms of section 186 or if an
election is set aside by a court, the President, by proclamation,
must call and set dates for another election, which must be held
within 90 days of the expiry of that period or of the date on
which the election was set aside.
(4)
The National Assembly remains competent to function from the time
it is dissolved, or its term expires, until the day before the
first day of polling for the next Assembly.
Dissolution
of National Assembly before expiry of its term
48.
(1) The President may dissolve the National Assembly if the Assembly
adopts a resolution supporting its dissolution.
(2)
The Acting-President must dissolve the National Assembly if -
(a)
there is a vacancy in the office of President; and
(b)
the Assembly fails to elect a new President within 30 days after
the vacancy occurred.
Sittings
and recess periods
49.
(1) After an election, the first sitting of the National Assembly
must take place at a time and on a date determined by the President
of the Constitutional Court, but not more than 14 days after the
election result has been declared. The National Assembly may determine
the time and duration of its other sittings and its recess periods.
(2)
The President may summon the National Assembly to an extraordinary
sitting at any time to conduct urgent business.
(3)
The National Assembly sits at the Houses of Parliament in Cape
Town, but the Assembly, in the national interest and by resolution
adopted by a majority of its members, may determine that it sits
elsewhere.
Speaker
and Deputy Speaker
50.
(1) At the first sitting after its election, or when necessary
to fill a vacancy, the National Assembly must elect a Speaker
and a Deputy Speaker from among its members.
(2)
The President of the Constitutional Court must preside over the
election of the Speaker, or designate another judge to do so.
The Speaker presides over the election of a Deputy Speaker.
(3)
The procedure set out in Schedule 3 applies to the election of
the Speaker and the Deputy Speaker.
(4)
The National Assembly may remove the Speaker or Deputy Speaker
from office by resolution. A majority of the members of the Assembly
must be present when the resolution is adopted.
(5)
The National Assembly in terms of its rules and orders may elect
from among its members other presiding officers to assist the
Speaker and Deputy Speaker.
Decisions
51.
(1) Unless the Constitution provides otherwise -
(a)
a majority of the members of the National Assembly must be present
before a vote may be taken on a Bill or an amendment to a Bill;
(b)
one third of the members must be present before a vote may be
taken on any other question before the Assembly; and
(c)
all questions before the Assembly are decided by a majority of
the votes cast.
(2)
The presiding member of the National Assembly has no deliberative
vote, but -
(a)
must cast a deciding vote when there is an equal number of votes
on each side of a question; and
(b)
may cast a deliberative vote when a question must be decided by
a vote of at least two thirds of the members.
Rights
of certain Cabinet members in National Assembly
52.
The President and any member of the Cabinet who is not a member
of the National Assembly may attend, and may speak in, the Assembly,
but may not vote.
Powers
of National Assembly
53.
(1) In exercising its legislative power, the National Assembly
may -
(a)
consider, pass, amend or reject any legislation before the Assembly;
and
(b)
initiate or prepare legislation, except money Bills.
(2)
The National Assembly must determine and provide for mechanisms
to -(a)ensure that all executive organs of state in the national
sphere of government are accountable to it; and
(b)
maintain proper oversight of -
(i)
the exercise of national executive authority, including the implementation
of legislation; and
(ii)
any organ of state, other than the courts or a statutory body.
Evidence
or information before National Assembly
54.
The National Assembly or any of its committees -
(a)
summon any person to appear before it to give evidence on oath
or affirmation or to produce documents;
(b)
require any person or institution to report to it;
(c)
compel, in terms of national legislation or the rules and orders,
any person or institution to comply with a summons or requirement
in terms of paragraph (a) or (b); and
(d)
receive petitions, representations or submissions from any interested
persons.
Internal
arrangements, proceedings and procedures of National Assembly
55.
(1) The National Assembly may -
(a)
determine, control and dispose of its internal arrangements, proceedings
and procedures; and
(b)
make rules and orders concerning its business, with due regard
to representative and participatory democracy, accountability,
transparency and public involvement.
(2)
The rules and orders of the National Assembly must provide for
-
(a)
the establishment, constitution, composition, powers, functions,
procedures and duration of its committees; and
(b)
the participation of all minority political parties represented
in the Assembly in its proceedings in a manner consistent with
democracy.
Privilege
56.
(1) Cabinet members and members of the National Assembly -
(a)
have freedom of speech in the Assembly and in its committees,
subject to its rules and orders; and
(b)
are not liable to civil or criminal proceedings, arrest, imprisonment
or damages for -
(i)
anything that they have said in, produced before, or submitted
to the Assembly or any of its committees; or
(ii)
anything revealed as a result of anything that they have said
in, produced before, or submitted to the Assembly or any of its
committees.
(2)
Other privileges and immunities of the National Assembly, Cabinet
members and members of the Assembly may be prescribed by national
legislation.
(3)
Salaries, allowances and benefits payable to members of the National
Assembly are a direct charge against the National Revenue Fund,
as may be regulated by an Act of Parliament.
Public
access to and involvement in National Assembly
57.
The National Assembly must -
(a)
facilitate public involvement in the legislative and other processes
of the Assembly and its committees; and
(b)
conduct its business in an open manner, and hold its sittings,
and those of its committees, in public; but, reasonable measures
may be taken to regulate public access, including access of the
media, to the Assembly and its committees; and to provide for
the search of any person and, where appropriate, the refusal of
entry or the removal of any person.
National
Council of Provinces
Composition
of National Council
58.
(1) The National Council of Provinces is composed of a single
delegation from each province consisting of ten delegates.
(2)
The ten delegates are -
(a)
four special delegates comprising -
(i)
the Premier of the province or, if the Premier is not available,
any member of the provincial legislature designated by the Premier
either generally or for any specific business before the National
Council; and
(ii)
three other special delegates, designated in terms of section
59(3) by the legislature either generally or for any specific
business before the National Council; and
(b)
six permanent delegates appointed in terms of section 59 (2).
(3)
The Premier of a province, or if the Premier is not available,
a member of the province's delegation designated by the delegation,
heads the delegation.
Allocation
of delegates
59.
(1) Parties represented in a provincial legislature are entitled
to delegates in the province's delegation in accordance with the
formula set out in Part B of Schedule 3.
(2)
Within 30 days after the result of an election of a provincial
legislature is declared, the legislature must -
(a)
determine, in an equitable manner prescribed by national legislation,
how many of each party's delegates are to be permanent delegates
and how many are to be special delegates; and
(b)
appoint the permanent delegates in accordance with the nominations
of the parties.
(3)
The provincial legislature must designate as a special delegate
a member of the legislature nominated by a party entitled to a
special delegate, as and when the party requires.
Permanent
delegates
60.
(1) A person nominated as a permanent delegate must be eligible
to be a member of the provincial legislature.
(2)
If a person who is a member of a provincial legislature is appointed
as a permanent delegate, that person ceases to be a member of
the legislature.
(3)
Permanent delegates are appointed for a term that expires immediately
before the first sitting of the provincial legislature after its
next election.
(4)
A person ceases to be a permanent delegate if that person -
(a)
ceases to be eligible to be a member of the provincial legislature;
(b)
has lost the confidence of the provincial legislature and is recalled
by the party that nominated that person;
(c)
ceases to be a member of the party that nominated that person
and is recalled by that party; or
(d)
is absent from the National Council of Provinces without permission
in circumstances for which the rules and orders of the Council
prescribe loss of office as a permanent delegate.
(5)
Vacancies among the permanent delegates must be filled in terms
of national legislation.
(6)
Before permanent delegates begin to perform their functions in
the National Council, they must swear or affirm faithfulness to
the Republic and obedience to the Constitution, in accordance
with Schedule 2.
Sittings
of National Council
61.
(1) The National Council of Provinces may determine the time and
duration of its sittings and its recess periods.
(2)
The President may summon the National Council to an extraordinary
meeting at any time to conduct urgent business.
Chairperson
and Deputy Chairpersons
62.
(1) The National Council of Provinces must elect a Chairperson
and two Deputy Chairpersons from among the delegates.
(2)
The Chairperson and one of the Deputy Chairpersons are elected
for five years unless their term as a delegate expires earlier.
(3)
The other Deputy Chairperson is elected for a term of one year,
and must be succeeded by a delegate from another province, so
that every province is represented in turn.
(4)
The President of the Constitutional Court must preside over the
election of the Chairperson, or designate another judge to do
so. The Chairperson presides over the election of the Deputy Chairpersons.
(5)
The procedure set out in Schedule 3 applies to the election of
the Chairperson and the Deputy Chairpersons.
(6)
The National Council may remove the Chairperson or a Deputy Chairperson
from office.
(7)
The National Council may elect from among the permanent delegates
other presiding officers to assist the Chairperson and the Deputy
Chairpersons, in terms of its rules and orders.
Decisions
63.
(1) Except where the Constitution provides otherwise -
(a)
each province has one vote which is cast on behalf of the province
by the head of its delegation; and
(b)
all questions before the National Council of Provinces are decided
by a vote of at least five provinces.
(2)
An Act of Parliament enacted in terms of section 74 must provide
for a uniform procedure in terms of which provinces confer authority
on their delegations to cast votes on their behalf.
Participation
by members of national executive
64.
(1) Cabinet members and Deputy Ministers may attend, and may speak
in, the National Council of Provinces, but may not vote.
(2)
The National Council may require a Cabinet member, a Deputy Minister
or an official in the national or provincial executive to attend
a meeting of the Council or a committee of the Council.
Participation
by local government representatives
65.
Not more than ten representatives of local government, designated
by the local government body established in terms of section 159
to represent different categories of municipalities, may participate
when necessary in the proceedings of the National Council of Provinces,
but may not vote.
Powers
of National Council
66.
In exercising its legislative power, the National Council of Provinces
may -
(a)
consider, pass, amend, propose amendments to, or reject any legislation
before the Council; and
(b)
initiate or prepare legislation falling within a functional area
listed in Schedule 4 or other legislation referred to in section
74(3)(a), excluding money Bills.
Evidence
or information before National Council
67.
The National Council of Provinces and any of its committees may
-
(a)
summon any person to appear before it to give evidence on oath
or affirmation or to produce documents;
(b)
compel, in terms of national legislation or the rules and orders,
any person to comply with a summons or requirement in terms of
paragraph (a) or (b); and
(c)
receive petitions, representations or submissions from any interested
persons.
Internal
arrangements, proceedings and procedures of National Council
68.
(1) The National Council of Provinces may -
(a)
determine, control and dispose of its internal arrangements, proceedings
and procedures; and
(b)
make rules and orders concerning its business, with due regard
to representative and participatory democracy, accountability,
transparency and public involvement.
(2)
The rules and orders of the National Council must provide for
-
(a)
the establishment, constitution, composition, powers, functions,
procedures and duration of its committees; and
(b)
the participation of all the provinces in its proceedings in a
manner consistent with democracy.
Privilege
69.
(1) Delegates to the National Council of Provinces, and the persons
referred to in sections 64(1) and 65 -
(a)
have freedom of speech in the Council and in its committees, subject
to its rules and orders; and
(b)
are not liable to civil or criminal proceedings, arrest, imprisonment
or damages for -
(i)
anything that they have said in, produced before, or submitted
to the Council or any of its committees; or
(ii)
anything revealed as a result of anything that they have said
in, produced before, or submitted to the Council or any of its
committees.
(2)
Other privileges and immunities of the National Council, delegates
to the Council and persons referred to in sections 64(1) and 65,
may be prescribed by national legislation.
(3)
Salaries, allowances and benefits payable to members of the National
Council are a direct charge against the National Revenue Fund,
as may be regulated by an Act of Parliament.
Public
access to and involvement in National Council
70.
(1) The National Council of Provinces must -
(a)
facilitate public involvement in the legislative and other processes
of the Council and its committees; and
(b)
conduct its business in an open manner, and hold its sittings
and those of its committees, in public; but, reasonable measures
may be taken to regulate public access, including access of the
media, to the Council and its committees, and to provide for the
search of any person, and, where appropriate, the refusal of entry
or the removal of any person.
National
Legislative Process
All
Bills
71.
(1) Any Bill may be introduced in the National Assembly.
(2)
Only -
(a)
a Cabinet member or a Deputy Minister, or a member, or committee,
of the Assembly, may introduce a Bill in the Assembly; and
(b)
the Cabinet member responsible for national finance matters, or
another Cabinet member designated by the President, may introduce
a money Bill in the Assembly.
(3)
A Bill falling within a functional area listed in Schedule 4 or
referred to in section 74(3)(a), excluding a money Bill falling
within that Schedule, may be introduced in the National Council
of Provinces.
(4)
Only a member, or a committee, of the National Council may introduce
a Bill in the Council.
(5)
A Bill passed by the National Assembly that must be considered
by the National Council, or a Bill passed by the National Council
that must be considered by the National Assembly, must be referred
to the Council or the Assembly, respectively.
Bills
amending the Constitution
72.
(1) The Constitution may be amended by a Bill passed by -
(a)
the National Assembly by a vote of at least two thirds of its
members; and
(b)
the National Council of Provinces by a vote of at least six provinces
if it is a Bill that -
(i)
affects the Council;
(ii)
alters provincial boundaries, powers, functions or institutions;
or
(iii)
amends a provision which deals specifically with a provincial
matter.
(2)
If a Bill referred to in subsection (1)(b) concerns only a specific
province or provinces, the National Council may not pass it unless
the Bill has been approved by the relevant provincial legislature
or legislatures.
(3)
A Bill amending the Constitution which has been passed by the
National Assembly and, where applicable, by the National Council,
must be referred to the President for assent.
Bills
outside Schedule 4
73.
(1) When the National Assembly passes a Bill falling outside the
functional areas listed in Schedule 4, the Bill must be referred
to the National Council of Provinces and dealt with in accordance
with the following procedure:
(a)
The National Council must either -
(i)
pass the Bill;
(ii)
pass the Bill subject to amendments proposed by it; or
(iii)
reject the Bill.
(b)
If the National Council passes the Bill without proposing amendments,
the Bill must be submitted to the President for assent.
(c)
If the National Council rejects the Bill or passes it subject
to amendments, the National Assembly must reconsider the Bill,
taking into account any amendment proposed by the Council, and
may -
(i)
pass the Bill again, either with or without amendments; or
(ii)
decide not to proceed with the Bill.
(d)
A Bill passed by the National Assembly in terms of paragraph (c)
must be submitted to the President for assent.
(2)
When the National Council votes on a question in terms of this
section, section 63 does not apply; instead -
(a)
each delegate in a provincial delegation has one vote;
(b)
one third of the delegates must be present before a vote may be
taken on the question; and
(c)
the question is decided by a majority of the votes cast, but if
there is an equal number of votes on each side of the question,
the delegate presiding must cast a deciding vote.
Bills
within Schedule 4
74.
(1) When the National Assembly passes a Bill falling within a
functional area listed in Schedule 4 the Bill must be referred
to the National Council of Provinces and dealt with in accordance
with the following procedure:
(a)
The National Council must either -
(i)
pass the Bill;
(ii)
pass an amended Bill; or
(iii)
reject the Bill.
(b)
If the National Council passes the Bill without amendment, the
Bill must be submitted to the President for assent.
(c)
If the National Council passes an amended Bill the amended Bill
must be referred to the National Assembly, and if the Assembly
passes the amended Bill it must be submitted to the President
for assent.
(d)
If the National Council rejects the Bill, or if the National Assembly
refuses to pass an amended Bill referred to it in terms of paragraph
(c), the Bill and, where applicable, also the amended Bill, must
be referred to the Mediation Committee, which may
agree on -
(i)
the Bill as passed by the Assembly;
(ii)
the amended Bill as passed by the Council; or
(iii)
another version of the Bill.
(e)
If the Mediation Committee is unable to agree within 30 days of
the Bill's referral to it, the Bill lapses unless the National
Assembly again passes the Bill, but by a vote of at least two
thirds of its members.
(f)
If the Mediation Committee agrees on the Bill as passed by the
National Assembly, the Bill must be referred to the National Council,
and if the Council passes the Bill, the Bill must be submitted
to the President for assent.
(g)
If the Mediation Committee agrees on the amended Bill as passed
by the National Council, the Bill must be referred to the National
Assembly, and if it is passed by the Assembly, it must be submitted
to the President for assent.
(h)
If the Mediation Committee agrees on another version of the Bill,
that version of the Bill must be referred to both the National
Assembly and the National Council, and if it is passed by the
Assembly and the Council, it must be submitted to the President
for assent.
(i)
If a Bill referred to the National Council in terms of paragraph
(f) or (h) is not passed by the Council, the Bill lapses unless
the National Assembly passes the Bill by a vote of at least two
thirds of its members.
(j)
If a Bill referred to the National Assembly in terms of paragraph
(g) or (h) is not passed by the Assembly, the Bill as originally
passed by the Assembly may again be passed by the Assembly, but
by a vote of at least two thirds of its members.
(k)
A Bill passed by the National Assembly in terms of paragraph (e),
(i) or (j) must be submitted to the President for assent.
(2)
When the National Council passes a Bill falling within a functional
area listed in Schedule 4, the Bill must be referred to the National
Assembly and dealt with in accordance with the following procedure
-
(a)
The National Assembly must either -
(i)
pass the Bill;
(ii)
pass an amended Bill; or
(iii)
reject the Bill.
(b)
A Bill passed by the National Assembly in terms of paragraph (a)(i)
must be submitted to the President for assent.
(c)
If the National Assembly passes an amended Bill, the amended Bill
must be referred to the National Council, and if the Council passes
the amended Bill it must be submitted to the President for assent.
(d)
If the National Assembly rejects the Bill, or if the National
Council refuses to pass an amended Bill referred to it in terms
of paragraph (c), the Bill and, where applicable, the amended
Bill, must be referred to the Mediation Committee, which may agree
on -
(i)
the Bill as passed by the Council;
(ii)
the amended Bill as passed by the Assembly; or
(iii)
another version of the Bill.
(e)
If the Mediation Committee is unable to agree within 30 days of
the Bill's referral to it, the Bill lapses.
(f)
If the Mediation Committee agrees on the Bill as passed by the
National Council, the Bill must be referred to the National Assembly,
and if the Assembly passes the Bill, the Bill must be submitted
to the President for assent.
(g)
If the Mediation Committee agrees on the amended Bill as passed
by the National Assembly, the Bill must be referred to the National
Council, and if it is passed by the Council, it must be submitted
to the President for assent.
(h)
If the Mediation Committee agrees on another version of the Bill,
that version of the Bill must be referred to both the National
Council and the National Assembly, and if it is passed by the
Council and the Assembly, it must be submitted to the President
for assent.
(i)
If a Bill referred to the National Assembly in terms of paragraph
(f) or (h) is not passed by the Assembly, the Bill lapses.
(3)
A Bill providing for legislation envisaged in -
(a)
section 63(2) or 159(1) must be dealt with in terms of the procedure
established by either subsection (1) or (2); or
(b)
Chapter 13, and that affects the interests of the provincial sphere
of government, must be dealt with in terms of the procedure established
by subsection (1) and (2).
Money
Bills
75.
(1) A Bill that appropriates money or imposes taxes, levies or
duties is a money Bill; but a Bill that imposes a user charge
or a fine or other monetary penalty is not necessarily a money
Bill.
(2)
Only a money Bill may provide for the appropriation of money or
the imposition of tax; and a money Bill may not deal with any
other matter.
(3)
An Act of Parliament must provide for a process by which Parliament
may amend a money Bill.
(4)
A money Bill must be referred to the National Council of Provinces
and the Council must consider it in terms of the process established
in section 73.
Mediation
Committee
76.
(1) The Mediation Committee consists of -
(a)
nine members of the National Assembly elected by the Assembly
in accordance with a procedure that is prescribed by the rules
and orders of the Assembly and results in the representation of
parties in substantially the same proportion that the parties
are represented in the Assembly; and
(b)
one delegate from each provincial delegation in the National Council
of Provinces, designated by the delegation.
(2)
The Mediation Committee has agreed on a version of a Bill, or
decided a question, when that version, or one side of a question,
is supported by -
(a)
at least five of the representatives of the National Assembly;
and
(b)
at least five of the representatives of the National Council.
Joint
rules and orders
77.
The National Assembly and the National Council of Provinces may
make joint rules and orders, including joint rules and orders
to -
(a)
determine procedures to facilitate the legislative process, including
setting a time limit for completing any step in the process;
(b)
establish joint committees composed of representatives from both
the Assembly and the Council to consider and report on Bills envisaged
in sections 72 and 73, and to regulate the proceedings of those
committees;
(c)
regulate the proceedings of the Mediation Committee;
(d)
determine the manner in which the Council participates in the
reconsideration of a Bill which the President has referred back
to the Assembly in terms of section 78; and
(e)
provide for joint sittings of the Assembly and the National Council.
Assent
to Bills
78.
(1) The President must either assent to and sign a Bill passed
in terms of this Chapter or, if the President has reservations
about the constitutionality of the Bill, refer it back to the
National Assembly for reconsideration.
(2)
If the President refers a Bill back to the National Assembly,
the following procedure applies:
(a)
The Assembly must either allow the Bill to lapse, or reconsider
the Bill in the light of the President's reservations.
(b)
If the Assembly passes the Bill fully accommodating the President's
reservations, the President must assent to and sign the Bill.
(c)
If the Assembly confirms the Bill or passes it without fully accommodating
the President's reservations, the President must either assent
to and sign the Bill or refer it to the Constitutional Court for
a decision on its constitutionality.
(d)
If the Constitutional Court decides that the Bill is constitutional
the President must assent to and sign it. If the court decides
the Bill is unconstitutional, the Bill lapses.
(3)
The National Council of Provinces participates in the reconsideration
of a Bill which the President has referred back to the National
Assembly only if -
(a)
the President's reservations about the constitutionality of the
Bill relate to a procedural matter which involves the Council;
or
(b)
the Assembly amends the Bill to accommodate any or all the President's
reservations and the amendment detrimentally affects the interests
of the provinces.
Application
by members of National Assembly to Constitutional Court
79.
(1) Members of the National Assembly may apply to the Constitutional
Court for an order declaring that all or part of a Bill, or if
already promulgated, of an Act, passed by the National Assembly
is unconstitutional.
(2)
An application -
(a)
must be supported by at least one third of the members of the
Assembly; and
(b)
must be made after the President has assented and signed the Bill,
and within 30 days of that date.
(3)
The Constitutional Court may order that all or part of an Act
that is the subject of an application in terms of subsection(1)
has no force until the Court has decided the application if-
(a)
the interests of justice require this; and
(b)
the application has a reasonable prospect of success.
(4)
If an application is unsuccessful, the Constitutional Court must
order the applicants to pay costs unless the application had a
reasonable prospect of success.
Promulgation
80.
A Bill assented to and signed by the President must be promulgated
and becomes an Act of Parliament upon its promulgation.
Safekeeping
of Acts of Parliament
81.
The signed copy of an Act of Parliament is conclusive evidence
of the provisions of that Act and, after promulgation, must be
entrusted to the Constitutional Court for safekeeping.
Chapter
5
The
President and the National Executive
The
President
82.
The President -
(a)
is the Head of State and head of the national executive;
(b)
must uphold, defend and respect the Constitution as the supreme
law of the Republic; and
(c)
promotes the unity of the nation and that which will advance the
Republic.
Powers
and functions of President
83.
(1) The President has the powers entrusted by the Constitution
and legislation, including those necessary to perform the functions
of Head of State and head of the national executive.
(2)
The President is responsible for-
(a)
assenting to and signing Bills;
(b)
referring a Bill back to Parliament for reconsideration of the
Bill's constitutionality;
(c)
referring a Bill to the Constitutional Court for a decision on
the Bill's constitutionality;
(d)
summoning the National Assembly or the National Council of Provinces
to an extraordinary sitting to conduct urgent business;
(e)
dissolving the National Assembly and calling an election after
a vote of no-confidence in the Cabinet has been passed by the
Assembly;
(f)
appointing commissions of enquiry;
(g)
accrediting foreign diplomatic representatives;
(h)
appointing ambassadors; and
(i)
conferring honours.
Executive
authority of the Republic
84.
(1) The executive power of the Republic is vested in the President.
(2)
The President exercises the executive power, together with the
other members of the Cabinet, by -
(a)
implementing national legislation;
(b)
developing and implementing national policy;
(c)
coordinating the functions of government departments; and
(d)
preparing and initiating legislation.
Election
of President
85.
(1) At its first sitting after its election, and whenever necessary
to fill a vacancy, the National Assembly must elect a woman or
a man from among its members to be President.
(2)
The President of the Constitutional Court must preside over the
election of the President, or designate another judge to do so.
The procedure set out in Schedule 3 applies to the election of
the President.
(3)
An election to fill a vacancy in the office of President must
be held at a time and on a date determined by the President of
the Constitutional Court, but not more than 30 days after the
vacancy occurs.
Assumption
of office by President
86.
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.
Term
of office of President
87.
(1) The President's term of office begins on assuming office and
ends upon a vacancy occurring or when the person next elected
President assumes office.
(2)
No person may hold office as President for more than two terms;
but, when a person is elected to fill a vacancy in the office
of President, the period between that election and the next election
of a President is not regarded as a term.
Removal
of President
88.
(1) The National Assembly, by a resolution adopted by at least
two thirds of its members, may remove the President from office
only on the grounds of -
(a)
a serious violation of the Constitution or the law;
(b)
serious misconduct; or
(c)
inability to perform the functions of office.
(2)
Anyone who has been removed from the office of President in terms
of subsection (1) (a) or (b) may not receive any benefits of that
office, and may not serve in any public office.
Acting
President
89.
(1) When the President is absent from the Republic or otherwise
unable to fulfil the duties of President, or during a vacancy
in the office of President, an office-bearer in the order below
acts as President -
(a)
the Deputy President;
(b)
a Minister designated by the President;
(c)
a Minister designated by the other members of the Cabinet;
(d)
a member of the National Assembly elected by its members.
(2)
An Acting-President has the responsibilities, powers and functions
of the President.
Cabinet
90.
(1) The Cabinet consists of the President, a Deputy President
and Ministers.
(2)
The President appoints the Deputy President and Ministers, assigns
their powers and functions, and may dismiss them.
(3)
The President -
(a)
must select the Deputy President from among the members of the
National Assembly;
(b)
may select any number of Ministers from among the members of the
National Assembly; and
(c)
may select no more than two Ministers from outside the Assembly.
(4)
Members of the Cabinet must act in accordance with the Constitution.
(5)
Members of the Cabinet are accountable collectively and individually
to Parliament for the performance of their functions.
(6)
Members of the Cabinet must provide Parliament with full and regular
reports concerning matters under their control.
(7)
The Deputy President and Ministers are responsible for the functions
of the executive assigned to them by the President.
(8)
The Deputy President must assist the President in the execution
of the functions of government
Deputy
Ministers
91.
The President may appoint Deputy Ministers from among the members
of the National Assembly to assist the members of the Cabinet,
and may dismiss them.
Continuation
of Cabinet after elections
92.
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.
Oath
of office
93.
Before the Deputy President, Ministers and Deputy Ministers begin
to perform their office, they must swear or affirm their faithfulness
to the Republic and obedience to the Constitution, by solemn declaration
in accordance with Schedule 2.
Conduct
of Cabinet members and Deputy Ministers
94.
(1) Members of the Cabinet and Deputy Ministers must act in accordance
with a code of ethics prescribed by national legislation.
(2)
Members of the Cabinet and Deputy Ministers may not -
(a)
undertake any other paid work:
(b)
act in any way that is inconsistent with their office or expose
themselves to any situation involving the risk of a conflict between
their official responsibilities and private interests; or
(c)
use their position or any information entrusted to them to enrich
themselves or improperly benefit any other person.
Transfer
of functions
95.
The President by proclamation may transfer to a member of the
Cabinet-
(a)
the administration of any legislation entrusted to another member;
or
(b)
any function entrusted by legislation to another member.
Temporary
assignment of functions
96.
The President may assign to a Cabinet member any functions of
another member who is absent from office or is unable to perform
those functions.
Assignment
of executive functions
97.
(1) An executive organ of state, by agreement with another executive
organ of state, may
(a)
assign any of its functions in terms of an Act of Parliament to
that other organ of state; or
(b)
authorize that other organ of state to perform any of its functions.
(2)
An executive organ of state may perform any function of another
executive organ of state that has been assigned to it, or that
it has been authorised to perform, in terms of subsection (1).
National
supervision of provincial administration
98.
(1) When a province is responsible for the administration of legislation,
or an executive function in terms of the Constitution, and it
cannot or does not fulfil its obligations in terms of that law
or the Constitution, the national executive may intervene by taking
any appropriate steps, including-
(a)
issuing a directive to the provincial executive, describing the
extent of the failure to fulfil its obligations and stating any
steps required to meet its obligations; and
(b)
assuming responsibility for the administration of that law or
function in that province when it is necessary to -
(i)
maintain essential national standards or meet established minimum
standards for the rendering of a service;
(ii)
maintain economic unity;
(iii)
maintain national security; or
(iv)
prevent that province from taking unreasonable action that is
prejudicial to the interest of another province or to the country
as a whole.
(2)
When a province is responsible for an executive function in terms
of legislation, the national executive may issue a directive or
assume responsibility as provided in subsection (1), if -
(a)
it is necessary to do so for any of the reasons listed in subsection
(1)(b); or
(b)
the province cannot or does not fulfil its obligations in terms
of that law.
(3)
Any intervention by the national executive in terms of subsection
(1)(b) must be approved by the National Council of Provinces no
more than 14 days after the intervention begins.
Executive
decisions
99.
(1) A written decision by the President must be countersigned
by another Cabinet member if -
(a)
the decision is made in terms of legislation; and
(b)
that legislation falls within a functional area assigned to that
other Cabinet member.
(2)
Proclamations, regulations and other instruments of subordinate
legislation must be accessible to the public.
(3)
Legislation must specify the manner in which, and the extent to
which, instruments mentioned in subsection (2) must be -
(a)
tabled in Parliament; and
(b)
approved by Parliament.
Motions
of no-confidence
100.
(1) If the National Assembly, by a vote of the majority of its
members, passes a motion of no-confidence in the Cabinet excluding
the President, the President must reconstitute the Cabinet.
(2)
If the National Assembly, by a vote of the majority of its members,
passes a motion of no-confidence in the President, the President
and the other members of the Cabinet must resign.
Chapter
6
Provinces
101.
(1) The Republic has the following provinces:
(a)
Eastern Cape
(b)
Free State
(c)
Gauteng
(d)
KwaZulu-Natal
(e)
Mpumalanga
(f)
Northern Cape
(g)
Northern Province
(h)
North West
(i)
Western Cape.
(2)
The boundaries of the provinces are those existing when the Constitution
took effect.
Provincial
Legislatures
Legislative
authority of provinces
102.
(1) The legislative authority of a province is vested in its provincial
legislature, and confers on a provincial legislature the power
-
(a)
to pass a constitution for its province or to amend any constitution
passed by it in terms of sections 138 and 139;
(b)
to pass legislation in and for its province with regard to -
(i)
any matter within a functional area listed in Schedule 4; and
(ii)
any matter outside these functional areas expressly delegated
to the province by national legislation; and
(c)
to assign any of its legislative powers to any legislature in
another sphere of government.
(2)
A provincial legislature is bound only by the Constitution and,
if it has passed a constitution for its province, by that constitution,
and must act in accordance with, and within the limits of, the
Constitution and that provincial constitution.
(3)
The passing of a provincial constitution, and of any amendment
to it, is an exclusive provincial legislative power.
(4)
Legislation passed by a provincial legislature and that is reasonably
necessary for, or incidental to, the effective exercise of its
power to legislate with regard to a matter within a functional
area listed in Schedule 4, falls within that functional area.
Composition
and election of provincial legislatures
103.
(1) A provincial legislature consists of women and men elected
as members in terms of an electoral system that -
(a)
is prescribed by national legislation;
(b)
is based on a common voters roll;
(c)
provides for a minimum voting age of 18 years; and
(d)
results, in general, in proportional representation.
(2)
A provincial legislature consists of between 30 and 80 members.
The number of members, which may differ among the provinces, must
be determined in terms of national legislation.
Membership
104.
(1) Every citizen who is qualified to vote for the National Assembly
is eligible to be a member of a provincial legislature,except
-
(a)
anyone who is appointed by, or is in the service of, the state
and receives remuneration for that appointment or service, other
than -
(i)
the Premier and other members of the Executive Council of a province;
and
(ii)
other office-bearers whose functions are compatible with the functions
of a member of a provincial legislature, and have been declared
compatible with those functions by national legislation;
(b)
members of the National Assembly, permanent delegates to the National
Council of Provinces or members of a municipal council;
(c)
unrehabilitated insolvents;
(d)
anyone declared to be of unsound mind by a court of the Republic;
or
(e)
anyone who, after this section takes effect, has been convicted
of an offence and sentenced to more than 12 months' imprisonment
without the option of a fine, either in the Republic, or outside
the Republic if the conduct constituting the offence would have
been an offence in the Republic; but, no one may be regarded as
having been sentenced until an appeal against the
conviction or sentence has been determined, or until the time
for an appeal has expired. A disqualification under this paragraph
ends five years after the sentence has been completed.
(2)
A person who is not eligible to be a member of a provincial legislature
in terms of subsection (1) (a) or (b) may be a candidate for the
legislature, subject to any limits and conditions established
by national legislation.
(3)
A person loses membership of a provincial legislature if that
person -
(a)
ceases to be eligible; or
(b)
is absent from the legislature without permission in circumstances
for which the rules and orders of the legislature prescribe loss
of membership.
(4)
Vacancies must be filled in terms of national legislation.
Oath
or affirmation by members
105.
Before members of a provincial legislature begin to perform their
functions in the legislature, they must swear or affirm their
faithfulness to the Republic and obedience to the Constitution,
in accordance with Schedule 2.
Duration
of provincial legislatures
106.
(1) A provincial legislature is elected for a term of five years.
(2)
If a provincial legislature is dissolved in terms of section 107,
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.
(3)
If the results of an election of a provincial legislature are
not declared within the period referred to in section 186, or
if an election is set aside by a court, the President, by proclamation,
must call and set dates for another election, which must be held
within 90 days of the expiry of that period or of the date on
which the election was set aside.
(4)
A provincial legislature remains competent to function from the
time it is dissolved or its term expires, until the day before
the first day of polling for the next legislature.
Dissolution
of provincial legislatures before expiry of term
107.
(1) The Premier of a province may dissolve the provincial legislature
if the legislature adopts a resolution supporting its dissolution.
(2)
An Acting-Premier must dissolve the provincial legislature if
-
(a)
there is a vacancy in the office of Premier; and
(b)
the legislature fails to elect a new Premier within 30 days after
the vacancy occurred.
Sittings
and recess periods
108.
(1) After an election, the first sitting of a provincial legislature
must take place at a time and on a date determined by a judge
designated by the President of the Constitutional Court, but not
more than 14 days after the election result has been declared.
A provincial legislature may determine the time and duration of
its other sittings and its recess periods.
(2)
The Premier of a province may summon the provincial legislature
to an extraordinary sitting at any time to conduct urgent business.
(3)
A provincial legislature may determine where it ordinarily will
sit.
Speakers
and Deputy Speakers
109.
(1) At the first sitting after its election, or when necessary
to fill a vacancy, a provincial legislature must elect a Speaker
and a Deputy Speaker from among its members.
(2)
A judge designated by the President of the Constitutional Court
must preside over the election of a Speaker. The Speaker presides
over the election of a Deputy Speaker.
(3)
The procedure set out in Schedule 3 applies to the election of
Speakers and Deputy Speakers.
(4)
A provincial legislature may remove its Speaker or Deputy Speaker
from office by resolution. A majority of the members of the legislature
must be present when the resolution is adopted.
(5)
A provincial legislature in terms of its rules and orders, may
elect from among its members other presiding officers to assist
the Speaker and Deputy Speaker.
Decisions
110.
(1) Unless the Constitution provides otherwise -
(a)
a majority of the members of a provincial legislature must be
present before a vote may be taken on a Bill or an amendment to
a Bill;
(b)
one third of the members must be present before a vote may be
taken on any other question before the legislature; and
(c)
all questions before a provincial legislature are decided by a
majority of the votes cast.
(2)
The presiding member of a provincial legislature has no deliberative
vote, but -
(a)
must cast a deciding vote when there is an equal number of votes
on each side of a question; and
(b)
may cast a deliberative vote when a question must be decided by
a vote of at least two thirds of the members.
Permanent
delegates' rights in provincial legislatures
111.
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 request
a permanent delegate to attend or speak in the legislature.
Powers
of provincial legislatures
112.
(1) In exercising its legislative power a provincial legislature
may -
(a)
consider, pass, amend or reject any Bill before the legislature;
and
(b)
initiate or prepare legislation, except money Bills.
(2)
A provincial legislature must determine and provide for mechanisms
to -(a)ensure that all provincial executive organs of state in
the province are accountable to it; and
(b)
maintain proper oversight of -
(i)
the exercise of provincial executive authority in the province,
including the administration of legislation; and
(ii)
any provincial organ of state, other than a statutory body.
Evidence
or information before provincial legislatures
113.
(1) A provincial legislature and any of its committees may -
(a)
summon any person to appear before it to give evidence on oath
or affirmation or to produce documents;
(b)
require any person or institution to report to it;
(c)
compel, in terms of provincial legislation or the rules and orders,
any person or institution to comply with a summons or requirement
in terms of paragraph (a) or (b); and
(d)
receive petitions, representations or submissions from any interested
persons.
Internal
arrangements, proceedings and procedures of provincial legislatures
114.
(1) A provincial legislature may -
(a)
determine, control and dispose of its internal arrangements, proceedings
and procedures; and
(b)
make rules and orders concerning its business, with due regard
to representative and participatory democracy, accountability,
transparency and public involvement.
(2)
The rules and orders of a provincial legislature must provide
for -
(a)
the establishment, constitution, composition, powers, functions,
procedures and duration of its committees; and
(b)
the participation of all minority parties represented in the legislature
in its proceedings in a manner consistent with democracy.
Privilege
115.
(1) Members of a provincial legislature and the province's permanent
delegates to the National Council of Provinces -
(a)
have freedom of speech in the legislature and in its committees,
subject to its rules and orders; and
(b)
are not liable to civil or criminal proceedings, arrest, imprisonment
or damages for -
(i)
anything that they have said in, produced before, or submitted
to the legislature or any of its committees; or
(ii)
anything revealed as a result of anything that they have said
in, produced before, or submitted to the legislature or any of
its committees.
(2)
Other privileges and immunities of a provincial legislature and
its members may be prescribed by national legislation.
(3)
Salaries, allowances and benefits payable to members of a provincial
legislature are a direct charge against the Provincial Revenue
Fund, as may be regulated by a provincial Act.
Public
access to and involvement in provincial legislatures
116.
A provincial legislature must -
(a)
facilitate public involvement in the legislative and other processes
of the legislature and its committees; and
(b)
conduct its business in an open manner, and hold its sittings,
and those of its committees, in public; but, reasonable measures
may be taken to regulate public access, including access of the
media, to the legislature and its committees, and to provide for
the search of any person, and, where appropriate, the refusal
of entry or the removal of any person.
Introduction
of Bills
117.
Only -
(a)
members of the Executive Council of a province or a committee
or member of a provincial legislature may introduce a Bill in
the legislature; and
(b)
the member of the Executive Council who is responsible for finance
matters in the province, or another member designated by the Premier,
may introduce a money Bill in the legislature.
Money
Bills
118.
(1) A Bill that appropriates money or imposes taxes, levies or
duties is a money Bill, but a Bill that imposes a user charge
or a fine or other monetary penalty is not necessarily a money
Bill.
(2)
Only a money Bill may provide for the appropriation of money or
the imposition of tax; and a money Bill may not deal with any
other matter.
(3)
An Act of a province must provide for a process by which the province's
legislature may amend a money Bill.
Assent
to Bills
119.
(1) The Premier of a province must either assent to and sign a
Bill passed by the provincial legislature or, if the Premier has
reservations about the constitutionality of the Bill, refer it
back to the legislature for reconsideration.
(2)
If the Premier refers a Bill back to the provincial legislature,
the following procedure applies:
(a)
The legislature must either allow the Bill to lapse, or reconsider
the Bill in the light of the Premier's reservations.
(b)
If the legislature passes the Bill, fully accommodating the Premier's
reservations, the Premier must assent to and sign the Bill.
(c)
If the legislature confirms the Bill or passes it without fully
accommodating the Premier's reservations, the Premier must either
assent to and sign the Bill or refer it to the Constitutional
Court for a decision on its constitutionality.
(d)
If the Constitutional Court decides that the Bill is constitutional,
the Premier must assent to and sign it. If the court decides that
the Bill is unconstitutional, the Bill lapses.
Application
by members to Constitutional Court
120.
(1) Members of a provincial legislature may apply to the Constitutional
Court for an order declaring that all or part of a Bill, or if
already promulgated, of an Act, passed by the legislature is unconstitutional.
(2)
An application -
(a)
must be supported by at least one third of the members of the
legislature; and
(b)
must be made after the Premier has assented to and signed the
Bill, and within 30 days of that date.
(3)
The Constitutional Court may order that all or part of an Act
that is the subject of an application in terms of subsection (1)
has no force until the Court has decided the application, if -
(a)
the interest of justice requires this; and
(b)
the application has a reasonable prospect of success.
(4)
If an application is unsuccessful the Constitutional Court must
order the applicants to pay costs unless the application had a
reasonable prospect of success.
Publication
of Bills
121.
A Bill assented to and signed by the Premier of a province must
be published in the national Government Gazette and becomes an
Act of the province upon its publication.
Safekeeping
of Provincial Acts
122.
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
Executive
authority of provinces
123.
(1) The executive authority of a province is vested in the Premier
of that province.
(2)
The Premier exercises the executive power, together with the other
members of the Executive Council, by -
(a)
administering all matters within the functional areas listed in
Schedule 4 unless the Constitution or an Act of Parliament provides
otherwise;
(b)
administering provincial legislation in the province;
(c)
administering national legislation in the province the administration
of which has been assigned to it in terms of an Act of Parliament
or an agreement envisaged in section 97; and
(d)
performing any other function assigned to it in terms of the Constitution
or an Act of Parliament.
(3)
The executive authority of a province exists only to the extent
that the province has the administrative capacity to assume effective
responsibility.
(4)
Any dispute concerning the administrative capacity of a Province
in regard to any function must be referred to the National Council
of Provinces, or an executive inter-governmental structure to
be provided for in national legislation, for resolution within
30 days.
(5)
The administration of provincial legislation in a province is
an exclusive provincial executive power; but, this subsection
does not limit section 98.
(6)
The provincial executive must act in accordance with, and within
the limits of -
(a)
the Constitution; and
(b)
the provincial constitution, if a constitution has been passed
for the province.
Functions
of Premiers
124.
(1) The Premier of a province has the functions entrusted to that
office by the Constitution and any legislation.
(2)
The Premier of a province is responsible for-
(a)
assenting to and signing Bills;
(b)
referring a Bill back to the legislature for reconsideration of
the Bill's constitutionality;
(c)
a referral of a Bill to the Constitutional Court for a decision
on the Bill's constitutionality;
(d)
summoning the legislature to an extraordinary sitting to conduct
urgent business;
(e)
dissolving the legislature and calling an election after a vote
of no confidence in the Executive Council has been passed by the
legislature.
Election
of Premiers
125.
(1) At its first sitting after its election, and whenever necessary
to fill a vacancy, a provincial legislature must elect a woman
or a man from among its members to be the Premier of the province.
(2)
A judge designated by the President of the Constitutional Court
must preside over the election of the Premier. The procedure set
out in Schedule 3 applies to the election of the Premier.
(3)
An election to fill a vacancy in the office of Premier must be
held at a time and on a date determined by the President of the
Constitutional Court, but not later than 30 days after the vacancy
occurs.
Assumption
of office by Premiers
126.
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.
Term
of office of Premiers
127.
(1) A Premier's term of office begins when the Premier assumes
office and ends upon a vacancy occurring or when the person next
elected Premier assumes office.
(2)
No person may hold office as Premier for more than two terms;
but, when a person is elected to fill a vacancy in the office
of Premier, the period between that election and the next election
of a Premier is not regarded as a term.
Acting
Premiers
128.
(1) When the Premier is absent or otherwise unable to fulfil the
duties of the office of Premier, or during a vacancy in the office
of Premier, an office-bearer in the order below acts as the Premier
-
(a)
a member of the Executive Council designated by the Premier;
(b)
a member of the Executive Council designated by the other members
of the Executive Council;
(c)
a member of the provincial legislature elected by its members.
(2)
An Acting-Premier has the responsibilities, powers and functions
of the Premier.
Executive
Councils
129.
(1) The Executive Council of a province consists of the Premier
and no fewer than five and no more than ten members appointed
by the Premier from among the members of the provincial legislature.
(2)
The Premier of a province appoints the members of the Executive
Council, assigns their powers and functions, and may dismiss them.
(3)
Members of the Executive Council of a province must act in accordance
with the Constitution.
(4)
Members of the Executive Council of a province are accountable
collectively and individually to the legislature for the performance
of their functions.
(5)
Members of the Executive Council of a province must provide the
legislature with full and regular reports concerning matters under
their control.
(6)
The members of the Executive Council of a province are responsible
for the functions of the executive assigned to them by the Premier.
Continuation
of Executive Councils after elections
130.
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.
Oath
or solemn affirmation
131.
Before members of the Executive Council of a province begin to
perform their functions, they must swear or affirm their faithfulness
to the Republic and obedience to the Constitution in accordance
with Schedule 2.
Conduct
of members of Executive Councils
132.
(1) Members of the Executive Council of a province must act in
accordance with a code of ethics prescribed by national legislation.
(2)
Members of the Executive Council of a province may not -
(a)
undertake any other paid work;
(b)
act in any way that is inconsistent with their office or expose
themselves to any situation involving the risk of a conflict between
their official responsibilities and private interests; or
(c)
use their position or any information entrusted to them to enrich
themselves or improperly benefit any other person.
Transfer
of powers and functions
133.
The Premier by proclamation may transfer to a member of the Executive
Council -
(a)
the administration of any legislation entrusted to another member;
or
(b)
any power or function entrusted by legislation to another member.
Temporary
assignment of powers and functions
134.
The Premier of a province may assign to a member of the Executive
Council any powers or functions of another member who is absent
from office or is unable to perform those powers or functions.
Provincial
supervision of local government
135.
When a municipality is responsible for the administration of legislation,
or an executive function in terms of legislation, and it cannot
or does not fulfil its obligations in terms of that legislation,
the relevant provincial executive may intervene by taking any
appropriate steps, including-
(a)
issuing a directive to the municipality, describing the extent
of the failure to fulfil its obligations and stating any steps
required to meet its obligations; and
(b)
assuming responsibility for the administration of that legislation
or function in that municipality.
Executive
decisions
136.
(1) A written decision by a premier in the exercise of a power
in terms of legislation falling within a function assigned to
another member of an executive council must be countersigned by
that other member.
(2)
Proclamations, regulations and other instruments of subordinate
legislation of a province must be accessible to the public.
(3)
Legislation must specify the manner in which, and the extent to
which, instruments mentioned in subsection (1) must be -
(a)
tabled in the provincial legislature; and
(b)
approved by the provincial legislature.
Motions
of no-confidence
137.
(1) If a provincial legislature, by resolution adopted by a majority
of its members, passes a motion of no-confidence in the province's
Executive Council excluding the Premier, the Premier must reconstitute
the Council.
(2)
If a provincial legislature, by resolution adopted 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
Adoption
of provincial constitutions
138.
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.
Contents
of provincial constitutions
139.
(1) A provincial constitution, or constitutional amendment, must
be consistent with this Constitution, but may provide for -
(a)
provincial legislative or executive structures and procedures
that differ from those provided for in this Chapter; or
(b)
the institution, role, authority and status of a traditional monarch,
where applicable.
(2)
Provisions included in a provincial constitution or constitutional
amendment in terms of paragraphs (a) and (b) of subsection (1)
-
(a)
must comply with -
(i)
the principles set out in section 1; and
(ii)
the principles of co-operative government set out in Chapter 3;
and
(b)
may not confer on the province any power that exceeds the powers
conferred on the province by the other provisions of the Constitution.
Certification
of provincial constitutions
140.
(1) If a provincial legislature has passed or amended a constitution,
the Speaker of the legislature must submit the text of the constitution
to the Constitutional Court for certification.
(2)
No text of a provincial constitution or constitutional amendment
becomes law until the Constitutional Court has certified -
(a)
that the text has been passed in accordance with section 138;
and
(b)
that the whole text complies with section 139.
Signing,
promulgation and safekeeping of provincial constitutions
141.
(1) The Premier of a province must assent to and sign the text
of a provincial constitution or constitutional amendment that
has been certified by the Constitutional Court.
(2)
The text assented to and signed by the Premier must be published
in the national Government Gazette and becomes law upon its publication.
(3)
The signed text of a provincial constitution or constitutional
amendment is conclusive evidence of its provisions and, after
promulgation, must be entrusted to the Constitutional Court for
safekeeping.
Conflicting
Laws
Conflicts
between national and provincial legislation
142.
(1) If there is a conflict between national legislation and provincial
legislation falling within a functional area listed in Schedule
4, subsections (2), (3) and (4) apply.
(2)
The national legislation prevails over the provincial legislation
if the national legislation applies uniformly with regard to the
country as a whole and -
(a)
deals with a matter that cannot be regulated effectively by legislation
enacted by the respective provinces individually;
(b)
if, with regard to a matter that, in the interest of the country
as a whole, requires uniformity, it provide for uniformity across
the nation by establishing -
(i)
norms and standards;
(ii)
frameworks; or
(iii)
national policies;
(c)
is necessary for -
(i)
the maintenance of national security;
(ii)
the maintenance of economic unity;
(iii)
the protection of the common market in respect of the mobility
of goods, services, capital and labour;
(iv)
the promotion of economic activities across provincial boundaries;
(v)
the promotion of equal opportunity or equal access to government
services; or
(vi)
the protection of the environment; or
(d)
is aimed at preventing unreasonable action by a province that
-
(i)
is prejudicial to the economic, health or security interest of
another province or the country as a whole; or
(ii)
impedes the implementation of national economic policy.
(3)
National legislation enacted before the Constitution took effect,
or passed by the National Council of Provinces, must be regarded
as necessary for the purposes set out in subsection (2)(c) if
it deals with any of the matters referred to in that subsection.
(4)
The provincial legislation prevails over the national legislation
if subsection (2) does not apply.
Conflicts
between national legislation and provincial constitutions
143.
If there is a conflict between national legislation and a provision
of a provincial constitution with regard to -
(a)
a matter where this Constitution specifically requires or envisages
the enactment of national legislation, the national legislation
prevails over the affected provision of the provincial constitution;
or
(b)
a matter within the functional areas listed in Schedule 4, section
142 applies as if the affected provision of the provincial constitution
were provincial legislation referred to in that section.
Conflicts
that cannot be resolved
144.
If a dispute concerning a conflict between national legislation
and provincial legislation which fails within Schedule 4, or between
national legislation and a provincial constitution, cannot be
resolved by a court in terms of sections 142 and 143, respectively,
the national legislation prevails over the provincial legislation
or provincial constitution.
Status
of legislation that does not prevail
145.
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.
Chapter
7
Local
Government
General
Objects
146.
(1) The objects of local government as a distinct sphere of government
are -(a)to secure democratic government for local communities
and to enhance democracy and accountability in general;
(b)
to promote the social and economic development of local communities
within the framework of national and provincial development policies
and to enhance social and economic development generally;
(c)
to provide the basic socio-economic needs of local communities;
(d)
to promote the participation of local communities and community
organisations in the affairs of local government; and
(e)
to assist in the development and maintenance of a safe and healthy
environment.
(2)
National and provincial government must assist in the realisation
of these objectives by actively developing local government and
broadening and strengthening its capacity.
Developmental
duties of municipalities
147.
Municipalities must endeavour to achieve the objectives set out
in section 146 and must -
(a)
align their administrations, budgeting and planning processes
to the social, economic and political development of their areas
and communities;
(b)
provide basic services in a sustainable manner within their financial
and physical capacity;
(c)
assist with the implementation of national and provincial development
programmes; and
(d)
provide mechanisms through which communities and community organisations
in their areas may participate in their processes.
Establishment
of local government structures
148.
(1) Local government in the Republic is administered through municipalities
exercising power within their respective municipal areas.
(2)
Municipalities must be established for the whole of the territory
of the Republic.
(3)
National legislation must determine -
(a)
the different categories of municipality that may be established;
and
(b)
the powers, functions, other features of local government.
(4)
In each province, provincial legislation within the scope of national
legislation must provide for -
(a)
the establishment of municipalities;
(b)
the oversight of the administration of local government in the
province;
(c)
development of local government capacity and viability to manage
its own affairs; and
(d)
the demarcation of municipal areas.
Local
self-government
149.
Municipalities are entitled to regulate and manage on their own
the local government affairs of their communities in a manner
consistent with national and provincial legislation.
Municipal
legislative authority
150.
(1) The legislative authority of a municipality is vested in its
council.
(2)
A municipality may only legislate in a manner consistent with
national and provincial legislation concerning -
(a)
any matter pertaining to the objects of local government,as listed
in section 146, that falls within Schedule 4;
(b)
any other matter expressly delegated to it by national or provincial
legislation; and
(c)
concerning any matter reasonably necessary for, or incidental
to, the effective exercise of its power in terms of this subsection.
(3)
Municipal legislation that is inconsistent with national or provincial
legislation is invalid. If there is an inconsistency between municipal
legislation and national or provincial legislation that is inoperative
because of a conflict referred to in section 142, the municipal
legislation remains valid as long as that other legislation remains
inoperative.
(4)
National and provincial legislation must not undermine the ability
of a municipality to attend to the affairs of its community.
Municipal
executive authority
151.
The executive authority of a municipality is vested in its council
and confers on the council the power -
(a)
to administer legislation passed by it; and
(b)
to administer, in its municipal area, national or provincial legislation
that has been assigned to it in terms of national or provincial
legislation, and any other functions assigned to it.
Composition
of municipal councils
152.
(1) A municipal council consists of the women and men elected
as members in accordance with either -
(a)
a system of proportional representation based on a common voters
roll for the municipal area and prescribed by national legislation
which provides for the election of members from lists of party
candidates drawn up in a party's order of preference;
or
(b)
both a system described in paragraph (a) and a system of ward
representation based on common voters rolls for the wards, and
prescribed by national legislation.
(2)
A system of election established in terms of this section must
ensure that the number of members elected from each party reflects
the proportions of the vote recorded for those parties.
Membership
153.
(1) Every citizen who is qualified to vote for a municipal council
is eligible to be a member of that council, except -
(a)
anyone who is appointed by, or is in the service of, the state
and receives remuneration in terms of that appointment of service,
and who has not been exempted from this disqualification in terms
of national legislation;
(b)
anyone who is disqualified from voting for the National Assembly
or is disqualified in terms of section 45(1)(c), (d) or (e) to
be a member of the Assembly;
(c)
a member of the National Assembly, a permanent delegate to the
National Council of Provinces or a member of a provincial legislature;
or
(d)
a member of another municipal council; but, this disqualification
does not apply to a person representing one council in another
municipal council of a different category.
(2)
A person who, in terms of subsection (1)(a), (c) or (d), is not
eligible to be a member of a municipal council may be a candidate
for the Council, subject to limits and conditions established
by national legislation.
Elections
154.
(1) Elections of municipal councils must take place at intervals
of not more than five years.
(2)
A person may vote for a municipal council if that person -
(a)
is qualified to vote for the National Assembly;
(b)
ordinarily resides in the municipal area; and
(c)
is registered as a voter on the municipality's common voters roll.
(3)
If the electoral system for a municipality includes ward representation,
provincial legislation within the framework of national legislation
must provide for an independent body to demarcate the wards.
Internal
autonomy
155.
A municipal council may determine and control its internal arrangements
and may make rules and orders concerning its business and proceedings,
including rules and orders regulating the establishment, composition,
powers, functions and procedures of its committees.
Privilege
156.
Provincial legislation within the framework of national legislation
may provide for privileges and immunities of municipal councils.
Promulgation
of municipal legislation
157.
(1) Municipal legislation may be enforced only after it has been
published in the official gazette of the relevant province.
(2)
A provincial government must publish municipal legislation upon
request by a municipality.
Organised
local government
158.
(1) An Act of Parliament enacted in terms of section 74 must -
(a)
provide for municipalities to organise themselves into national
and provincial representative bodies; and
(b)
determine the powers and functions of that body, including the
power to appoint people to consult or interact with national or
provincial government on behalf of local government, or to represent
local government in -
(i)
the National Council of Provinces; and
(ii)
any structures of executive inter-governmental relations referred
to in section 40(2).
Consultation
with local government
159.
National and provincial Bills which materially affect the status,
institutions, powers and functions of local government may not
be introduced in the National Assembly or a provincial legislature
unless organised local government has been given a reasonable
opportunity to make representations with regard to these Bills.
Other
matters
160.
All matters 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
Judicial
authority
161.
(1) The judicial authority of the Republic is vested in the courts.
(2)
The courts are independent and subject only to the Constitution
and the law, which they must apply impartially and without fear,
favour or prejudice.
(3)
No person or organ of state may interfere with the functioning
of the courts.
(4)
Organs of state, through legislative and other measures, must
assist and protect the courts to ensure the independence, impartiality,
dignity, accessibility and effectiveness of the courts.
(5)
An order or decision issued by a court binds all persons and organs
of state to which it applies.
Judicial
system
162.
The courts are -
(a)
the Constitutional Court;
(b)
the Supreme Court of Appeal;
(c)
the High Courts, including any high court of appeal that may be
established by an Act of Parliament to hear appeals from High
Courts;
(d)
the Magistrates' Courts; and
(e)
any other court established or recognized by an Act of Parliament,
including any court of a status similar to the High Courts or
the Magistrates' Courts.
Constitutional
Court
163.
(1) The Constitutional Court consists of a President, a Deputy
President and nine other judges.
(2)
A matter before the Constitutional Court must be decided by at
least eight judges.
(3)
The Constitutional Court -
(a)
is the highest court in all constitutional matters;
(b)
may decide only constitutional matters and issues directly connected
with decisions on constitutional matters; and
(c)
makes the final decision whether a matter is a constitutional
matter or whether an issue is directly connected with a decision
on a constitutional matter.
(4)
Only the Constitutional Court may -
(a)
decide disputes between organs of state in the national or provincial
sphere concerning the constitutional status, powers or functions
of any of those organs of state;
(b)
decide on the constitutionality of any parliamentary or provincial
Bill, but may do so only in the circumstances anticipated in chapter
4 or 6; or
(c)
decide that Parliament or the President has failed to comply with
a constitutional duty.
(5)
National legislation and the rules of the Constitutional Court
must allow a person, when it is in the interest of justice and
with leave of the Constitutional Court -
(a)
to bring a matter directly to the Constitutional Court; or
(b)
to appeal directly to the Constitutional Court from any other
court.
(6)
A constitutional matter includes any issue involving the interpretation,
protection or enforcement of the Constitution.
Supreme
Court of Appeal
164.
(1) The Supreme Court of Appeal consists of a Chief Justice, a
Deputy Chief Justice and the number of judges of appeal determined
by an Act of Parliament.
(2)
A matter before the Supreme Court of Appeal must be decided by
the number of judges determined by an Act of Parliament.
(3)
The Supreme Court of Appeal may decide appeals in any matter.
It is the highest court of appeal except in constitutional matters,
and may decide only -
(a)
appeals;
(b)
issues connected with appeals; and
(c)
any other matter that may be referred to it in circumstances defined
by an Act of Parliament.
High
Courts
165.
A High Court may decide -
(a)
any constitutional matter except a matter that only the Constitutional
Court may decide; and
(b)
any other matter not assigned to another court by an Act of Parliament.
Magistrates'
Courts and other courts
166.
Magistrates' Courts and all other courts may decide any matter
determined by an Act of Parliament; but, may not enquire into
or rule on the constitutionality of any legislation or any conduct
of the President.
Court
procedures
167.
All courts function in terms of national legislation, and their
rules and procedures must be provided for in terms of national
legislation.
Powers
of courts in constitutional matters
168.
(1) When deciding a constitutional matter within its power, a
court -
(a)
must declare that any law or conduct that is inconsistent with
the constitution is invalid to the extent of its inconsistency;
and
(b)
may make any order that is just and equitable, including -
(i)
an order limiting the retrospective effect of the declaration
of invalidity; and
(ii)
an order suspending the declaration of invalidity for any period
and on any conditions, to allow the competent authority to correct
the defect.
(2)
(a) The Supreme Court of Appeal, a High Court or a court of similar
status may make an order concerning the constitutional validity
of an Act of Parliament, a Provincial Act or any conduct of the
President, but any order of constitutional invalidity has no force
unless it is confirmed by the Constitutional Court.
(b)
A court which makes an order of constitutional invalidity may
grant a temporary interdict or other temporary relief to a party,
or may adjourn the proceedings, pending a decision of the Constitutional
Court on the validity of that Act or conduct.
(c)
National legislation must provide for the referral of an order
of constitutional invalidity to the Constitutional Court.
(d)
Any person or organ of state with a sufficient interest may appeal,
or apply directly, to the Constitutional Court to confirm or vary
an order of constitutional invalidity by a court in terms of this
subsection.
Inherent
power
169.
The Constitutional Court, Supreme Court of Appeal and High Courts
have the inherent power to protect and regulate their own process
taking into account the interests of justice, and to ensure that
justice prevails in a manner consistent with law.
Appointment
of judicial officers
170.
(1) Any appropriately qualified woman or man who is a fit and
proper person may be appointed as a judicial officer. Any person
to be appointed to the Constitutional Court must also be a citizen
of South Africa.
(2)
The need for the judiciary to reflect broadly the racial and gender
composition of South Africa must be considered when judicial officers
are being appointed.
(3)
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 President and Deputy President
of the Constitutional Court; and, after
consulting the Judicial Service Commission, appoints the Chief
Justice and Deputy Chief Justice.
(4)
The other judges of the Constitutional Court are appointed by
the President as head of the national executive, after consulting
the President of the Constitutional Court [and the leaders of
parties represented in the National Assembly,] in accordance with
the following procedure:
(a)
The Judicial Service Commission must prepare a list of nominees
with three names more than the number of appointments to be made,
and submit the list to the President.
(b)
The President may make appointments from the list, and must advise
the Judicial Service Commission, with reasons, if any of the nominees
are unacceptable and any appointment remains to be made.
(c)
The Judicial Service Commission must supplement the list with
further nominees and the President must make the remaining appointments
from the supplemented list.
(5)
At all times, at least four members of the Constitutional Court
must be persons who were judges at the time they were appointed
to the Constitutional Court.
(6)
The President must appoint the judges of all other courts on the
advice of the Judicial Service Commission.
(7)
Other judicial officers must be appointed in terms of an Act of
Parliament.
(8)
Before judicial officers begin to perform their functions, they
must take an oath or affirm, in accordance with Schedule 2, that
they will uphold and protect the Constitution.
Acting
judges
171.
(1) The President may appoint an acting judge to 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 in consultation with
the President of the Constitutional Court and the Chief Justice.
(2)
The Cabinet member responsible for the administration of justice
must appoint acting judges to other courts after consultation
with the senior judge of the court on which the acting judge will
serve.
Terms
of office and remuneration
172.
(1) Constitutional Court judges are appointed for non-renewable
term of 12 years, but must retire by the age of 70.
(2)
Other judges hold office until they are discharged from active
service in terms of an Act of Parliament.
(3)
The salaries, allowances and benefits of judges may not be reduced.
Removal
173.
(1) A judge may be removed from office only if -
(a)
the Judicial Service Commission finds that the judge suffers from
an incapacity, is grossly incompetent, or is guilty of gross misconduct;
and
(b)
the National Assembly calls for that judge to be removed, by a
resolution adopted by at least two thirds of its members.
(2)
The President must remove a judge from office upon adoption of
a resolution calling for that judge to be removed.
(3)
The President, on the advice of the Judicial Service Commission,
may suspend a judge who is the subject of a procedure in terms
of subsection (1).
Judicial
Service Commission
174.
(1) There is a Judicial Service Commission, consisting of -
(a)
the Chief Justice, who presides at meetings of the Commission;
(b)
the President of the Constitutional Court;
(c)
one Judge President designated by the Judges President;
(d)
the Cabinet member responsible for the administration of justice,
or an alternate designated by that Cabinet member;
(e)
two practising advocates designated by the advocates' profession;
(f)
two practising attorneys designated by the attorneys' profession;
(g)
one teacher of law designated by teachers of law at South African
universities;
(h)
six persons designated by the National Assembly from among its
members, at least three of whom must be members of opposition
parties represented in the Assembly;
(i)
four members of the National Council of Provinces designated together
by the Council, by resolution adopted by at least two thirds of
its members;
(j)
four persons designated by the President as head of the national
executive, after consulting with the leaders of all the parties
in the National Assembly; and,
(k)
when considering matters specifically relating to a provincial
or local division of the High Court, the Judge President of that
division and the Premier, or an alternate designated by the Premier,
of the province concerned.
(2)
If a dispute arises during the designation process referred to
in subsection (1) (e) or (f), the President, after consulting
with the relevant profession, may designate one of the practitioners
to be designated from that profession.
(3)
Members designated by the National Council of Provinces serve
until they are replaced together, or until any vacancy occurs
among their number. Other members who were designated to the Commission
serve until they are replaced by those
who designated them.
(4)
The Judicial Service Commission has the powers and functions assigned
to it in the Constitution and national legislation.
(5)
The Judicial Service Commission may advise the national government
on any matter relating to the judiciary or the administration
of justice; but, when it considers any matter except the appointment
of a judge, it must sit without the members appointed in terms
of subsection (1) (h) and (i).
(6)
The Judicial Service Commission may determine its own procedure;
but, decisions of the Commission must be supported by a majority
of its members.
[Prosecuting
Authority]
[175.
(1) There is a single national prosecuting authority in the Republic,
structured in terms of national legislation, and consisting of
-
(a)
a national Attorney-General, who is the head of the prosecuting
authority, and is appointed by the President as head of the national
executive; and
(b)
other Attorneys-General and prosecutors as determined by national
legislation, which must ensure that they exercise their powers
without fear, favour or prejudice/impartially.
(2)
The prosecuting authority has the power to institute prosecutions
on behalf of the state, and to carry out any necessary functions
incidental to instituting prosecutions.
(3)
The prosecuting authority must exercise its functions without
fear, favour or prejudice.
(4)
All other matters concerning the prosecution authority must be
determined by national legislation.
(5)
The national Attorney-General -
(a)
must determine prosecution policy which must be observed in the
prosecution process;
(b)
must issue policy directives which must be observed in the prosecution
process;
(c)
may intervene in the prosecution process when policy directions
are not complied with; and
(d)
may review any decision not to prosecute, and issue directions
to prosecute in specific cases.
(6)
The cabinet member responsible for the administration of justice
must exercise final responsibility over the prosecution authority.]
Other
matters concerning administration of justice
176.
National legislation may provide for any matter concerning the
administration of justice that is not dealt with in the Constitution,
including -
(a)
training programmes for judicial officers;
(b)
procedures for dealing with complaints about judicial officers;
and
(c)
the participation of people other than judicial officers in decisions.
Chapter
9
State
Institutions Supporting Constitutional Democracy
Establishment
and governing principles
177.
(1) The following state institutions strengthen constitutional
democracy in the Republic:
(a)
The Public Protector.
(b)
The Human Rights Commission.
(c)
The Commission for the Promotion and Protection of the Rights
of Cultural, Religious and Linguistic Communities.
(d)
The Commission for Gender Equality.
(e)
The Auditor-General.
(f)
The Electoral Commission.
(2)
These institutions are independent, and subject only to the Constitution
and the law, and they must be impartial and must exercise their
powers and perform their functions without fear, favour or prejudice.
(3)
Organs of state, through legislative and other measures, must
assist and protect these institutions to ensure the independence,
impartiality, dignity and effectiveness of these institutions.
(4)
No person or organ of state may interfere with the functioning
of these institutions.
(5)
These institutions are accountable to the National Assembly, and
must report on their activities and functions to the National
Assembly at least once a year.
Public
Protector
Functions
of Public Protector
178.
(1) The Public Protector has the following powers, as regulated
by national legislation -
(a)
to investigate any conduct in state affairs, or in the public
administration in any sphere of government, that is alleged or
suspected to be improper or to result in any impropriety or prejudice;
(b)
to report on that conduct; and
(c)
to take appropriate remedial action.
(2)
The Public Protector has any additional functions prescribed by
national legislation.
(3)
The Public Protector may not investigate court decisions.
(4)
The Public Protector must be accessible to all persons and communities.
(5)
Any report issued by the Public Protector must be open to the
public, unless exceptional circumstances, to be determined in
accordance with national legislation, require that a report be
kept confidential.
Tenure
179.
The Public Protector is appointed for a non-renewable period of
seven years.
Human
Rights Commission
Functions
of Human Rights Commission
180.
(1) The Human Rights Commission must -
(a)
promote respect for human rights and a culture of human rights;
(b)
promote the development, protection and attainment of human rights;
and
(c)
monitor and assess the observance of human rights in the Republic.
(2)
The Human Rights Commission has the powers, as regulated by national
legislation, necessary to perform its functions, including the
power -
(a)
to investigate and to report on the observance of human rights;
(b)
to take steps to secure appropriate redress where human rights
have been violated;
(c)
to carry out research; and
(d)
to educate.
(3)
Each year, the 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 respecting housing, health care, food, water,
social security, education, and the environment.
(4)
The 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
Functions
of Commission
181.
(1) The Commission for the Promotion and Protection of the Rights
of Cultural, Religious and Linguistic Communities has the following
primary objects:
(a)
To promote respect for the rights of cultural, religious and linguistic
communities.
(b)
To promote, develop and attain peace, friendship, humanity and
tolerance amongst cultural, religious and linguistic communities,
on the basis of equality, non-discrimination and free association.
(c)
To recommend the establishment, in accordance with national legislation,
of cultural or other councils for particular communities in South
Africa.
(2)
The Commission has the power, as regulated by national legislation,
necessary to achieve its primary objects, including the power
to monitor, to investigate, to research, to educate, to lobby,
to advise and to report on issues concerning the rights of cultural,
religious and linguistic communities.
(3)
The Commission may report any matter which falls within its authority
to the Human Rights Commission for investigation.
(4)
The Commission has the additional powers and functions prescribed
by national legislation.
Composition
of Commission
182.
(1) The number of members of the Commission and their appointment
and terms of office must be prescribed by national legislation.
(2)
The composition of the Commission -
(a)
must be broadly representative of the main cultural, religious
and linguistic communities in South Africa; and
(b)
in general, reflect the gender composition of South Africa.
Commission
for Gender Equality
Functions
of Commission for Gender Equality
183.
(1) The Commission for Gender Equality must promote respect for
gender equality and the development, protection and attainment
of gender equality.
(2)
The Commission for Gender Equality has the power, as regulated
by national legislation, necessary to perform its functions, including
the power to monitor, to investigate, to research, to educate,
to lobby, to advise and to report on issues concerning gender
equality.
(3)
The Commission for Gender Equality has the additional powers and
functions prescribed by national legislation.
Auditor-General
Functions
of Auditor-General
184.
(1) The Auditor-General must audit and report on the accounts,
financial statements and financial management of -
(a)
all national and provincial state departments and administrations;
(b)
all municipalities; and
(c)
any other institution or accounting entity required by national
or provincial legislation to be audited by the Auditor-General.
(2)
In addition to the duties prescribed in subsection (1), and subject
to any legislation, the Auditor-General may audit and report on
the accounts, financial statements and financial management of
-
(a)
any institution funded from the national revenue fund, a provincial
revenue fund or municipality; or
(b)
any institution, other than a registered charity or private enterprise,
that is authorised in terms of any law to receive money for a
public purpose.
(3)
The Auditor-General must submit audit reports to any legislature
that has a direct interest in the audit, and to any other authority
prescribed by national legislation. All reports must be made public.
(4)
The Auditor-General has the additional powers and functions prescribed
by national legislation.
Tenure
185.
The Auditor-General must be appointed for a fixed, non-renewable
term of between five and ten years.
Electoral
Commission
Functions
of Electoral Commission
186.
(1) The Electoral Commission must -
(a)
manage elections of national, provincial and local legislative
bodies, in accordance with national legislation;
(b)
ensure that those elections are free and fair; and
(c)
declare the results of those elections within a period that must
be prescribed by national legislation which is as short as reasonably
possible.
(2)
The Electoral Commission has the additional powers and functions
prescribed by national legislation.
Composition
of Electoral Commission
187.
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
Broadcasting
Authority
188.
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
Appointments
189.
(1) The Public Protector and members of any Commission established
in terms of this Chapter must be women or men who are South African
citizens, each of whom is fit and proper to hold the particular
office and complies with any other requirements prescribed by
national legislation.
(2)
The Auditor-General must be a woman or a man who is a South African
citizen and 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.
(3)
The President, on the recommendation of the National Assembly,
must appoint the Public Protector, the Auditor-General and members
of -
(a)
the Human Rights Commission;
(b)
the Commission for Gender Equality; and
(c)
the Electoral Commission.
(4)
The National Assembly must recommend persons -
(a)
nominated by a committee of the National Assembly proportionally
composed of members of all parties represented in the Assembly;
and
(b)
approved by the National Assembly by a resolution adopted by at
least two thirds of its members.
(5)
Subsection (4) does not preclude the participation of civil society
in the recommendation process.
(6)
National legislation must provide for the appointment of an acting
Public Protector, Auditor-General or commission member when it
is necessary to ensure the effective functioning of the relevant
institution.
Removal
from office
190.
(1) The Public Protector, the Auditor-General or a member of a
Commission established by this Chapter may be removed from office
only on -
(a)
the grounds of misconduct, incapacity or incompetence:
(b)
a finding to that effect by a committee of the National Assembly;
and
(c)
the adoption by the National Assembly of a resolution, calling
for that person's removal from office, and adopted by at least
two thirds of the members.
(2)
The President -
(a)
may suspend a person from office at any time during proceedings
of a committee of the National Assembly for the removal of that
person; and
(b)
must remove a person from office upon adoption by the National
Assembly of a resolution calling for that person's removal.
Chapter
10
Public
Administration
Basic
values and principles governing public administration
191.
(1) Public administration includes -
(a)
administration in every sphere of government; and
(b)
the administration of institutions that are dependent on government
financial support or are authorised in terms of any law to impose
any tax, levy or duty.
(2)
Public administration must be governed by the democratic values
and principles enshrined in the Constitution, including the following
principles:
(a)
A high standard of professional ethics must be promoted and maintained.
(b)
Efficient, economic and effective use of resources must be promoted.
(c)
Public administration must be development oriented.
(d)
Services must be provided impartially, fairly, equitably and without
bias.
(e)
People's needs must be responded to, and the public must be encouraged
to participate in policy-making.
(f)
Public administration must be accountable.
(g)
Transparency must be fostered by providing the public with timely,
accessible and accurate information.
(h)
Good human-resource management and career-development practices,
to maximise human potential, must be cultivated.
(i)
Public administration must be broadly representative of the South
African people, with employment and personnel management practices
based on ability, objectivity, fairness, and the need to redress
the imbalances of the past to achieve broad representation.
(3)
National legislation must ensure the promotion of the basic values
and principles listed in subsection (2).
(4)
The appointment in the public administration of a number of persons
on policy considerations is not precluded, but national legislation
must regulate these appointments in the public service.
(5)
Legislation regulating the public administration may differentiate
between different sectors, administrations or institutions.
(6)
The nature and functions of different sectors, administrations
or institutions of the public administration are relevant factors
to be taken into account in legislation regulating the public
administration.
Public
Service Commission
192.
(1) There is a single Public Service Commission for South Africa
to promote the basic values and principles of public administration
in the public service.
(2)
The Commission is independent and must be impartial and regulated
by national legislation.
(3)
Each of the provinces may nominate a representative to be appointed
to the Commission.
(4)
Provincial representatives in the Commission may exercise the
powers and perform the functions of the Commission in their provinces,
as prescribed by national legislation.
(5)
The Commission must account to the National Assembly.
Public
Service
193.
(1) Within the public administration there is a public service
for South Africa, which must function, and be structured, in terms
of national legislation, and which must loyally execute the lawful
policies of the government of the day.
(2)
The terms and conditions of employment in the public service must
be regulated by national legislation. Employees are entitled to
a fair pension as regulated by national legislation.
(3)
No employee of the public service may be favoured or prejudiced
only because that person supports a particular political party
or cause.
Chapter
11
Security
Services
Governing
principles
194.
The following principles govern national security in the Republic:
(a)
National security must reflect the resolve of South Africans,
as individuals and as a nation, to live as equals, to live in
peace and harmony, to be free from fear and want, and to seek
a better life.
(b)
National security must be pursued in compliance with the law,
including international law.
(c)
National security is subject to the authority of Parliament and
the national executive.
Establishment,
structuring and conduct of security services
195.
(1) The security services of the Republic consist of a single
defence force, a single police service and any intelligence services
established in terms of the Constitution.
(2)
The defence force is the only lawful military force in the Republic.
(3)
Other than the security services established in terms of the Constitution,
armed organisations or services may be established only in terms
of national legislation.
(4)
The security services must be structured and regulated by national
legislation.
(5)
The security services must act, and must teach and require their
members to act, in accordance with the Constitution and the law,
including customary international law and international agreements
binding on the Republic.
(6)
No member of any security service may obey a manifestly illegal
order.
(7)
Neither the security services, nor any of their members, may perform
their functions in a manner that -
(a)
prejudices a political party interest that is legitimate in terms
of this constitution; or
(b)
furthers any private interest of a political party.
(8)
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
Defence
force
196.
(1) The defence force must be structured and managed as a disciplined
military force.
(2)
The primary object of the defence force is to defend and protect
the Republic, its territorial integrity and its people, in accordance
with the principles of international law regulating the use of
force.
Political
responsibility
197.
(1) A member of the Cabinet must be responsible for defence.
(2)
When the defence force is deployed in co-operation with the police
service, or in defence of the Republic, the President must inform
Parliament, at a reasonable time and in appropriate detail, of
-
(a)
the reasons for the use of the defence force;
(b)
any place where the force is being used;
(c)
the number of people involved; and
(d)
the period for which the force is expected to be used.
Command
of defence force
198.
(1) The President as head of the national executive is Commander-in
Chief of the defence force, and must appoint one or more senior
military officers to command the defence force.
(2)
Command of the defence force must be exercised in accordance with
the directions of the Cabinet member responsible for defence.
State
of National Defence
199.
The President may declare a state of national defence. A declaration
of a state of national defence lapses unless it is approved by
Parliament within 14 days.
Defence
civilian secretariat
200.
A civilian secretariat for defence must be established by national
legislation to function under the direction of the Cabinet member
responsible for defence, and to perform any functions entrusted
to it by that Cabinet member, or by that legislation.
Police
Police
service
201.
(1) The national police service must be structured to function
in the national, provincial and, where necessary, local spheres.
(2)
National legislation must establish the powers and functions of
the police service and must enable the police service to discharge
its responsibilities effectively.
(3)
The objects of the police service are to prevent and investigate
crime, to maintain public order, and to protect and secure the
inhabitants of the Republic and their property.
Political
responsibility
202.
A member of the Cabinet must be responsible for policing.
Control
of police service
203.
(1) The President, as head of the national executive, must appoint
a woman or a man as National Commissioner of the police service,
to control and manage the police service.
(2)
The National Commissioner must exercise control over and manage
the police service in accordance with the directions of the Cabinet
member responsible for policing.
(3)
The National Commissioner must appoint a woman or a man as provincial
commissioner for each province, in accordance with national legislation.
(4)
Provincial commissioners are responsible for policing-
(a)
as prescribed by national legislation; and
(b)
subject to the power of the National Commissioner to exercise
control over and manage the police service in terms of subsection
(2).
(5)
Each provincial government is responsible for monitoring and oversight
of the conduct and efficiency of the police service, and for cultivating
good relations between the police and the rest of the community
in its province.
Police
civilian secretariat
204.
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, and to perform any functions
entrusted to it by that Cabinet member, or by the legislation.
Intelligence
Establishment
and control of intelligence services
205.
(1) Any intelligence service, other than the intelligence divisions
of the defence force and police service, may be established only
by the President as head of the national executive, and only in
terms of national legislation.
(2)
The President as head of the national executive must appoint a
woman or a man as head of each intelligence service established
in terms of subsection (1), and must either assume political responsibility
for the control and direction of any of those services, or designate
a member of the Cabinet to assume that responsibility.
Powers,
functions and monitoring
206.
National legislation must regulate the objects, powers and functions
of the intelligence services, including any intelligence divisions
of the defence force and police service, and must provide for
-
(a)
co-ordination of all intelligence services; and
(b)
civilian monitoring of the activities of those services by an
inspector appointed by the President, as head of the national
executive, and approved by a resolution adopted by at least two
thirds of the members of the National Assembly.
Chapter
12
Traditional
Leaders
Recognition
207.
(1) The institution, status and role of traditional leadership,
according to customary law, are recognised, subject to fundamental
rights.
(2)
A traditional authority that observes a system of customary law
may function subject to any applicable legislation and customs,
and any amendments to, or repeal of, that legislation or those
customs.
(3)
The courts must apply customary law when that law is applicable,
subject to the Constitution and any legislation that specifically
deals with customary law.
Councils
of traditional leaders
208.
National or provincial legislation may provide for the establishment
of councils of traditional leaders to deal with matters of common
interest.
Back
to CONTENTS
Chapter
13
Finance
General
Financial Matters
National
Revenue Fund
209.
(1) There is a National Revenue Fund into which all money specified
by an Act of Parliament and received by the national government
must be paid.
(2)
Money may be withdrawn from the National Revenue Fund only -
(a)
in terms of an appropriation by an Act of Parliament; or
(b)
as a direct charge against the National Revenue Fund, as provided
for in terms of the Constitution or an Act of Parliament.
(3)
A province's equitable share of revenue raised nationally is a
direct charge against the National Revenue Fund.
Equitable
shares and allocations of revenue
210.
(1) An Act of Parliament must provide for -
(a)
the equitable division of revenue raised nationally between the
national, provincial and local spheres of government;
(b)
the determination of each province's equitable share of the provincial
share of the revenue; and
(c)
any other allocations from the national government's share of
the revenue, and any conditions on which those allocations may
be made.
(2)
The Act referred to in subsection (1) may be enacted only after
the provincial governments and organised local government have
been consulted, any recommendations of the Financial and Fiscal
Commission have been considered, and must take into account -
(a)
the national interest;
(b)
any provision that must be made in respect of the national debt;
(c)
the needs and interests of the national government, determined
by objective criteria;
(d)
the need to ensure that the provinces and municipalities are able
to provide basic services and exercise the functions allocated
to them;
(e)
the fiscal capacity and efficiency of the provinces and municipalities;
(f)
developmental and other needs of local government and provinces;
(g)
economic disparities within and among the provinces;
(h)
obligations of the provinces and municipalities in terms of national
legislation;
(i)
the desirability of stable and predictable allocations of revenue
shares; and
(j)
the need for flexibility in responding to emergencies or other
temporary needs, and other factors based on similar objective
criteria.
National,
provincial and municipal budgets
211.
(1) Budgets and budgetary processes must promote transparency,
accountability, and the effective financial management of the
economy, debt and the public sector.
(2)
National legislation must prescribe -
(a)
the form of national, provincial and municipal budgets;
(b)
when national and provincial budgets must be tabled; and
(c)
that budgets in every sphere of government must show the sources
of revenue and the way in which proposed expenditure will comply
with national legislation.
(3)
Budgets in every sphere of government must contain -
(a)
estimates of revenue and expenditure, differentiating between
capital and current expenditure;
(b)
proposals for financing any anticipated deficit for the period
to which they apply; and
(c)
an indication of intentions regarding borrowing and other forms
of public liability that will increase public debt during the
ensuing year.
Treasury
control
212.
(1) National legislation must establish a national treasury and
prescribe measures to ensure both transparency and expenditure
control in every sphere of government, by introducing -
(a)
generally recognised accounting practice;
(b)
uniform expenditure classifications; and
(c)
uniform treasury norms and standards.
(2)
The national treasury, with the concurrence of the Cabinet member
responsible for national financial matters, may stop the transfer
of funds to an organ of state only for serious or persistent material
breach of the measures established in terms of subsection (1).
(3)
A decision to stop the transfer of funds to a province -
(a)
may be enforced immediately but will lapse retrospectively unless
Parliament approves it following the process established in terms
of section 74, which must be completed within 30 days of the decision
by the treasury; and
(b)
may not stop the transfer of funds for more than 120 days.
(4)
Parliament may renew a decision to stop the transfer of funds
for no more than 120 days at a time, following the process established
in terms of section 74.
(5)
Before Parliament may approve or renew a decision to stop the
transfer of funds to a province -
(a)
the Auditor-General must report to Parliament; and
(b)
the province must be given an opportunity to state its case and
answer the allegations against it.
Contracts
for goods and services
213.
When organs of state contract for goods or services, they must
do so in accordance with national and provincial legislation that
establishes a system which is fair, equitable, transparent, competitive,
cost-effective and promotes equality and social justice.
Government
guarantees
214.
(1) The national government, a province or a municipality may
guarantee a loan only if the guarantee complies with any conditions
set out in national legislation.
(2)
National legislation referred to in subsection (1) may be enacted
only after any recommendations of the Financial and Fiscal Commission
have been considered.
(3)
Each year, every government must publish a report on the guarantees
it has granted.
Remuneration
of persons holding public office
215.
(1) National legislation must establish a framework for determining-
(a)
the salaries, allowances and benefits of members of the National
Assembly, permanent delegates to the National Council of Provinces,
members of the Cabinet, Deputy Ministers, traditional leaders
and members of any councils of traditional leaders;
and
(b)
the upper limit of salaries, allowances or benefits of members
of provincial legislatures, members of Executive Councils and
members of municipal councils.
(2)
National legislation must establish an independent commission
to make recommendations concerning the salaries, allowances and
benefits as referred to in subsection (1).
(3)
Parliament may adopt the legislation referred to in subsection
(1) only after considering any recommendations of the commission
established in terms of subsection (2).
(4)
The national executive, a provincial executive, a municipality
or any other relevant authority may implement the national legislation
referred to in subsection (1) only after considering any recommendations
of the commission established in terms of subsection (2).
(5)
National legislation must establish a framework 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.
Financial
and Fiscal Commission
Establishment
and functions
216.
(1) There is a Financial and Fiscal Commission for the Republic
which makes recommendations anticipated in this Chapter, or in
national legislation, to Parliament, provincial legislatures and
any other authorities determined by national legislation.
(2)
The Commission is independent and subject only to the Constitution
and the law, and must be impartial.
(3)
The Commission must function in terms of an Act of Parliament
and, in performing its functions, must consider all relevant factors
including those listed in section 210(2).
Appointment
and tenure of members
217.
(1) The Commission consists of the following women and men appointed
by the President as head of the national executive -
(a)
a chairperson and a deputy chairperson who are full-time members;
(b)
nine persons, each of whom is nominated by the Executive Council
of a province, with each province nominating only one person;
(c)
two persons nominated by the local government body established
in terms of section 158; and
(d)
nine other persons.
(2)
Members of the Commission must have appropriate expertise.
(3)
Members serve for a term established in terms of national legislation.
During a member's term of office the President may remove the
member from office on grounds of misconduct, incapacity or incompetence.
Reports
218.
The Commission must report regularly both to Parliament and to
provincial legislatures.
Central
Bank
Establishment
219.
The South African Reserve Bank is the central bank of the Republic
and is regulated by national legislation.
Primary
object
220.
(1) The primary object of the South African Reserve Bank is to
protect the value of the currency in the interest of balanced
and sustainable economic growth in the Republic.
(2)
The South African Reserve Bank must perform any functions in pursuit
of its primary object 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.
Powers
and functions
221.
The powers and functions of the South African Reserve Bank are
those customarily exercised and performed by central banks, and
must be determined by national legislation.
Provincial
and Local Financial Matters
Provincial
Revenue Funds
222.
(1) There is a Provincial Revenue Fund for each province into
which all money specified by an Act of Parliament and received
by the provincial government must be paid.
(2)
Money may be withdrawn from the Provincial Revenue Fund only -
(a)
in terms of an appropriation by a provincial Act; or
(b)
as a direct charge against the Provincial Revenue Fund, provided
for in terms of the Constitution or a provincial Act.
(3)
Revenue allocated through a province to local government in that
province, in terms of section 210(1), is a direct charge against
that province's Revenue Fund.
National
sources of provincial and local government funding
223.
(1) Local government and each province
(a)
is entitled to an equitable share of revenue raised nationally
to enable it to provide basic services and exercise the functions
allocated to it; and
(b)
may receive other allocations from national revenue, either conditionally
or unconditionally.
(2)
Additional revenue raised by provinces or municipalities may not
be deducted from their share of revenue raised nationally, or
from other allocations made to them out of national government
revenue. Equally, there is no obligation on the national government
to compensate provinces or municipalities that do not raise revenue
commensurate with their fiscal capacity and tax base.
(3)
A province's equitable share of revenue raised nationally must
be transferred to the province promptly and without deduction,
except when the transfer has been stopped in terms of section
212.
(4)
A province must provide for itself any resources that it requires,
in terms of a provision in its provincial constitution, that are
additional to its requirements anticipated by this Constitution.
Provincial
taxes
224.
(1) A provincial legislature may impose -
(a)
taxes, levies, or duties other than income tax, value-added tax,
general sales tax or customs duties; and
(b)
flat-rate surcharges on the tax bases of any tax, levy or duty
that is imposed by national legislation, other than the tax bases
of corporate income tax, value-added tax or customs duties.
(2)
The power of a provincial legislature to impose taxes, levies,
duties and surcharges -
(a)
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
(b)
must be regulated by national legislation which may be enacted
only after any recommendations of the Financial and Fiscal Commission
have been considered.
Municipal
rates and taxes
225.
(1) A municipality may impose rates on property and excise taxes,
and, subject to national legislation, may impose other taxes,
levies or duties; but, a municipality may not impose any income
tax, value-added tax, general sales tax, surcharge or customs
duty.
(2)
The legislation referred to in subsection (1) may be enacted only
after any recommendations of the Financial and Fiscal Commission
have been considered.
Provincial
and municipal loans
226.
(1) A province or a municipality may raise loans for capital or
current expenditure in accordance with reasonable conditions determined
by national legislation; but, loans for current expenditure -
(a)
may be raised only when necessary for bridging purposes during
a fiscal year; and
(b)
must be repaid within twelve months.
(2)
National legislation referred to in subsection (1) may be enacted
only after any recommendations of the Financial and Fiscal Commission
have been considered.
Chapter
14
General
Provisions
International
Law
International
agreements
227.
(1) An international agreement binds the Republic only if it has
been approved by resolution in both the National Assembly and
the National Council of Provinces.
(2)
Despite subsection (1), an international agreement of a technical
or administrative nature 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 National
Assembly and the National Council of Provinces within a reasonable
time.
(3)
Any international agreement becomes law in the Republic when it
is enacted into law by national legislation.
(4)
The Republic is bound by international agreements which were binding
on the Republic when this Constitution took effect.
Customary
international law
228.
Customary international law is law in the Republic unless it is
inconsistent with the Constitution or an Act of Parliament.
Application
of international law
229.
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.
Transition
and commencement
Diligent
performance of obligations
230.
All constitutional obligations must be performed diligently and
without delay.
Definitions
231.
In the Constitution,"organ of state" means any functionary or
institution exercising a power or performing a function in terms
of the Constitution, a provincial constitution, or any legislation,
and includes any state department or administration in the national,
provincial or local government sphere.
Transitional
arrangements
232.
Schedule 5 applies to the transition to the new constitutional
order established by this Constitution, and any matter incidental
to that transition.
Repeal
of laws
233.
The laws mentioned in Schedule 6 are repealed, subject to item
20 of Schedule 5.
Short
title and commencement
234.
This Act is called the Constitution of the Republic of South Africa,
1996, and comes into force on a date set by the President by proclamation
in the national Government Gazette.
Schedule
1
National
Flag
(1)
The national flag is rectangular; it is one and a half times longer
than it is wide.
(2)
It is black, gold, green, white, chilli red and blue.
(3)
It has a green Y-shaped band that is one fifth as wide as the
flag. The centre lines of the band start in the top and bottom
corners next to the flag post, converge in the centre of the flag,
and continue horizontally to the middle of the free edge.
(4)
The green band is edged, above and below in white, and towards
the flag post end, in gold. Each edging is one fifteenth as wide
as the flag.
(5)
The triangle next to the flag post is black.
(6)
The upper horizontal band is chilli red and the lower horizontal
band is blue. These bands are each one third as wide as the flag.
Schedule
2
Oaths
of Office and Solemn Affirmations
Oath
of office or solemn affirmation of President
1.
The President, before the President of the Constitutional Court,
must swear/affirm as follows:
In
the presence of everyone assembled here, and in full realisation
of the high calling I assume as 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 that which will advance, and oppose all that may harm,
the Republic;
•
protect and promote the fundamental 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
of office or solemn affirmation of Deputy President
2.
The Deputy President, before the President of the Constitutional
Court, 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 that which will advance, and oppose all that may harm,
the Republic;
*
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
of office or solemn affirmation of Ministers and Deputy Ministers
3.
Each Minister and Deputy Minister, before the President of the
Constitutional Court or another judge designated by the President
of the Constitutional Court, 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 duties of my office conscientiously and to the best of my
ability.
(In
the case of an oath: So help me God.)
Oath
of office or solemn affirmation of Members of the National Assembly,
Permanent Delegates to the National Council of Provinces and members
of provincial legislatures
4.
(1) Members of the National Assembly, permanent delegates to the
National Council of Provinces and members of provincial legislatures,
before the President of the Constitutional Court or a judge designated
by the President of the Constitutional Court, 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 funct ions as a member of the National Assembly/ permanent
delegate to the National Council of Provinces/member of the legislature
of the province of CD to the best of my ability.
(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
of office or solemn affirmation of Premiers and members of provincial
Executive Councils
5.
The Premier of a province, and each member of the Executive Council
of a province, before the President of the Constitutional Court
or another judge designated by the President of the Constitutional
Court, 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 / member of the Executive Council of the province
of CD 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 duties of my office conscientiously
and to the best of my ability.
(In
the case of an oath: So help me God.)
Oath
of office or solemn affirmation of Judicial Officers
6.
(1) Each judge or acting judge, before the Chief Justice of the
Supreme Court of Appeal 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 of EF/ GH Court, I
will be faithful to the Republic of South Africa, will uphold
and protect the Constitution; 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 of the Supreme
Court of Appeal who is not already a judge at the time of that
appointment must swear or affirm before the President 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
Part
A - Election Procedures for Constitutional Office Bearers
Application
1.
The procedure set out in this Schedule applies whenever -
(a)
the National Assembly meets to elect the President, or the Speaker
or Deputy Speaker of the Assembly;
(b)
the National Council of Provinces meets to elect its Chairperson
or a Deputy Chairperson; or
(c)
a provincial legislature meets to elect the Premier of the province
or the Speaker or Deputy Speaker of the legislature.
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 -
(a)
by two members of the National Assembly, if the President or the
Speaker or Deputy Speaker of the Assembly is to be elected;
(b)
on behalf of two provincial delegations, if the Chairperson or
a Deputy Chairperson of the National Council of Provinces is to
be elected; or
(c)
by two members of the relevant provincial legislature, if the
Premier of the province or the Speaker or Deputy Speaker of the
legislature is to be elected.
(3)
A person who is nominated must indicate acceptance of the nomination
by signing either the nomination form or any other form of written
confirmation.
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)
a vote must be taken at the meeting by secret ballot;
(b)
each member present, or if it is a meeting of the National Council
of Provinces, each province represented, at the meeting may cast
one vote; and
(c)
the person presiding must declare elected the candidate who receives
a majority of the votes.
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 President of the Constitutional Court must make rules
prescribing -
(a)
the procedure for meetings to which this Schedule applies;
(b)
the duties of any person presiding at a meeting, and any person
assisting the person presiding;
(c)
the form on which nominations must be submitted; and
(d)
the manner in which voting is to be conducted.
(2)
These rules must be made known in the way that the President of
the Constitutional Court determines.
Part
B - Formula to Determine Party Participation in Provincial Delegations
to the National Council of Provinces
1.
The delegates in a provincial delegation to the National Council
of Provinces to which a party is entitled, must be determined
by multiplying the number of seats the party holds in the provincial
legislature by ten and dividing the result by the number of seats
in the legislature plus one.
2.
If a calculation in terms of item 1 yields a surplus not absorbed
by the delegates allocated to a party in terms of that item, the
surplus must compete with similar surpluses accruing to any other
party or parties, and any undistributed delegates in the delegation
must be allocated to the party or parties in the sequence of the
highest surplus.
Schedule
4
Areas
of Concurrence Legislative Competencies
Part
A
Agriculture
Abattoirs
and generally the slaughter of animals, and the disposal of the
waste products of animal slaughter
Airports,
other than international and national airports
Animal
control and diseases including facilities for the accommodation,
care and burial of animals
Casinos,
racing, gambling and wagering, excluding lotteries and sports
pools
Consumer
protection
Cultural
affairs
Education
at all levels, excluding tertiary education
Environment
Health
Services
Housing
Indigenous
law and customary law, subject to Chapter 12
Language
policy and the regulation of official languages to the extent
that the provisions of section 6 expressly confer legislative
competence upon the provincial legislature
Markets
Pounds
Nature
conservation, excluding national parks, national botanical gardens
and marine resources
Media
services directly controlled or provided by the provincial government
excluding any service provided by the SABC, subject to section
180
Provincial
sport
Provincial
recreation and amenities
Provincial
public transport
Regional
planning and development
Road
traffic regulation
Provincial
and municipal roads
Soil
conservation
Tourism
excluding international marketing of tourism
Trade
Industrial
promotion
Traditional
leadership subject to Chapter 12
Urban
and rural development
Welfare
services
Part
B
Police
to the extent that the provisions of Chapter 11 expressly confer
legislative competence upon the provincial legislature
Refuse
removal, refuse dumps and solid waste disposal
Ambulances
and fire fighting services
Town
planning
Cemeteries,
funeral parlours and crematoriums
Provincial
public enterprises in respect of the functional areas in this
Schedule
Veterinary
services
Population
development function
Provision
and administration of gas and electricity supply systems
Pontoons,
ferries, jetties, piers and small boat harbours
Disaster
management
Liquor
licensing
Provincial
archives
Provincial
museums
Provincial
libraries and library services
Water
and sanitation services, limited to potable water supply systems
and domestic waste-water and sewerage disposal systems
Stormwater
management systems in built up areas
Public
Works only in respect of the needs of provincial government departments
and municipal councils in the discharge of their responsibilities
to administer functions specifically assigned to them under this
Constitution or any other law
Child
care facilities
Administration
of indigenous forests
Licensing
and control of undertakings that purvey food to the public
Fencing
and fences
Part
C
Any
matter for which a provision of the Constitution specifically
requires or envisages the enactment of provincial legislation.
Schedule
5
Transitional
Arrangements
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.
Continuation
of existing law
2.
(1) All law which was in force immediately before the new Constitution
took effect, continues in force subject to -
(a)
any repeal or amendment by an authority acting within its power;
or
(b)
invalidation by a competent court on the ground of inconsistency
with the new Constitution.
(2)
Old order legislation which continues in force in terms of subitem
(1) -
(a)
does not have a wider application, territorially or otherwise,
than it had before the previous Constitution took effect unless
subsequently amended to have a wider application; and
(b)
continues to be administered by the authorities which administered
them immediately before the new Constitution took effect.
Interpretation
of existing legislation
3.
(1) Unless inconsistent with the context or clearly inappropriate,
a reference in any legislation which existed when the new Constitution
took effect -
(a)
to the Republic of South Africa or a homeland, must be construed
as a reference to the Republic of South Africa under the new Constitution;
(b)
to Parliament, the National Assembly or the Senate, must be construed
as a reference to Parliament, the National Assembly or the National
Council of Provinces under the new Constitution;
(c)
to the President, an Executive Deputy President, a Minister, a
Deputy Minister or the Cabinet, must be construed as a reference
to the President, the Executive Deputy President, a Minister,
a Deputy Minister or the Cabinet under the new Constitution, subject
to item 9;
(d)
to the President of the Senate, must be construed as a reference
to the Chairperson of the National Council of Provinces;
(e)
to a provincial legislature, Premier, Executive Council or member
of an Executive Council of a province, must be construed as a
reference to a provincial legislature, Premier, Executive Council
or member of an Executive Council under the new Constitution,
subject to item 12; or
(f)
to an official language or languages, must be construed as a reference
to any of the official languages under the new Constitution.
(2)
Unless inconsistent with the context or clearly inappropriate,
a reference in any remaining old order legislation -
(a)
to a Parliament, a House of a Parliament or a legislative assembly
or body of the Republic or a homeland, must be construed as a
reference to -
(i)
Parliament under the new Constitution, if the administration of
that legislation has been allocated or assigned in terms of the
previous Constitution or this Schedule to the national government;
or
(ii)
the provincial legislature of a province, if the administration
of that legislation has been allocated or assigned in terms of
the previous Constitution or this Schedule to a provincial government;
or
(b)
to a State President, Chief Minister, Administrator or other chief
executive, Cabinet, Ministers' Council or executive council of
the Republic or a homeland, must be construed as a reference to
-
(i)
the President under the new Constitution, if the administration
of that legislation has been allocated or assigned in terms of
the previous Constitution or this Schedule to the national government;
or
(ii)
the Premier of a province under the new Constitution, if the administration
of that legislation has been allocated or assigned in terms of
the previous Constitution or this Schedule to a provincial government.
National
Assembly
4.
(1) Anyone who was a member or office-bearer of the National Assembly
immediately before 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 to have 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 current term, subject to section 47(4) of the new Constitution.
(4)
The rules and orders of the National Assembly in force immediately
before the new Constitution took effect, continue in force subject
to any amendment or repeal under the new Constitution.
Unfinished
business before Parliament
5.
(1) Any unfinished business before the National Assembly immediately
before the new Constitution takes effect must be proceeded with
in terms of the new Constitution.
(2)
Any unfinished business before the Senate immediately before the
new Constitution takes effect is regarded as having been approved
by the Senate.
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
48 of the new Constitution.
(2)
Until a new National Assembly is constituted in terms of the first
election held after the new Constitution took effect -
(a)
section 44 of the new Constitution must be regarded to read as
follows:
"Composition
and election
45.
(1) The National Assembly consists of between 350 and 400 members
as determined by national legislation subject to item 6 of Schedule
5, who are women and men elected in accordance with an electoral
system that -
(a)
is prescribed by national legislation;
(b)
is based on a common voters' roll;
(c)
provides for a minimum voting age of 18 years; and
(d)
results, in general, in proportional representation.
(2)
Despite the repeal of the Constitution of South Africa, 1993,
Schedule 2 to that Constitution, as amended by Annexure A to Schedule
5 to this Constitution, applies -
(a)
to the first election of the National Assembly under this Constitution;
and
(b)
to the supplementation and review of party lists for the filling
of vacancies in the National Assembly until that election."; and
(b)
section 48 of the new Constitution must be regarded to read as
follows:
"Dissolution
of National Assembly before expiry of its term
48.
The Acting-President must dissolve the National Assembly if -
(a)
the President has resigned after a vote of no-confidence in terms
of section 100; and
(b)
the Assembly fails to elect a new President within 30 days of
the vote of no-confidence.".
National
Council of Provinces
7.
(1) For the period until 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.
(2)
The Premier of a province acting in consultation with the leaders
of the parties represented in the provited in the provited in
the provited in the provited in the provited in the provited in
the provited in the provited in the provited in the proncial legislature
must appoint the province's first permanent delegates to the National
Council -
(a)
from among the persons who were senators immediately before the
new Constitution took effect and are willing to serve as permanent
delegates; and
(b)
taking into account the proportionality requirement of subitem
(1).
(3)
If the permanent delegates' component of a delegation cannot be
filled in terms of subitem (2), either because of an insufficient
number of available former senators or the proportionality required,
the Premier, acting as set out in subitem (2), may appoint any
eligible persons outside the ranks of former senators as permanent
delegates, but only to the extent necessary to supplement the
insufficient number or to comply with the proportionality requirement.
(4)
The rules and orders of the Senate in force immediately before
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 under the new Constitution.
Former
senators
8.
(1) A former senator who is not appointed as a permanent delegate
to the National Council of Provinces may choose either -
(a)
to become a member of the provincial legislature from which that
person was nominated as a senator in terms of section 48 of the
previous Constitution; or
(b)
to retire on conditions determined by national legislation.
(2)
A former senator who becomes a member of a provincial legislature
in terms of subitem (1)(a) may not vote on any question before
the legislature.
(3)
The salary, allowances or 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
immediately before 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 83, 88, 89, 90, 91 and 92 of the
new Constitution must be regarded to read as set out in Annexure
B to this Schedule.
Provincial
legislatures
10.
(1) Anyone who was a member or office-ture 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 to have been elected under the new Constitution
for a term that expires on 30 April 1999.
(3)
For the duration of its current term and subject to section 107(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.
(4)
The rules and orders of a provincial legislature in force immediately
before the new Constitution took effect, continue in force subject
to any amendment or repeal under the new Constitution or any provincial
constitution that may be enacted.
Elections
of provincial legislatures
11.
Until a new provincial legislature of a province is constituted
in terms of the first election held after the new Constitution
took effect, section 103 of the new Constitution must be regarded
to read as follows in respect of that province:
"Composition
and election
103.
(1) A provincial legislature consists of women and men elected
in accordance with an electoral system that -
(a)
is prescribed by national legislation;
(b)
is based on a common voters roll;
(c)
provides for a minimum voting age of 18 years; and
(d)
results, in general, in proportional representation.
(2)
A provincial legislature consists of between 30 and 80 members.
The number of members, which may differ among the provinces, must
be determined in terms of national legislation, subject to item
10(3) of Schedule 5.
(3)
Despite the repeal of the Constitution of South Africa, 1993,
Schedule 2 to that Constitution, as amended by Annexure A to Schedule
5 to this Constitution, applies -
(a)
to the first election of the National Assembly under this Constitution;
and
(b)
to the supplementation and review of party lists for the filling
of vacancies in the National Assembly until that election.".
Provincial
executives
12.
(1) Anyone who was the Premier or a member of the Executive Council
of a province immediately before 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
129 and 132 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 sections 138 and 139 of the new Constitution.
Assignment
of old order legislation to provinces
14.
(1) Old order legislation with regard to a matter within a functional
area listed in Schedule 4 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 he Premier of the province.
(2)
If it is necessary for an assignment of legislation under subitem
(1) to be effectively carried out, the President, by proclamation,
may -
(a)
amend or adapt the legislation to regulate its interpretation
or regulation;
(b)
where the assignment does not apply to any piece of legislation
as a whole, repeal and re-enact, with or without any amendments
or adaptations referred to in paragraph (a), those of its provisions
to which the assignment applies or to the extent that the assignment
applies to them;
(c)
regulate any other matter necessary as a result of the assignment,
including the transfer or secondment of staff, or the transfer
of assets, liabilities, rights and obligations, to or from the
national or a provincial executive or any department of state,
administration, force or other institution.
(3)
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.
(4)
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 deemed to have been done under this item.
Courts
15.
(1) Every court of law, including courts of traditional leaders,
existing immediately before the new Constitution took effect,
continues to function and to exercise jurisdiction in terms of
the legislation applicable to it, and anyone holding office as
a judicial officer continues to hold office in terms of the legislation
applicable to that office, subject to -
(a)
any amendment or repeal of that legislation by a competent authority;
and
(b)
consistency with the new Constitution.
(2)
(a) The Constitutional Court established by the previous Constitution
becomes the Constitutional Court under the new Constitution.
(b)
Anyone holding office as the President, the Deputy President or
a judge of the Constitutional Court immediately before the new
Constitution took effect, becomes the President, the Deputy President
or a judge of the Constitutional Court under the new Constitution,
and holds office subject to the new Constitution for the unexpired
portion of the term for which they were appointed; but, the four
youngest judges may continue in office for an additional period
of five years after the expiry of their terms.
(3)
(a) The Appellate Division of the Supreme Court of South Africa
becomes the Supreme Court of Appeal under the new Constitu-tion.
(b)
Anyone holding office as the Chief Justice, the Deputy Chief Justice
or a judge of the Appellate Division immediately before the new
Constitution took effect, becomes the Chief Justice, the Deputy
Chief Justice or a judge of the Supreme Court of Appeal under
the new Constitution.
(4)
(a) A provincial or local division of the Supreme Court of South
Africa or a supreme court of a homeland or a general division
of such a court, becomes a High Court under the new Constitution
without any alteration in its area of jurisdiction, subject to
any rationalisation contemplated in subitem (6).
(b)
Anyone holding office or deemed to hold office as the Judge President,
the Deputy Judge President or a judge of a court referred to in
paragraph (a) immediately before the new Constitution takes effect,
becomes the Judge President, the Deputy Judge President or a judge
of such a court under the new Constitution, subject to any rationalisation
contemplated in subitem (6).
(5)
Unless inconsistent with the context or clearly inappropriate,
a reference in any legislation or process to -
(a)
the Constitutional Court under the previous Constitution, must
be construed as a reference to the Constitutional Court under
the new Constitution;
(b)
the Appellate Division of the Supreme Court of South Africa, must
be construed as a reference to the Supreme Court of Appeal; and
(c)
a provincial or local division of the Supreme Court of South Africa
or a supreme court of a homeland or general division of that court,
must be construed as a reference to a High Court.
(6)
(a) As soon as is practical after the new Constitution takes effect
all courts, including their structure, composition, functioning
and jurisdiction and all relevant legislation, must be rationalised
with a view to establishing a judicial system suited to the requirements
of the new Constitution.
(b)
The Cabinet member responsible for the administration of justice,
acting after consultation with the Judicial Service Commission,
must initiate the rationalisation envisaged in paragraph (a).
Cases
pending before courts
16.
All proceedings which immediately before the new Constitution
took effect were pending before a court, must be disposed of as
if the new Constitution had not been enacted, unless the interest
of justice requires otherwise.
Other
constitutional institutions
17.
(1) In this section "constitutional institution" means -
(a)
the Public Protector;
(b)
the Human Rights Commission;
(c)
the Commission on Gender Equality;
(d)
the Auditor-General;
(e)
the South African Reserve Bank;
(f)
the Financial and Fiscal Commission; or
(g)
the Judicial Service Commission.
(2)
Any constitutional institution established by or under 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, the Public Protector
or the Auditor-General continues to hold office in terms of the
legislation applicable to that office, subject to -
(a)
any amendment or repeal of that legislation by an authority acting
within its power; and
(b)
consistency with the new Constitution and this Schedule.
Enactment
of legislation required by new Constitution
18.
(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 time.
(2)
Section 195(3) of the new Constitution may not be enforced before
the expiry of three months after the legislation envisaged therein
has been enacted.
Bill
of Rights
19.
(1) National legislation envisaged in sections 9(4), 31(2) and
32(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 section 9(4) of the new Constitution
is enacted, courts must develop the common law, as required by
section 8(3) of the new Constitution, to grant appropriate remedies
based on the right contained in section 9(4).
(3)
Until the legislation envisaged in section 31(2) and 32(3) of
the new Constitution is enacted
(a)
section 31(1) must be regarded to read as follows:
"(1)
Every person has the right of access to all information held by
the state or any of its organs in any sphere of government in
so far as that information is required for the exercise or protection
of any of their rights."; and
(b)
sections 32(1) and (2) must be regarded to read as follows:
"Every
person has the right to -
(a)
lawful administrative action where any of their rights or interests
is affected or threatened;
(b)
procedurally fair administrative action where any of their rights
or legitimate expectations is affected or threatened;
(c)
to be furnished with reasons in writing for administrative action
which affects any of their rights or interests unless the reasons
for that action have been made public; and
(d)
administrative action which is justifiable in relation to the
reasons given for it where any of their rights is affected or
threatened.".
Rationalisation
of public administration
20.
(1) Section 237 of the previous Constitution, including all other
provisions of the previous Constitution referred to in that section
to the extent that they relate to the rationalisation of the public
administration -
(a)
continue in force until 30 April 1999 as if the previous Constitution
had not been repealed; and
(b)
must be applied with due regard to Chapters 10 and 11 of the new
Constitution.
(2)
The repeal of the previous Constitution does not affect any proclamation
issued under section 237(3), and any such proclamation continues
in force subject to any amendment or repeal by Parliament or invalidation
by a competent court on the grounds of inconsistency with the
new Constitution.
Additional
disqualification for legislatures
21.
(1) Anyone who when the new Constitution took effect was serving
a sentence in the Republic of more than 12 months' imprisonment
without the option of a fine, is not eligible to be a member of
the National Assembly or a provincial legislature.
(2)
The disqualification of a person in terms of subitem (1) -
(a)
lapses if the conviction is set aside on appeal, or reduced on
appeal to a sentence that does not disqualify that person; or
(b)
ends five years after the sentence has been completed.
Safekeeping
of Acts of Parliament and Provincial Acts
22.
Sections 81 and 122 of the new Constitution do not affect the
safekeeping of Acts of Parliament or Provincial Acts passed before
the new Constitution took effect.
Annexure
A
Amendments
to Schedule 2 to the previous Constitution
Amendments
1.
The amendment of item 1 by replacing "the Electoral Act, 1993",
wherever it appears, with "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
44 of the new Constitution shall be filled as follows:
(a)
One half of the seats from regional lists submitted by the respective
parties, with a fixed number of seats reserved for each region
as determined by the Commission for the next election of the Assembly,
taking into account available scientifically based data in respect
of voters, and representations by interested parties.
(b)
The other half of the seats from national lists submitted by the
respective parties, or from regional lists where national lists
were not submitted.".
3.
The amendment of item 3 by replacing "400 candidates" with "a
number of candidates equal to the number of seats in the National
Assembly".
4.
The amendment of item 5 by deleting "200" in the words preceding
paragraph (a).
5.
The amendment of item 6 -
(a)
by deleting "200" in the words preceding paragraph (a); and
(b)
by replacing "401" in paragraph (a) with "the number of seats
in the National Assembly, plus one".
6.
The amendment of item 7 by replacing "401" in subitem (3)(b) with
"the number of seats in the Assembly, plus one".
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 103 of the new Constitution.".
8.
The amendment of item 11 by replacing "the Electoral Act, 1993",
wherever it appears, with "national legislation".
9.
The amendment of item 6 -
(a)
by replacing subitem (1) with the following subitem:
"(1)
After the counting of votes has been concluded, the number of
representatives of each party has been determined and the election
results have been declared in terms of section 186 of the new
Constitution, the Commission shall, within two days, designate
from each list of candidates, published in terms of national legislation,
the representatives of each party in the legislature."; and
(b)
by deleting "said certification or" in subitem (2).
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 amendment of item 19 by replacing "published in terms of section
23 of the Electoral Act, 1993" with "referred to in item 16(1)".
12.
The deletion of item 23.
13.
The deletion of item 24.
14.
The amendment of item 25 -
(a)
by replacing the definition of "Commission" with the following
definition:
"Commission'
means the Electoral Commission referred to in section 186 of the
new Constitution;"; and
(b)
by inserting the following definition after the definition of
"national list":
"new
Constitution' means the Constitution of the Republic of South
Africa, 1996;".
15.
The deletion of item 26.
Annexure
B
Government
of National Unity: National Sphere
1.
Section 83 of the new Constitution is deemed to contain the following
additional subsection:
"(3)
The President must consult the Executive Deputy Presidents -
(a)
in the development and execution of the policies of the national
government;
(b)
in all matters relating to the management of the Cabinet and the
performance of Cabinet business;
(c)
in the assignment of functions to the Executive Deputy Presidents;
(d)
before making any appointment under the Constitution or any legislation,
including the appointment of ambassadors or other diplomatic representatives;
(e)
before appointing commissions of enquiry;
(f)
before calling a referendum;
(g)
before signing any international agreements; and
(h)
before pardoning or reprieving offenders.".
2.
Section 88 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 89(1) of the new Constitution is deemed
to read as follows:
"(a)
an Executive Deputy President designated by the President;".
4.
Section 90 of the new Constitution is deemed to read as follows:
"Cabinet
90.
(1) The Cabinet consists of the President, the Executive Deputy
Presidents and -
(a)
not more than 27 Ministers who are members of the National Assembly
and appointed in terms of subsections (8) to
(12); and
(b)
not more than one Minister who is not a member of the National
Assembly and appointed in terms of subsection (13), provided the
President, acting in consultation with the Executive Deputy Presidents
and the leaders of the participating parties, deems the appointment
of such a Minister expedient.
(2)
Each party holding at least 80 seats in the National Assembly
is entitled to designate an Executive Deputy President from among
the members of the Assembly.
(3)
If no party or only one party holds 80 or more seats in the Assembly,
the party holding the largest number of seats and the party holding
the second largest number of seats are each entitled to designate
one Executive Deputy President from among the members of the Assembly.
(4)
On being designated, an Executive Deputy President may elect to
remain or to cease to be a member of the Assembly.
(5)
An Executive Deputy President may exercise the powers and must
perform the functions vested in the office of Executive Deputy
President by the Constitution or assigned to that office by the
President.
(6)
An Executive Deputy President holds office -
(a)
until 30 April 1999 unless replaced or recalled by the party entitled
to make the designation in terms of subsections (2) and (3); or
(b)
until the person elected President after any election of the National
Assembly held before 30 April 1999, assumes office.
(7)
A vacancy in the office of an Executive Deputy President may be
filled by the party which designated that Deputy President.
(8)
A party holding at least 20 seats in the National Assembly and
which has decided to participate in the government of national
unity, is entitled to be allocated one or more of the Cabinet
portfolios in respect of which Ministers referred to in subsection
(1)(a) are to be appointed, in proportion to the number of seats
held by it in the National Assembly relative to the number of
seats held by the other participating parties.
(9)
Cabinet portfolios must be allocated to the respective participating
parties in accordance with the following formula:
(a)
A quota of seats per portfolio must be determined by dividing
the total number of seats in the National Assembly held jointly
by the participating parties by the number of portfolios in respect
of which Ministers referred to in subsection (1) (a) are to be
appointed, plus one.
(b)
The result, disregarding third and subsequent decimals, if any,
is the quota of seats per portfolio.
(c)
The number of portfolios to be allocated to a participating party
is determined by dividing the total number of seats held by that
party in the National Assembly by the quota referred to in paragraph
(b).
(d)
The result, subject to paragraph (e), indicates the number of
portfolios to be allocated to that party.
(e)
Where the application of the above formula yields a surplus not
absorbed by the number of portfolios allocated to a party, the
surplus competes with other similar surpluses accruing to another
party or parties, and any portfolio or portfolios which remain
unallocated must be allocated to the party or parties concerned
in sequence of the highest surplus.
(10)
The President after consultation with the Executive Deputy Presidents
and the leaders of the participating parties must -
(a)
determine the specific portfolios to be allocated to the respective
participating parties in accordance with the number of portfolios
allocated to them in terms of subsection (9);
(b)
appoint in respect of each such portfolio a member of the National
Assembly who is a member of the party to which that portfolio
was allocated under paragraph (a), as the Minister responsible
for that portfolio;
(c)
if it becomes necessary for the purposes of the Constitution or
in the interest of good government, vary any determination under
paragraph (a) subject to subsection (9);
(d)
terminate any appointment under paragraph (b) -
(i)
if the President is requested to do so by the leader of the party
of which the Minister in question is a member; or
(ii)
if it becomes necessary for the purposes of the Constitution or
in the interest of good government; or
(e)
fill, when necessary, subject to paragraph (b), a vacancy in the
office of Minister.
(11)
Subsection (10) must be implemented in the spirit embodied in
the concept of a government of national unity, and the President
and the other functionaries concerned must in the implementation
of that subsection seek to achieve consensus at all times: Provided
that if consensus cannot be achieved on -
(a)
the exercise of a power referred to in paragraph (a), (c) or (d)(ii)
of that subsection, the President's decision prevails;
(b)
the exercise of a power referred to in paragraph (b), (d)(i) or
(e) of that subsection affecting a person who is not a
member of the President's party, the decision of the leader of
the party of which that person is a member prevails; and
(c)
the exercise of a power referred to in paragraph (b) or (e) of
that subsection affecting a person who is a member of the President's
party, the President's decision prevails.
(12)
If any determination of portfolio allocations is varied under
subsection (10)(c), the affected Ministers must vacate their portfolios
but is eligible, where applicable, for re-appointment to other
portfolios allocated to their respective parties in terms of the
varied determination.
(13)
The President -
(a)
in consultation with the Executive Deputy Presidents and the leaders
of the participating parties, must -
(i)
determine a specific portfolio for a Minister referred to in subsection
(1) (b) should it become necessary pursuant to a decision of the
President under that subsection;
(ii)
appoint in respect of that portfolio a person who is not a member
of the National Assembly, as the Minister responsible for that
portfolio;
(iii)
fill, if necessary, a vacancy in respect of that portfolio; or
(b)
after consultation with the Executive Deputy Presidents and the
leaders of the participating parties, must terminate any appointment
under paragraph (a) if it becomes necessary for the purposes of
the Constitution or in the interest of good government.
(14)
Meetings of the Cabinet must be presided over by the President,
or, if the President so instructs, by an Executive Deputy President:
Provided that the Executive Deputy Presidents preside over meetings
of the Cabinet in turn unless the exigencies of government and
the spirit embodied in the concept of a government of national
unity otherwise demand.
(15)
The Cabinet must function in a manner which gives consideration
to the consensus-seeking spirit embodied in the concept of a government
of national unity as well as the need for effective government.".
5.
Section 91 of the new Constitution is deemed to read as follows:
"Appointment
of Deputy Ministers
91.
(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 90 (10) to (12) apply with the necessary
changes in respect of Deputy Ministers, and in such application
a reference in that section to a Minister or a portfolio must
be read as a reference to a Deputy Minister or a deputy ministerial
post, respectively.
(4)
If a person is appointed as the Deputy Minister of any portfolio
entrusted to a Minister -
(a)
that Deputy Minister must exercise and perform on behalf of the
relevant Minister any of the powers and functions assigned to
that Minister in terms of any legislation or otherwise which may,
subject to the directions of the President, be assigned to that
Deputy Minister by that Minister; and
(b)
any reference in any legislation to that Minister must be construed
as including a reference to the Deputy Minister acting in terms
of an assignment under paragraph (a) by the Minister for whom
that Deputy Minister acts.
(5)
Whenever a Deputy Minister is absent or for any reason unable
to exercise or perform any of the powers or functions of office,
the President may appoint any other Deputy Minister or any other
person to act in the said Deputy Minister's stead, either generally
or in the exercise or performance of any specific power or function.".
6.
Section 94 of the new Constitution is deemed to contain the following
additional subsections:
"(3)
Ministers are accountable individually to the President and to
the National Assembly for the administration of their portfolios,
and all members of the Cabinet are correspondingly accountable
collectively for the performance of the functions of the national
government and for its policies.
(4)
Ministers must administer their portfolios in accordance with
the policy determined by the Cabinet.
(5)
If a Minister fails to administer the portfolio in accordance
with the policy of the Cabinet, the President may require the
Minister concerned to bring the administration of the portfolio
into conformity with that policy.
(6)
If the Minister concerned fails to comply with a requirement of
the President under subsection (5), the President may remove the
Minister from office -
(a)
if it is a Minister referred to in section 90(1)(a), after consultation
with the Minister and, if the Minister is not a member of the
President's party or is not the leader of a participating party,
also after consultation with the leader of that Minister's party;
or
(b)
if it is a Minister referred to in section 90(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 129 of the new Constitution is deemed to read as follows:
"Executive
Councils
129.
(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 90 (9), and in applying that formula a reference in that
section to -
(a)
the Cabinet, must be read as a reference to an Executive Council;
(b)
a Minister, must be read as a reference to a member of an Executive
Council; and
(c)
the National Assembly, must be read as a reference to the provincial
legislature.
(4)
The Premier of a province after consultation with the leaders
of the participating parties must -
(a)
determine the specific portfolios to be allocated to the respective
participating parties in accordance with the number of portfolios
allocated to them in terms of subsection (3);
(b)
appoint in respect of each such portfolio a member of the provincial
legislature who is a member of the party to which that portfolio
was allocated under paragraph (a), as the member of the Executive
Council responsible for that
portfolio;
(c)
if it becomes necessary for the purposes of the Constitution or
in the interest of good government, vary any determination under
paragraph (a), subject to subsection (3);
(d)
terminate any appointment under paragraph (b) -
(i)
if the Premier is requested to do so by the leader of the party
of which the Executive Council member in question is a member;
or
(ii)
if it becomes necessary for the purposes of the Constitution or
in the interest of good government; or
(e)
fill, when necessary, subject to paragraph (b), a vacancy in the
office of a member of the Executive Council.
(5)
Subsection (4) must be implemented in the spirit embodied in the
concept of a government of national unity, and the Premier and
the other functionaries concerned must in the implementation of
that subsection seek to achieve consensus at all times: Provided
that if consensus cannot be achieved on -
(a)
the exercise of a power referred to in paragraph (a), (c) or (d)(ii)
of that subsection, the Premier's decision prevails;
(b)
the exercise of a power referred to in paragraph (b), (d)(i) or
(e) of that subsection affecting a person who is not a member
of the Premier's party, the decision of the leader of the party
of which such person is a member prevails, and
(c)
the exercise of a power referred to in paragraph (b) or (e) of
that subsection affecting a person who is a member of the Premier's
party, the Premier's decision prevails.
(6)
If any determination of portfolio allocations is varied under
subsection (4)(c), the affected members must vacate their portfolios
but is eligible, where applicable, for re-appointment 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 132 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."
Schedule
6
Laws
Repealed
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 Fifth Amendment Act, 1994
Act
29 of 1994
Constitution
of the Republic of South Africa Sixth 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
Back
to CONTENTS
ERRATA
CONSTITUTION
OF THE REPUBLIC OF SOUTH AFRICA BILL, 1996
Contents
Replace "Traditional Authorities" with "Traditional Leaders"
Replace "Oaths" with "Oaths and solemn affirmations"
Replace "Election Procedure: Constitutional Office Bearers" with
"Election Procedure"
Replace "Concurrent Functional Areas" with "Legislative Competences:
Concurrent Functional Areas"
Replace "106" with "103"
Replace "Repealed Laws" with "Laws Repealed"
Section
2
Delete "the" from the heading.
Section
5
The sentence should read as follows:
"The national flag is black, gold, green, white, red and blue,
as described and sketched in Schedule 1".
Section
9(4)
The first two sentences should read:
"No person may unfairly discriminate directly or indirectly against
anyone on one or more grounds in terms of subsection (3). The
state must adopt national legislation to pregislation to pregislation
to pregislation to pregislation to pregisvent or prohibit unfair
discrimination."
Section
15(2)
Delete comma after "observances".
Section
15(3)(a)(i)
Replace "and" at the end of the section with "or".
Section
24(b)(iii)
Delete "the" after "secure".
Section
25(6)
Delete "s" from "rights".
Insert comma after "land" in the fourth line.
Section
28(1)(g)(ii)
Delete "and" at end of paragraph (g)(ii).
Section
32(3)
Insert "subsections" after "in".
Section
32(4)
Insert "subsection" after "in".
Section
32(4)(b)
Insert comma after "state" in both places.
Replace "sub-sections" with "subsections".
Section
32(4)(c)
Replace "freedom and equality" with "equality and freedom"
Section
34(1)(d)
Replace "; but," with ", but"
Section
34(2)(c)
Replace "by the state and at state expense if" with "by the state,
and at state expense, if"
Section
34(3)(f)
Replace section with the following:
"to choose, and be represented by, a legal practitioner, and to
be informed of this right;"
Section
36(2)(b)
Replace the last sentence as follows:
"A resolution in terms of this paragraph may be adopted only following
a public debate in the Assembly."
Section
36(3)(c)
Replace the words "under a declaration of a state of emergency"
with "in consequence of a declaration of a state of emergency".
Section
36(5)(c)
Replace the words "mentioned in Column 1 and 2" with "mentioned
in Column 1".
Replace "table" with "Table".
Section
36
Replace the Table with the Table attached.
Section
36(6)(b)
Replace "emergency measures under which that person has been detained"
with "emergency measure in terms of which that person has been
detained".
Section
36(8)
Replace "Sub-sections" with "Subsections"
Replace the words "in consequence of international armed conflicts"
with "in consequence of an international armed conflict".
In the last line, insert "of" after "detention".
Section
37
Delete "declared".
Section
37(a)
Replace "their own interests" with "their own interest".
Section
37(e)
Replace "in the interests" with "in the interest".
Section
38(3)
Remove comma after "customary law".
Section
40
Replace heading with "Inter-governmental co-operation".
Section
40(1)(d)
Replace "powers or functions" with "power or function".
Section
40(3)
Replace "intergovernmental" with "inter-governmental".
Section
40(4)
Replace "intergovernmental" with "inter-governmental".
Section
42(b)
Replace "section 103" with "section 102".
Section
42(c)
Replace "section 151" with "section 150".
Section
43(1)(a)(ii)
Insert a comma after "ditions".
Section
46
Replace heading with "Oath or affirmation".
Section
47(3)
Replace "results of an election" with "result of an election".,
Replace "are not declared" with "is not declared".
Replace "section 187" with "section 186".
Section
49
Add the following subsection:
"(3) The National Assembly sits at the Houses of Parliament in
Cape Town, but the Assembly, in the national interest and by resolution
adopted by a majority of its members, may determine that it sits
elsewhere."
Section
51(2)(a)
Replace "both sides" with "each side".
Section
54
Delete "(1)"
Replace "The National Assembly and any of its committees" with
"The National Assembly or any its committees".
Section
58(1)
Add "of Provinces" after "Council".
Section
59(2)
Replace "a legislature must" with "the legislature must".
Section
60(4)(b)
Replace "which" with "that".
Section
61
Add the following subsection:
"(3) The National Council meets in the same place as the National
Assembly. Meetings at other places are permitted on the grounds
of public interest, security or convenience, and in a manner provided
for in the rules and orders of the Council."
Section
65
Replace as follows:
"Not more than ten representatives designated by organised local
government in terms of section 158 to represent different categories
of municipalities, may participate when necessary in the proceedings
of the National Council of Provinces, but may not vote."
Section
67
Replace "The National Council of Provinces and any of its committees"
with "The National Council of Provinces or any of its committees".
Section
67(b)
Delete "or requirement".
Delete "or (b)".
Section
70
Delete "(1)".
Section
72(1)(b)(iii)
Replace "which" with "that".
Section
74(3)(a)
Replace "159(1)" with "158".
Section
74(3)(b)
Delete "and (2)".
Section
78(2)(d)
Insert comma after "constitutional".
Section
79(2)(b)
Insert "to" after "assented".
Section
79(3)(a)
Replace "interests" with "interest".
Section
83(2)(e)
Replace "vote" with "motion".
Section
93
Replace the heading with "Oath or affirmation".
Delete "their" after "affirm".
Delete "by solemn declaration".
Section
102(1)
Replace "confers on a provincial legislature" with "confers on
the provincial legislature".
Section
102(2)
Insert "also" before "by that constitution".
Section
104(2)
Replace "limits and conditions" with "limits or conditions".
Section
104(4)
Insert "in a provincial legislature" after "Vacancies".
Section
105
Delete in the heading "by members".
Delete "their" after "affirm".
Section
106(3)
Replace "results of an election of a provincial legislature are"
with "result of an election of a provincial legislature is".
Section
111
Replace "to attend or speak in" with "to attend, or speak in,".
Section
113
Delete "(1)".
Replace "A provincial legislature and any of its committees" with
"A provincial legislature or any of its committees".
Section
116(b)
Delete comma after "but".
Section
123(4)
Replace "Province" with "province".
Section
124(2)(b)
Insert "provincial" before "legislature".
Section
124(2)(d)
Insert "and" after "business;".
Section
124(2)(e)
Replace "vote of no confidence" with "motion of no-confidence".
Section
128
In the heading, replace "Acting Premier" with "Acting-Premier".
Section
131
Delete "solemn" in the heading.
Delete "their" after "affirm".
Insert a comma after "Constitution".
Section
139(2)
Replace "paragraphs (a) and (b)" with "paragraph (a) or (b)".
Section
140(1)
Replace "text of the constitution" with "text of the constitution
or constitutional amendment".
Section
141
Replace "promulgation" in the heading and in subsection (3) with
"publication".
Section
142(2)(b)
Replace "provide" with "provides".
Section
143(a)
Replace "where" with "concerning which".
Section
144
Replace "fails" with "falls".
Section
147(a)
Insert "and their" before "budgeting".
Section
148(3)
Insert "and" after "functions".
Section
150(3)
Replace "section 142" with "section 142 or 143".
Section
152(2)
Replace "A system of election" with "An electoral system".
Section
153(2)
Replace "limits and conditions" with "limits or conditions".
Section
155
Insert "duration," after "composition".
Section
156
Insert "and their members" after "councils".
Section
157
Replace "Promulgation" in the heading with "Publication".
Section
158
Delete "(1)".
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