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Southafrican Constitution |
Herausgeber: Rechtsanwalt Möbius |
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Explanatory Memorandum of the Constitutional Assembly: |
German attorney at law |
The objective in drafting this text was to ensure that the final constitution is legitimate, credible and accepted by all South Africans.
To this extent, the process of drafting this text involved many South Africans in the largest public participation programme ever carried out in South Africa. After nearly two years of intensive consultations, political parties represented in the Constitutional Assembly negotiated the formulations contained in this text which are an integration of ideas from ordinary citizens, civil society and political parties represented in and outside of the Constitutional Assembly.
This text therefore represents the collective wisdom of the South African people and has been arrived at by general agreement.
We, the people
Honour those who
suffered for justice and freedom in our land;
Respect those who have
worked to build and develop our country; and
Believe that South Africa
belongs to all who live in it, united in our diversity.
We therefore,
through our freely elected representatives, adopt this Constitution as the
supreme law of the Republic so as to -
Heal the divisions of the past
and establish a society based on democratic values, social justice
and
fundamental human rights;
Lay the foundations for a democratic
and open society in which government is based on the will of the people
and every citizen is equally protected by law;
Improve the quality of
life of all citizens and free the potential of each person; and
Build a
united and democratic South Africa able to take its rightful place as a
sovereign state in the family of nations.
May God protect our
people.
Nkosi Sikelel iAfrika. Morena boloka setjhaba sa heso.
God
seën Suid-Afrika. God bless South Africa.
Mudzimu fhatutshedza Afurika.
Hosi katekisa Afrika.
The
Republic of South Africa is one sovereign democratic state founded on the
following values:
(a) Human dignity, the achievement of equality and
the advancement of human rights and freedoms.
(b) Non-racialism and
non-sexism.
(c) Supremacy of the constitution and the rule of
law.
(d) Universal adult suffrage, a national common voters roll,
regular elections and a multi-party system of democratic government, to
ensure accountability, responsiveness and openness.
This
Constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid, and the obligations imposed by it must be
fulfilled.
(1) There is a common
South African citizenship.
(2) All citizens are -
(a) equally
entitled to the rights, privileges and benefits of citizenship; and
(b)
equally subject to the duties and responsibilities of citizenship.
(3)
National legislation must provide for the acquisition, loss and
restoration of citizenship.
The national
anthem of the Republic is determined by the President by proclamation.
The national flag
of the Republic is black, gold, green, white, red and blue, as described
and sketched in Schedule 1.
(1) The official
languages of the Republic are Sepedi, Sesotho, Setswana, siSwati,
Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and
isiZulu.
(2) Recognising the historically diminished use and status of
the indigenous languages of our people, the state must take practical and
positive measures to elevate the status and advance the use of these
languages.
(3) (a) The national government and provincial governments
may use any particular official languages for the purposes of government,
taking into account usage, practicality, expense, regional circumstances
and the balance of the needs and preferences of the population as a whole
or in the province concerned; but the national government and each
provincial government must use at least two official languages.
(b)
Municipalities must take into account the language usage and preferences
of their residents.
(4) The national government and provincial
governments, by legislative and other measures, must regulate and monitor
their use of official languages. Without detracting from the provisions of
subsection (2), all official languages must enjoy parity of esteem and
must be treated equitably.
(5) A Pan South African Language Board
established by national legislation must -
(a) promote and create
conditions for the development and use
of -
(i) all official
languages;
(ii) the Khoi, Nama and San languages; and
(iii) sign
language ; and
(b) promote and ensure respect for -
(i) all
languages commonly used by communities in South Africa, including German,
Greek, Gujarati, Hindi, Portuguese, Tamil, Telegu and Urdu; and
(ii)
Arabic, Hebrew, Sanskrit and other languages used for religious purposes
in South Africa.
(1) This Bill of Rights is
a cornerstone of democracy in South Africa. It enshrines the rights of all
people in our country and affirms the democratic values of human dignity,
equality and freedom.
(2) The state must respect, protect, promote and
fulfil the rights in the Bill of Rights.
(3) The rights in the Bill of
Rights are subject to the limitations contained or referred to in section
36, or elsewhere in the Bill.
(1) The Bill of
Rights applies to all law, and binds the legislature, the executive, the
judiciary and all organs of state.
(2) A provision of the Bill of
Rights binds a natural or a juristic person if, and to the extent that, it
is applicable, taking into account the nature of the right and the nature
of any duty imposed by the right.
(3) When applying a provision of the
Bill of Rights to a natural or juristic person in terms of subsection (2),
a court -
(a) in order to give effect to a right in the Bill, must
apply, or if necessary develop, the common law to the extent that
legislation does not give effect to that right; and
(b) may develop
rules of the common law to limit the right, provided that the limitation
is in accordance with section 36(1).
(4) A juristic person is entitled
to the rights in the Bill of Rights to the extent required by the nature
of the rights and the nature of that juristic person.
(1) Everyone is equal
(2) Equality includes the full and equal enjoyment of all rights
and freedoms. To promote the achievement of equality, legislative and
other measures designed to protect or advance persons, or categories of
persons, disadvantaged by unfair discrimination may be taken.
(3) The
state may not unfairly discriminate directly or indirectly against anyone
on one or more grounds, including race, gender, sex, pregnancy, marital
status, ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief, culture, language and
birth.
(4) No person may unfairly discriminate directly or indirectly
against anyone on one or more grounds in terms of subsection (3). National
legislation must be enacted to prevent or prohibit unfair
discrimination.
(5) Discrimination on one or more of the grounds listed
in subsection (3) is unfair unless it is established that the
discrimination is fair.
Everyone has
inherent dignity
Everyone has the right to
life.
(1) Everyone has the right to freedom and security of
the person, which includes the right -
(a) not to be deprived of
freedom arbitrarily or without just cause;
(b) not to be detained
without trial;
(c) to be free from all forms of violence from either
public or private sources;
(d) not to be tortured in any way;
and
(e) not to be treated or punished in a cruel, inhuman or degrading
way.
(2) Everyone has the right to bodily and psychological integrity,
which includes the right -
(a) to make decisions concerning
reproduction;
(b) to security in and control over their body;
and
(c) not to be subjected to medical or scientific experiments
without their informed consent.
No one may be subjected to slavery, servitude or forced
labour.
Everyone has the right
to privacy, which includes the right not to have -
(a) their person or
home searched;
(b) their property searched;
(c) their possessions
seized; or
(d) the privacy of their communications infringed.
(1) Everyone has the right to freedom of conscience,
religion, thought, belief
(2) Religious observances may be conducted at state or
state-aided institutions, provided that -
(a) those observances follow
rules made by the appropriate public authorities;
(b) they are
conducted on an equitable basis; and
(c) attendance at them is free and
voluntary.
(3) (a) This section does not prevent legislation
recognising -
(i) marriages concluded under any tradition, or a system
of religious, personal or family law; or
(ii) systems of personal and
family law under any tradition, or adhered to by persons professing a
particular religion.
(b) Recognition in terms of paragraph (a) must be
consistent with this section and the other provisions of the Constitution.
(1)
Everyone has the right to freedom of expression
(a) freedom of the press and other media;
(b) freedom to receive
or impart information or ideas;
(c) freedom of artistic creativity;
and
(d) academic freedom and freedom of scientific research.
(2) The
right in subsection (1) does not extend to -
(a) propaganda for
war;
(b) incitement of imminent violence; or
(c) advocacy of hatred
that is based on race, ethnicity, gender or religion, and that constitutes
incitement to cause harm.
Everyone has the right, peacefully and unarmed, to
assemble, to demonstrate, to picket and to present petitions.
Everyone
has the right to freedom of association.
(1) Every
citizen is free to make political choices, which includes the right
-
(a) to form a political party;
(b) to participate in the
activities of, or recruit members for, a political party; and
(c) to
campaign for a political party or cause.
(2) Every citizen has the
right to free, fair and regular elections for any legislative body
established in terms of the Constitution.
(3) Every adult citizen has
the right -
(a) to vote
(b) to stand for public office and, if elected, to hold
office.
No citizen may be
deprived of citizenship.
(1) Everyone has the right to freedom of
movement.
(2) Everyone has the right to leave the Republic.
(3)
Every citizen has the right to enter, to remain in and to reside anywhere
in, the Republic.
(4) Every citizen has the right to a passport.
Every citizen has the right to choose their trade,
occupation or profession freely. The practice of a trade, occupation or
profession may be regulated by law.
(1) Everyone
has the right to fair labour practices.
(2) Every worker has the right
-
(a) to form and join a trade union;
(b) to participate in the
activities and programmes of a trade union; and
(c) to strike.
(3)
Every employer has the right -
(a) to form and join an employers"
organisation; and
(b) to participate in the activities and programmes
of an employers" organisation.
(4) Every trade union and every
employers" organisation has the right -
(a) to determine its own
administration, programmes and activities;
(b) to organise; and
(c)
to form and join a federation.
(5) Every trade union, employers"
organisation and employer has the right to engage in collective
bargaining. National legislation may be enacted to regulate collective
bargaining. To the extent that the legislation may limit a right in this
Chapter, the limitation must comply with section 36(1).
(6) National
legislation may recognise union security arrangements contained in
collective agreements. To the extent that the legislation may limit a
right in this Chapter, the limitation must comply with section 36(1).
Everyone has the
right -
(a) to an environment that is not harmful to their health or
well-
being; and
(b) to have the environment protected, for the
benefit of present and future generations, through reasonable legislative
and other measures that -
(i) prevent pollution and ecological
degradation;
(ii) promote conservation; and
(iii) secure
ecologically sustainable development and use of natural resources while
promoting justifiable economic and social development.
(1) No one may be
deprived of property
(2) Property may be expropriated only in terms of law of
general application -
(a) for a public purpose or in the public
interest; and
(b) subject to compensation, the amount of which and the
time and manner of payment of which have either been agreed to by those
affected or decided or approved by a court.
(3) The amount of the
compensation and the time and manner of payment must be just and
equitable, reflecting an equitable balance between the public interest and
the interests of those affected, having regard to all relevant
circumstances, including -
(a) the current use of the property;
(b)
the history of the acquisition and use of the property;
(c) the market
value of the property;
(d) the extent of direct state investment and
subsidy in the acquisition and beneficial capital improvement of the
property; and
(e) the purpose of the expropriation.
(4) For the
purposes of this section -
(a) the public interest includes the
nation's commitment to land reform, and to reforms to bring about
equitable access to all South Africa's natural resources; and
(b)
property is not limited to land.
(5) The state must take reasonable
legislative and other measures, within its available resources, to foster
conditions which enable citizens to gain access to land on an equitable
basis.
(6) A person or community whose tenure of land is legally
insecure as a result of past racially discriminatory laws or practices is
entitled, to the extent provided by an Act of Parliament, either to tenure
which is legally secure or to comparable redress.
(7) A person or
community dispossessed of property after 19 June 1913 as a result of past
racially discriminatory laws or practices is entitled, to the extent
provided by an Act of Parliament, either to restitution of that property
or to equitable redress.
(8) No provision of this section may impede
the state from taking legislative and other measures to achieve land,
water and related reform, in order to redress the results of past racial
discrimination, provided that any departure from the provisions of this
section is in accordance with the provisions of section 36(1).
(9)
Parliament must enact the legislation referred to in subsection (6).
(1) Everyone has the
right to have access to adequate housing.
(2) The state must take
reasonable legislative and other measures, within its available resources,
to achieve the progressive realisation of this right.
(3) No one may be
evicted from their home, or have their home demolished, without an order
of court made after considering all the relevant circumstances. No
legislation may permit arbitrary evictions.
(1) Everyone has the right to have access to -
(a)
health care services, including reproductive health care;
(b)
sufficient food and water; and
(c) social security, including, if they
are unable to support themselves and their 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.
(1) Every child has the
right -
(a) to a name and a nationality from birth;
(b) to family
care or parental care, or to appropriate alternative care when removed
from the family environment;
(c) to basic nutrition, shelter, basic
health care services and social services;
(d) to be protected from
maltreatment, neglect, abuse or degradation;
(e) to be protected from
exploitative labour practices;
(f) not to be required or permitted to
perform work or provide services that -
(i) are inappropriate for a
person of that child's age; or
(ii) place at risk the child's
well-being, education, physical or mental health or spiritual, moral or
social development;
(g) not to be detained except as a measure of last
resort, in which case, in addition to the rights a child enjoys under
sections 12 and 35, the child may be detained only for the shortest
appropriate period of time, and has the right to be -
(i) kept
separately from detained persons over the age of 18 years; and
(ii)
treated in a manner, and kept in conditions, that take account of the
child's age;
(h) to have a legal practitioner assigned to the child by
the state, and at state expense, in civil proceedings affecting the child,
if substantial injustice would otherwise result; and
(i) not to be used
directly in armed conflict, and to be protected in times of armed
conflict.
(2) A child's best interests are of paramount importance in
every matter concerning the child.
(3) In this section "child" means a
person under the age of 18 years.
(1) Everyone has the
right -
(a) to a basic education, including adult basic education;
and
(b) to further education, which the state, through reasonable
measures, must make progressively available and accessible.
(2)
Everyone has the right to receive education in the official language or
languages of their choice in public educational institutions where that
education is reasonably practicable. In order to ensure the effective
access to, and implementation of, this right, the state must consider all
reasonable educational alternatives, including single medium institutions,
taking into account -
(a) equity;
(b) practicability; and
(c) the
need to redress the results of past racially discriminatory laws and
practices.
(3) Everyone has the right to establish and maintain, at
their own expense, independent educational institutions that -
(a) do
not discriminate on the basis of race;
(b) are registered with the
state; and
(c) maintain standards that are not inferior to standards at
comparable public educational institutions.
(4) Subsection (3) does not
preclude state subsidies for independent educational institutions.
Everyone
has the right to use the language and to participate in the cultural life
of their choice, but no one exercising these rights may do so in a manner
inconsistent with any provision of the Bill of Rights.
(1) Persons belonging to a cultural, religious or
linguistic community may not be denied the right, with other members of
that community -
(a) to enjoy their culture, practise their religion
and use their language; and
(b) to form, join and maintain cultural,
religious and linguistic associations and other organs of civil
society.
(2) The rights in subsection (1) may not be exercised in a
manner inconsistent with any provision of the Bill of Rights.
(1)
Everyone has the right of access to -
(a) any information held by the
state; and
(b) any information that is held by another person and that
is required for the exercise or protection of any rights.
(2) National
legislation must be enacted to give effect to this right, and may provide
for reasonable measures to alleviate the administrative and financial
burden on the state.
(1)
Everyone has the right to administrative action that is lawful, reasonable
and procedurally fair.
(2) Everyone whose rights have been adversely
affected by administrative action has the right to be given written
reasons.
(3) National legislation must be enacted to give effect to
these rights, and must -
(a) provide for the review of administrative
action by a court or, where appropriate, an independent and impartial
tribunal;
(b) impose a duty on the state to give effect to the rights
in subsections (1) and (2); and
(c) promote an efficient
administration.
Everyone has
the right to have any dispute that can be resolved by the application of
law decided in a fair public hearing before a court or, where appropriate,
another independent and impartial tribunal or forum.
(1) Everyone who is arrested for allegedly committing
an offence has the right -
(a) to remain silent;
(b) to be informed
promptly -
(i) of the right to remain silent; and
(ii) of the
consequences of not remaining silent;
(c) not to be compelled to make
any confession or admission that could be used in evidence against that
person;
(d) to be brought before a court as soon as reasonably
possible, but not later than -
(i) 48 hours after the arrest;
or
(ii) the end of the first court day after the expiry of the 48
hours, if the 48 hours expire outside ordinary court hours or on a day
which is not an ordinary court day;
(e) at the first court appearance
after being arrested, to be charged or to be informed of the reason for
the detention to continue, or to be released; and
(f) to be released
from detention if the interests of justice permit, subject to reasonable
conditions.
(2) Everyone who is detained, including every sentenced
prisoner, has the right -
(a) to be informed promptly of the reason for
being detained;
(b) to choose, and to consult with, a legal
practitioner, and to be informed of this right promptly;
(c) to have a
legal practitioner assigned to the detained person by the state and at
state expense, if substantial injustice would otherwise result, and to be
informed of this right promptly;
(d) to challenge the lawfulness of the
detention in person before a court and, if the detention is unlawful, to
be released;
(e) to conditions of detention that are consistent with
human dignity, including at least exercise and the provision, at state
expense, of adequate accommodation, nutrition, reading material and
medical treatment; and
(f) to communicate with, and be visited by, that
person's -
(i) spouse or partner;
(ii) next of kin;
(iii) chosen
religious counsellor; and
(iv) chosen medical practitioner.
(3)
Every accused person has a right to a fair trial, which includes the right
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(a) to be informed of the charge with sufficient detail to answer
it;
(b) to have adequate time and facilities to prepare a
defence;
(c) to a public trial before an ordinary court;
(d) to have
their trial begin and conclude without unreasonable delay;
(e) to be
present when being tried;
(f) to choose, and be represented by, a legal
practitioner, and to be informed of this right promptly;
(g) to have a
legal practitioner assigned to the accused person by the state and at
state expense, if substantial injustice would otherwise result, and to be
informed of this right promptly;
(h) to be presumed innocent, to remain
silent, and not to testify during the proceedings;
(i) to adduce and
challenge evidence;
(j) not to be compelled to give self-incriminating
evidence;
(k) to be tried in a language that the accused person
understands or, if that is not practicable, to have the proceedings
interpreted in that language;
(l) not to be convicted for an act or
omission that was not an offence under either national or international
law at the time it was committed or omitted;
(m) not to be tried for an
offence in respect of an act or omission for which that person has
previously been either acquitted or convicted;
(n) to the benefit of
the least severe of the prescribed punishments if the prescribed
punishment for the offence has been changed between the time that the
offence was committed and the time of sentencing; and
(o) of appeal to,
or review by, a higher court.
(4) Whenever this section requires
information to be given to a person, that information must be given 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.
(1) The
rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation is reasonable and
justifiable in an open and democratic society based on human dignity,
equality and freedom, taking into account all relevant factors, including
-
(a) the nature of the right;
(b) the importance of the purpose of
the limitation;
(c) the nature and extent of the limitation;
(d) the
relation between the limitation and its purpose; and
(e) less
restrictive means to achieve the purpose.
(2) Except as provided in
subsection (1) or in any other provision of the Constitution, no law may
limit any right entrenched in the Bill of Rights.
(1) A state
of emergency may be declared only in terms of an Act of Parliament, and
only when -
(a) the life of the nation is threatened by war, invasion,
general insurrection, disorder, natural disaster or other public
emergency; and
(b) the declaration is necessary to restore peace and
order.
(2) A declaration of a state of emergency, and any legislation
enacted or other action taken in consequence of that declaration, may be
effective only -
(a) prospectively; and
(b) for no more than 21 days
from the date of the declaration, unless the National Assembly resolves to
extend the declaration. The Assembly may extend a declaration of a state
of emergency for no more than three months at a time. The first extension
of the state of emergency must be by a resolution adopted with a
supporting vote of a majority of the members of the Assembly. Any
subsequent extension must be by a resolution adopted with a supporting
vote of at least 60 per cent of the members of the Assembly. A resolution
in terms of this paragraph may be adopted only following a public debate
in the Assembly.
(3) Any competent court may decide on the validity of
-
(a) a declaration of a state of emergency;
(b) any extension of a
declaration of a state of emergency; or
(c) any legislation enacted, or
other action taken, in consequence of a declaration of a state of
emergency.
(4) Any legislation enacted in consequence of a declaration
of a state of emergency may derogate from the Bill of Rights only to the
extent that -
(a) the derogation is strictly required by the emergency;
and
(b) the legislation -
(i) is consistent with the Republic's
obligations under international law applicable to states of
emergency;
(ii) conforms to subsection (5); and
(iii) is published
in the national Government Gazette as soon as reasonably possible after
being enacted.
(5) No Act of Parliament that authorises a declaration
of a state of emergency, and no legislation enacted or other action taken
in consequence of a declaration, may permit or authorise -
(a)
indemnifying the state, or any person, in respect of any unlawful
act;
(b) any derogation from this section; or
(c) any derogation
from a section mentioned in column 1 of the Table of Non-Derogable Rights,
to the extent indicated opposite that section in column 3 of the Table.
Table of Non-Derogable Rights
Section Number | Section Title | Extent to which the right is protected |
9 | Equality | With respect to unfair discrimination solely on the grounds of race, colour, ethnic or social origin, sex religion or language |
10 | Human Dignity | Entirely |
11 | Life | Entirely |
12 | Freedom and Security of the person | With respect to subsections (1)(d) and (e) and (2)(c). |
13 | Slavery, servitude and forced labour | With respect to slavery and servitude |
28 | Children | With respect to: -subsection (1)(d) and (e); -the rights in subparagraphs (i) and (ii) of subsection (1)(g); and -subsection 1(i) in respect of children of 15 years and younger |
35 | Arrested, detained and accused persons | With respect to: -subsections (1)(a), (b) and (c) and (2)(d); -the rights in paragraphs (a) to (o) of subsection (3), excluding paragraph (d) -subsection (4); and -subsection (5) with respect to the exclusion of evidence if the admission of that evidence would render the trial unfair. |
(6) Whenever anyone is detained without trial in consequence of a
derogation of rights resulting from a declaration of a state of emergency,
the following conditions must be observed:
(a) An adult family member
or friend of the detainee must be contacted as soon as reasonably
possible, and informed that the person has been detained.
(b) A notice
must be published in the national Government Gazette within five days of
the person being detained, stating the detainee's name and place of
detention and referring to the emergency measure in terms of which that
person has been detained.
(c) The detainee must be allowed to choose,
and be visited at any reasonable time by, a medical practitioner.
(d)
The detainee must be allowed to choose, and be visited at any reasonable
time by, a legal representative.
(e) A court must review the detention
as soon as reasonably possible, but no later than 10 days after the date
the person was detained, and the court must release the detainee unless it
is necessary to continue the detention to restore peace and order.
(f)
A detainee who is not released in terms of a review under paragraph (e),
or who is not released in terms of a review under this paragraph, may
apply to a court for a further review of the detention at any time after
10 days have passed since the previous review, and the court must release
the detainee unless it is still necessary to continue the detention to
restore peace and order.
(g) The detainee must be allowed to appear in
person before any court considering the detention, to be represented by a
legal practitioner at those hearings, and to make representations against
continued detention.
(h) The state must present written reasons to the
court to justify the continued detention of the detainee, and must give a
copy of those reasons to the detainee at least two days before the court
reviews the detention.
(7) If a court releases a detainee, that person
may not be detained again on the same grounds unless the state first shows
a court good cause for re-detaining that person.
(8) Subsections (6)
and (7) do not apply to persons who are not South African citizens and who
are detained in consequence of an international armed conflict. Instead,
the state must comply with the standards binding on the Republic under
international humanitarian law in respect of the detention of such
persons.
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights. The persons who may approach a court are:
(a)
Anyone acting in their own interest;
(b) anyone acting on behalf of
another person who cannot act in their own name;
(c) anyone acting as a
member of, or in the interest of, a group or class of persons;
(d)
anyone acting in the public interest; and
(e) an association acting in
the interest of its members.
(1) When interpreting the Bill of Rights, a court,
tribunal or forum -
(a) must promote the values that underlie an open
and democratic society based on human dignity, equality and
freedom;
(b) must consider international law; and
(c) may consider
foreign law.
(2) When interpreting any legislation, and when developing
the common law or customary law, every court, tribunal or forum must
promote the spirit, purport and objects of the Bill of Rights.
(3)The
Bill of Rights does not deny the existence of any other rights or freedoms
that are recognised or conferred by common law, customary law or
legislation, to the extent that they are consistent with the Bill.
(1)
In the Republic, government is constituted as national, provincial and
local spheres of government, which are distinctive, interdependent and
interrelated.
(2) All spheres of government must observe and adhere to
the principles in this Chapter and must conduct their activities within
the parameters that the Chapter provides.
(1) All spheres of government and
all organs of state within each sphere must -
(a) preserve the peace,
national unity and the indivisibility of the Republic;
(b) secure the
well-being of the people of the Republic;
(c) provide effective,
transparent, accountable and coherent government for the Republic as a
whole;
(d) be loyal to the Constitution, the Republic and its
people;
(e) respect the constitutional status, institutions, powers and
functions of government in the other spheres;
(f) not assume any power
or function except those conferred on them in terms of the
Constitution;
(g) exercise their powers and perform their functions in
a manner that does not encroach on the geographical, functional or
institutional integrity of government in another sphere; and
(h)
co-operate with one another in mutual trust and good faith by -
(i)
fostering friendly relations;
(ii) assisting and supporting one
another;
(iii) informing one another of, and consulting one another on,
matters of common interest;
(iv) co-ordinating their actions and
legislation with one another;
(v) adhering to agreed procedures;
and
(vi) avoiding legal proceedings against one another.
(2) An Act
of Parliament must -
(a) establish or provide for structures and
institutions to promote and facilitate intergovernmental relations;
and
(b) provide for appropriate mechanisms and procedures to facilitate
settlement of intergovernmental disputes.
(3) An organ of state
involved in an intergovernmental dispute must make every reasonable effort
to settle the dispute by means of mechanisms and procedures provided for
that purpose, and must exhaust all other remedies before it approaches a
court to resolve the dispute.
(4)If a court is not satisfied that the
requirements of subsection (3) have been met, it may refer a dispute back
to the organs of state involved.
(1)
Parliament
(a)
the National Assembly; and
(b) the National Council of
Provinces.
(2) The National Assembly and the National Council of
Provinces participate in the legislative process in the manner set out in
the Constitution.
(3) The National Assembly is elected to represent the
people and to ensure government by the people under the Constitution. It
does this by choosing the President, by providing a national forum for
public consideration of issues, by passing legislation and by scrutinizing
and overseeing executive action.
(4) The National Council of Provinces
represents the provinces to ensure that provincial interests are taken
into account in the national sphere of government. It does this mainly by
participating in the national legislative process and by providing a
national forum for public consideration of issues affecting the
provinces.
(5) The President may summon Parliament to an extraordinary
sitting at any time to conduct special business.
(6) The seat of
Parliament is Cape Town, but an Act of Parliament, enacted in accordance
with section 76(1) and (5), may determine that the seat of Parliament is
elsewhere.
In the Republic, the legislative
(a) of
the national sphere of government is vested in Parliament, as set out in
section 44;
(b) of the provincial sphere of government is vested in the
provincial legislatures, as set out in section 104; and
(c) of the
local sphere of government is vested in the Municipal Councils, as set out
in section 156.
(1) The national legislative authority as vested in
Parliament -
(a) confers on the National Assembly the power -
(i) to
amend the Constitution;
(ii) to pass legislation with regard to any
matter, including a matter within a functional area listed in Schedule 4,
but excluding, subject to subsection (2), a matter within a functional
area listed in Schedule 5; and
(iii) to assign any of its legislative
powers, except the power to amend the Constitution, to any legislative
body in another sphere of government; and
(b) confers on the National
Council of Provinces the power -
(i) to participate in amending the
Constitution in accordance with section 74;
(ii) to pass, in accordance
with section 76, legislation with regard to any matter within a functional
area listed in Schedule 4, and any other matter required by the
Constitution to be passed in accordance with section 76; and
(iii) to
consider, in accordance with section 75, any other legislation passed by
the National Assembly.
(2) Parliament may intervene by passing
legislation, in accordance with section 76(1), with regard to a matter
falling within a functional area listed in Schedule 5, when it is
necessary -
(a) to maintain national security;
(b) to maintain
economic unity;
(c) to maintain essential national standards;
(d) to
establish minimum standards required for the rendering of services;
or
(e) to prevent unreasonable action taken by a province which is
prejudicial to the interests of another province or to the country as a
whole.
(3) Legislation with regard to a matter that is reasonably
necessary for, or incidental to, the effective exercise of a power
concerning any matter listed in Schedule 4 is, for all purposes,
legislation with regard to a matter listed in Schedule 4.
(4) When
exercising its legislative authority, Parliament is bound only by the
Constitution, and must act in accordance with, and within the limits of,
the Constitution.
(1) The National Assembly and the National Council
of Provinces must establish a joint rules committee to make rules and
orders concerning the joint business of the Assembly and Council,
including rules and orders -
(a) to determine procedures to facilitate
the legislative process, including setting a time limit for completing any
step in the process;
(b) to establish joint committees composed of
representatives from both the Assembly and the Council to consider and
report on Bills envisaged in sections 74 and 75 that are referred to such
a committee;
(c) to establish a joint committee to review the
Constitution at least annually; and
(d) to regulate the business of
-
(i) the joint rules committee;
(ii) the Mediation
Committee;
(iii) the constitutional review committee; and
(iv) any
joint committees established in terms of paragraph (b).
(2) Cabinet
members, members of the National Assembly and delegates to the National
Council of Provinces have the same privileges and immunities before a
joint committee of the Assembly and the Council as they have before the
Assembly or the Council.
(1) The
National Assembly consists of no fewer than 350 and no more than 400 women
and men elected as members in terms of an electoral system that -
(a)
is prescribed by national legislation;
(b) is based on the national
common voters roll;
(c) provides for a minimum voting age of 18 years;
and
(d) results, in general, in proportional representation.
(2) An
Act of Parliament must provide a formula for determining the number of
members of the National Assembly.
(1) Every citizen who
is qualified to vote for the National Assembly is eligible to be a member
of the Assembly, except -
(a) anyone who is appointed by, or is in the
service of, the state and receives remuneration for that appointment or
service, other than -
(i) the President, Deputy President, Ministers
and Deputy Ministers; and
(ii) other office-bearers whose functions are
compatible with the functions of a member of the Assembly, and have been
declared compatible with those functions by national legislation;
(b)
permanent delegates to the National Council of Provinces or members of a
provincial legislature or a Municipal Council;
(c) unrehabilitated
insolvents;
(d) anyone declared to be of unsound mind by a court of the
Republic; or
(e) anyone who, after this section took effect, is
convicted of an offence and sentenced to more than 12 months imprisonment
without the option of a fine, either in the Republic, or outside the
Republic if the conduct constituting the offence would have been an
offence in the Republic, but no one may be regarded as having been
sentenced until an appeal against the conviction or sentence has been
determined, or until the time for an appeal has expired. A
disqualification under this paragraph ends five years after the sentence
has been completed.
(2) A person who is not eligible to be a member of
the National Assembly in terms of subsection (1)(a) or (b) may be a
candidate for the Assembly, subject to any limits or conditions
established by national legislation.
(3) A person loses membership of
the National Assembly if that person -
(a) ceases to be eligible;
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.
Before
members of the National Assembly begin to perform their functions in the
Assembly, they must swear or affirm faithfulness to the Republic and
obedience to the Constitution, in accordance with Schedule 2.
(1) The National Assembly is elected for a term of
five years.
(2) If the National Assembly is dissolved in terms of
section 50, or when its term expires, the President, by proclamation, must
call and set dates for an election, which must be held within 90 days of
the date the Assembly was dissolved or its term expired.
(3) If the
result of an election of the National Assembly is not declared within the
period established in terms of section 190, or if an election is set aside
by a court, the President, by proclamation, must call and set dates for
another election, which must be held within 90 days of the expiry of that
period or of the date on which the election was set aside.
(4) The
National Assembly remains competent to function from the time it is
dissolved or its term expires, until the day before the first day of
polling for the next Assembly.
(1) The President must dissolve the National
Assembly if -
(a) the Assembly has adopted a resolution to dissolve
with a supporting vote of a majority of its members; and
(b) three
years have passed since the Assembly was elected.
(2) The Acting
President must dissolve the National Assembly if -
(a) there is a
vacancy in the office of President; and
(b) the Assembly fails to elect
a new President within 30 days after the vacancy occurred.
(1)
After an election, the first sitting of the National Assembly must take
place at a time and on a date determined by the 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 special business.
(3) Sittings of the National
Assembly are permitted at places other than the seat of Parliament only on
the grounds of public interest, security or convenience, and if provided
for in the rules and orders of the Assembly.
(1)
At the first sitting after its election, or when necessary to fill a
vacancy, the National Assembly must elect a Speaker and a Deputy Speaker
from among its members.
(2) The President of the Constitutional Court
must preside over the election of a Speaker, or designate another judge to
do so. The Speaker presides over the election of a Deputy Speaker.
(3)
The procedure set out in Part A of Schedule 3 applies to the election of
the Speaker and the Deputy Speaker.
(4) The National Assembly may
remove the Speaker or Deputy Speaker from office by resolution. A majority
of the members of the Assembly must be present when the resolution is
adopted.
(5) In terms of its rules and orders, the National Assembly
may elect from among its members other presiding officers to assist the
Speaker and the Deputy Speaker.
(1) Except where the
Constitution provides otherwise -
(a) a majority of the members of the
National Assembly must be present before a vote may be taken on a Bill or
an amendment to a Bill;
(b) at least one third of the members must be
present before a vote may be taken on any other question before the
Assembly; and
(c) all questions before the Assembly are decided by a
majority of the votes cast.
(2) The member of the National Assembly
presiding at a meeting of the Assembly has no deliberative vote, but
-
(a) must cast a deciding vote when there is an equal number of votes
on each side of a question; and
(b) may cast a deliberative vote when a
question must be decided with a supporting vote of at least two thirds of
the members of the Assembly.
The President and any member of the Cabinet
who is not a member of the National Assembly may attend, and may speak in,
the Assembly, but may not vote.
(1)
In exercising its legislative power, the National Assembly may -
(a)
consider, pass, amend or reject any legislation before the Assembly;
and
(b) initiate or prepare legislation, except money Bills.
(2) The
National Assembly must provide for mechanisms -
(a) to ensure that all
executive organs of state in the national sphere of government are
accountable to it; and
(b) to maintain oversight of -
(i) the
exercise of national executive authority, including the implementation of
legislation; and
(ii) any organ of state.
The National Assembly or any of its committees may
-
(a) summon any person to appear before it to give evidence on oath or
affirmation, or to produce documents;
(b) require any person or
institution to report to it;
(c) compel, in terms of national
legislation or the rules and orders, any person or institution to comply
with a summons or requirement in terms of paragraph (a) or (b); and
(d)
receive petitions, representations or submissions from any interested
persons or institutions.
(1) The National Assembly may
-
(a) determine and control its internal arrangements, proceedings and
procedures; and
(b) make rules and orders concerning its business, with
due regard to representative and participatory democracy, accountability,
transparency and public involvement.
(2) The rules and orders of the
National Assembly must provide for -
(a) the establishment,
composition, powers, functions, procedures and duration of its
committees;
(b) the participation in the proceedings of the Assembly
and its committees of minority parties represented in the Assembly, in a
manner consistent with democracy;
(c) financial and administrative
assistance to each party represented in the Assembly in proportion to its
representation, to enable the party and its leader to perform their
functions in the Assembly effectively; and
(d) the recognition of the
leader of the largest opposition party in the Assembly as the Leader of
the Opposition.
(1) Cabinet members
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.
(1) The National Assembly must -
(a)
facilitate public involvement in the legislative and other processes of
the Assembly and its committees; and
(b) conduct its business in an
open manner, and hold its sittings, and those of its committees, in
public, but reasonable measures may be taken -
(i) to regulate public
access, including access of the media, to the Assembly and its committees;
and
(ii) to provide for the searching of any person and,where
appropriate, the refusal of entry to, or the removal of, any
person.
(2) The National Assembly may not exclude the public, including
the media, from a sitting of a committee unless it is reasonable and
justifiable to do so in an open and democratic society.
(1) The National Council of Provinces is composed of a
single delegation from each province consisting of ten delegates.
(2)
The ten delegates are -
(a) four special delegates consisting
of-
(i) the Premier of the province or, if the Premier is not
available, any member of the provincial legislature designated by the
Premier either generally or for any specific business before the National
Council of Provinces; and
(ii) three other special delegates;
and
(b) six permanent delegates appointed in terms of section
61(2).
(3) The Premier of a province, or if the Premier is not
available, a member of the province's delegation designated by the
Premier, heads the delegation.
(1)
Parties represented in a provincial legislature are entitled to delegates
in the province's delegation in accordance with the formula set out in
Part B of Schedule 3.
(2) Within 30 days after the result of an
election of a provincial legislature is declared, the legislature must
-
(a) determine, in accordance with national legislation, how many of
each party's delegates are to be permanent delegates and how many are to
be special delegates; and
(b) appoint the permanent delegates in
accordance with the nominations of the parties.
(3) The national
legislation envisaged in subsection (2)(a) must ensure the participation
of minority parties in both the permanent and special delegates"
components of the delegation in a manner consistent with democracy.
(4)
The legislature, with the concurrence of the Premier and the leaders of
the parties entitled to special delegates in the province's delegation,
must designate special delegates, as required from time to time, from
among the members of the legislature.
(1) A person
nominated as a permanent delegate must be eligible to be a member of the
provincial legislature.
(2) If a person who is a member of a provincial
legislature is appointed as a permanent delegate, that person ceases to be
a member of the legislature.
(3) Permanent delegates are appointed for
a term that expires 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 for any reason other than being
appointed as a permanent delegate;
(b) becomes a member of the
Cabinet;
(c) has lost the confidence of the provincial legislature and
is recalled by the party that nominated that person;
(d) ceases to be a
member of the party that nominated that person and is recalled by that
party; or
(e) is absent from the National Council of Provinces without
permission in circumstances for which the rules and orders of the Council
prescribe loss of office as a permanent delegate.
(5) Vacancies among
the permanent delegates must be filled in terms of national
legislation.
(6) Before permanent delegates begin to perform their
functions in the National Council of Provinces, they must swear or affirm
faithfulness to the Republic and obedience to the Constitution, in
accordance with Schedule 2.
(1)
The National Council of Provinces may determine the time and duration of
its sittings and its recess periods.
(2) The President may summon the
National Council of Provinces to an extraordinary sitting at any time to
conduct special business.
(3) Sittings of the National Council of
Provinces are permitted at places other than the seat of Parliament only
on the grounds of public interest, security or convenience, and if
provided for in the rules and orders of the Council.
(1) The National Council of Provinces must elect a
Chairperson and two Deputy Chairpersons from among the delegates.
(2)
The Chairperson and one of the Deputy Chairpersons are elected from among
the permanent delegates for five years unless their terms as delegates
expire earlier.
(3) The other Deputy Chairperson is elected for a term
of one year, and must be succeeded by a delegate from another province, so
that every province is represented in turn.
(4) The 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 Part
A of Schedule 3 applies to the election of the Chairperson and the Deputy
Chairpersons.
(6) The National Council of Provinces may remove the
Chairperson or a Deputy Chairperson from office.
(7) In terms of its
rules and orders, the National Council of Provinces may elect from among
the delegates other presiding officers to assist the Chairperson and
Deputy Chairpersons.
(1) Except where the
Constitution provides otherwise -
(a) each province has one vote, which
is cast on behalf of the province by the head of its delegation;
and
(b) all questions before the National Council of Provinces are
agreed when at least five provinces vote in favour of the question.
(2)
An Act of Parliament, enacted in accordance with the procedure established
by either subsection (1) or subsection (2) of section 76, must provide for
a uniform procedure in terms of which provincial legislatures confer
authority on their delegations to cast votes on their behalf.
(1) Cabinet members and Deputy Ministers may attend,
and may speak in, the National Council of Provinces, but may not
vote.
(2) The National Council of Provinces may require a Cabinet
member, a Deputy Minister or an official in the national executive or a
provincial executive to attend a meeting of the Council or a committee of
the Council.
Not more than ten part-time representatives
designated by organised local government in terms of section 163, to
represent the different categories of municipalities, may participate when
necessary in the proceedings of the National Council of Provinces, but may
not vote.
In
exercising its legislative power, the National Council of Provinces may
-
(a) consider, pass, amend, propose amendments to or reject any
legislation before the Council, in accordance with this Chapter;
and
(b) initiate or prepare legislation falling within a functional
area listed in Schedule 4 or other legislation referred to in section
76(3), but may not initiate or prepare money Bills.
The National Council of Provinces or any of its
committees may -
(a) summon any person to appear before it to give
evidence on oath or affirmation or to produce documents;
(b) require
any institution or person to report to it;
(c) compel, in terms of
national legislation or the rules and orders, any person or institution to
comply with a summons or requirement in terms of paragraph (a) or (b);
and
(d) receive petitions, representations or submissions from any
interested persons or institutions.
(1) The National Council of
Provinces may -
(a) determine and control its internal arrangements,
proceedings and procedures; and
(b) make rules and orders concerning
its business, with due regard to representative and participatory
democracy, accountability, transparency and public involvement.
(2) The
rules and orders of the National Council of Provinces must provide for
-
(a) the establishment, composition, powers, functions, procedures and
duration of its committees;
(b) the participation of all the provinces
in its proceedings in a manner consistent with democracy; and
(c) the
participation in the proceedings of the Council and its committees of
minority parties represented in the Council, in a manner consistent with
democracy, whenever a matter is to be decided in accordance with section
75.
(1) Delegates to the
National Council of Provinces and the persons referred to in sections 66
and 67 -
(a) have freedom of speech in the Council and in its
committees, subject to its rules and orders; and
(b) are not liable to
civil or criminal proceedings, arrest, imprisonment or damages for
-
(i) anything that they have said in, produced before or submitted to
the Council or any of its committees; or
(ii) anything revealed as a
result of anything that they have said in, produced before or submitted to
the Council or any of its committees.
(2) Other privileges and
immunities of the National Council of Provinces, delegates to the Council
and persons referred to in sections 66 and 67 may be prescribed by
national legislation.
(3) Salaries, allowances and benefits payable to
permanent members of the National Council of Provinces are a direct charge
against the National Revenue Fund.
(1) The National Council of Provinces must
-
(a) facilitate public involvement in the legislative and other
processes of the Council and its committees; and
(b) conduct its
business in an open manner, and hold its sittings, and those of its
committees, in public, but reasonable measures may be taken -
(i) to
regulate public access, including access of the media, to the Council and
its committees; and
(ii) to provide for the searching of any person
and, where appropriate, the refusal of entry to, or the removal of, any
person.
(2) The National Council of Provinces may not exclude the
public, including the media, from a sitting of a committee unless it is
reasonable and justifiable to do so in an open and democratic society.
(1) Any Bill may be
introduced in the National Assembly.
(2) Only a Cabinet member or a
Deputy Minister, or a member or committee of the Assembly, may introduce a
Bill in the Assembly; but only the Cabinet member responsible for national
financial matters may introduce a money Bill in the Assembly.
(3) A
Bill referred to in section 76(3), except a money Bill, may be introduced
in the National Council of Provinces.
(4) Only a member or committee of
the National Council of Provinces may introduce a Bill in the
Council.
(5) A Bill passed by the National Assembly must be referred to
the National Council of Provinces if it must be considered by the Council.
A Bill passed by the Council must be referred to the Assembly.
(1) Section 1 and this subsection may be amended
by a Bill passed
by -
(a) the National Assembly, with a supporting
vote of at least 75 per cent of its members; and
(b) the National
Council of Provinces, with a supporting vote of at least six
provinces.
(2) Chapter 2 may be amended by a Bill passed by -
(a)
the National Assembly, with a supporting vote of at least two thirds of
its members; and
(b) the National Council of Provinces, with a
supporting vote of at least six provinces.
(3) Any other provision of
the Constitution may be amended by a Bill passed -
(a) by the National
Assembly, with a supporting vote of at least two thirds of its members;
and
(b) also by the National Council of Provinces, with a supporting
vote of at least six provinces, if the amendment -
(i) relates to a
matter that affects the Council;
(ii) alters provincial boundaries,
powers, functions or institutions; or
(iii) amends a provision that
deals specifically with a provincial matter.
(4) A Bill amending the
Constitution may not include provisions other than constitutional
amendments and matters connected with the amendments.
(5) At least 30
days before a Bill amending the Constitution is introduced in terms of
section 73(2), the person or committee intending to introduce the Bill
must -
(a) publish in the national Government Gazette, and in
accordance with the rules and orders of the National Assembly, particulars
of the proposed amendment for public comment;
(b) submit, in accordance
with the rules and orders of the Assembly, those particulars to the
provincial legislatures for their views; and
(c) submit, in accordance
with the rules and orders of the National Council of Provinces, those
particulars to the Council for a public debate, if the proposed amendment
is not an amendment that is required to be passed by the Council.
(6)
When a Bill amending the Constitution is introduced, the person or
committee introducing the Bill must submit any written comments received
from the public and the provincial legislatures -
(a) to the Speaker
for tabling in the National Assembly; and
(b) in respect of amendments
referred to in subsection (1), (2), or (3)(b), to the Chairperson of the
National Council of Provinces for tabling in the Council.
(7) A Bill
amending the Constitution may not be put to the vote in the National
Assembly within 30 days of -
(a) its introduction, if the Assembly is
sitting when the Bill is introduced; or
(b) its tabling in the
Assembly, if the Assembly is in recess when the Bill is introduced.
(8)
If a Bill referred to in subsection (3)(b), or any part of the Bill,
concerns only a specific province or provinces, the National Council of
Provinces may not pass the Bill or the relevant part unless it has been
approved by the legislature or legislatures of the province or provinces
concerned.
(9) A Bill amending the Constitution that has been passed by
the National Assembly and, where applicable, by the National Council of
Provinces, must be referred to the President for assent.
(1) When the National Assembly passes a Bill other
than a Bill to which the procedure set out in section 74 or 76 applies,
the Bill must be referred to the National Council of Provinces and dealt
with in accordance with the following procedure:
(a) The Council must
-
(i) pass the Bill;
(ii) pass the Bill subject to amendments
proposed by it; or
(iii) reject the Bill.
(b) If the Council passes
the Bill without proposing amendments, the Bill must be submitted to the
President for assent.
(c) If the Council rejects the Bill or passes it
subject to amendments, the Assembly must reconsider the Bill, taking into
account any amendment proposed by the Council, and may -
(i) pass the
Bill again, either with or without amendments; or
(ii) decide not to
proceed with the Bill.
(d) A Bill passed by the Assembly in terms of
paragraph (c) must be submitted to the President for assent.
(2) When
the National Council of Provinces votes on a question in terms of this
section, section 65 does not apply; instead -
(a) each delegate in a
provincial delegation has one vote;
(b) at least one third of the
delegates must be present before a vote may be taken on the question;
and
(c) the question is decided by a majority of the votes cast, but if
there is an equal number of votes on each side of the question, the
delegate presiding must cast a deciding vote.
(1) When the National Assembly passes a Bill referred
to in subsection (3), (4) or (5), the Bill must be referred to the
National Council of Provinces and dealt with in accordance with the
following procedure:
(a) The Council must -
(i) pass the
Bill;
(ii) pass an amended Bill; or
(iii) reject the Bill.
(b) If
the Council passes the Bill without amendment, the Bill must be submitted
to the President for assent.
(c) If the Council passes an amended Bill,
the amended Bill must be referred to the Assembly, and if the Assembly
passes the amended Bill, it must be submitted to the President for
assent.
(d) If the Council rejects the Bill, or if the Assembly refuses
to pass an amended Bill referred to it in terms of paragraph (c), the Bill
and, where applicable, also the amended Bill, must be referred to the
Mediation Committee, which may agree on -
(i) the Bill as passed by the
Assembly;
(ii) the amended Bill as passed by the Council; or
(iii)
another version of the Bill.
(e) If the Mediation Committee is unable
to agree within 30 days of the Bill's referral to it, the Bill lapses
unless the Assembly again passes the Bill, but with a supporting vote of
at least two thirds of its members.
(f) If the Mediation Committee
agrees on the Bill as passed by the Assembly, the Bill must be referred to
the Council, and if the Council passes the Bill, the Bill must be
submitted to the President for assent.
(g) If the Mediation Committee
agrees on the amended Bill as passed by the Council, the Bill must be
referred to the Assembly, and if it is passed by the Assembly, it must be
submitted to the President for assent.
(h) If the Mediation Committee
agrees on another version of the Bill, that version of the Bill must be
referred to both the Assembly and the Council, and if it is passed by the
Assembly and the Council, it must be submitted to the President for
assent.
(i) If a Bill referred to the Council in terms of paragraph (f)
or (h) is not passed by the Council, the Bill lapses unless the Assembly
passes the Bil with a supporting vote of at least two thirds of its
members.
(j) If a Bill referred to the Assembly in terms of paragraph
(g) or (h) is not passed by the Assembly, that Bill lapses, but the Bill
as originally passed by the Assembly may again be passed by the Assembly,
but with a supporting vote of at least two thirds of its members.
(k) A
Bill passed by the Assembly in terms of paragraph (e), (i) or (j) must be
submitted to the President for assent.
(2) When the National Council of
Provinces passes a Bill referred to in subsection (3) the Bill must be
referred to the National Assembly and dealt with in accordance with the
following procedure:
(a) The Assembly must -
(i) pass the
Bill;
(ii) pass an amended Bill; or
(iii) reject the Bill.
(b) A
Bill passed by the Assembly in terms of paragraph (a)(i) must be submitted
to the President for assent.
(c) If the Assembly passes an amended
Bill, the amended Bill must be referred to the Council, and if the Council
passes the amended Bill, it must be submitted to the President for
assent.
(d) If the Assembly rejects the Bill, or if the Council refuses
to pass an amended Bill referred to it in terms of paragraph (c), the Bill
and, where applicable, also the amended Bill must be referred to the
Mediation Committee, which may agree on -
(i) the Bill as passed by the
Council;
(ii) the amended Bill as passed by the Assembly; or
(iii)
another version of the Bill.
(e) If the Mediation Committee is unable
to agree within 30 days of the Bill's referral to it, the Bill
lapses.
(f) If the Mediation Committee agrees on the Bill as passed by
the Council, the Bill must be referred to the Assembly, and if the
Assembly passes the Bill, the Bill must be submitted to the President for
assent.
(g) If the Mediation Committee agrees on the amended Bill as
passed by the Assembly, the Bill must be referred to the Council, and if
it is passed by the Council, it must be submitted to the President for
assent.
(h) If the Mediation Committee agrees on another version of the
Bill, that version of the Bill must be referred to both the Council and
the Assembly, and if it is passed by the Council and the Assembly, it must
be submitted to the President for assent.
(i) If a Bill referred to the
Assembly in terms of paragraph (f) or (h) is not passed by the Assembly,
the Bill lapses.
(3) A Bill must be dealt with in accordance with the
procedure established by either subsection (1) or subsection (2) if it
falls within a functional area listed in Schedule 4 or provides for
legislation envisaged in any of the following sections:
(a) Section
65(2);
(b) section 163;
(c) section 182;
(d) section 195(3) and
(4);
(e) section 196; and
(f) section 197.
(4) A Bill must be
dealt with in accordance with the procedure established by subsection (1)
if it provides for legislation -
(a) envisaged in section 44(2) or
220(3); or
(b) envisaged in Chapter 13, and which affects the financial
interests of the provincial sphere of government.
(5) A Bill envisaged
in section 42(6) must be dealt with in accordance with the procedure
established by subsection (1), except that -
(a) when the National
Assembly votes on the Bill, the provisions of section 53(1) do not apply;
instead, the Bill may be passed only if a majority of the members of the
Assembly vote in favour of it; and
(b) if the Bill is referred to the
Mediation Committee, the following rules apply:
(i) If the National
Assembly considers a Bill envisaged in subsection (1) (g) or (h), that
Bill may be passed only if a majority of the members of the Assembly vote
in favour of it.
(ii) If the National Assembly considers or reconsiders
a Bill envisaged in subsection (1)(e), (i) or (j), that Bill may be passed
only if at least two thirds of the members of the Assembly vote in favour
of it.
(6) This section does not apply to money Bills.
(1) A Bill that
appropriates money or imposes taxes, levies or duties is a money Bill. A
money Bill may not deal with any other matter except a subordinate matter
incidental to the appropriation of money or the imposition of taxes,
levies or duties.
(2) All money Bills must be considered in accordance
with the procedure established by section 75. An Act of Parliament must
provide for a procedure to amend money Bills before Parliament.
(1) The
Mediation Committee consists of -
(a) nine members of the National
Assembly elected by the Assembly in accordance with a procedure that is
prescribed by the rules and orders of the Assembly and results in the
representation of parties in substantially the same proportion that the
parties are represented in the Assembly; and
(b) one delegate from each
provincial delegation in the National Council of Provinces, designated by
the delegation.
(2) The Mediation Committee has agreed on a version of
a Bill, or decided a question, when that version, or one side of 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 of Provinces.
(1) The
President must either assent to and sign a Bill passed in terms of this
Chapter or, if the President has reservations about the constitutionality
of the Bill, refer it back to the National Assembly for
reconsideration.
(2) The joint rules and orders must provide for the
procedure for the reconsideration of a Bill by the National Assembly and
the participation of the National Council of Provinces in the
process.
(3) The National Council of Provinces must participate in the
reconsideration of a Bill that the President has referred back to the
National Assembly if -
(a) the President's reservations about the
constitutionality of the Bill relate to a procedural matter that involves
the Council; or
(b) section 74(1), (2) or (3)(b) or 76 was applicable
in the passing of the Bill.
(4) If, after reconsideration, a Bill fully
accommodates the President's reservations, the President must assent to
and sign the Bill; if not, the President must either -
(a) assent to
and sign the Bill; or
(b) refer it to the Constitutional Court for a
decision on its constitutionality.
(5) If the Constitutional Court
decides that the Bill is constitutional, the President must assent to and
sign it.
(1) Members of the National Assembly
may apply to the Constitutional Court for an order declaring that all or
part of an Act of Parliament is unconstitutional.
(2) An application
-
(a) must be supported by at least one third of the members of the
Assembly; and
(b) must be made within 30 days of the date on which the
President assented to and signed the Act.
(3) The Constitutional Court
may order that all or part of an Act that is the subject of an application
in terms of subsection (1) has no force until the Court has decided the
application if -
(a) the interests of justice require this; and
(b)
the application has a reasonable prospect of success.
(4) If an
application is unsuccessful, and did not have a reasonable prospect of
success, the Constitutional Court may order the applicants to pay costs.
A Bill
assented to and signed by the President becomes an Act of Parliament, must
be published promptly, and takes effect when published or on a date
determined in terms of the Act.
The signed copy of an Act of Parliament is
conclusive evidence of the provisions of that Act and, after publication,
must be entrusted to the Constitutional Court for safekeeping.
The President
(a) is the Head of
State and head of the national executive;
(b) must uphold, defend and
respect the Constitution as the supreme law of the Republic; and
(c)
promotes the unity of the nation and that which will advance the Republic.
(1) The President has the powers entrusted by the
Constitution and legislation, including those necessary to perform the
functions of Head of State and head of the national executive.
(2) The
President is responsible for -
(a) assenting to and signing
Bills;
(b) referring a Bill back to the National Assembly for
reconsideration of the Bill's constitutionality;
(c) referring a Bill
to the Constitutional Court for a decision on the Bill's
constitutionality;
(d) summoning the National Assembly, the National
Council of Provinces or Parliament to an extraordinary sitting to conduct
special business;
(e) making any appointments that the Constitution or
legislation requires the President to make, other than as head of the
national executive;
(f) appointing commissions of inquiry;
(g)
calling a national referendum in terms of an Act of Parliament;
(h)
receiving and recognising foreign diplomatic and consular
representatives;
(i) appointing ambassadors, plenipotentiaries, and
diplomatic and consular representatives;
(j) pardoning or reprieving
offenders and remitting any fines, penalties or forfeitures; and
(k)
conferring honours.
(1) The executive authority of the Republic is vested
in the President.
(2) The President exercises the executive authority,
together with the other members of the Cabinet, by -
(a) implementing
national legislation except where the Constitution or an Act of Parliament
provides otherwise;
(b) developing and implementing national
policy;
(c) co-ordinating the functions of state departments and
administrations;
(d) preparing and initiating legislation; and
(e)
performing any other executive function provided for in the Constitution
or in national legislation.
(1) At its
first sitting after its election, and whenever necessary to fill a
vacancy, the National Assembly must elect a woman or a man from among its
members to be the President.
(2) The 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 Part A of Schedule 3
applies to the election of the President.
(3) An election to fill a
vacancy in the office of President must be held at a time and on a date
determined by the President of the Constitutional Court, but not more than
30 days after the vacancy occurs.
When elected President, a person ceases to be a
member of the National Assembly and, within five days, must assume office
by swearing or affirming faithfulness to the Republic and obedience to the
Constitution, in accordance with Schedule 2.
(1)
The President's term of office begins on assuming office and ends upon a
vacancy occurring or when the person next elected President assumes
office.
(2) No person may hold office as President for more than two
terms, but when a person is elected to fill a vacancy in the office of
President, the period between that election and the next election of a
President is not regarded as a term.
(1) The
National Assembly, by a resolution adopted with a supporting vote of at
least two thirds of its members, may remove the President from office only
on the grounds of -
(a) a serious violation of the Constitution or the
law;
(b) serious misconduct; or
(c) inability to perform the
functions of office.
(2) Anyone who has been removed from the office of
President in terms of subsection (1) (a) or (b) may not receive any
benefits of that office, and may not serve in any public office.
(1) When the
President is absent from the Republic or otherwise unable to fulfil the
duties of President, or during a vacancy in the office of President, an
office-bearer in the order below acts as President:
(a) The Deputy
President.
(b) A Minister designated by the President.
(c) A
Minister designated by the other members of the Cabinet.
(d) The
Speaker, until the National Assembly designates one of its other
members.
(2) An Acting President has the responsibilities, powers and
functions of the President.
(3) Before assuming the responsibilities,
powers and functions of the President, the Acting President must swear or
affirm faithfulness to the Republic and obedience to the Constitution, in
accordance with Schedule 2.
(1) The Cabinet
(2) The President appoints the Deputy President and
Ministers, assigns their powers and functions, and may dismiss
them.
(3) The President -
(a) must select the Deputy President from
among the members of the National Assembly;
(b) may select any number
of Ministers from among the members of the Assembly; and
(c) may select
no more than two Ministers from outside the Assembly.
(4) The President
must appoint a member of the Cabinet to be the leader of government
business in the National Assembly.
(5) The Deputy President must assist
the President in the execution of the functions of government.
(1) The Deputy President and Ministers are
responsible for the powers and functions of the executive assigned to them
by the President.
(2) Members of the Cabinet are accountable
collectively and individually to Parliament for the exercise of their
powers and the performance of their functions.
(3) Members of the
Cabinet must -
(a) act in accordance with the Constitution; and
(b)
provide Parliament with full and regular reports concerning matters under
their control.
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.
When an election of the National Assembly is held,
the Cabinet, the Deputy President, Ministers and any Deputy Ministers
remain competent to function until the person elected President by the
next Assembly assumes office.
Before the
Deputy President, Ministers and any Deputy Ministers begin to perform
their functions, they must swear or affirm faithfulness to the Republic
and obedience to the Constitution, in accordance with Schedule 2.
(1) Members of the Cabinet and Deputy Ministers must
act in accordance with a code of ethics prescribed by national
legislation.
(2) Members of the Cabinet and Deputy Ministers may not
-
(a) undertake any other paid work;
(b) act in any way that is
inconsistent with their office, or expose themselves to any situation
involving the risk of a conflict between their official responsibilities
and private interests; or
(c) use their position or any information
entrusted to them, to enrich themselves or improperly benefit any other
person.
The
President by proclamation may transfer to a member of the
Cabinet
-
(a) the administration of any legislation entrusted to another
member; or
(b) any power or function entrusted by legislation to
another member.
The President may assign to a Cabinet member any
power or function of another member who is absent from office or is unable
to exercise that power or perform that function.
A
Cabinet member may assign any power or function that is to be performed in
terms of an Act of Parliament to a member of a provincial Executive
Council or to a Municipal Council. An assignment -
(a) must be in terms
of an agreement between the relevant Cabinet member and the Executive
Council member or Municipal Council;
(b) must be consistent with that
of Parliament in terms of which the relevant power or function is
exercised or performed; and
(c) takes effect upon proclamation by the
President.
(1) When a province cannot or does not fulfil an
executive obligation in terms of legislation or the Constitution, the
national executive may intervene by taking any appropriate steps to ensure
fulfilment of that obligation, including -
(a) issuing a directive to
the provincial executive, describing the extent of the failure to fulfil
its obligations and stating any steps required to meet its obligations;
and
(b) assuming responsibility for the relevant obligation in that
province to the extent necessary to -
(i) maintain essential national
standards or meet established minimum standards for the rendering of a
service;
(ii) maintain economic unity;
(iii) maintain national
security; or
(iv) prevent that province from taking unreasonable action
that is prejudicial to the interests of another province or to the country
as a whole.
(2) If the national executive intervenes in a province in
terms of subsection (1)(b) -
(a) notice of the intervention must be
tabled in the National Council of Provinces within 14 days of its first
sitting after the intervention began;
(b) the intervention must end
unless it is approved by the Council within 30 days of its first sitting
after the intervention began; and
(c) the Council must review the
intervention regularly and make any appropriate recommendations to the
national executive.
(3) National legislation may regulate the process
established by this section.
(1) A
decision by the President must be in writing if it -
(a) is taken in
terms of legislation; or
(b) has legal consequences.
(2) A written
decision by the President must be countersigned by another Cabinet member
if that decision concerns a function assigned to that other Cabinet
member.
(3) Proclamations, regulations and other instruments of
subordinate legislation must be accessible to the public.
(4) National
legislation may specify the manner in which, and the extent to which,
instruments mentioned in subsection (3) must be -
(a) tabled in
Parliament; and
(b) approved by Parliament.
(1) If
the National Assembly, by a vote supported by a majority of its members,
passes a motion of no confidence in the Cabinet excluding the President,
the President must reconstitute the Cabinet.
(2)If the National
Assembly, by a vote supported by a majority of its members, passes a
motion of no confidence in the President, the President and the other
members of the Cabinet and any Deputy Ministers must resign.
(1) The Republic has
the following provinces:
(a) Eastern Cape
(b) Free State
(c)
Gauteng
(d) KwaZulu-Natal
(e) Mpumalanga
(f) Northern Cape
(g)
Northern Province
(h) North West
(i) Western Cape.
(2) The
boundaries of the provinces are those that existed when the Constitution
took effect.
(1) The legislative authority of a province is vested
in its provincial legislature, and confers on the provincial legislature
the power -
(a) to pass a constitution for its province or to amend any
constitution passed by it in terms of sections 142 and 143;
(b) to pass
legislation for its province with regard to -
(i) any matter within a
functional area listed in Schedule 4;
(ii) any matter within a
functional area listed in Schedule 5;
(iii) any matter outside those
functional areas, and that is expressly assigned to the province by
national legislation; and
(iv) any matter for which a provision of the
Constitution envisages the enactment of provincial legislation; and
(c)
to assign any of its legislative powers to a Municipal Council in that
province.
(2) The legislature of a province, by a resolution adopted
with a supporting vote of at least two thirds of its members, may request
Parliament to change the name of that province.
(3) A provincial
legislature is bound only by the Constitution and, if it has passed a
constitution for its province, also by that constitution, and must act in
accordance with, and within the limits of, the Constitution and that
provincial constitution.
(4) Provincial legislation with regard to a
matter that is reasonably necessary for, or incidental to, the effective
exercise of a power concerning any matter listed in Schedule 4, is for all
purposes legislation with regard to a matter listed in Schedule 4.
(5)
A provincial legislature may recommend to the National Assembly
legislation concerning any matter outside the authority of that
legislature, or in respect of which an Act of Parliament prevails over a
provincial law.
(1) A provincial legislature consists of women and
men elected as members in terms of an electoral system that -
(a) is
prescribed by national legislation;
(b) is based on that province's
segment of the national common voters roll;
(c) provides for a minimum
voting age of 18 years; and
(d) results, in general, in proportional
representation.
(2) A provincial legislature consists of between 30 and
80 members. The number of members, which may differ among the provinces,
must be determined in terms of a formula prescribed by national
legislation.
(1) Every citizen
who is qualified to vote for the National Assembly is eligible to be a
member of a provincial legislature, except -
(a) anyone who is
appointed by, or is in the service of, the state and receives remuneration
for that appointment or service, other than -
(i) the Premier and other
members of the Executive Council of a province; and
(ii) other
office-bearers whose functions are compatible with the functions of a
member of a provincial legislature, and have been declared compatible with
those functions by national legislation;
(b) members of the National
Assembly, permanent delegates to the National Council of Provinces or
members of a Municipal Council;
(c) unrehabilitated insolvents;
(d)
anyone declared to be of unsound mind by a court of the Republic;
or
(e) anyone who, after this section took effect, is convicted of an
offence and sentenced to more than 12 months" imprisonment without the
option of a fine, either in the Republic, or outside the Republic if the
conduct constituting the offence would have been an offence in the
Republic, but no one may be regarded as having been sentenced until an
appeal against the conviction or sentence has been determined, or until
the time for an appeal has expired. A disqualification under this
paragraph ends five years after the sentence has been completed.
(2) A
person who is not eligible to be a member of a provincial legislature in
terms of subsection (1) (a) or (b) may be a candidate for the legislature,
subject to any limits or conditions established by national
legislation.
(3) A person loses membership of a provincial legislature
if that
person -
(a) ceases to be eligible; 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 in a provincial legislature must be filled in terms of national
legislation.
Before
members of a provincial legislature begin to perform their functions in
the legislature, they must swear or affirm faithfulness to the Republic
and obedience to the Constitution, in accordance with Schedule 2.
(1) A provincial legislature is elected for a term
of five years.
(2) If a provincial legislature is dissolved in terms of
section 109, or when its term expires, the Premier of the province, by
proclamation, must call and set dates for an election, which must be held
within 90 days of the date the legislature was dissolved or its term
expired.
(3) If the result of an election of a provincial legislature
is not declared within the period referred to in section 190, or if an
election is set aside by a court, the President, by proclamation, must
call and set dates for another election, which must be held within 90 days
of the expiry of that period or of the date on which the election was set
aside.
(4) A provincial legislature remains competent to function from
the time it is dissolved or its term expires, until the day before the
first day of polling for the next legislature.
(1) The Premier of a province must
dissolve the provincial legislature if -
(a) the legislature has
adopted a resolution to dissolve with a supporting vote of a majority of
its members; and
(b) three years have passed since the legislature was
elected.
(2) An Acting Premier must dissolve the provincial legislature
if -
(a) there is a vacancy in the office of Premier; and
(b) the
legislature fails to elect a new Premier within 30 days after the vacancy
occurred.
(1)
After an election, the first sitting of a provincial legislature must take
place at a time and on a date determined by a judge designated by the
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 special business.
(3) A
provincial legislature may determine where it ordinarily will sit.
(1) At the first sitting after its election, or when
necessary to fill a vacancy, a provincial legislature must elect a Speaker
and a Deputy Speaker from among its members.
(2) A judge designated by
the 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 Part A of Schedule 3 applies to
the election of Speakers and Deputy Speakers.
(4) A provincial
legislature may remove its Speaker or Deputy Speaker from office by
resolution. A majority of the members of the legislature must be present
when the resolution is adopted.
(5) In terms of its rules and orders, a
provincial legislature may elect from among its members other presiding
officers to assist the Speaker and the Deputy Speaker.
(1) Except where the
Constitution provides otherwise -
(a) a majority of the members of a
provincial legislature must be present before a vote may be taken on a
Bill or an amendment to a Bill;
(b) at least one third of the members
must be present before a vote may be taken on any other question before
the legislature; and
(c) all questions before a provincial legislature
are decided by a majority of the votes cast.
(2) The member presiding
at a meeting of a provincial legislature has no deliberative vote, but
-
(a) must cast a deciding vote when there is an equal number of votes
on each side of a question; and
(b) may cast a deliberative vote when a
question must be decided with a supporting vote of at least two thirds of
the members of the legislature.
A province's permanent delegates to the National
Council of Provinces may attend, and may speak in, their provincial
legislature and its committees, but may not vote. The legislature may
require a permanent delegate to attend the legislature or its committees.
(1) In exercising its legislative power, a
provincial legislature may -
(a) consider, pass, amend or reject any
Bill before the legislature; and
(b) initiate or prepare legislation,
except money Bills.
(2) A provincial legislature must provide for
mechanisms -
(a) to ensure that all provincial executive organs of
state in the province are accountable to it; and
(b) to maintain
oversight of -
(i) the exercise of provincial executive authority in
the province, including the implementation of legislation; and
(ii) any
provincial organ of state.
A provincial legislature or any of its committees
may -
(a) summon any person to appear before it to give evidence on
oath or affirmation, or to produce documents;
(b) require any person or
provincial institution to report to it;
(c) compel, in terms of
provincial legislation or the rules and orders, any person or institution
to comply with a summons or requirement in terms of paragraph (a) or (b);
and
(d) receive petitions, representations or submissions from any
interested persons or institutions.
(1) A provincial
legislature may -
(a) determine and control its internal arrangements,
proceedings and procedures; and
(b) make rules and orders concerning
its business, with due regard to representative and participatory
democracy, accountability, transparency and public involvement.
(2) The
rules and orders of a provincial legislature must provide for -
(a) the
establishment, composition, powers, functions, procedures and duration of
its committees;
(b) the participation in the proceedings of the
legislature and its committees of minority parties represented in the
legislature, in a manner consistent with democracy;
(c) financial and
administrative assistance to each party represented in the legislature, in
proportion to its representation, to enable the party and its leader to
perform their functions in the legislature effectively; and
(d) the
recognition of the leader of the largest opposition party in the
legislature, as the Leader of the Opposition.
(1) Members of a
provincial legislature and the province's permanent delegates to the
National Council of Provinces -
(a) have freedom of speech in the
legislature and in its committees, subject to its rules and orders;
and
(b) are not liable to civil or criminal proceedings, arrest,
imprisonment or damages for -
(i) anything that they have said in,
produced before or submitted to the legislature or any of its committees;
or
(ii) anything revealed as a result of anything that they have said
in, produced before or submitted to the legislature or any of its
committees.
(2) Other privileges and immunities of a provincial
legislature and its members may be prescribed by national
legislation.
(3) Salaries, allowances and benefits payable to members
of a provincial legislature are a direct charge against the Provincial
Revenue Fund.
(1) A provincial legislature must
-
(a) facilitate public involvement in the legislative and other
processes of the legislature and its committees; and
(b) conduct its
business in an open manner, and hold its sittings, and those of its
committees, in public, but reasonable measures may be taken -
(i) to
regulate public access, including access of the media, to the legislature
and its committees; and
(ii) to provide for the searching of any person
and, where appropriate, the refusal of entry to,or the removal of, any
person.
(2) A provincial legislature may not exclude the public,
including the media, from a sitting of a committee unless it is reasonable
and justifiable to do so in an open and democratic society.
Only
members of the Executive Council of a province or a committee or member of
a provincial legislature may introduce a Bill in the legislature; but only
the member of the Executive Council who is responsible for financial
matters in the province may introduce a money Bill in the legislature.
(1) A Bill that
appropriates money or imposes taxes, levies or
duties is a money Bill.
A money Bill may not deal with any other matter except a subordinate
matter incidental to the appropriation of money or the imposition of
taxes, levies or duties.
(2) A provincial Act must provide for a
procedure by which the province's legislature may amend a money Bill.
(1) The Premier
of a province must either assent to and sign a Bill passed by the
provincial legislature in terms of this Chapter or, if the Premier has
reservations about the constitutionality of the Bill, refer it back to the
legislature for reconsideration.
(2) If, after reconsideration, a Bill
fully accommodates the Premier's reservations, the Premier must assent to
and sign the Bill; if not, the Premier must either -
(a) assent to and
sign the Bill; or
(b) refer it to the Constitutional Court for a
decision on its constitutionality.
(3) If the Constitutional Court
decides that the Bill is constitutional, the Premier must assent to and
sign it.
(1) Members of a provincial legislature may apply to the
Constitutional Court for an order declaring that all or part of a
provincial Act is unconstitutional.
(2) An application -
(a) must be
supported by at least 20 per cent of the members of the legislature;
and
(b) must be made within 30 days of the date on which the Premier
assented to and signed the Act.
(3) The Constitutional Court may order
that all or part of an Act that is the subject of an application in terms
of subsection (1) has no force until the Court has decided the application
if -
(a) the interests of justice require this; and
(b) the
application has a reasonable prospect of success.
(4) If an application
is unsuccessful, and did not have a reasonable prospect of success, the
Constitutional Court may order the applicants to pay costs.
A Bill assented to and signed by the Premier of a province
becomes a provincial Act, must be published promptly and takes effect when
published or on a date determined in terms of the Act.
The signed copy of a provincial Act is conclusive evidence
of the provisions of that Act and, after publication, must be entrusted to
the Constitutional Court for safekeeping .
(1) The executive authority of a province is vested
in the Premier of that province.
(2) The Premier exercises the
executive authority, together with the other members of the Executive
Council, by -
(a) implementing provincial legislation in the
province;
(b) implementing all national legislation within the
functional areas listed in Schedule 4 or 5 except where the Constitution
or an Act of Parliament provides otherwise;
(c) administering in the
province, national legislation outside the functional areas listed in
Schedules 4 and 5, the administration of which has been assigned to the
provincial executive in terms of an Act of Parliament;
(d) developing
and implementing provincial policy;
(e) co-ordinating the functions of
the provincial administration and its departments;
(f) preparing and
initiating provincial legislation; and
(g) performing any other
function assigned to the provincial executive in terms of the Constitution
or an Act of Parliament.
(3) A province has executive authority in
terms of subsection (2) (b) only to the extent that the province has the
administrative capacity to assume effective responsibility. The national
government, by legislative and other measures, must assist provinces to
develop the administrative capacity required for the effective exercise of
their powers and performance of their functions referred to in subsection
(2).
(4) Any dispute concerning the administrative capacity of a
province in regard to any function must be referred to the National
Council of Provinces for resolution within 30 days of the date of the
referral to the Council.
(5) Subject to section 100, the implementation
of provincial legislation in a province is an exclusive provincial
executive power.
(6) The provincial executive must act in accordance
with -
(a) the Constitution; and
(b) the provincial constitution, if
a constitution has been passed for the province.
A
member of the Executive Council of a province may assign any power or
function that is to be exercised or performed in terms of an Act of
Parliament or a provincial Act, to a Municipal Council. An assignment
-
(a) must be in terms of an agreement between the relevant Executive
Council member and the Municipal Council;
(b) must be consistent with
the Act in terms of which the relevant power or function is exercised or
performed; and
(c) takes effect upon proclamation by the Premier.
(1) The Premier of a province has the powers and
functions entrusted to that office by the Constitution and any
legislation.
(2) The Premier of a province is responsible for -
(a)
assenting to and signing Bills;
(b) referring a Bill back to the
provincial legislature for reconsideration of the Bill's
constitutionality;
(c) referring a Bill to the Constitutional Court for
a decision on the Bill's constitutionality;
(d) summoning the
legislature to an extraordinary sitting to conduct special
business;
(e) appointing commissions of inquiry; and
(f) calling a
referendum in the province in accordance with national legislation.
(1) At its
first sitting after its election, and whenever necessary to fill a
vacancy, a provincial legislature must elect a woman or a man from among
its members to be the Premier of the province.
(2) A judge designated
by the President of the Constitutional Court must preside over the
election of the Premier. The procedure set out in Part A of Schedule 3
applies to the election of the Premier.
(3) An election to fill a
vacancy in the office of Premier must be held at a time and on a date
determined by the President of the Constitutional Court, but not later
than 30 days after the vacancy occurs.
A Premier-elect must assume office within five days of
being elected, by swearing or affirming faithfulness to the Republic and
obedience to the Constitution, in accordance with Schedule 2.
(1) A Premier's term of office begins when the Premier
assumes office and ends upon a vacancy occurring or when the person next
elected Premier assumes office.
(2) No person may hold office as
Premier for more than two terms, but when a person is elected to fill a
vacancy in the office of Premier, the period between that election and the
next election of a Premier is not regarded as a term.
(3) The
legislature of a province, by a resolution adopted with a supporting vote
of at least two thirds of its members, may remove the Premier from office
only on the grounds of -
(a) a serious violation of the Constitution or
the law;
(b) serious misconduct; or
(c) inability to perform the
functions of office.
(4) Anyone who has been removed from the office of
Premier in terms of subsection (3) (a) or (b) may not receive any benefits
of that office, and may not serve in any public office.
(1) When the
Premier is absent or otherwise unable to fulfil the duties of the office
of Premier, or during a vacancy in the office of Premier, an office-bearer
in the order below acts as the Premier:
(a) A member of the Executive
Council designated by the Premier.
(b) A member of the Executive
Council designated by the other members of the Council.
(c) The
Speaker, until the legislature designates one of its other members.
(2)
An Acting Premier has the responsibilities, powers and functions of the
Premier.
(3) Before assuming the responsibilities, powers and,
functions of the Premier, the Acting Premier must swear or affirm
faithfulness to the Republic and obedience to the Constitution, in
accordance with Schedule 2.
(1) The
Executive Council of a province consists of the Premier, as head of the
Council, and no fewer than five and no more than ten members appointed by
the Premier from among the members of the provincial legislature.
(2)
The Premier of a province appoints the members of the Executive Council,
assigns their powers and functions, and may dismiss them.
(1) The members of the Executive Council of a
province are responsible for the functions of the executive assigned to
them by the Premier.
(2) Members of the Executive Council of a province
are accountable collectively and individually to the legislature for the
exercise of their powers and the performance of their functions.
(3)
Members of the Executive Council of a province must -
(a) act in
accordance with the Constitution and, if a provincial consitution has been
passed for the province, also that constitution; and
(b) provide the
legislature with full and regular reports concerning matters under their
control.
When an election of a provincial legislature is held,
the Executive Council and its members remain competent to function until
the person elected Premier by the next legislature assumes office.
Before
members of the Executive Council of a province begin to perform their
functions, they must swear or affirm faithfulness to the Republic and
obedience to the Constitution, in accordance with Schedule 2.
(1) Members of the Executive Council of a province
must act in accordance with a code of ethics prescribed by national
legislation.
(2) Members of the Executive Council of a province may not
-
(a) undertake any other paid work;
(b) act in any way that is
inconsistent with their office, or expose themselves to any situation
involving the risk of a conflict between their official responsibilities
and private interests; or
(c) use their position or any information
entrusted to them, to enrich themselves or improperly benefit any other
person.
The
Premier by proclamation may transfer to a member of the Executive Council
-
(a) the administration of any legislation entrusted to another
member; or
(b) any power or function entrusted by legislation to
another member.
The Premier of a province may assign to a member of
the Executive Council any power or function of another member who is
absent from office or is unable to exercise that power or perform that
function.
(1) When a municipality cannot or does not fulfil an
executive obligation in terms of legislation, the relevant provincial
executive may intervene by taking any appropriate steps to ensure
fulfilment of that obligation, including -
(a) issuing a directive to
the Municipal Council, describing the extent of the failure to fulfil its
obligations and stating any steps required to meet its obligations;
and
(b) assuming responsibility for the relevant obligation in that
municipality to the extent necessary -
(i) to maintain essential
national standards or meet established minimum standards for the rendering
of a service;
(ii) to prevent that Municipal Council from taking
unreasonable action that is prejudicial to the interests of another
municipality or to the province as a whole; or
(iii) to maintain
economic unity.
(2) If a provincial executive intervenes in a
municipality in terms of subsection (1)(b) -
(a) the intervention must
end unless it is approved by the Cabinet member responsible for local
government affairs within 14 days of the intervention;
(b) notice of
the intervention must be tabled in the provincial legislature and in the
National Council of Provinces within 14 days of their respective first
sittings after the intervention began;
(c) the intervention must end
unless it is approved by the Council within 30 days of its first sitting
after the intervention began; and
(d) the Council must review the
intervention regularly and make any appropriate recommendations to the
provincial executive.
(3) National legislation may regulate the process
established by this section.
(1) A
decision by the Premier of a province must be in writing if it -
(a) is
taken in terms of legislation; or
(b) has legal consequences.
(2) A
written decision by the Premier must be countersigned by another Executive
Council member if that decision concerns a function assigned to that other
member.
(3) Proclamations, regulations and other instruments of
subordinate legislation of a province must be accessible to the
public.
(4) Provincial legislation may specify the manner in which, and
the extent to which, instruments mentioned in subsection (3) must
be
-
(a) tabled in the provincial legislature; and
(b) approved by the
provincial legislature.
(1) If
a provincial legislature, by a vote supported by a majority of its
members, passes a motion of no confidence in the province's Executive
Council excluding the Premier, the Premier must reconstitute the
Council.
(2) If a provincial legislature, by a vote supported by a
majority of its members, passes a motion of no confidence in the Premier,
the Premier and the other members of the Executive Council must resign.
A provincial legislature may pass a constitution
for the province or, where applicable, amend its constitution, if at least
two thirds of its members vote in favour of the Bill.
(1) A provincial constitution, or constitutional
amendment, must not be inconsistent with this Constitution, but may
provide for -
(a) provincial legislative or executive structures and
procedures that differ from those provided for in this Chapter; or
(b)
the institution, role, authority and status of a traditional monarch,
where applicable.
(2) Provisions included in a provincial constitution
or constitutional amendment in terms of paragraphs (a) or (b) of
subsection (1) -
(a) must comply with the values in section 1 and with
Chapter 3 ; and
(b) may not confer on the province any power or
function that falls -
(i) outside the area of provincial competence in
terms of Schedules 4 and 5; or
(ii) outside the powers and functions
conferred on the province by other sections of the Constitution.
(1) If a provincial legislature has passed or
amended a constitution, the Speaker of the legislature must submit the
text of the constitution or constitutional amendment to the Constitutional
Court for certification.
(2) No text of a provincial constitution or
constitutional amendment becomes law until the Constitutional Court has
certified -
(a) that the text has been passed in accordance with
section 142; and
(b) that the whole text complies with section 143.
(1) The Premier of a province must
assent to and sign the text of a provincial constitution or constitutional
amendment that has been certified by the Constitutional Court.
(2) The
text assented to and signed by the Premier must be published in the
national Government Gazette and takes effect on publication or on a later
date determined in terms of that constitution or amendment.
(3) The
signed text of a provincial constitution or constitutional amendment is
conclusive evidence of its provisions and, after publication, must be
entrusted to the Constitutional Court for safekeeping.
(1) This section applies to a conflict between
national legislation and provincial legislation falling within a
functional area listed in Schedule 4.
(2) National legislation that
applies uniformly with regard to the country as a whole prevails over
provincial legislation if any of the following conditions is met:
(a)
The national legislation deals with a matter that cannot be regulated
effectively by legislation enacted by the respective provinces
individually.
(b) The national legislation deals with a matter that, to
be dealt with effectively, requires uniformity across the nation, and the
national legislation provides that uniformity by establishing -
(i)
norms and standards;
(ii) frameworks; or
(iii) national
policies.
(c) The national legislation is necessary for -
(i) the
maintenance of national security;
(ii) the maintenance of economic
unity;
(iii) the protection of the common market in respect of the
mobility of goods, services, capital and labour;
(iv) the promotion of
economic activities across provincial boundaries;
(v) the promotion of
equal opportunity or equal access to government services; or
(vi) the
protection of the environment.
(3) National legislation prevails over
provincial legislation if the national legislation is aimed at preventing
unreasonable action by a province that -
(a) is prejudicial to the
economic, health or security interests of another province or the country
as a whole; or
(b) impedes the implementation of national economic
policy.
(4) When there is a dispute concerning whether national
legislation is necessary for a purpose set out in subsection (2)(c) and
that dispute comes before a court for resolution, the court must have due
regard to the approval or the rejection of the legislation by the National
Council of Provinces.
(5) Provincial legislation prevails over national
legislation if subsection (2) or (3) does not apply.
(6) A law made in
terms of an Act of Parliament or a provincial Act can prevail only if that
law has been approved by the National Council of Provinces.
(7) If the
National Council of Provinces does not reach a decision within 30 days of
its first sitting after a law was referred to it, that law must be
considered for all purposes to have been approved by the Council.
(8)
If the National Council of Provinces does not approve a law referred to in
subsection (6), it must, within 30 days of its decision, forward reasons
for not approving the law to the authority that referred the law to it.
(1) If there is
a conflict between national legislation and a provision of a provincial
constitution with regard to -
(a) a matter, concerning which this
Constitution specifically requires or envisages the enactment of national
legislation, the national legislation prevails over the affected provision
of the provincial constitution;
(b) national legislative intervention
in terms of section 44(2), the national legislation prevails over the
provision of the provincial constitution; or
(c) a matter within a
functional area listed in Schedule 4, section 146 applies as if the
affected provision of the provincial constitution were provincial
legislation referred to in that section.
(2) National legislation
referred to in section 44(2) prevails over provincial legislation in
respect of matters within the functional areas listed in Schedule 5.
If a dispute concerning a conflict cannot be resolved
by a court, the national legislation prevails over the provincial
legislation or provincial constitution.
A decision by a court that legislation prevails over
other legislation does not invalidate that other legislation, but that
other legislation becomes inoperative for as long as the conflict remains.
When considering an apparent conflict between
national and provincial legislation, or between national legislation and a
provincial constitution, every court must prefer any reasonable
interpretation of the legislation or constitution that avoids a conflict,
over any alternative interpretation that results in a conflict.
(1)
The local sphere of government
(2) The executive and legislative authority of a
municipality is vested in its Municipal Council.
(3) A municipality has
the right to govern, on its own initiative, the local government affairs
of its community, subject to national and provincial legislation, as
provided for in the Constitution.
(4) The national or a provincial
government may not compromise or impede a municipality's ability or right
to exercise its powers or perform its functions.
(1)
The objects of local government are:
(a) To provide democratic and
accountable government for local communities;
(b) to ensure the
provision of services to communities in a sustainable manner;
(c) to
promote social and economic development;
(d) to promote a safe and
healthy environment; and
(e) to encourage the involvement of
communities and community organisations in the matters of local
government.
(2) A municipality must strive, within its financial and
administrative capacity, to achieve the objects set out in subsection (1).
A municipality must -
(a) structure and
manage its administration, and budgeting and planning processes to give
priority to the basic needs of the community, and to promote the social
and economic development of the community; and
(b) participate in
national and provincial development programmes.
(1) The national government and provincial
governments, by legislative and other measures, must support and
strengthen the capacity of municipalities to manage their own affairs, to
exercise their powers and to perform their functions.
(2) Draft
national or provincial legislation that affects the status, institutions,
powers or functions of local government must be published for public
comment before it is introduced in Parliament or a provincial legislature,
in a manner that allows organised local government, municipalities and
other interested persons an opportunity to make representations with
regard to the draft legislation.
(1) There are the following categories of
municipality:
(a) Category A: A municipality that has exclusive
municipal executive and legislative authority in its area.
(b)
Category B: A municipality that shares municipal executive and
legislative authority in its area with a category C municipality within
whose area it falls.
(c) Category C: A municipality that has
municipal executive and legislative authority in an area that includes
more than one municipality.
(2) National legislation must define the
different types of municipality that may be established within each
category.
(3) National legislation must -
(a) establish the criteria
for determining when an area should have a single category A municipality
or when it should have municipalities of both category B and category
C;
(b) establish criteria and procedures for the determination of
municipal boundaries by an independent authority; and
(c) subject to
section 229, make provision for an appropriate division of powers and
functions between municipalities when an area has municipalities of both
category B and category C. A division of powers and functions between a
category B municipality and a category C municipality may differ from the
division of powers and functions between another category B municipality
and that category C municipality.
(4) The legislation referred to in
subsection (3) must take into account the need to provide municipal
services in an equitable and sustainable manner.
(5) Provincial
legislation must determine the different types of municipality to be
established in the province.
(6) Each provincial government must
establish municipalities in its province in a manner consistent with the
legislation enacted in terms of subsections (2) and (3) and, by
legislative or other measures, must -
(a) provide for the monitoring
and support of local government in the province; and
(b) promote the
development of local government capacity to enable municipalities to
perform their functions and manage their own affairs.
(7) The national
government, subject to section 44, and the provincial governments have the
legislative and executive authority to see to the effective performance by
municipalities of their functions in respect of matters listed in
Schedules 4 and 5, by regulating the exercise by municipalities of their
executive authority referred to in section 156(1).
(1) A municipality has executive authority in
respect of, and has the right to administer -
(a) the local government
matters listed in Part B of Schedule 4 and Part B of Schedule 5;
and
(b) any other matter assigned to it by national or provincial
legislation.
(2) A municipality may make and administer by-laws for the
effective administration of the matters which it has the right to
administer.
(3) Subject to section 151(4), a by-law that conflicts with
national or provincial legislation is invalid. If there is a conflict
between a by-law and national or provincial legislation that is
inoperative because of a conflict referred to in section 149, the by-law
must be regarded as valid for as long as that legislation is
inoperative.
(4) The national government and provincial governments
must assign to a municipality, by agreement and subject to any conditions,
the administration of a matter listed in Part A of Schedule 4 or Part A of
Schedule 5 which necessarily relates to local government, if -
(a) that
matter would most effectively be administered locally; and
(b) the
municipality has the capacity to administer it.
(5) A municipality has
the right to exercise any power concerning a matter reasonably necessary
for, or incidental to, the effective performance of its functions.
(1) A Municipal Council consists of -
(a) members
elected in accordance with subsections (2), (3), (4) and (5); or
(b) if
provided for by national legislation -
(i) members appointed by other
Municipal Councils to represent those other Councils; or
(ii) both
members elected in accordance with paragraph (a) and members appointed in
accordance with subparagraph (i) of this paragraph.
(2) The election of
members to a Municipal Council as anticipated in subsection (1)(a) must be
in accordance with national legislation, which must prescribe a system
-
(a) of proportional representation based on that municipality's
segment of the national common voters roll, and which provides for the
election of members from lists of party candidates drawn up in a party's
order of preference; or
(b) of proportional representation as described
in paragraph (a) combined with a system of ward representation based on
that municipality's segment of the national common voters roll.
(3) An
electoral system in terms of subsection (2) must ensure that the total
number of members elected from each party reflects the total proportion of
the votes recorded for those parties.
(4) If the electoral system
includes ward representation, the delimitation of wards must be done by an
independent authority appointed in terms of, and operating according to,
procedures and criteria prescribed by national legislation.
(5) A
person may vote in a municipality only if that person is registered on
that municipality's segment of the national common voters roll.
(6) The
national legislation referred to in subsection (1)(b) must establish a
system that allows for parties and interests reflected within the
Municipal Council making the appointment, to be fairly represented in the
Municipal Council to which the appointment is made.
(1) Every citizen who is qualified to vote for a
Municipal Council is eligible to be a member of that Council, except
-
(a) anyone who is appointed by, or is in the service of, the
municipality and receives remuneration for that appointment or service,
and who has not been exempted from this disqualification in terms of
national legislation;
(b) anyone who is appointed by, or is in the
service of, the state in another sphere, and receives remuneration for
that appointment or service, and who has been disqualified from membership
of a Municipal Council in terms of national legislation;
(c) anyone who
is disqualified from voting for the National Assembly or is disqualified
in terms of section 47(1)(c), (d) or (e) from being a member of the
Assembly;
(d) a member of the National Assembly, a delegate to the
National Council of Provinces or a member of a provincial legislature; but
this disqualification does not apply to a member of a Municipal Council
representing local government in the National Council; or
(e) a member
of another Municipal Council; but this disqualification does not apply to
a member of a Municipal Council representing that Council in another
Municipal Council of a different category.
(2) A person who is not
eligible to be a member of a Municipal Council in terms of subsection
(1)(a), (b),(d) or (e) may be a candidate for the Council, subject to any
limits or conditions established by national legislation.
The
term of a Municipal Council may be no more than four years, as determined
by national legislation.
(1) A
Municipal Council -
(a) makes decisions concerning the exercise of all
the powers and the performance of all the functions of the
municipality;
(b) must elect its chairperson;
(c) may elect an
executive committee and other committees, subject to national legislation;
and
(d) may employ personnel that are necessary for the effective
performance of its functions.
(2) The following functions may not be
delegated by a Municipal Council:
(a) The passing of by-laws;
(b)
the approval of budgets;
(c) the imposition of rates and other taxes,
levies and duties; and
(d) the raising of loans.
(3) (a) A majority
of the members of a Municipal Council must be present before a vote may be
taken on any matter.
(b) All questions concerning matters mentioned in
subsection (2) are determined by a decision taken by a Municipal Council
with a supporting vote of a majority of its members.
(c) All other
questions before a Municipal Council are decided by a majority of the
votes cast.
(4) No by-law may be passed by a Municipal Council unless
-
(a) all the members of the Council have been given reasonable notice;
and
(b) the proposed by-law has been published for public
comment.
(5) National legislation may provide criteria for determining
-
(a) the size of a Municipal Council;
(b) whether Municipal
Councils may elect an executive committee or any other committee;
or
(c) the size of the executive committee or any other committee of a
Municipal Council;
(6) A Municipal Council may make by-laws which
prescribe rules and orders for -
(a) its internal arrangements;
(b)
its business and proceedings; and
(c) the establishment, composition,
procedures, powers and functions of its committees.
(7) A Municipal
Council must conduct its business in an open manner, and may close its
sittings, or those of its committees, only when it is reasonable to do so
having regard to the nature of the business being transacted.
(8)
Members of a Municipal Council are entitled to participate in its
proceedings and those of its committees in a manner that -
(a) allows
parties and interests reflected within the Council to be fairly
represented;
(b) is consistent with democracy; and
(c) may be
regulated by national legislation.
Provincial
legislation within the framework of national legislation may provide for
privileges and immunities of Municipal Councils and their members.
(1) A municipal by-law may be enforced only after it
has been published in the official gazette of the relevant
province.
(2) A provincial official gazette must publish a municipal
by-law upon request by the municipality.
(3) Municipal by-laws must be
accessible to the public.
An
Act of Parliament enacted in accordance with the procedure established by
section 76 must -
(a) provide for the recognition of national and
provincial organisations representing municipalities; and
(b) determine
procedures by which local government may -
(i) consult with the
national or a provincial government;
(ii) designate representatives to
participate in the National Council of Provinces; and
(iii) nominate
persons to the Financial and Fiscal Commission.
Any matter
concerning local government not dealt with in the Constitution may be
prescribed by national legislation or by provincial legislation within the
framework of national legislation.
(1) The
judicial authority of the Republic is vested in the courts
(2) The courts are independent
(3) No person or organ of state may
interfere with the functioning of the courts.
(4) Organs of state,
through legislative and other measures, must assist and protect the courts
to ensure the independence, impartiality, dignity, accessibility and
effectiveness of the courts.
(5) An order or decision issued by a court
binds all persons to whom and organs of state to which it applies.
The courts are
-
(a) the Constitutional Court;
(b) the Supreme Court of
Appeal;
(c) the High Courts, including any high court of appeal that
may be established by an Act of Parliament to hear appeals from High
Courts;
(d) the Magistrates" Courts; and
(e) any other court
established or recognised in terms of an Act of Parliament, including any
court of a status similar to either the High Courts or the Magistrates"
Courts.
(1) The
Constitutional Court
(2) A matter
before the Constitutional Court must be heard by at least eight
judges.
(3) The Constitutional Court -
(a) is the highest court in
all constitutional matters;
(b) may decide only constitutional matters,
and issues connected with decisions on constitutional matters; and
(c)
makes the final decision whether a matter is a constitutional matter or
whether an issue is connected with a decision on a constitutional
matter.
(4) Only the Constitutional Court may -
(a) decide disputes
between organs of state in the national or provincial sphere concerning
the constitutional status, powers or functions of any of those organs of
state;
(b) decide on the constitutionality of any parliamentary or
provincial Bill, but may do so only in the circumstances anticipated in
section 79 or 121;
(c) decide applications envisaged in section 80 or
122;
(d) decide on the constitutionality of any amendment to the
Constitution;
(e) decide that Parliament or the President has failed to
fulfil a constitutional obligation; or
(f) certify a provincial
constitution in terms of section 144.
(5) The Constitutional Court
makes the final decision whether an Act of Parliament, a provincial Act or
conduct of the President is constitutional, and must confirm any order of
invalidity made by the Supreme Court of Appeal, a High Court, or a court
of similar status, before that order has any force.
(6) National
legislation or the rules of the Constitutional Court must allow a person,
when it is in the interests of justice and with leave of the
Constitutional Court -
(a) to bring a matter directly to the
Constitutional Court; or
(b) to appeal directly to the Constitutional
Court from any other court.
(7) A constitutional matter includes any
issue involving the interpretation, protection or enforcement of the
Constitution.
(1) The
Supreme Court of Appeal consists of a 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.
A High Court may
decide -
(a) any constitutional matter except a matter that -
(i)
only the Constitutional Court may decide; or
(ii) is assigned by an Act
of Parliament to another court of a status similar to a High Court;
and
(b) any other matter not assigned to another court by an Act of
Parliament.
Magistrates" Courts and all other courts may decide any
matter determined by an Act of Parliament, but a court of a status lower
than a High Court may not enquire into or rule on the constitutionality of
any legislation or any conduct of the President.
All courts
function in terms of national legislation, and their rules and procedures
must be provided for in terms of national legislation.
(1) When deciding a constitutional matter within its
power, a court -
(a) must declare that any law or conduct that is
inconsistent with the Constitution is invalid to the extent of its
inconsistency; and
(b) may make any order that is just and equitable,
including -
(i) an order limiting the retrospective effect of the
declaration of invalidity; and
(ii) an order suspending the declaration
of invalidity for any period and on any conditions, to allow the competent
authority to correct the defect.
(2) (a) The Supreme Court of Appeal, a
High Court or a court of similar status may make an order concerning the
constitutional validity of an Act of Parliament, a provincial Act or any
conduct of the President, but an order of constitutional invalidity has no
force unless it is confirmed by the Constitutional Court.
(b) A court
which makes an order of constitutional invalidity may grant a temporary
interdict or other temporary relief to a party, or may adjourn the
proceedings, pending a decision of the Constitutional Court on the
validity of that Act or conduct.
(c) National legislation must provide
for the referral of an order of constitutional invalidity to the
Constitutional Court.
(d) Any person or organ of state with a
sufficient interest may appeal, or apply, directly to the Constitutional
Court to confirm or vary an order of constitutional invalidity by a court
in terms of this subsection.
The
Constitutional Court, Supreme Court of Appeal and High Courts have the
inherent power to protect and regulate their own process, and to develop
the common law, taking into account the interests of justice.
(1) Any appropriately qualified woman or man who is a
fit and proper person may be appointed as a judicial officer. Any person
to be appointed to the Constitutional Court must also be a South African
citizen.
(2) The need for the judiciary to reflect broadly the racial
and gender composition of South Africa must be considered when judicial
officers are appointed.
(3) The President as head of the national
executive, after consulting the Judicial Service Commission and the
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 which must
ensure that the appointment, promotion, transfer or dismissal of, or
disciplinary steps against, these judicial officers take place without
favour or prejudice.
(8) Before judicial officers begin to perform
their functions, they must take an oath or affirm, in accordance with
Schedule 2, that they will uphold and protect the Constitution.
(1) The President
may appoint a woman or a man to be an acting judge of the Constitutional
Court if there is a vacancy or if a judge is absent. The appointment must
be made on the recommendation of the Cabinet member responsible for the
administration of justice acting with the concurrence of the 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 consulting the senior judge of the court on which
the acting judge will serve.
(1) A Constitutional Court judge is appointed for
a non-renewable term of 12 years, but must retire at 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.
(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 with a supporting vote
of at least two thirds of its members.
(2) The President must remove a
judge from office upon adoption of a resolution calling for that judge to
be removed.
(3) The President, on the advice of the Judicial Service
Commission, may suspend a judge who is the subject of a procedure in terms
of subsection (1).
(1)
There is a Judicial Service Commission consisting of -
(a) the Chief
Justice, who presides at meetings of the Commission;
(b) the President
of the 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 nominated from within the
advocates" profession to represent the profession as a whole, and
appointed by the President;
(f) two practising attorneys nominated from
within the attorneys" profession to represent the profession as a whole,
and appointed by the President;
(g) one teacher of law designated by
teachers of law at South African universities;
(h) six persons
designated by the National Assembly from among its members, at least three
of whom must be members of opposition parties represented in the
Assembly;
(i) four permanent delegates to the National Council of
Provinces designated together by the Council with a supporting vote of at
least six provinces;
(j) four persons designated by the President as
head of the national executive, after consulting the leaders of all the
parties in the National Assembly; and
(k) when considering matters
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 the number
of persons nominated from within the advocates" or attorneys" profession
in terms of subsection (1)(e) or (f) equals the number of vacancies to be
filled, the President must appoint them. If the number of persons
nominated exceeds the number of vacancies to be filled, the President,
after consulting the relevant profession, must appoint sufficient of the
nominees to fill the vacancies, taking into account the need to ensure
that those appointed represent the profession as a whole.
(3) Members
of the Commission designated by the National Council of Provinces serve
until they are replaced together, or until any vacancy occurs in their
number. Other members who were designated or nominated to the Commission
serve until they are replaced by those who designated or nominated
them.
(4) The Judicial Service Commission has the powers and functions
assigned to it in the Constitution and national legislation.
(5) The
Judicial Service Commission may advise the national government on any
matter relating to the judiciary or the administration of justice, but
when it considers any matter except the appointment of a judge, it must
sit without the members designated in terms of subsection (1) (h) and
(i).
(6) The Judicial Service Commission may determine its own
procedure, but decisions of the Commission must be supported by a majority
of its members.
(1) There
is a single national prosecuting authority in the Republic, structured in
terms of an Act of Parliament, and consisting of -
(a) a National
Director of Public Prosecutions, who is the head of the prosecuting
authority, and is appointed by the President as head of the national
executive; and
(b) Directors of Public Prosecutions and prosecutors as
determined by an Act of Parliament.
(2) The prosecuting authority has
the power to institute criminal proceedings on behalf of the state, and to
carry out any necessary functions incidental to instituting criminal
proceedings.
(3) National legislation must ensure that the Directors of
Public Prosecutions -
(a) are appropriately qualified; and
(b) are
responsible for prosecutions in specific jurisdictions, subject to
subsection (5).
(4) National legislation must ensure that the
prosecuting authority exercises its functions without fear, favour or
prejudice.
(5) The National Director of Public Prosecutions -
(a)
must determine, with the concurrence of the Cabinet member responsible for
the administration of justice, and after consulting the Directors of
Public Prosecutions, prosecution policy which must be observed in the
prosecution process;
(b) must issue policy directives which must be
observed in the prosecution process;
(c) may intervene in the
prosecution process when policy directives are not complied with;
and
(d) may review a decision to prosecute or not to prosecute, after
consulting the relevant Director of Public Prosecutions and after taking
representations within a period specified by the National Director of
Public Prosecutions, from the following:
(i) The accused
person.
(ii) The complainant.
(iii) Any other person or party whom
the National Director considers to be relevant.
(6) The Cabinet member
responsible for the administration of justice must exercise final
responsibility over the prosecuting authority.
(7) All other matters
concerning the prosecuting authority must be determined by national
legislation.
National legislation may provide for any matter
concerning the administration of justice that is not dealt with in the
Constitution, including -
(a) training programmes for judicial
officers;
(b) procedures for dealing with complaints about judicial
officers; and
(c)the participation of people other than judicial
officers in court decisions.
(1) The following state institutions strengthen
constitutional democracy in the Republic:
(a) The Public
Protector.
(b) The Human Rights Commission.
(c) The Commission for
the Promotion and Protection of the Rights of Cultural, Religious and
Linguistic Communities.
(d) The Commission for Gender Equality.
(e)
The Auditor-General.
(f) The Electoral Commission.
(2) These
institutions are independent, and subject only to the Constitution and the
law, and they must be impartial and must exercise their powers and perform
their functions without fear, favour or prejudice.
(3) Other organs of
state, through legislative and other measures, must assist and protect
these institutions to ensure the independence, impartiality, dignity and
effectiveness of these institutions.
(4) No person or organ of state
may interfere with the functioning of these institutions.
(5) These
institutions are accountable to the National Assembly, and must report on
their activities and the performance of their functions to the Assembly at
least once a year.
(1) The Public Protector has the power, as regulated
by national legislation -
(a) to investigate any conduct in state
affairs, or in the public administration in any sphere of government, that
is alleged or suspected to be improper or to result in any impropriety or
prejudice;
(b) to report on that conduct; and
(c) to take
appropriate remedial action.
(2) The Public Protector has the
additional powers and functions prescribed by national legislation.
(3)
The Public Protector may not investigate court decisions.
(4) The
Public Protector must be accessible to all persons and communities.
(5)
Any report issued by the Public Protector must be open to the public
unless exceptional circumstances, to be determined in terms of national
legislation, require that a report be kept confidential.
The Public Protector is
appointed for a non-renewable period of seven years.
(1) The Human Rights Commission must -
(a)
promote respect for human rights and a culture of human rights;
(b)
promote the protection, development and attainment of human rights;
and
(c) monitor and assess the observance of human rights in the
Republic.
(2) The 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 concerning 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.
(1) The
primary objects of the Commission for the Promotion and Protection of the
Rights of Cultural, Religious and Linguistic Communities are -
(a) to
promote respect for the rights of cultural, religious and linguistic
communities;
(b) to promote and develop peace, friendship, humanity,
tolerance and national unity among cultural, religious and linguistic
communities, on the basis of equality, non-discrimination and free
association; and
(c) to recommend the establishment or recognition, in
accordance with national legislation, of a cultural or other council or
councils for a community or communities in South Africa.
(2) The
Commission has the power, as regulated by national legislation, necessary
to achieve its primary objects, including the power to monitor,
investigate, research, educate, lobby, advise and report on issues
concerning the rights of cultural, religious and linguistic
communities.
(3) The Commission may report any matter which falls
within its powers and functions to the Human Rights Commission for
investigation.
(4) The Commission has the additional powers and
functions prescribed by national legislation.
(1)
The number of members of the Commission for the Promotion and Protection
of the Rights of Cultural, Religious and Linguistic Communities and their
appointment and terms of office must be prescribed by national
legislation.
(2) The composition of the Commission must-
(a) be
broadly representative of the main cultural, religious and linguistic
communities in South Africa; and
(b) broadly reflect the gender
composition of South Africa.
(1) The Commission for Gender Equality must promote
respect for gender equality and the protection, development and attainment
of gender equality.
(2) The Commission for Gender Equality has the
power, as regulated by national legislation, necessary to perform its
functions, including the power to monitor, investigate, research, educate,
lobby, advise and report on issues concerning gender equality.
(3) The
Commission for Gender Equality has the additional powers and functions
prescribed by national legislation.
(1) The Auditor-General must audit and report
on the accounts, financial statements and financial management of -
(a)
all national and provincial state departments and administrations;
(b)
all municipalities; and
(c) any other institution or accounting entity
required by national or provincial legislation to be audited by the
Auditor-General.
(2) In addition to the duties prescribed in subsection
(1), and subject to any legislation, the Auditor-General may audit and
report on the accounts, financial statements and financial management of
-
(a) any institution funded from the National Revenue Fund or a
-
Provincial Revenue Fund or by a municipality; or
(b) any
institution that is authorised in terms of any law to receive money for a
public purpose.
(3) The Auditor-General must submit audit reports to
any legislature that has a direct interest in the audit, and to any other
authority prescribed by national legislation. All reports must be made
public.
(4) The Auditor-General has the additional powers and functions
prescribed by national legislation.
The Auditor-General must
be appointed for a fixed, non-
renewable term of between five and ten
years.
(1) The Electoral Commission must -
(a) manage
elections of national, provincial and municipal legislative bodies in
accordance with national legislation;
(b) ensure that those elections
are free and fair; and
(c) declare the results of those elections
within a period that must be prescribed by national legislation and that
is as short as reasonably possible.
(2) The Electoral Commission has
the additional powers and functions prescribed by national legislation.
The Electoral Commission must be composed of at
least three persons. The number of members and their terms of office must
be prescribed by national legislation.
National
legislation must establish an independent authority to regulate
broadcasting in the public interest, and to ensure fairness and a
diversity of views broadly representing South African society.
(1) The Public
Protector and members of any Commission established by this Chapter must
be women or men who -
(a) are South African citizens;
(b) are fit
and proper persons to hold the particular office; and
(c) comply with
any other requirements prescribed by national legislation.
(2) The need
for a Commission established by this Chapter to reflect broadly the race
and gender composition of South Africa must be considered when members are
appointed.
(3) The Auditor-General must be a woman or a man who is a
South African citizen and a fit and proper person to hold that office.
Specialised knowledge of, or experience in, auditing, state finances and
public administration must be given due regard in appointing the
Auditor-General.
(4) The President, on the recommendation of the
National Assembly, must appoint the Public Protector, the Auditor-General
and members of -
(a) the Human Rights Commission;
(b) the Commission
for Gender Equality; and
(c) the Electoral Commission.
(5) The
National Assembly must recommend persons -
(a) nominated by a committee
of the Assembly proportionally composed of members of all parties
represented in the Assembly; and
(b) approved by the Assembly by a
resolution adopted with a supporting vote -
(i) of at least 60 per cent
of the members of the Assembly, if the recommendation concerns the
appointment of the Public Protector or the Auditor-General; or
(ii) of
a majority of the members of the Assembly, if the recommendation concerns
the appointment of a member of a Commission.
(6) The involvement of
civil society in the recommendation process may be provided for as
envisaged in section 59(1)(a).
(1) The
Public Protector, the Auditor-General or a member of a Commission
established by this Chapter may be removed from office only on -
(a)
the ground of misconduct, incapacity or incompetence;
(b) a finding to
that effect by a committee of the National Assembly; and
(c) the
adoption by the Assembly of a resolution calling for that person's removal
from office.
(2) A resolution of the National Assembly concerning the
removal from office of -
(a) the Public Protector or the
Auditor-General must be adopted with a supporting vote of at least two
thirds of the members of the Assembly; or
(b) a member of a commission
must be adopted with a supporting vote of a majority of the members of the
Assembly.
(2) The President -
(a) may suspend a person from office
at any time after the start of the proceedings of a committee of the
National Assembly for the removal of that person; and
(b)must remove a
person from office upon adoption by the Assembly of the resolution calling
for that person's removal.
(1) Public administration must be
governed by the democratic values and principles enshrined in the
Constitution, including the following principles:
(a) A high standard
of professional ethics must be promoted and maintained.
(b) Efficient,
economic and effective use of resources must be promoted.
(c) Public
administration must be development-oriented.
(d) Services must be
provided impartially, fairly, equitably and without bias.
(e) People's
needs must be responded to, and the public must be encouraged to
participate in policy-making.
(f) Public administration must be
accountable.
(g) Transparency must be fostered by providing the public
with timely, accessible and accurate information.
(h) Good
human-resource management and career-development practices, to maximise
human potential, must be cultivated.
(i) Public administration must be
broadly representative of the South African people, with employment and
personnel management practices based on ability, objectivity, fairness,
and the need to redress the imbalances of the past to achieve broad
representation.
(2) The above principles apply to -
(a)
administration in every sphere of government;
(b) organs of state;
and
(c) public enterprises.
(3) National legislation must ensure the
promotion of the values and principles listed in subsection (1).
(4)
The appointment in public administration of a number of persons on policy
considerations is not precluded, but national legislation must regulate
these appointments in the public service.
(5) Legislation regulating
public administration may differentiate between different sectors,
administrations or institutions.
(6) The nature and functions of
different sectors, administrations or institutions of public
administration are relevant factors to be taken into account in
legislation regulating public administration.
(1)
There is a single Public Service Commission for the Republic.
(2) The
Commission is independent and must be impartial, and must exercise its
powers and perform its functions without fear, favour or prejudice in the
interest of the maintenance of effective and efficient public
administration and a high standard of professional ethics in the public
service. The Commission must be regulated by national legislation.
(3)
Other organs of state, through legislative and other measures, must assist
and protect the Commission to ensure the independence, impartiality,
dignity and effectiveness of the Commission. No person or organ of state
may interfere with the functioning of the Commission.
(4) The powers
and functions of the Commission are:
(a) To promote the values and
principles set out in section 195, throughout the public service;
(b)
to investigate, monitor and evaluate the organisation and administration,
and the personnel practices, of the public service;
(c) to propose
measures to ensure effective and efficient performance within the public
service;
(d) to give directions aimed at ensuring that personnel
procedures relating to recruitment, transfers, promotions and dismissals
comply with the values and principles set out in section 195;
(e) to
report in respect of its activities and the performance of its functions,
including any finding it may make and directions and advice it may give,
and to provide an evaluation of the extent to which the values and
principles set out in section 195 are complied with; and
(f) either of
its own accord or on receipt of any complaint -
(i) to investigate and
evaluate the application of personnel and public administration practices,
and to report to the relevant executive authority and legislature;
(ii)
to investigate grievances of employees in the public service concerning
official acts or omissions, and recommend appropriate remedies;
(iii)
to monitor and investigate adherence to applicable procedures in the
public service; and
(iv) to advise national and provincial organs of
state regarding personnel practices in the public service, including those
relating to the recruitment, appointment, transfer, discharge and other
aspects of the careers of employees in the public service.
(5) The
Commission is accountable to the National Assembly.
(6) The Commission
must report at least once a year in terms of subsection (4)(e) -
(a) to
the National Assembly; and
(b) in respect of its activities in a
province, to the legislature of that province.
(7) The Commission has
the following 14 commissioners appointed by the President:
(a) Five
commissioners approved by the National Assembly in accordance with
subsection (8)(a); and
(b) one commissioner for each province nominated
by the Premier of the province in accordance with subsection
(8)(b).
(8) (a) A commissioner appointed in terms of subsection (7)(a)
must be -
(i) recommended by a committee of the National Assembly that
is proportionally composed of members of all parties represented in the
Assembly; and
(ii) approved by the Assembly by a resolution adopted
with a supporting vote of a majority of its members.
(b) A commissioner
nominated by the Premier of a province must be -
(i) recommended by a
committee of the provincial legislature that is proportionally composed of
members of all parties represented in the legislature; and
(ii)
approved by the legislature by a resolution adopted with a supporting vote
of a majority of its members.
(9) An Act of Parliament must regulate
the procedure for the appointment of commissioners.
(10) A commissioner
is appointed for a term of five years, which is renewable for one
additional term only, and must be a woman or a man who is -
(a) a South
African citizen; and
(b) a fit and proper person with knowledge of, or
experience in, administration, management or the provision of public
services.
(11) A commissioner may be removed from office only on
-
(a) the ground of misconduct, incapacity or incompetence;
(b) a
finding to that effect by a committee of the National Assembly or, in the
case of a commissioner nominated by the Premier of a province, by a
committee of the legislature of that province; and
(c) the adoption by
the Assembly or the provincial legislature concerned, of a resolution with
a supporting vote of a majority of its members calling for the
commissioner's removal from office.
(12) The President must remove the
relevant commissioner from office upon -
(a) the adoption by the
Assembly of a resolution calling for that commissioner's removal;
or
(b) written notification by the Premier that the provincial
legislature has adopted a resolution calling for that commissioner's
removal.
(13) Commissioners referred to in subsection (7)(b) may
exercise the powers and perform the functions of the Commission in their
provinces as prescribed by national legislation.
(1) Within
public administration there is a public service for the Republic, which
must function, and be structured, in terms of national legislation, and
which must loyally execute the lawful policies of the government of the
day.
(2) The terms and conditions of employment in the public service
must be regulated by national legislation. Employees are entitled to a
fair pension as regulated by national legislation.
(3) No employee of
the public service may be favoured or prejudiced only because that person
supports a particular political party or cause.
(4)Provincial
governments are responsible for the recruitment, appointment, promotion,
transfer and dismissal of members of the public service in their
administrations within a framework of uniform norms and standards applying
to the public service.
The
following principles govern national security in the Republic:
(a)
National security must reflect the resolve of South Africans, as
individuals and as a nation, to live as equals, to live in peace and
harmony, to be free from fear and want and to seek a better life.
(b)
The resolve to live in peace and harmony precludes any South African
citizen from participating in armed conflict, nationally or
internationally, except as provided for in terms of the Constitution or
national legislation.
(c) National security must be pursued in
compliance with the law, including international law.
(d) National
security is subject to the authority of Parliament and the national
executive.
(1) The security services of the Republic
consist of a single defence force, a single police service and any
intelligence services established in terms of the Constitution.
(2) The
defence force is the only lawful military force in the Republic.
(3)
Other than the security services established in terms of the Constitution,
armed organisations or services may be established only in terms of
national legislation.
(4) The security services must be structured and
regulated by national legislation.
(5) The security services must act,
and must teach and require their members to act, in accordance with the
Constitution and the law, including customary international law and
international agreements binding on the Republic.
(6) No member of any
security service may obey a manifestly illegal order.
(7) Neither the
security services, nor any of their members, may, in the performance of
their functions -
(a) prejudice a political party interest that is
legitimate in terms of the Constitution; or
(b) further, in a partisan
manner, any interest of a political party.
(8) To give effect to the
principles of transparency and accountability, multi-party parliamentary
committees must have oversight of all security services in a manner
determined by national legislation or the rules and orders of Parliament.
(1) The defence
force
(2) The primary object of the defence force is to defend and
protect the Republic, its territorial integrity and its people in
accordance with the Constitution and the principles of international law
regulating the use of force.
(1) A
member of the Cabinet must be responsible for defence.
(2) Only the
President, as head of the national executive, may authorise the employment
of the defence force -
(a) in co-operation with the police
service;
(b) in defence of the Republic; or
(c) in fulfilment of an
international obligation.
(3) When the defence force is employed for
any purpose mentioned in subsection (2), the President must inform
Parliament, promptly and in appropriate detail, of -
(a) the reasons
for the employment of the defence force;
(b) any place where the force
is being employed;
(c) the number of people involved; and
(d) the
period for which the force is expected to be employed.
(4) If
Parliament does not sit during the first seven days after the defence
force is employed as envisaged in subsection (2), the President must
provide the information required in subsection (3) to the appropriate
oversight committee.
(1)
The President as head of the national executive is Commander-
in- Chief
of the defence force, and must appoint the Military Command of the defence
force.
(2) Command of the defence force must be exercised in accordance
with the directions of the Cabinet member responsible for defence, under
the authority of the President.
(1)
The President as head of the national executive may declare a state of
national defence, and must inform Parliament promptly and in appropriate
detail of -
(a) the reasons for the declaration;
(b) any place where
the defence force is being employed; and
(c) the number of people
involved.
(2) If Parliament is not sitting when a state of national
defence is declared, the President must summon Parliament to an
extraordinary sitting within seven days of the declaration.
(3) A
declaration of a state of national defence lapses unless it is approved by
Parliament within seven days of the declaration.
A
civilian secretariat for defence must be established by national
legislation to function under the direction of the Cabinet member
responsible for defence.
(1) The national
police service must be structured to function in the national, provincial
and, where appropriate, local spheres of government.
(2) National
legislation must establish the powers and functions of the police service
and must enable the police service to discharge its responsibilities
effectively, taking into account the requirements of the provinces.
(3)
The objects of the police service are to prevent, combat and investigate
crime, to maintain public order, to protect and secure the inhabitants of
the Republic and their property, and to uphold and enforce the law.
(1) A
member of the Cabinet must be responsible for policing and must determine
national policing policy after consulting the provincial governments and
taking into account the policing needs and priorities of the provinces as
determined by the provincial executives.
(2) The national policing
policy may make provision for different policies in respect of different
provinces after taking into account the policing needs and priorities of
these provinces.
(3) Each province is entitled -(a) to monitor police
conduct;
(b) to oversee the effectiveness and efficiency of the police
service, including receiving reports on the police service;
(c) to
promote good relations between the police and the community;
(d) to
assess the effectiveness of visible policing; and
(e) to liaise with
the Cabinet member responsible for policing with respect to crime and
policing in the province.
(4) A provincial executive is responsible for
policing functions -
(a) vested in it by this Chapter;
(b) assigned
to it in terms of national legislation; and
(c) allocated to it in the
national policing policy.
(5) In order to perform the functions set out
in subsection (3), a province -
(a) may investigate, or appoint a
commission of inquiry into, any complaints of police inefficiency or a
breakdown in relations between the police and any community; and
(b)
must make recommendations to the Cabinet member responsible for
policing.
(6) On receipt of a complaint lodged by a provincial
executive, an independent police complaints body established by national
legislation must investigate any alleged misconduct of, or offence
committed by, a member of the police service in the province.
(7)
National legislation must provide a framework for the establishment,
powers, functions and control of municipal police services.
(8) A
committee composed of the Cabinet member and the members of the Executive
Councils responsible for policing must be established to ensure effective
co-ordination of the police service and effective co-operation among the
spheres of government.
(9) A provincial legislature may require the
provincial commissioner of the province to appear before it or any of its
committees to answer questions.
(1)
The President as head of the national executive must appoint a woman or a
man as the National Commissioner of the police service, to control and
manage the police service.
(2) The National Commissioner must exercise
control over and manage the police service in accordance with the national
policing policy and the directions of the Cabinet member responsible for
policing.
(3) The National Commissioner, with the concurrence of the
provincial executive, must appoint a woman or a man as the provincial
commissioner for that province, but if the National Commissioner and the
provincial executive are unable to agree on the appointment, the Cabinet
member responsible for policing must mediate between the parties.
(4)
The provincial commissioners are responsible for policing in their
respective provinces -
(a) as prescribed by national legislation;
and
(b) subject to the power of the National Commissioner to exercise
control over and manage the police service in terms of subsection
(2).
(5) The provincial commissioner must report to the provincial
legislature annually on policing in the province, and must send a copy of
the report to the National Commissioner.
(6) If the provincial
commissioner has lost the confidence of the provincial executive, that
executive may institute appropriate proceedings for the removal or
transfer of, or disciplinary action against, that Commissioner, in
accordance with national legislation.
A
civilian secretariat for the police service must be established by
national legislation to function under the direction of the Cabinet member
responsible for policing.
(1) Any intelligence service, other than any
intelligence division of the defence force or police service, may be
established only by the President, as head of the national executive, and
only in terms of national legislation.
(2) The President as head of the
national executive must appoint a woman or a man as head of each
intelligence service established in terms of subsection (1), and must
either assume political responsibility for the control and direction of
any of those services, or designate a member of the Cabinet to assume that
responsibility.
National legislation must regulate the objects,
powers and functions of the intelligence services, including any
intelligence division of the defence force or police service, and must
provide for -
(a) the co-ordination of all intelligence services;
and
(b)civilian monitoring of the activities of those services by an
inspector appointed by the President as head of the national executive,
and approved by a resolution adopted by the National Assembly with a
supporting vote of at least two thirds of its members.
(1) The
institution, status and role of traditional leadership, according to
customary law, are recognised, subject to the Constitution.
(2) A
traditional authority that observes a system of customary law may function
subject to any applicable legislation and customs, which includes
amendments to, or repeal of, that legislation or those customs.
(3) The
courts must apply customary law when that law is applicable, subject to
the Constitution and any legislation that specifically deals with
customary law.
(1)
National legislation may provide for a role for traditional leadership as
an institution at local level on matters affecting local
communities.
(2) To deal with matters relating to traditional
leadership, the role of traditional leaders, customary law and the customs
of communities observing a system of customary law -
(a) national or
provincial legislation may provide for the establishment of houses of
traditional leaders; and
(b) national legislation may establish a
council of traditional leaders.
(1) There
is a National Revenue Fund into which all money received by the national
government must be paid, except money reasonably excluded by an Act of
Parliament.
(2) Money may be withdrawn from the National Revenue Fund
only -
(a) in terms of an appropriation by an Act of Parliament;
or
(b) as a direct charge against the National Revenue Fund, when it is
provided for in the Constitution or an Act of Parliament.
(3) A
province's equitable share of revenue raised nationally is a direct charge
against the National Revenue Fund.
(1) An Act of Parliament must provide for -
(a) the
equitable division of revenue raised nationally among the national,
provincial and local spheres of government;
(b) the determination of
each province's equitable share of the provincial share of that revenue;
and
(c) any other allocations to provinces, local government or
municipalities from the national government's share of that revenue, and
any conditions on which those allocations may be made.
(2) The Act
referred to in subsection (1) may be enacted only after the provincial
governments, organised local government and the Financial and Fiscal
Commission have been consulted, and any recommendations of the Commission
have been considered, and must take into account -
(a) the national
interest;
(b) any provision that must be made in respect of the
national debt and other national obligations;
(c) the needs and
interests of the national government, determined by objective
criteria;
(d) the need to ensure that the provinces and municipalities
are able to provide basic services and perform the functions allocated to
them;
(e) the fiscal capacity and efficiency of the provinces and
municipalities;
(f) developmental and other needs of provinces, local
government and municipalities;
(g) economic disparities within and
among the provinces;
(h) obligations of the provinces and
municipalities in terms of national legislation;
(i) the desirability
of stable and predictable allocations of revenue shares; and
(j) the
need for flexibility in responding to emergencies or other temporary
needs, and other factors based on similar objective criteria.
(1) National, provincial and municipal budgets
(2) National legislation must prescribe -
(a) the form of
national, provincial and municipal budgets;
(b) when national and
provincial budgets must be tabled; and
(c) that budgets in each sphere
of government must show the sources of revenue and the way in which
proposed expenditure will comply with national legislation.
(3) Budgets
in each sphere of government must contain -
(a) estimates of revenue
and expenditure, differentiating between capital and current
expenditure;
(b) proposals for financing any anticipated deficit for
the period to which they apply; and
(c) an indication of intentions
regarding borrowing and other forms of public liability that will increase
public debt during the ensuing year.
(1) National
legislation must establish a national treasury and prescribe measures to
ensure both transparency and expenditure control in each sphere of
government, by introducing -
(a) generally recognised accounting
practice;
(b) uniform expenditure classifications; and
(c) uniform
treasury norms and standards.
(2) The national treasury, 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 may be taken only in terms of subsection (2), and -
(a) may
not stop the transfer of funds for more than 120 days; and
(b) may be
enforced immediately, but will lapse retrospectively unless Parliament
approves it following a process substantially the same as that established
in terms of section 76(1) and prescribed by the joint rules and orders of
Parliament. This process must be completed within 30 days of the decision
by the national treasury.
(4) Parliament may renew a decision to stop
the transfer of funds for no more than 120 days at a time, following the
process established in terms of subsection (3).
(5) Before Parliament
may approve or renew a decision to stop the transfer of funds to a
province -
(a) the Auditor-General must report to Parliament;
and
(b) the province must be given an opportunity to answer the
allegations against it, and to state its case, before a committee.
(1) When an organ
of state in the national, provincial or local sphere of government, or any
other institution identified in national legislation, contracts for goods
or services, it must do so in accordance with a system which is fair,
equitable, transparent, competitive and cost-effective.
(2) Subsection
(1) does not prevent the organs of state or institutions referred to in
that subsection from implementing a procurement policy providing for
-
(a) categories of preference in the allocation of contracts;
and
(b) the protection or advancement of persons, or categories of
persons, disadvantaged by unfair discrimination.
(3) National
legislation must prescribe a framework within which the policy referred to
in subsection (2) may be implemented.
(1) The
national government, a provincial government or a municipality may
guarantee a loan only if the guarantee complies with any conditions set
out in national legislation.
(2) National legislation referred to in
subsection (1) may be enacted only after any recommendations of the
Financial and Fiscal Commission have been considered.
(3) Each year,
every government must publish a report on the guarantees it has granted.
(1) An Act of Parliament must establish a framework for
determining-
(a) the salaries, allowances and benefits of members of
the National Assembly, permanent delegates to the National Council of
Provinces, members of the Cabinet, Deputy Ministers, traditional leaders
and members of any councils of traditional leaders; and
(b) the upper
limit of salaries, allowances or benefits of members of provincial
legislatures, members of Executive Councils and members of Municipal
Councils of the different categories.
(2) National legislation must
establish an independent commission to make recommendations concerning the
salaries, allowances and benefits referred to in subsection (1).
(3)
Parliament may pass the legislation referred to in subsection (1) only
after considering any recommendations of the commission established in
terms of subsection (2).
(4) The national executive, a provincial
executive, a municipality or any other relevant authority may implement
the national legislation referred to in subsection (1) only after
considering any recommendations of the commission established in terms of
subsection (2).
(5) National legislation must establish frameworks for
determining the salaries, allowances and benefits of judges, the Public
Protector, the Auditor-General, and members of any commission provided for
in the Constitution, including the broadcasting authority referred to in
section 192.
(1)
There is a Financial and Fiscal Commission for the Republic which makes
recommendations envisaged in this Chapter, or in national legislation, to
Parliament, provincial legislatures and any other authorities determined
by national legislation.
(2) The Commission is independent and subject
only to the Constitution and the law, and must be impartial.
(3) The
Commission must function in terms of an Act of Parliament and, in
performing its functions, must consider all relevant factors, including
those listed in section 214(2).
(1) The Commission consists of the following women and
men appointed by the President as head of the national executive:
(a) A
chairperson and 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 organised local government in terms of section 163;
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. The President may remove a member from
office on the ground of misconduct, incapacity or incompetence.
The Commission must
report regularly both to Parliament and to the provincial legislatures.
The South African
Reserve Bank is the central bank of the Republic and is regulated in terms
of an Act of Parliament.
(1) The primary
object of the South African Reserve Bank is to protect the value of the
currency in the interest of balanced and sustainable economic growth in
the Republic.
(2) The South African Reserve Bank, in pursuit of its
primary object, must perform its functions independently and without fear,
favour or prejudice, but there must be regular consultation between the
Bank and the Cabinet member responsible for national financial matters.
The powers
and functions of the South African Reserve Bank are those customarily
exercised and performed by central banks, which powers and functions must
be determined by an Act of Parliament and must be exercised or performed
subject to the conditions prescribed in terms of that Act.
(1)
There is a Provincial Revenue Fund for each province into which all money
received by the provincial government must be paid, except money
reasonably excluded by an Act of Parliament.
(2) Money may be withdrawn
from a Provincial Revenue Fund only -
(a) in terms of an appropriation
by a provincial Act; or
(b) as a direct charge against the Provincial
Revenue Fund, when it is provided for in the Constitution or a provincial
Act.
(3) Revenue allocated through a province to local government in
that province in terms of section 214(1), is a direct charge against that
province's Revenue Fund.
(1) Local government and each province
-
(a) is entitled to an equitable share of revenue raised nationally to
enable it to provide basic services and perform the functions allocated to
it; and
(b) may receive other allocations from national government
revenue, either conditionally or unconditionally.
(2) Additional
revenue raised by provinces or municipalities may not be deducted from
their share of revenue raised nationally, or from other allocations made
to them out of national government revenue. Equally, there is no
obligation on the national government to compensate provinces or
municipalities that do not raise revenue commensurate with their fiscal
capacity and tax base.
(3) A province's equitable share of revenue
raised nationally must be transferred to the province promptly and without
deduction, except when the transfer has been stopped in terms of section
216.
(4) A province must provide for itself any resources that it
requires, in terms of a provision of its provincial constitution, that are
additional to its requirements envisaged in the Constitution.
(1) A
provincial legislature may impose -
(a) taxes, levies and duties other
than income tax, value-added tax, general sales tax, rates on property or
customs duties; and
(b) flat-rate surcharges on 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, rates on property or
customs duties.
(2) The power of a provincial legislature to impose
taxes, levies, duties and surcharges -
(a) may not be exercised 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 in terms of an Act of Parliament, which may be enacted only
after any recommendations of the Financial and Fiscal Commission have been
considered.
(1) Subject to subsections (2), (3) and (4), a
municipality may impose -
(a) rates on property and surcharges on fees
for services provided by or on behalf of the municipality; and
(b) if
authorised by national legislation, other taxes, levies and duties
appropriate to local government or to the category of local government
into which that municipality falls, but no municipality may impose income
tax, value-added tax, general sales tax or customs duty.
(2) The power
of a municipality to impose rates on property, surcharges on fees for
services provided by or on behalf of the municipality, or other taxes,
levies or duties -
(a) may not be exercised in a way that materially
and unreasonably prejudices national economic policies, economic
activities across municipal boundaries, or the national mobility of goods,
services, capital or labour; and
(b) may be regulated by national
legislation.
(3) When two municipalities have the same fiscal powers
and functions with regard to the same area, an appropriate division of
those powers and functions must be made in terms of national legislation.
The division may be made only after taking into account at least the
following criteria:
(a) The need to comply with sound principles of
taxation;
(b) the powers and functions performed by each
municipality;
(c) the fiscal capacity of each municipality;
(d) the
effectiveness and efficiency of raising taxes, levies and duties;
and
(e) equity.
(4) Nothing in this section precludes the sharing of
revenue raised in terms of this section between municipalities that have
fiscal power and functions in the same area.
(5) National legislation
envisaged in this section may be enacted only after organised local
government and the Financial and Fiscal Commission have been consulted,
and any recommendations of the Commission have been considered.
(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.
(1)
The negotiating and signing of all international agreements is the
responsibility of the national executive.
(2) An international
agreement binds the Republic only after it has been approved by resolution
in both the National Assembly and the National Council of Provinces,
unless it is an agreement referred to in subsection (3).
(3) An
international agreement of a technical, administrative or executive
nature, or an agreement which does not require either ratification or
accession, entered into by the national executive, binds the Republic
without approval by the National Assembly and the National Council of
Provinces, but must be tabled in the Assembly and the Council within a
reasonable time.
(4) Any international agreement becomes law in the
Republic when it is enacted into law by national legislation; but a
self-
executing provision of an agreement that has been approved by
Parliament is law in the Republic unless it is inconsistent with the
Constitution or an Act of Parliament.
(5) The Republic is bound by
international agreements which were binding on the Republic when this
Constitution took effect.
Customary international law is law in the Republic unless
it is inconsistent with the Constitution or an Act of Parliament.
When interpreting any legislation, every court must prefer
any reasonable interpretation of the legislation that is consistent with
international law over any alternative interpretation that is inconsistent
with international law.
In order to
deepen the culture of democracy established by the Constitution,
Parliament may adopt Charters of Rights consistent with the provisions of
the Constitution.
The right of
the South African people as a whole to self-
determination, as
manifested in this Constitution, does not preclude, within the framework
of this right, recognition of the notion of the right of
self-determination of any community sharing a common cultural and language
heritage, within a territorial entity in the Republic or in any other way,
determined by national legislation.
To enhance multi-party democracy, national legislation
must provide for the funding of political parties participating in
national and provincial legislatures on an equitable and proportional
basis.
All constitutional obligations must be performed
diligently and without delay.
An
executive organ of state in any sphere of government may -
(a) delegate
any power or function that is to be exercised or performed in terms of
legislation to any other executive organ of state, provided the delegation
is consistent with the legislation in terms of which the power is
exercised or the function is performed; or
(b) exercise any power or
perform any function for any other executive organ of state on an agency
or delegation basis.
In the
Constitution, unless the context indicates otherwise -
"national
legislation" includes -
(a) subordinate legislation made in terms of an
Act of Parliament; and
(b) legislation that was in force when the
Constitution took effect and that is administered by the national
government;
"organ of state" means -
(a) any department of state or
administration in the national, provincial or local sphere of government;
or
(b) any other functionary or institution -
(i) exercising a power
or performing a function in terms of the Constitution or a provincial
constitution; or
(ii) exercising a public power or performing a public
function in terms of any legislation, but does not include a court or a
judicial officer;
"provincial legislation" includes -
(a)
subordinate legislation made in terms of a provincial Act; and
(b)
legislation that was in force when the Constitution took effect and that
is administered by a provincial government.
In the event of an inconsistency between different texts
of the Constitution, the English text prevails.
Schedule 6 applies to the transition to the new
constitutional order established by this Constitution, and any matter
incidental to that transition.
The laws
mentioned in Schedule 7 are repealed, subject to section 243 and Schedule
6.
(1) This Act is called the Constitution of the
Republic of South Africa, 1996, and comes into effect as soon as possible
on a date set by the President by proclamation, which may not be a date
later than 1 July 1997.
(2) The President may set different dates
before the date mentioned in subsection (1) in respect of different
provisions of the Constitution.
(3) Unless the context otherwise
indicates, a reference in a provision of the Constitution to a time when
the Constitution took effect must be construed as a reference to the time
when that provision took effect.
(4) If a different date is set for any
particular provision of the Constitution in terms of subsection (2), any
corresponding provision of the Constitution of the Republic of South
Africa, 1993 (Act 200 of 1993), mentioned in the proclamation, is repealed
with effect from the same date.
(5)Sections 213, 214, 215, 216, 218,
226, 227, 228, 229 and 230 come into effect on 1 January 1998, but this
does not preclude the enactment in terms of this Constitution of
legislation envisaged in any of these provisions before that date. Until
that date any corresponding and incidental provisions of the Constitution
of the Republic of South Africa, 1993, remain in force.