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Marius Scheepers & Company Attorneys |
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Constitution 1996 Chapter 1
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1 Section
Number |
2 Section
Title |
3 Extent
to which the right is protected |
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9 |
Equality |
With respect to unfair
discrimination solely on the grounds of race, colour, ethnic or social
origin, sex religion or language |
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10 |
Human Dignity |
Entirely |
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11 |
Life |
Entirely |
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12 |
Freedom and Security of
the person |
With respect to
subsections (1)(d) and (e) and (2)©. |
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13 |
Slavery, servitude and
forced labour |
With respect to slavery
and servitude |
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28 |
Children |
With respect to:
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35 |
Arrested, detained and
accused persons |
With respect to:
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(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.
Enforcement
of rights
38.
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.
Interpretation
of Bill of Rights
39.
(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.
Chapter 3
Co-operative Government
Sections
40. Government of the
Republic
41. Principles of
Co-operative Government and Intergovernmental Relations
Government
of the Republic
40.
(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.
Principles
of co-operative government and intergovernmental relations
41.
(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.
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.
Chapter 4
Parliament
Sections
43. Legislative
authority of the Republic
44. National legislative
authority
45. Joint rules and
orders and joint committees
National
Assembly
47. Membership
49. Duration of
National Assembly
50. Dissolution of
National Assembly before expiry of its term
51. Sittings and Recess
Periods
52. Speaker and Deputy
Speaker
53. Decisions
54. Rights of Certain
Cabinet Members in National Assembly
55. Powers of National
Assembly
56. Evidence or
Information Before National Assembly
57. Internal
Arrangements, Proceedings and Procedures of National Assembly
58. Privilege
59. Public Access to
and Involvement in National Assembly
National
Council of Provinces
60. Composition of
National Council
63. Sittings of
National Council
64. Chairperson and
Deputy Chairpersons
65. Decisions
66. Participation by
Members of National Executive
67. Participation by
Local Government Representatives
68. Powers of National
Council
69. Evidence or
Information Before National Council
70. Internal
Arrangements, Proceedings and Procedures of National Council
71. Privilege
72. Public Access to
and Involvement in National Council
National
Legislative Process
73. All Bills
74. Bills Amending the
Constitution
75. Ordinary Bills Not
Affecting the Provinces
76. Ordinary Bills
Affecting the Provinces
77. Money Bills
79. Assent to Bills
80. Application by
Members of National Assembly to Constitutional Court
82. Safekeeping of Acts
of Parliament
Composition
of Parliament
42.
(1) Parliament consists of
a.
the National
Assembly; and
b.
the National Council
of Provinces.
(2)
The National Assembly and the National Council of Provinces participate in
the legislative process in the manner set out in the Constitution.
(3)
The National Assembly is elected to represent the people and to ensure
government by the people under the Constitution. It does this by choosing the
President, by providing a national forum for public consideration of issues,
by passing legislation and by 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.
Legislative
authority of the Republic
43.
In the Republic, the legislative authority
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.
National
legislative authority
44.
(1) The national legislative authority as vested in Parliament
a.
confers on the
National Assembly the power
b.
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
c.
(b) confers on the
National Council of Provinces the power
d.
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.
Joint
rules and orders and joint committees
45.
(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
e.
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.
The
National Assembly
Composition
and election
46.
(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.
Membership
47.
(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
b.
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;
c.
permanent delegates
to the National Council of Provinces or members of a provincial legislature
or a Municipal Council;
d.
unrehabilitated
insolvents;
e.
anyone declared to be
of unsound mind by a court of the Republic; or
f.
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.
Oath
or affirmation
48.
Before members of the National Assembly begin to perform their functions in
the Assembly, they must swear or affirm faithfulness to the Republic and
obedience to the Constitution, in accordance with Schedule 2.
Duration
of National Assembly
49.
(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.
Dissolution
of National Assembly before expiry of its term
50.
(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.
Sittings
and recess periods
51.
(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 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.
Speaker
and Deputy Speaker
52.
(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.
Decisions
53.
(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.
Rights
of certain Cabinet members in National Assembly
54.
The President and any member of the Cabinet who is not a member of the
National Assembly may attend, and may speak in, the Assembly, but may not
vote.
Powers
of National Assembly
55.
(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
c.
i.
the exercise of
national executive authority, including the implementation of legislation;
and
ii.
any organ of state.
Evidence
or information before National Assembly
56.
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.
Internal
arrangements, proceedings and procedures of National Assembly
57.
(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.
Privilege
58.
(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
c.
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.
Public
access to and involvement in National Assembly
59.
(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
c.
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.
National
Council of Provinces
Composition
of National Council
60.
(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-
b.
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
c.
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.
Allocation
of delegates
61.
(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.
Permanent
delegates
62.
(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.
Sittings
of National Council
63.
(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.
Chairperson
and Deputy Chairpersons
64.
(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.
Decisions
65.
(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.
Participation
by members of national executive
66.
(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.
Participation
by local government representatives
67.
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.
Powers
of National Council
68.
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.
Evidence
or information before National Council
69.
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.
Internal
arrangements, proceedings and procedures of National Council
70.
(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.
Privilege
71.
(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
c.
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.
Public
access to and involvement in National Council
72.
(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
c.
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.
National
Legislative Process
All
Bills
73.
(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
National 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.
Bills
amending the Constitution
74.
(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
c.
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.
Ordinary
Bills not affecting provinces
75.
(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
b.
i.
pass the Bill;
ii.
pass the Bill subject
to amendments proposed by it; or
iii.
reject the Bill.
c.
If the Council passes
the Bill without proposing amendments, the Bill must be submitted to the
President for assent.
d.
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
e.
i.
pass the Bill again,
either with or without amendments; or
ii.
decide not to proceed
with the Bill.
f.
A Bill passed by the
Assembly in terms of paragraph © 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.
Ordinary
Bills affecting provinces
76.
(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
b.
i.
pass the Bill;
ii.
pass an amended Bill;
or
iii.
reject the Bill.
c.
If the Council passes
the Bill without amendment, the Bill must be submitted to the President for
assent.
d.
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.
e.
If the Council
rejects the Bill, or if the Assembly refuses to pass an amended Bill referred
to it in terms of paragraph ©, the Bill and, where applicable, also the
amended Bill, must be referred to the Mediation Committee, which may agree on
f.
i.
the Bill as passed by
the Assembly;
ii.
the amended Bill as
passed by the Council; or
iii.
another version of
the Bill.
g.
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.
h.
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.
i.
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.
j.
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.
k.
If a Bill referred to
the Council in terms of paragraph (f) or (h) is not passed by the Council,
the Bill lapses unless the Assembly passes the Bill with a supporting vote of
at least two thirds of its members.
l.
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.
m.
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
b.
i.
pass the Bill;
ii.
pass an amended Bill;
or
iii.
reject the Bill.
c.
A Bill passed by the
Assembly in terms of paragraph (a)(i) must be submitted to the President for
assent.
d.
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.
e.
If the Assembly
rejects the Bill, or if the Council refuses to pass an amended Bill referred
to it in terms of paragraph ©, the Bill and, where applicable, also the
amended Bill must be referred to the Mediation Committee, which may agree on
f.
i.
the Bill as passed by
the Council;
ii.
the amended Bill as
passed by the Assembly; or
iii.
another version of
the Bill.
g.
If the Mediation
Committee is unable to agree within 30 days of the Bill’s referral to it, the
Bill lapses.
h.
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.
i.
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.
j.
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.
k.
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:
c.
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.
Money
Bills
77.
(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.
Mediation
Committee
78.
(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 the 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.
Assent
to Bills
79.
(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.
Application
by members of National Assembly to Constitutional Court
80.
(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 National 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.
Publication
of Acts
81.
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.
Safekeeping
of Acts of Parliament
82.
The signed copy of an Act of Parliament is conclusive evidence of the
provisions of that Act and, after publication, must be entrusted to the
Constitutional Court for safekeeping.
Chapter 5
The President and National Executive
Sections
83. The President
84. Powers and
functions of President
85. Executive authority
of the Republic
87. Assumption of
office by President
88. Term of office of
President
90. Acting President
91. Cabinet
92. Accountability and
responsibilities
93. Deputy Ministers
94. Continuation of
Cabinet after elections
96. Conduct of Cabinet
members and Deputy Ministers
98. Temporary
assignment of functions
100.
National
supervision of provincial administration
101.
Executive
decisions
The
President
83.
The President
a.
is the Head of State
and head of the national executive;
b.
must uphold, defend
and respect the Constitution as the supreme law of the Republic; and
c.
promotes the unity of
the nation and that which will advance the Republic.
Powers
and functions of President
84.
(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.
Executive
authority of the Republic
85.
(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.
Election
of President
86.
(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.
Assumption
of office by President
87.
When elected President, a person ceases to be a member of the National
Assembly and, within five days, must assume office by swearing or affirming
faithfulness to the Republic and obedience to the Constitution, in accordance
with Schedule 2.
Term
of office of President
88.
(1) The President’s term of office begins on assuming office and ends upon a
vacancy occurring or when the person next elected President assumes office.
(2)
No person may hold office as President for more than two terms, but when a
person is elected to fill a vacancy in the office of President, the period
between that election and the next election of a President is not regarded as
a term.
Removal
of President
89.
(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.
Acting
President
90.
(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.
Cabinet
91.
(1) The Cabinet consists of the President, as head of the Cabinet, a Deputy
President and Ministers.
(2)
The President appoints the Deputy President and Ministers, assigns their
powers and functions, and may dismiss them.
(3)
The President
a.
must select the
Deputy President from among the members of the National Assembly;
b.
may select any number
of Ministers from among the members of the 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.
Accountability
and responsibilities
92.
(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.
Deputy
Ministers
93.
The President may appoint Deputy Ministers from among the members of the
National Assembly to assist the members of the Cabinet, and may dismiss them.
Continuation
of Cabinet after elections
94.
When an election of the National Assembly is held, the Cabinet, the Deputy
President, Ministers and any Deputy Ministers remain competent to function
until the person elected President by the next Assembly assumes office.
Oath
or affirmation
95.
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.
Conduct
of Cabinet members and Deputy Ministers
96.
(1) Members of the Cabinet and Deputy Ministers must act in accordance with a
code of ethics prescribed by national legislation.
(2)
Members of the Cabinet and Deputy Ministers may not
a.
undertake any other
paid work;
b.
act in any way that
is inconsistent with their office, or expose themselves to any situation
involving the risk of a conflict between their official responsibilities and
private interests; or
c.
use their position or
any information entrusted to them, to enrich themselves or improperly benefit
any other person.
Transfer
of functions
97.
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.
Temporary
assignment of functions
98.
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.
Assignment
of functions
99.
A Cabinet member may assign any power or function that is to be exercised or
performed in terms of an Act of Parliament to a member of a provincial
Executive Council or to a Municipal Council. An assignment
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 the Act of Parliament in terms of which the relevant power or function
is exercised or performed; and
c.
takes effect upon
proclamation by the President.
National
supervision of provincial administration
100.
(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
c.
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.
Executive
decisions
101.
(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.
Motions
of no confidence
102.
(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.
Chapter 6
Provinces
Sections
103.
Provinces
Provincial
Legislatures
104.
Legislative
authority of provinces
105.
Composition and election
of provincial legislatures
106.
Membership
107.
Oath or
affirmation
108.
Duration of
provincial legislatures
109.
Dissolution of
provincial legislatures before expiry of term
110.
Sittings and
recess periods
111.
Speakers and
Deputy Speakers
112.
Decisions
113.
Permanent
delegates’ rights in provincial legislatures
114.
Powers of
provincial legislatures
115.
Evidence or
information before provincial legislatures
116.
Internal
arrangements, proceedings and procedures of provincial legislatures
117.
Privilege
118.
Public access to
and involvement in provincial legislatures
120.
Money Bills
121.
Assent to Bills
122.
Application by
members to Constitutional Court
123.
Publication of
provincial Acts
124.
Safekeeping of
provincial Acts
Provincial
Executives
125.
Executive
authority of provinces
127.
Powers and
functions of Premiers
128.
Election of
Premiers
129.
Assumption of
office by Premiers
130.
Term of office and
removal of Premiers
131.
Acting Premiers
132.
Executive Councils
133.
Accountability and
responsibilities
134.
Continuation of
Executive Councils after elections
135.
Oath or affirmation
136.
Conduct of members
of Executive Councils
138.
Temporary
assignment of functions
139.
Provincial
supervision of local government
140.
Executive
decisions
Provincial
Constitutions
142.
Adoption of provincial
constitutions
143.
Contents of
provincial constitutions
144.
Certification of
provincial constitution
145.
Signing,
publication and safekeeping of provincial constitutions
Conflicting
Laws
146.
Conflicts between
national and provincial legislation
147.
Other conflicts
148.
Conflicts that
cannot be resolved
149.
Status of
legislation that does not prevail
150.
Interpretation of
conflicts
Provinces
103.
(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.
Provincial
Legislatures
Legislative
authority of provinces
104.
(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
c.
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
d.
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.
Composition
and election of provincial legislatures
105.
(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.
Membership
106.
(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
b.
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;
c.
members of the
National Assembly, permanent delegates to the National Council of Provinces
or members of a Municipal Council;
d.
unrehabilitated
insolvents;
e.
anyone declared to be
of unsound mind by a court of the Republic; or
f.
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.
Oath
or affirmation
107.
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.
Duration
of provincial legislatures
108.
(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.
Dissolution
of provincial legislatures before expiry of term
109.
(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.
Sittings
and recess periods
110.
(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.
Speakers
and Deputy Speakers
111.
(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.
Decisions
112.
(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.
Permanent
delegates’ rights in provincial legislatures
113.
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.
Powers
of provincial legislatures
114.
(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
c.
i.
the exercise of
provincial executive authority in the province, including the implementation
of legislation; and
ii.
any provincial organ
of state.
Evidence
or information before provincial legislatures
115.
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.
Internal
arrangements, proceedings and procedures of provincial legislatures
116.
(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.
Privilege
117.
(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
c.
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.
Public
access to and involvement in provincial legislatures
118.
(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
c.
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.
Introduction
of Bills
119.
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.
Money
Bills
120.
(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.
Assent
to Bills
121.
(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.
Application
by members to Constitutional Court
122.
(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.
Publication
of provincial Acts
123.
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.
Safekeeping
of provincial Acts
124. The signed copy of a provincial Act is
conclusive evidence of the provisions of that Act and, after publication,
must be entrusted to the Constitutional Court for safekeeping .
Provincial
Executives
Executive
authority of provinces
125.
(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.
Assignment
of functions
126.
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.
Powers
and functions of Premiers
127.
(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.
Election
of Premiers
128.
(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.
Assumption
of office by Premiers
129.
A Premier-elect must assume office within five days of being elected, by
swearing or affirming faithfulness to the Republic and obedience to the
Constitution, in accordance with Schedule 2.
Term
of office and removal of Premiers
130.
(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.
Acting
Premiers
131.
(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.
Executive
Councils
132.
(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.
Accountability
and responsibilities
133.
(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 constitution has been passed for
the province, also that constitution; and
b.
provide the
legislature with full and regular reports concerning matters under their
control.
Continuation
of Executive Councils after elections
134.
When an election of a provincial legislature is held, the Executive Council
and its members remain competent to function until the person elected Premier
by the next legislature assumes office.
Oath
or affirmation
135.
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.
Conduct
of members of Executive Councils
136.
(1) Members of the Executive Council of a province must act in accordance
with a code of ethics prescribed by national legislation.
(2)
Members of the Executive Council of a province may not
a.
undertake any other
paid work;
b.
act in any way that
is inconsistent with their office, or expose themselves to any situation
involving the risk of a conflict between their official responsibilities and
private interests; or
c.
use their position or
any information entrusted to them, to enrich themselves or improperly benefit
any other person.
Transfer
of functions
137.
The Premier by proclamation may transfer to a member of the Executive Council
a.
the administration of
any legislation entrusted to another member; or
b.
any power or function
entrusted by legislation to another member.
Temporary
assignment of functions
138.
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.
Provincial
supervision of local government
139.
(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
c.
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.
Executive
decisions
140.
(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.
Motions
of no confidence
141.
(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.
Provincial
Constitutions
Adoption
of provincial constitutions
142.
A provincial legislature may pass a constitution for the province or, where
applicable, amend its constitution, if at least two thirds of its members
vote in favour of the Bill.
Contents
of provincial constitutions
143.
(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
c.
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.
Certification
of provincial constitutions
144.
(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.
Signing,
publication and safekeeping of provincial constitutions
145.
(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.
Conflicting
Laws
Conflicts
between national and provincial legislation
146.
(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
c.
i.
norms and standards;
ii.
frameworks; or
iii.
national policies.
d.
The national
legislation is necessary for
e.
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)© 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.
Other
conflicts
147.
(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.
Conflicts
that cannot be resolved
148.
If a dispute concerning a conflict cannot be resolved by a court, the
national legislation prevails over the provincial legislation or provincial
constitution.
Status
of legislation that does not prevail
149.
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.
Interpretation
of conflicts
150.
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.
