Marius Scheepers & Company Attorneys


mariusscheepers@irodo.com

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Marius Scheepers & Company,
P.O. Box 38197,
Faerie Glen,
Pretoria,
South Africa,
0043

C/O 519 Spuy Street,
Sunnyside,
Pretoria

Telephone / Fax no.:
+27 (0)12 991 4487

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Constitution 1996

Chapter 1
Founding Provisions

Chapter 2
Bill of Rights

Chapter 3
Co-operative Government

Chapter 4
Parliament

Chapter 5
The President and National Executive

Chapter 6
Provinces

 

Chapter 7
Local Government

 

Under Construction


Sections

1.      Republic of South Africa

2.      Supremacy of the Constitution

3.      Citizenship

4.      National Anthem

5.      National Flag

6.      Languages


Republic of South Africa

1.        

The Republic of South Africa is one, sovereign, democratic state founded on the following values:

a.      Human dignity, the achievement of equality and the advancement of human rights and freedoms.

b.      Non-racialism and non-sexism.

c.      Supremacy of the constitution and the rule of law.

d.      Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.

Supremacy of Constitution

2.        

This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.

Citizenship

3.        

(1) There is a common South African citizenship.

(2)  All citizens are ­

a.      equally entitled to the rights, privileges and benefits of citizenship; and

b.      equally subject to the duties and responsibilities of citizenship.

(3) National legislation must provide for the acquisition, loss and restoration of citizenship.

National anthem

4.        

The national anthem of the Republic is determined by the President by proclamation.

National flag

5.        

The national flag of the Republic is black, gold, green, white, red and blue, as described and sketched in Schedule 1.

Languages

6.        

(1) The official languages of the Republic are Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu.

(2) Recognising the historically diminished use and status of the indigenous languages of our people, the state must take practical and positive measures to elevate the status and advance the use of these languages.

(3)

a.      The national government and provincial governments may use any particular official languages for the purposes of government, taking into account usage, practicality, expense, regional circumstances and the balance of the needs and preferences of the population as a whole or in the province concerned; but the national government and each provincial government must use at least two official languages.

b.      Municipalities must take into account the language usage and preferences of their residents.

(4) The national government and provincial governments, by legislative and other measures, must regulate and monitor their use of official languages. Without detracting from the provisions of subsection (2), all official languages must enjoy parity of esteem and must be treated equitably.

(5) A Pan South African Language Board established by national legislation must ­

a.      promote, and create conditions for, the development and use of ­

b.       

                                i.            all official languages;

                              ii.            the Khoi, Nama and San languages; and

                            iii.            sign language ; and

c.      promote and ensure respect for ­

d.       

                                i.            all languages commonly used by communities in South Africa, including German, Greek, Gujarati, Hindi, Portuguese, Tamil, Telegu and Urdu; and

                              ii.            Arabic, Hebrew, Sanskrit and other languages used for religious purposes in South Africa.

 

Chapter 2
Bill of Rights

Sections

7.      Rights

8.      Application

9.      Equality

10. Human Dignity

11. Life

12. Freedom and Security of the Person

13. Slavery, Servitude and Forced Labour

14. Privacy

15. Freedom of Religion, Belief and Opinion

16. Freedom of Expression

17. Assembly, Demonstration, Picket and Petition

18. Freedom of Association

19. Political Rights

20. Citizenship

21. Freedom of Movement and Residence

22. Freedom of Trade, Occupation and Profession

23. Labour Relations

24. Environment

25. Property

26. Housing

27. Health Care, Food Water and Social Security

28. Children

29. Education

30. Language and Culture

31. Cultural, Religious and Linguistic Communities

32. Access to Information

33. Just Administrative Action

34. Access to Courts

35. Arrested, Detained and Accused Persons

36. Limitation of Rights

37. States of Emergency

38. Enforcement of Rights

39. Interpretation of Bill of Rights


Rights

7. (1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.

(2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights.

(3) The rights in the Bill of Rights are subject to the limitations contained or referred to in section 36, or elsewhere in the Bill.

Application

8. (1) The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.

(2) A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.

(3) When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court ­

a.      in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and

b.      may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36(1).

(4) A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person.

Equality

9. (1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

Human dignity

10. Everyone has inherent dignity and the right to have their dignity respected and protected.

Life

11. Everyone has the right to life.

Freedom and security of the person

12. (1) Everyone has the right to freedom and security of the person, which includes the right ­

a.      not to be deprived of freedom arbitrarily or without just cause;

b.      not to be detained without trial;

c.      to be free from all forms of violence from either public or private sources;

d.      not to be tortured in any way; and

e.      not to be treated or punished in a cruel, inhuman or degrading way.

(2) Everyone has the right to bodily and psychological integrity, which includes the right ­

a.      to make decisions concerning reproduction;

b.      to security in and control over their body; and

c.      not to be subjected to medical or scientific experiments without their informed consent.

Slavery, servitude and forced labour

13. No one may be subjected to slavery, servitude or forced labour.

Privacy

14. Everyone has the right to privacy, which includes the right not to have ­

a.      their person or home searched;

b.      their property searched;

c.      their possessions seized; or

d.      the privacy of their communications infringed.

Freedom of religion, belief and opinion

15. (1) Everyone has the right to freedom of conscience, religion, thought, belief and opinion.

(2) Religious observances may be conducted at state or state-aided institutions, provided that ­

a.      those observances follow rules made by the appropriate public authorities;

b.      they are conducted on an equitable basis; and

c.      attendance at them is free and voluntary.

(3)

a.      This section does not prevent legislation recognising ­

b.       

                                i.            marriages concluded under any tradition, or a system of religious, personal or family law; or

                              ii.            systems of personal and family law under any tradition, or adhered to by persons professing a particular religion.

c.      Recognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution.

Freedom of expression

16. (1) Everyone has the right to freedom of expression, which includes ­

a.      freedom of the press and other media;

b.      freedom to receive or impart information or ideas;

c.      freedom of artistic creativity; and

d.      academic freedom and freedom of scientific research.

(2) The right in subsection (1) does not extend to ­

a.      propaganda for war;

b.      incitement of imminent violence; or

c.      advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

Assembly, demonstration, picket and petition

17. Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.

Freedom of association

18. Everyone has the right to freedom of association.

Political rights

19. (1) Every citizen is free to make political choices, which includes the right ­

a.      to form a political party;

b.      to participate in the activities of, or recruit members for, a political party; and

c.      to campaign for a political party or cause.

(2) Every citizen has the right to free, fair and regular elections for any legislative body established in terms of the Constitution.

(3) Every adult citizen has the right ­

a.      to vote in elections for any legislative body established in terms of the Constitution, and to do so in secret; and

b.      to stand for public office and, if elected, to hold office.

Citizenship

20. No citizen may be deprived of citizenship.

Freedom of movement and residence

21. (1) Everyone has the right to freedom of movement.

(2) Everyone has the right to leave the Republic.

(3) Every citizen has the right to enter, to remain in and to reside anywhere in, the Republic.

(4) Every citizen has the right to a passport.

Freedom of trade, occupation and profession

22. Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law.

Labour relations

23. (1) Everyone has the right to fair labour practices.

(2) Every worker has the right ­

a.      to form and join a trade union;

b.      to participate in the activities and programmes of a trade union; and

c.      to strike.

(3) Every employer has the right ­

a.      to form and join an employers’ organisation; and

b.      to participate in the activities and programmes of an employers’ organisation.

(4) Every trade union and every employers’ organisation has the right ­

a.      to determine its own administration, programmes and activities;

b.      to organise; and

c.      to form and join a federation.

(5) Every trade union, employers’ organisation and employer has the right to engage in collective bargaining. National legislation may be enacted to regulate collective bargaining. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1).

(6) National legislation may recognise union security arrangements contained in collective agreements. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1).

Environment

24. Everyone has the right ­

a.      to an environment that is not harmful to their health or well-being; and

b.      to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that ­

c.       

                                i.            prevent pollution and ecological degradation;

                              ii.            promote conservation; and

                            iii.            secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

Property

25. (1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.

(2) Property may be expropriated only in terms of law of general application ­

a.      for a public purpose or in the public interest; and

b.      subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.

(3) The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including ­

a.      the current use of the property;

b.      the history of the acquisition and use of the property;

c.      the market value of the property;

d.      the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and

e.      the purpose of the expropriation.

(4) For the purposes of this section ­

a.      the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources; and

b.      property is not limited to land.

(5) The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.

(6) A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.

(7) A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.

(8) No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1).

(9) Parliament must enact the legislation referred to in subsection (6).

Housing

26. (1) Everyone has the right to have access to adequate housing.

(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.

(3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

Health care, food, water and social security

27. (1) Everyone has the right to have access to ­

a.      health care services, including reproductive health care;

b.      sufficient food and water; and

c.      social security, including, if they are unable to support themselves and their dependants, appropriate social assistance.

(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.

(3) No one may be refused emergency medical treatment.

Children

28. (1) Every child has the right ­

a.      to a name and a nationality from birth;

b.      to family care or parental care, or to appropriate alternative care when removed from the family environment;

c.      to basic nutrition, shelter, basic health care services and social services;

d.      to be protected from maltreatment, neglect, abuse or degradation;

e.      to be protected from exploitative labour practices;

f.        not to be required or permitted to perform work or provide services that ­

g.       

                                i.            are inappropriate for a person of that child’s age; or

                              ii.            place at risk the child’s well-being, education, physical or mental health or spiritual, moral or social development;

h.      not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only for the shortest appropriate period of time, and has the right to be ­

i.         

                                i.            kept separately from detained persons over the age of 18 years; and

                              ii.            treated in a manner, and kept in conditions, that take account of the child’s age;

j.         to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result; and

k.      not to be used directly in armed conflict, and to be protected in times of armed conflict.

(2) A child’s best interests are of paramount importance in every matter concerning the child.

(3) In this section “child” means a person under the age of 18 years.

Education

29. (1) Everyone has the right ­

a.      to a basic education, including adult basic education; and

b.      to further education, which the state, through reasonable measures, must make progressively available and accessible.

(2) Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account ­

a.      equity;

b.      practicability; and

c.      the need to redress the results of past racially discriminatory laws and practices.

(3) Everyone has the right to establish and maintain, at their own expense, independent educational institutions that ­

a.      do not discriminate on the basis of race;

b.      are registered with the state; and

c.      maintain standards that are not inferior to standards at comparable public educational institutions.

(4) Subsection (3) does not preclude state subsidies for independent educational institutions.

Language and culture

30. Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.

Cultural, religious and linguistic communities

31. (1) Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community ­

a.      to enjoy their culture, practise their religion and use their language; and

b.      to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.

(2) The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.

Access to information

32. (1) Everyone has the right of access to ­

a.      any information held by the state; and

b.      any information that is held by another person and that is required for the exercise or protection of any rights.

(2) National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.

Just administrative action

33. (1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.

(2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.

(3) National legislation must be enacted to give effect to these rights, and must ­

a.      provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal;

b.      impose a duty on the state to give effect to the rights in subsections (1) and (2); and

c.      promote an efficient administration.

Access to courts

34. Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.

Arrested, detained and accused persons

35. (1) Everyone who is arrested for allegedly committing an offence has the right ­

a.      to remain silent;

b.      to be informed promptly ­

c.       

                                i.            of the right to remain silent; and

                              ii.            of the consequences of not remaining silent;

d.      not to be compelled to make any confession or admission that could be used in evidence against that person;

e.      to be brought before a court as soon as reasonably possible, but not later than ­

f.         

                                i.            48 hours after the arrest; or

                              ii.            the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day;

g.      at the first court appearance after being arrested, to be charged or to be informed of the reason for the detention to continue, or to be released; and

h.      to be released from detention if the interests of justice permit, subject to reasonable conditions.

(2) Everyone who is detained, including every sentenced prisoner, has the right ­

a.      to be informed promptly of the reason for being detained;

b.      to choose, and to consult with, a legal practitioner, and to be informed of this right promptly;

c.      to have a legal practitioner assigned to the detained person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;

d.      to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released;

e.      to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment; and

f.        to communicate with, and be visited by, that person’s ­

g.       

                                i.            spouse or partner;

                              ii.            next of kin;

                            iii.            chosen religious counsellor; and

                             iv.            chosen medical practitioner.

(3) Every accused person has a right to a fair trial, which includes the right ­

a.      to be informed of the charge with sufficient detail to answer it;

b.      to have adequate time and facilities to prepare a defence;

c.      to a public trial before an ordinary court;

d.      to have their trial begin and conclude without unreasonable delay;

e.      to be present when being tried;

f.        to choose, and be represented by, a legal practitioner, and to be informed of this right promptly;

g.      to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;

h.      to be presumed innocent, to remain silent, and not to testify during the proceedings;

i.        to adduce and challenge evidence;

j.         not to be compelled to give self-incriminating evidence;

k.      to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings interpreted in that language;

l.         not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted;

m.    not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted;

n.      to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and

o.      of appeal to, or review by, a higher court.

(4) Whenever this section requires information to be given to a person, that information must be given in a language that the person understands.

(5) Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.

Limitation of rights

36. (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including ­

a.      the nature of the right;

b.      the importance of the purpose of the limitation;

c.      the nature and extent of the limitation;

d.      the relation between the limitation and its purpose; and

e.      less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

States of emergency

37. (1) A state of emergency may be declared only in terms of an Act of Parliament, and only when ­

a.      the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and

b.      the declaration is necessary to restore peace and order.

(2) A declaration of a state of emergency, and any legislation enacted or other action taken in consequence of that declaration, may be effective only ­

a.      prospectively; and

b.      for no more than 21 days from the date of the declaration, unless the National Assembly resolves to extend the declaration. The Assembly may extend a declaration of a state of emergency for no more than three months at a time. The first extension of the state of emergency must be by a resolution adopted with a supporting vote of a majority of the members of the Assembly. Any subsequent extension must be by a resolution adopted with a supporting vote of at least 60 per cent of the members of the Assembly. A resolution in terms of this paragraph may be adopted only following a public debate in the Assembly.

(3) Any competent court may decide on the validity of ­

a.      a declaration of a state of emergency;

b.      any extension of a declaration of a state of emergency; or

c.      any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency.

(4) Any legislation enacted in consequence of a declaration of a state of emergency may derogate from the Bill of Rights only to the extent that ­

a.      the derogation is strictly required by the emergency; and

b.      the legislation ­

c.       

                                i.            is consistent with the Republic’s obligations under international law applicable to states of emergency;

                              ii.            conforms to subsection (5); and

                            iii.            is published in the national Government Gazette as soon as reasonably possible after being enacted.

(5) No Act of Parliament that authorises a declaration of a state of emergency, and no legislation enacted or other action taken in consequence of a declaration, may permit or authorise ­

a.      indemnifying the state, or any person, in respect of any unlawful act;

b.      any derogation from this section; or

c.      any derogation from a section mentioned in column 1 of the Table of Non-Derogable Rights, to the extent indicated opposite that section in column 3 of the Table.

Table of Non-Derogable Rights

1

Section Number

2

Section Title

3

Extent to which the right is protected

9

Equality

With respect to unfair discrimination solely on the grounds of race, colour, ethnic or social origin, sex religion or language

10

Human Dignity

Entirely

11

Life

Entirely

12

Freedom and Security of the person

With respect to subsections (1)(d) and (e) and (2)©.

13

Slavery, servitude and forced labour

With respect to slavery and servitude

28

Children

With respect to:

  • subsection (1)(d) and (e);
  • the rights in subparagraphs (i) and (ii) of subsection (1)(g); and
  • subsection 1(i) in respect of children of 15 years and younger

35

Arrested, detained and accused persons

With respect to:

  • subsections (1)(a), (b) and (c) and (2)(d);
  • the rights in paragraphs (a) to (o) of subsection (3), excluding paragraph (d)
  • subsection (4); and
  • subsection (5) with respect to the exclusion of evidence if the admission of that evidence would render the trial unfair.

(6) Whenever anyone is detained without trial in consequence of a derogation of rights resulting from a declaration of a state of emergency, the following conditions must be observed:

a.      An adult family member or friend of the detainee must be contacted as soon as reasonably possible, and informed that the person has been detained.

b.      A notice must be published in the national Government Gazette within five days of the person being detained, stating the detainee’s name and place of detention and referring to the emergency measure in terms of which that person has been detained.

c.      The detainee must be allowed to choose, and be visited at any reasonable time by, a medical practitioner.

d.      The detainee must be allowed to choose, and be visited at any reasonable time by, a legal representative.

e.      A court must review the detention as soon as reasonably possible, but no later than 10 days after the date the person was detained, and the court must release the detainee unless it is necessary to continue the detention to restore peace and order.

f.        A detainee who is not released in terms of a review under paragraph (e), or who is not released in terms of a review under this paragraph, may apply to a court for a further review of the detention at any time after 10 days have passed since the previous review, and the court must release the detainee unless it is still necessary to continue the detention to restore peace and order.

g.      The detainee must be allowed to appear in person before any court considering the detention, to be represented by a legal practitioner at those hearings, and to make representations against continued detention.

h.      The state must present written reasons to the court to justify the continued detention of the detainee, and must give a copy of those reasons to the detainee at least two days before the court reviews the detention.

(7) If a court releases a detainee, that person may not be detained again on the same grounds unless the state first shows a court good cause for re-detaining that person.

(8) Subsections (6) and (7) do not apply to persons who are not South African citizens and who are detained in consequence of an international armed conflict. Instead, the state must comply with the standards binding on the Republic under international humanitarian law in respect of the detention of such persons.

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

42. Composition of Parliament

43. Legislative authority of the Republic

44. National legislative authority

45. Joint rules and orders and joint committees

 

National Assembly

46. Composition and Election

47. Membership

48. Oath or Affirmation

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

61. Allocation of Delegates

62. Permanent Delegates

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

78. Mediation Committee

79. Assent to Bills

80. Application by Members of National Assembly to Constitutional Court

81. Publication of Acts

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

86. Election of President

87. Assumption of office by President

88. Term of office of President

89. Removal of President

90. Acting President

91. Cabinet

92. Accountability and responsibilities

93. Deputy Ministers

94. Continuation of Cabinet after elections

95. Oath or affirmation

96. Conduct of Cabinet members and Deputy Ministers

97. Transfer of functions

98. Temporary assignment of functions

99. Assignment of functions

100.                     National supervision of provincial administration

101.                     Executive decisions

102.                     Motions of no confidence


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

119.                     Introduction of Bills

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

126.                     Assignment of functions

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

137.                     Transfer of functions

138.                     Temporary assignment of functions

139.                     Provincial supervision of local government

140.                     Executive decisions

141.                     Motions of no confidence

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.

 

 

 


UNDER CONSTRUCTION