Adopted on: ۸ May ۱۹۹۶
Amended on: ۱۱ Oct ۱۹۹۶
In Foce since: ۷ Feb ۱۹۹۷
Preamble
We٫ the people of South Africa٫ Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it٫ united in our
diversity.
We therefore٫ through our freely elected representatives٫ adopt this
Constitution as the supreme law of the Republic so as to –
Heal the divisions of the past and establish a society based on democratic
values٫ social justice and
fundamental human rights;
Lay the foundations for a democratic and open society in which government is
based on the will of the people and every citizen is equally protected by law;
Improve the quality of life of all citizens and free the potential of each
person; and
Build a united and democratic South Africa able to take its rightful place as a
sovereign state in the family of nations.
May God protect our people.
Nkosi Sikelel iAfrika. Morena boloka setjhaba sa heso.
God seën Suid-Afrika. God bless South Africa.
Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.
Chapter ۱ Founding Provisions
Section ۱ Republic of South Africa
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.
Section ۲ Supremacy of Constitution
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.
Section ۳ Citizenship
(۱) There is a common South African citizenship.
(۲) 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.
(۳) National legislation must provide for the acquisition٫ loss and restoration
of citizenship.
Section ۴ National anthem
The national anthem of the Republic is determined by the President by
proclamation.
Section ۵ National flag
The national flag of the Republic is black٫ gold٫ green٫ white٫ red and blue٫
as described and sketched in Schedule ۱.
Section ۶ Languages
(۱) The official languages of the Republic are Sepedi٫ Sesotho٫ Setswana٫
siSwati٫ Tshivenda٫ Xitsonga٫ Afrikaans٫ English٫ isiNdebele٫ isiXhosa and
isiZulu.
(۲) 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.
(۳) (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.
(۴) 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 (۲)٫ all official
languages must enjoy parity of esteem and must be treated equitably.
(۵) A Pan South African Language Board established by national legislation must
–
(a) promote and createeee conditions for the development and use
of –
(i) all official languages;
(ii) the Khoi٫ Nama and San languages; and
(iii) sign language ; and
(b) promote and ensure respect for –
(i) all languages commonly used by communities in South Africa٫ including
German٫ Greek٫ Gujarati٫ Hindi٫ Portuguese٫ Tamil٫ Telegu and Urdu; and
(ii) Arabic٫ Hebrew٫ Sanskrit and other languages used for religious purposes
in South Africa.
Chapter ۲ Bill of Rights
Section ۷ Rights
(۱) 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.
(۲) The state must respect٫ protect٫ promote and fulfil the rights in the Bill
of Rights.
(۳) The rights in the Bill of Rights are subject to the limitations contained
or referred to in section ۳۶٫ or elsewhere in the Bill.
Section ۸ Application
(۱) The Bill of Rights applies to all law٫ and binds the legislature٫ the
execcccutive٫ the judiciary and all organs of state.
(۲) 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.
(۳) When applying a provision of the Bill of Rights to a natural or juristic
person in terms of subsection (۲)٫ 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 ۳۶(۱).
(۴) 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.
Section ۹ Equality
(۱) Everyone is equal before the law and has the right to equal protection and
benefit of the law.
(۲) 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.
(۳) 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.
(۴) No person may unfairly discriminate directly or indirectly against anyone
on one or more grounds in terms of subsection (۳). National legislation must be
enacted to prevent or prohibit unfair discrimination.
(۵) Discrimination on one or more of the grounds listed in subsection (۳) is
unfair unless it is established that the discrimination is fair.
Section ۱۰ Human dignity
Everyone has inherent dignity and the right to have their dignity respected and
protected.
Section ۱۱ Life
Everyone has the right to life.
Section ۱۲ Freedom and security of the person
(۱) 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.
(۲) 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.
Section ۱۳ Slavery٫ servitude and forced labour
No one may be subjected to slavery٫ servitude or forced labour.
Section ۱۴ Privacy
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.
Section ۱۵ Freedom of religion٫ belief and opinion
(۱) Everyone has the right to freedom of conscience٫ religion٫ thought٫ belief
and opinion.
(۲) 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.
(۳) (a) This section does not prevent legislation recognising –
(i) marriages concluded under any tradition٫ or a system of religious٫ personal
or family law; or
(ii) systems of personal and family law under any tradition٫ or adhered to by
persons professing a particular religion.
(b) Recognition in terms of paragraph (a) must be consistent with this section
and the other provisions of the Constitution.
Section ۱۶ Freedom of expression
(۱) 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.
(۲) The right in subsection (۱) 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.
Section ۱۷ Assembly٫ demonstration٫ picket and petition
Everyone has the right٫ peacefully and unarmed٫ to assemble٫ to demonstrate٫ to
picket and to present petitions.
Section ۱۸ Freedom of association
Everyone has the right to freedom of association.
Section ۱۹ Political rights
(۱) 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.
(۲) Every citizen has the right to free٫ fair and regular elections for any
legislative body established in terms of the Constitution.
(۳) 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.
Section ۲۰ Citizenship
No citizen may be deprived of citizenship.
Section ۲۱ Freedom of movement and residence
(۱) Everyone has the right to freedom of movement.
(۲) Everyone has the right to leave the Republic.
(۳) Every citizen has the right to enter٫ to remain in and to reside anywhere
in٫ the Republic.
(۴) Every citizen has the right to a passport.
Section ۲۲ Freedom of trade٫ occupation and profession
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.
Section ۲۳ Labour relations
(۱) Everyone has the right to fair labour practices.
(۲) Every worker has the right –
(a) to form and join a trade unionnnn;
(b) to participate in the activities and programmes of a trade unionnnn;
and
(c) to strike.
(۳) 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.
(۴) Every trade unionnnn 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.
(۵) Every trade unionnnn٫ 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 ۳۶(۱).
(۶) National legislation may recognise unionnnn 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 ۳۶(۱).
Section ۲۴ Environment
Everyone has the right –
(a) to an environment that is not harmful to their health or well-
being; and
(b) to have the environment protected٫ for the benefit of present and future
generations٫ through reasonable legislative and other measures that –
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of natural resources
while promoting justifiable economic and social development.
Section ۲۵ Property
(۱) No one may be deprived of property except in terms of law of general
application٫ and no law may permit arbitrary deprivation of property.
(۲) 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.
(۳) 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٫ havingggg 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.
(۴) 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.
(۵) 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.
(۶) 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.
(۷) A person or community dispossessed of property after ۱۹ June ۱۹۱۳ 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.
(۸) 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 ۳۶(۱).
(۹) Parliament must enact the legislation referred to in subsection (۶).
Section ۲۶ Housing
(۱) Everyone has the right to have access to adequate housing.
(۲) The state must take reasonable legislative and other measures٫ within its
available resources٫ to achieve the progressive realisation of this right.
(۳) 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.
Section ۲۷ Health care٫ food٫ water and social security
(۱) 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.
(۲) The state must take reasonable legislative and other measures٫ within its
available resources٫ to achieve the progressive realisation of each of these
rights.
(۳) No one may be refused emergency medical treatment.
Section ۲۸ Children
(۱) Every child has the right –
(a) to a name and a nationality from birth;
(b) to family care or parental care٫ or to appropriate alternative care when
removed from the family environment;
(c) to basic nutrition٫ shelter٫ basic health care services and social
services;
(d) to be protected from maltreatment٫ neglect٫ abuse or degradation;
(e) to be protected from exploitative labour practices;
(f) not to be required or permitted to perform work or provide services that –
(i) are inappropriate for a person of that child''s age; or
(ii) place at risk the child''s well-being٫ education٫ physical or mental
health or spiritual٫ moral or social development;
(g) not to be detained except as a measure of last resort٫ in which
case٫ in addition to the rights a child enjoys under sections ۱۲ and ۳۵٫ the
child may be detained only for the shortest appropriate period of time٫ and has
the right to be –
(i) kept separately from detained persons over the age of ۱۸ years; and
(ii) treated in a manner٫ and kept in conditions٫ that take account of the
child''s age;
(h) to have a legal practitioner assigned to the child by the state٫ and at
state expense٫ in civil proceedings affecting the child٫ if substantial
injustice would otherwise result; and
(i) not to be used directly in armed conflict٫ and to be protected in times of
armed conflict.
(۲) A child''s best interests are of paramount importance in every matter
concerning the child.
(۳) In this section "child" means a person under the age of ۱۸ years.
Section ۲۹ Education
(۱) 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.
(۲) 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.
(۳) 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.
(۴) Subsection (۳) does not preclude state subsidies for independent
educational institutions.
Section ۳۰ Language and culture
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.
Section ۳۱ Cultural٫ religious and linguistic communities
(۱) 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.
(۲) The rights in subsection (۱) may not be exercised in a manner inconsistent
with any provision of the Bill of Rights.
Section ۳۲ Access to information
(۱) 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.
(۲) 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.
Section ۳۳ Just administrative action
(۱) Everyone has the right to administrative action that is lawful٫ reasonable
and procedurally fair.
(۲) Everyone whose rights have been adversely affected by administrative action
has the right to be given written reasons.
(۳) 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 (۱)
and (۲); and
(c) promote an efficient administration.
Section ۳۴ Access to courts
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.
Section ۳۵ Arrested٫ detained and accused persons
(۱) Everyone who is arrested for allegedly committing an offence has the right
–
(a) to remain silent;
(b) to be informed promptly –
(i) of the right to remain silent; and
(ii) of the consequences of not remaining silent;
(c) not to be compelled to make any confession or admission that could be used
in evidence against that person;
(d) to be brought before a court as soon as reasonably possible٫ but not later
than –
(i) ۴۸ hours after the arrest; or
(ii) the end of the first court day after the expiry of the ۴۸ hours٫ if the ۴۸
hours expire outside ordinary court hours or on a day which is not an ordinary
court day;
(e) at the first court appearance after being arrested٫ to be charrrrged or to
be informed of the reason for the detention to continue٫ or to be released;
and
(f) to be released from detention if the interests of justice permit٫ subject
to reasonable conditions.
(۲) Everyone who is detained٫ including every sentenced prisoner٫ has the right
–
(a) to be informed promptly of the reason for being detained;
(b) to choose٫ and to consult with٫ a legal practitioner٫ and to be informed of
this right promptly;
(c) to have a legal practitioner assigned to the detained person by the state
and at state expense٫ if substantial injustice would otherwise result٫ and to
be informed of this right promptly;
(d) to challenge the lawfulness of the detention in person before a court and٫
if the detention is unlawful٫ to be released;
(e) to conditions of detention that are consistent with human dignity٫
including at least exercise and the provision٫ at state expense٫ of adequate
accommodation٫ nutrition٫ reading material and medical treatment; and
(f) to communicate with٫ and be visited by٫ that person''s –
(i) spouse or partner;
(ii) next of kin;
(iii) chosen religious counsellor; and
(iv) chosen medical practitioner.
(۳) Every accused person has a right to a fair trial٫ which includes the right
–
(a) to be informed of the charrrrge 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.
(۴) Whenever this section requires information to be given to a person٫ that
information must be given in a language that the person understands.
(۵) 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.
Section ۳۶ Limitation of rights
(۱) 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.
(۲) Except as provided in subsection (۱) or in any other provision of the
Constitution٫ no law may limit any right entrenched in the Bill of Rights.
Section ۳۷ States of emergency
(۱) 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.
(۲) 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 ۲۱ 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 ۶۰ 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.
(۳) 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.
(۴) Any legislation enacted in consequence of a declaration of a state of
emergency may derogate from the Bill of Rights only to the extent that –
(a) the derogation is strictly required by the emergency; and
(b) the legislation –
(i) is consistent with the Republic''s obligations under international law
applicable to states of emergency;
(ii) conforms to subsection (۵); and
(iii) is published in the national Government Gazette as soon as reasonably
possible after being enacted.
(۵) 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 ۱ of the Table of
Non-Derogable Rights٫ to the extent indicated opposite that section in column ۳
of the Table.
Table of Non-Derogable Rights
Section Number Section Title Extent to which the right is protected
۹ Equality With respect to unfair discrimination solely on the grounds of race٫
colour٫ ethnic or social origin٫ sex religion or language
۱۰ Human Dignity Entirely
۱۱ Life Entirely
۱۲ Freedom and Security of the person With respect to subsections (۱)(d) and
(e) and (۲)(c).
۱۳ Slavery٫ servitude and forced labour With respect to slavery and servitude
۲۸ Children With respect to:
-subsection (۱)(d) and (e);
-the rights in subparagraphs (i) and (ii) of subsection (۱)(g); and
-subsection ۱(i) in respect of children of ۱۵ years and younger
۳۵ Arrested٫ detained and accused persons With respect to:
-subsections (۱)(a)٫ (b) and (c) and (۲)(d);
-the rights in paragraphs (a) to (o) of subsection (۳)٫ excluding paragraph (d)
-subsection (۴); and
-subsection (۵) with respect to the exclusion of evidence if the admission of
that evidence would render the trial unfair.
(۶) 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 ۱۰ 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 ۱۰ 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.
(۷) 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.
(۸) Subsections (۶) and (۷) 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.
Section ۳۸ Enforcement of rights
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.
Section ۳۹ Interpretation of Bill of Rights
(۱) 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.
(۲) When interpreting any legislation٫ and when developing the common law or
customary law٫ every court٫ tribunal or forum must promote the spirit٫ purport
and objectttts of the Bill of Rights.
(۳)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 ۳ Co-operative Government
Section ۴۰ Government of the Republic
(۱) In the Republic٫ government is constituted as national٫ provincial and
local spheres of government٫ which are distinctive٫ interdependent and
interrelated.
(۲) 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.
Section ۴۱ Principles of co-operative government and intergovernmental
relations
(۱) All spheres of government and all organs of state within each sphere must –
(a) preserve the peace٫ national unity and the indivisibility of the Republic;
(b) secure the well-being of the people of the Republic;
(c) provide effective٫ transparent٫ accountable and coherent government for the
Republic as a whole;
(d) be loyal to the Constitution٫ the Republic and its people;
(e) respect the constitutional status٫ institutions٫ powers and functions of
government in the other spheres;
(f) not assume any power or function except those conferred on them in terms of
the Constitution;
(g) exercise their powers and perform their functions in a manner that does not
encroach on the geographical٫ functional or institutional integrity of
government in another sphere; and
(h) co-operate with one another in mutual trust and good faith by –
(i) fostering friendly relations;
(ii) assisting and supporting one another;
(iii) informing one another of٫ and consulting one another on٫ matters of
common interest;
(iv) co-ordinating their actions and legislation with one another;
(v) adhering to agreed procedures; and
(vi) avoiding legal proceedings against one another.
(۲) 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.
(۳) 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.
(۴)If a court is not satisfied that the requirements of subsection (۳) have
been met٫ it may refer a dispute back to the organs of state involved.
Chapter ۴ Parliament
[Title ۰ General Provisions]
Section ۴۲ Composition of Parliament
(۱) Parliament consists of –
(a) the National Assembly; and
(b) the National Council of Provinces.
(۲) The National Assembly and the National Council of Provinces participate in
the legislative process in the manner set out in the Constitution.
(۳) 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 execcccutive action.
(۴) 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.
(۵) The President may summon Parliament to an extraordinary sitting at any time
to conduct special business.
(۶) The seat of Parliament is Cape Town٫ but an Act of Parliament٫ enacted in
accordance with section ۷۶(۱) and (۵)٫ may determine that the seat of
Parliament is elsewhere.
Section ۴۳ Legislative authority of the Republic
In the Republic٫ the legislative authority –
(a) of the national sphere of government is vested in Parliament٫ as set out in
section ۴۴;
(b) of the provincial sphere of government is vested in the provincial
legislatures٫ as set out in section ۱۰۴; and
(c) of the local sphere of government is vested in the Municipal Councils٫ as
set out in section ۱۵۶.
Section ۴۴ National legislative authority
(۱) The national legislative authority as vested in Parliament –
(a) confers on the National Assembly the power –
(i) to amend the Constitution;
(ii) to pass legislation with regard to any matter٫ including a matter within a
functional area listed in Schedule ۴٫ but excluding٫ subject to subsection (۲)٫
a matter within a functional area listed in Schedule ۵; and
(iii) to assign any of its legislative powers٫ except the power to amend the
Constitution٫ to any legislative body in another sphere of government; and
(b) confers on the National Council of Provinces the power –
(i) to participate in amending the Constitution in accordance with section ۷۴;
(ii) to pass٫ in accordance with section ۷۶٫ legislation with regard to any
matter within a functional area listed in Schedule ۴٫ and any other matter
required by the Constitution to be passed in accordance with section ۷۶;
and
(iii) to consider٫ in accordance with section ۷۵٫ any other legislation passed
by the National Assembly.
(۲) Parliament may intervene by passing legislation٫ in accordance with section
۷۶(۱)٫ with regard to a matter falling within a functional area listed in
Schedule ۵٫ 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.
(۳) 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 ۴ is٫ for all purposes٫ legislation with regard to a matter listed
in Schedule ۴.
(۴) 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.
Section ۴۵ Joint rules and orders and joint committees
(۱) 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
۷۴ and ۷۵ that are referred to such a committee;
(c) to establish a joint committee to review the Constitution at least
annually; and
(d) to regulate the business of –
(i) the joint rules committee;
(ii) the Mediation Committee;
(iii) the constitutional review committee; and
(iv) any joint committees established in terms of paragraph (b).
(۲) 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.
[Title ۱] The National Assembly
Section ۴۶ Composition and election
(۱) The National Assembly consists of no fewer than ۳۵۰ and no more than ۴۰۰
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 ۱۸ years; and
(d) results٫ in general٫ in proportional representation.
(۲) An Act of Parliament must provide a formula for determining the number of
members of the National Assembly.
Section ۴۷ Membership
(۱) Every citizen who is qualified to vote for the National Assembly is
eligible to be a member of the Assembly٫ except –
(a) anyone who is appointed by٫ or is in the service of٫ the state and receives
remuneration for that appointment or service٫ other than –
(i) the President٫ Deputy President٫ Ministers and Deputy Ministers; and
(ii) other office-bearers whose functions are compatible with the functions of
a member of the Assembly٫ and have been declared compatible with those
functions by national legislation;
(b) permanent delegates to the National Council of Provinces or members of a
provincial legislature or a Municipal Council;
(c) unrehabilitated insolvents;
(d) anyone declared to be of unsound mind by a court of the Republic; or
(e) anyone who٫ after this section took effect٫ is convicted of an offence and
sentenced to more than ۱۲ 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 havingggg 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.
(۲) A person who is not eligible to be a member of the National Assembly in
terms of subsection (۱)(a) or (b) may be a candidate
for the Assembly٫ subject to any limits or conditions established by national
legislation.
(۳) 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.
(۴) Vacancies in the National Assembly must be filled in terms of national
legislation.
Section ۴۸ Oath or affirmation
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 ۲.
Section ۴۹ Duration of National Assembly
(۱) The National Assembly is elected for a term of five years.
(۲) If the National Assembly is dissolved in terms of section ۵۰٫ or when its
term expires٫ the President٫ by proclamation٫ must call and set dates for an
election٫ which must be held within ۹۰ days of the date the Assembly was
dissolved or its term expired.
(۳) If the result of an election of the National Assembly is not declared
within the period established in terms of section ۱۹۰٫ 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 ۹۰ days of the expiry of that
period or of the date on which the election was set aside.
(۴) 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.
Section ۵۰ Dissolution of National Assembly before expiry of its term
(۱) 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.
(۲) 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 ۳۰ days after the
vacancy occurred.
Section ۵۱ Sittings and recess periods
(۱) 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 ۱۴ days after the election result has been declared.
The National Assembly may determine the time and duration of its other sittings
and its recess periods.
(۲) The President may summon the National Assembly to an extraordinary sitting
at any time to conduct special business.
(۳) 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.
Section ۵۲ Speaker and Deputy Speaker
(۱) 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.
(۲) 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.
(۳) The procedure set out in Part A of Schedule ۳ applies to the election of
the Speaker and the Deputy Speaker.
(۴) 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.
(۵) 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.
Section ۵۳ Decisions
(۱) 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.
(۲) 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.
Section ۵۴ Rights of certain Cabinet members in National Assembly
The President and any member of the Cabinet who is not a member of the National
Assembly may attend٫ and may speak in٫ the Assembly٫ but may not vote.
Section ۵۵ Powers of National Assembly
(۱) 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.
(۲) The National Assembly must provide for mechanisms –
(a) to ensure that all execcccutive organs of state in the national sphere of
government are accountable to it; and
(b) to maintain oversight of –
(i) the exercise of national execcccutive authority٫ including the
implementation of legislation; and
(ii) any organ of state.
Section ۵۶ Evidence or information before National Assembly
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.
Section ۵۷ Internal arrangements٫ proceedings and procedures of National
Assembly
(۱) 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.
(۲) 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.
Section ۵۸ Privilege
(۱) Cabinet members and members of the National Assembly –
(a) have freedom of speech in the Assembly and in its committees٫ subject to
its rules and orders; and
(b) are not liable to civil or criminal proceedings٫ arrest٫ imprisonment or
damages for –
(i) anything that they have said in٫ produced before or submitted to the
Assembly or any of its committees; or
(ii) anything revealed as a result of anything that they have said in٫ produced
before or submitted to the Assembly or any of its committees.
(۲) Other privileges and immunities of the National Assembly٫ Cabinet members
and members of the Assembly may be prescribed by national legislation.
(۳) Salaries٫ allowances and benefits payable to members of the National
Assembly are a direct charrrrge against the National Revenue Fund.
Section ۵۹ Public access to and involvement in National Assembly
(۱) The National Assembly must –
(a) facilitate public involvement in the legislative and other processes of the
Assembly and its committees; and
(b) conduct its business in an open manner٫ and hold its sittings٫ and those of
its committees٫ in public٫ but reasonable measures may be taken –
(i) to regulate public access٫ including access of the media٫ to the Assembly
and its committees; and
(ii) to provide for the searching of any person and٫where appropriate٫ the
refusal of entry to٫ or the removal of٫ any person.
(۲) 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.
[Title ۲] National Council of Provinces
Section ۶۰ Composition of National Council
(۱) The National Council of Provinces is composed of a single delegation from
each province consisting of ten delegates.
(۲) The ten delegates are –
(a) four special delegates consisting of-
(i) the Premier of the province or٫ if the Premier is not available٫ any member
of the provincial legislature designated by the Premier either generally or for
any specific business before the National Council of Provinces; and
(ii) three other special delegates; and
(b) six permanent delegates appointed in terms of section ۶۱(۲).
(۳) 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.
Section ۶۱ Allocation of delegates
(۱) 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 ۳.
(۲) Within ۳۰ 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.
(۳) The national legislation envisaged in subsection (۲)(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.
(۴) 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.
Section ۶۲ Permanent delegates
(۱) A person nominated as a permanent delegate must be eligible to be a member
of the provincial legislature.
(۲) 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.
(۳) Permanent delegates are appointed for a term that expires immediately
before the first sitting of the provincial legislature after its next election.
(۴) 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.
(۵) Vacancies among the permanent delegates must be filled in terms of national
legislation.
(۶) 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 ۲.
Section ۶۳ Sittings of National Council
(۱) The National Council of Provinces may determine the time and duration of
its sittings and its recess periods.
(۲) The President may summon the National Council of Provinces to an
extraordinary sitting at any time to conduct special business.
(۳) 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.
Section ۶۴ Chairperson and Deputy Chairpersons
(۱) The National Council of Provinces must elect a Chairperson and two Deputy
Chairpersons from among the delegates.
(۲) 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.
(۳) 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.
(۴) 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.
(۵) The procedure set out in Part A of Schedule ۳ applies to the election of
the Chairperson and the Deputy Chairpersons.
(۶) The National Council of Provinces may remove the Chairperson or a Deputy
Chairperson from office.
(۷) 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.
Section ۶۵ Decisions
(۱) 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.
(۲) An Act of Parliament٫ enacted in accordance with the procedure established
by either subsection (۱) or subsection (۲) of section ۷۶٫ must provide for a
uniform procedure in terms of which provincial legislatures confer authority on
their delegations to cast votes on their behalf.
Section ۶۶ Participation by members of national execcccutive
(۱) Cabinet members and Deputy Ministers may attend٫ and may speak in٫ the
National Council of Provinces٫ but may not vote.
(۲) The National Council of Provinces may require a Cabinet member٫ a Deputy
Minister or an official in the national execcccutive or a provincial
execcccutive to attend a meeting of the Council or a committee of the Council.
Section ۶۷ Participation by local government representatives
Not more than ten part-time representatives designated by organised local
government in terms of section ۱۶۳٫ to represent the different categories of
municipalities٫ may participate when necessary in the proceedings of the
National Council of Provinces٫ but may not vote.
Section ۶۸ Powers of National Council
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 ۴ or other legislation referred to in section ۷۶(۳)٫ but may not
initiate or prepare money Bills.
Section ۶۹ Evidence or information before National Council
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.
Section ۷۰ Internal arrangements٫ proceedings and procedures of National
Council
(۱) 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.
(۲) 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 ۷۵.
Section ۷۱ Privilege
(۱) Delegates to the National Council of Provinces and the persons referred to
in sections ۶۶ and ۶۷ –
(a) have freedom of speech in the Council and in its committees٫ subject to its
rules and orders; and
(b) are not liable to civil or criminal proceedings٫ arrest٫ imprisonment or
damages for –
(i) anything that they have said in٫ produced before or submitted to the
Council or any of its committees; or
(ii) anything revealed as a result of anything that they have said in٫ produced
before or submitted to the Council or any of its committees.
(۲) Other privileges and immunities of the National Council of Provinces٫
delegates to the Council and persons referred to in sections ۶۶ and ۶۷ may be
prescribed by national legislation.
(۳) Salaries٫ allowances and benefits payable to permanent members of the
National Council of Provinces are a direct charrrrge against the National
Revenue Fund.
Section ۷۲ Public access to and involvement in National Council
(۱) The National Council of Provinces must –
(a) facilitate public involvement in the legislative and other processes of the
Council and its committees; and
(b) conduct its business in an open manner٫ and hold its sittings٫ and those of
its committees٫ in public٫ but reasonable measures may be taken –
(i) to regulate public access٫ including access of the media٫ to the Council
and its committees; and
(ii) to provide for the searching of any person and٫ where appropriate٫ the
refusal of entry to٫ or the removal of٫ any person.
(۲) 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.
[Title ۳] National Legislative Process
Section ۷۳ All Bills
(۱) Any Bill may be introduced in the National Assembly.
(۲) Only a Cabinet member or a Deputy Minister٫ or a member or committee of the
Assembly٫ may introduce a Bill in the Assembly; but only the Cabinet member
responsible for national financial matters may introduce a money Bill in the
Assembly.
(۳) A Bill referred to in section ۷۶(۳)٫ except a money Bill٫ may be introduced
in the National Council of Provinces.
(۴) Only a member or committee of the National Council of Provinces may
introduce a Bill in the Council.
(۵) 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.
Section ۷۴ Bills amending the Constitution
(۱) Section ۱ and this subsection may be amended by a Bill passed
by –
(a) the National Assembly٫ with a supporting vote of at least ۷۵ per cent of
its members; and
(b) the National Council of Provinces٫ with a supporting vote of at least six
provinces.
(۲) Chapter ۲ 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.
(۳) Any other provision of the Constitution may be amended by a Bill passed –
(a) by the National Assembly٫ with a supporting vote of at least two thirds of
its members; and
(b) also by the National Council of Provinces٫ with a supporting vote of at
least six provinces٫ if the amendment –
(i) relates to a matter that affects the Council;
(ii) alters provincial boundaries٫ powers٫ functions or institutions; or
(iii) amends a provision that deals specifically with a provincial matter.
(۴) A Bill amending the Constitution may not include provisions other than
constitutional amendments and matters connected with the amendments.
(۵) At least ۳۰ days before a Bill amending the Constitution is introduced in
terms of section ۷۳(۲)٫ 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.
(۶) 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 (۱)٫ (۲)٫ or (۳)(b)٫ to
the Chairperson of the National Council of Provinces for tabling in the
Council.
(۷) A Bill amending the Constitution may not be put to the vote in the National
Assembly within ۳۰ 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.
(۸) If a Bill referred to in subsection (۳)(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.
(۹) 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.
Section ۷۵ Ordinary Bills not affecting provinces
(۱) When the National Assembly passes a Bill other than a Bill to which the
procedure set out in section ۷۴ or ۷۶ applies٫ the Bill must be referred to the
National Council of Provinces and dealt with in accordance with the following
procedure:
(a) The Council must –
(i) pass the Bill;
(ii) pass the Bill subject to amendments proposed by it; or
(iii) reject the Bill.
(b) If the Council passes the Bill without proposing amendments٫ the Bill must
be submitted to the President for assent.
(c) If the Council rejects the Bill or passes it subject to amendments٫ the
Assembly must reconsider the Bill٫ taking into account any amendment proposed
by the Council٫ and may –
(i) pass the Bill again٫ either with or without amendments; or
(ii) decide not to proceed with the Bill.
(d) A Bill passed by the Assembly in terms of paragraph (c) must be submitted
to the President for assent.
(۲) When the National Council of Provinces votes on a question in terms of this
section٫ section ۶۵ 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.
Section ۷۶ Ordinary Bills affecting provinces
(۱) When the National Assembly passes a Bill referred to in subsection (۳)٫ (۴)
or (۵)٫ the Bill must be referred to the National Council of Provinces and
dealt with in accordance with the following procedure:
(a) The Council must –
(i) pass the Bill;
(ii) pass an amended Bill; or
(iii) reject the Bill.
(b) If the Council passes the Bill without amendment٫ the Bill must be
submitted to the President for assent.
(c) If the Council passes an amended Bill٫ the amended Bill must be referred to
the Assembly٫ and if the Assembly passes the amended Bill٫ it must be submitted
to the President for assent.
(d) If the Council rejects the Bill٫ or if the Assembly refuses to pass an
amended Bill referred to it in terms of paragraph (c)٫ the Bill and٫ where
applicable٫ also the amended Bill٫ must be referred to the Mediation Committee٫
which may agree on –
(i) the Bill as passed by the Assembly;
(ii) the amended Bill as passed by the Council; or
(iii) another version of the Bill.
(e) If the Mediation Committee is unable to agree within ۳۰ days of the
Bill''s referral to it٫ the Bill lapses unless the Assembly again passes the
Bill٫ but with a supporting vote of at least two thirds of its members.
(f) If the Mediation Committee agrees on the Bill as passed by the Assembly٫
the Bill must be referred to the Council٫ and if the Council passes the Bill٫
the Bill must be submitted to the President for assent.
(g) If the Mediation Committee agrees on the amended Bill as passed by the
Council٫ the Bill must be referred to the Assembly٫ and if it is passed by the
Assembly٫ it must be submitted to the President for assent.
(h) If the Mediation Committee agrees on another version of the Bill٫ that
version of the Bill must be referred to both the Assembly and the Council٫ and
if it is passed by the Assembly and the Council٫ it must be submitted to the
President for assent.
(i) If a Bill referred to the Council in terms of paragraph (f) or (h) is not
passed by the Council٫ the Bill lapses unless the Assembly passes the Bil with
a supporting vote of at least two thirds of its members.
(j) If a Bill referred to the Assembly in terms of paragraph (g) or (h) is not
passed by the Assembly٫ that Bill lapses٫ but the Bill as originally passed by
the Assembly may again be passed by the Assembly٫ but with a supporting vote of
at least two thirds of its members.
(k) A Bill passed by the Assembly in terms of paragraph (e)٫ (i) or (j) must be
submitted to the President for assent.
(۲) When the National Council of Provinces passes a Bill referred to in
subsection (۳) the Bill must be referred to the National Assembly and dealt
with in accordance with the following procedure:
(a) The Assembly must –
(i) pass the Bill;
(ii) pass an amended Bill; or
(iii) reject the Bill.
(b) A Bill passed by the Assembly in terms of paragraph (a)(i) must be
submitted to the President for assent.
(c) If the Assembly passes an amended Bill٫ the amended Bill must be referred
to the Council٫ and if the Council passes the amended Bill٫ it must be
submitted to the President for assent.
(d) If the Assembly rejects the Bill٫ or if the Council refuses to pass an
amended Bill referred to it in terms of paragraph (c)٫ the Bill and٫ where
applicable٫ also the amended Bill must be referred to the Mediation Committee٫
which may agree on –
(i) the Bill as passed by the Council;
(ii) the amended Bill as passed by the Assembly; or
(iii) another version of the Bill.
(e) If the Mediation Committee is unable to agree within ۳۰ days of the
Bill''s referral to it٫ the Bill lapses.
(f) If the Mediation Committee agrees on the Bill as passed by the Council٫ the
Bill must be referred to the Assembly٫ and if the Assembly passes the Bill٫ the
Bill must be submitted to the President for assent.
(g) If the Mediation Committee agrees on the amended Bill as passed by the
Assembly٫ the Bill must be referred to the Council٫ and if it is passed by the
Council٫ it must be submitted to the President for assent.
(h) If the Mediation Committee agrees on another version of the Bill٫ that
version of the Bill must be referred to both the Council and the Assembly٫ and
if it is passed by the Council and the Assembly٫ it must be submitted to the
President for assent.
(i) If a Bill referred to the Assembly in terms of paragraph (f) or (h) is not
passed by the Assembly٫ the Bill lapses.
(۳) A Bill must be dealt with in accordance with the procedure established by
either subsection (۱) or subsection (۲) if it falls within a functional area
listed in Schedule ۴ or provides for legislation envisaged in any of the
following sections:
(a) Section ۶۵(۲);
(b) section ۱۶۳;
(c) section ۱۸۲;
(d) section ۱۹۵(۳) and (۴);
(e) section ۱۹۶; and
(f) section ۱۹۷.
(۴) A Bill must be dealt with in accordance with the procedure established by
subsection (۱) if it provides for legislation –
(a) envisaged in section ۴۴(۲) or ۲۲۰(۳); or
(b) envisaged in Chapter ۱۳٫ and which affects the financial interests of the
provincial sphere of government.
(۵) A Bill envisaged in section ۴۲(۶) must be dealt with in accordance with the
procedure established by subsection (۱)٫ except that –
(a) when the National Assembly votes on the Bill٫ the provisions of section ۵۳
(۱) do not apply; instead٫ the Bill may be passed only if a majority of the
members of the Assembly vote in favour of it; and
(b) if the Bill is referred to the Mediation Committee٫ the following rules
apply:
(i) If the National Assembly considers a Bill envisaged in subsection (۱) (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 (۱)(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.
(۶) This section does not apply to money Bills.
Section ۷۷ Money Bills
(۱) 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.
(۲) All money Bills must be considered in accordance with the procedure
established by section ۷۵. An Act of Parliament must provide for a procedure to
amend money Bills before Parliament.
Section ۷۸ Mediation Committee
(۱) 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.
(۲) The Mediation Committee has agreed on a version of a Bill٫ or decided a
question٫ when that version٫ or one side of a question٫ is supported by –
(a) at least five of the representatives of the National Assembly; and
(b) at least five of the representatives of the National Council of Provinces.
Section ۷۹ Assent to Bills
(۱) 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.
(۲) 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.
(۳) 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 ۷۴(۱)٫ (۲) or (۳)(b) or ۷۶ was applicable in the passing of the
Bill.
(۴) 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.
(۵) If the Constitutional Court decides that the Bill is constitutional٫ the
President must assent to and sign it.
Section ۸۰ Application by members of National Assembly to Constitutional Court
(۱) 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.
(۲) An application –
(a) must be supported by at least one third of the members of the Assembly;
and
(b) must be made within ۳۰ days of the date on which the President assented to
and signed the Act.
(۳) The Constitutional Court may order that all or part of an Act that is the
subject of an application in terms of subsection (۱) 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.
(۴) If an application is unsuccessful٫ and did not have a reasonable prospect
of success٫ the Constitutional Court may order the applicants to pay costs.
Section ۸۱ Publication of Acts
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.
Section ۸۲ Safekeeping of Acts of Parliament
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 ۵ The President and National execcccutive
Section ۸۳ The President
The President –
(a) is the Head of State and head of the national execcccutive;
(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.
Section ۸۴ Powers and functions of President
(۱) 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 execcccutive.
(۲) 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 execcccutive;
(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.
Section ۸۵ execcccutive authority of the Republic
(۱) The execcccutive authority of the Republic is vested in the President.
(۲) The President exercises the execcccutive 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 execcccutive function provided for in the
Constitution or in national legislation.
Section ۸۶ Election of President
(۱) 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.
(۲) 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 ۳ applies to the election of the President.
(۳) 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 ۳۰ days after the vacancy occurs.
Section ۸۷ Assumption of office by President
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
۲.
Section ۸۸ Term of office of President
(۱) 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.
(۲) 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.
Section ۸۹ Removal of President
(۱) 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.
(۲) Anyone who has been removed from the office of President in terms of
subsection (۱) (a) or (b) may not receive any benefits of that office٫ and may
not serve in any public office.
Section ۹۰ Acting President
(۱) 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.
(۲) An Acting President has the responsibilities٫ powers and functions of the
President.
(۳) 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 ۲.
Section ۹۱ Cabinet
(۱) The Cabinet consists of the President٫ as head of the Cabinet٫ a Deputy
President and Ministers.
(۲) The President appoints the Deputy President and Ministers٫ assigns their
powers and functions٫ and may dismiss them.
(۳) The President –
(a) must selectttt the Deputy President from among the members of the National
Assembly;
(b) may selectttt any number of Ministers from among the members of the
Assembly; and
(c) may selectttt no more than two Ministers from outside the Assembly.
(۴) The President must appoint a member of the Cabinet to be the leader of
government business in the National Assembly.
(۵) The Deputy President must assist the President in the execcccution of the
functions of government.
Section ۹۲ Accountability and responsibilities
(۱) The Deputy President and Ministers are responsible for the powers and
functions of the execcccutive assigned to them by the President.
(۲) Members of the Cabinet are accountable collectively and individually to
Parliament for the exercise of their powers and the performance of their
functions.
(۳) 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.
Section ۹۳ Deputy Ministers
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.
Section ۹۴ Continuation of Cabinet after elections
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.
Section ۹۵ Oath or affirmation
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 ۲.
Section ۹۶ Conduct of Cabinet members and Deputy Ministers
(۱) Members of the Cabinet and Deputy Ministers must act in accordance with a
code of ethics prescribed by national legislation.
(۲) 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.
Section ۹۷ Transfer of functions
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.
Section ۹۸ Temporary assignment of functions
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.
Section ۹۹ Assignment of functions
A Cabinet member may assign any power or function that is to be performed in
terms of an Act of Parliament to a member of a provincial execcccutive Council
or to a Municipal Council. An assignment –
(a) must be in terms of an agreement between the relevant Cabinet member and
the execcccutive Council member or Municipal Council;
(b) must be consistent with that of Parliament in terms of which the relevant
power or function is exercised or performed; and
(c) takes effect upon proclamation by the President.
Section ۱۰۰ National supervision of provincial administration
(۱) When a province cannot or does not fulfil an execcccutive obligation in
terms of legislation or the Constitution٫ the national execcccutive may
intervene by taking any appropriate steps to ensure fulfilment of that
obligation٫ including –
(a) issuing a directive to the provincial execcccutive٫ describing the extent
of the failure to fulfil its obligations and stating any steps required to meet
its obligations; and
(b) assuming responsibility for the relevant obligation in that province to the
extent necessary to –
(i) maintain essential national standards or meet established minimum standards
for the rendering of a service;
(ii) maintain economic unity;
(iii) maintain national security; or
(iv) prevent that province from taking unreasonable action that is prejudicial
to the interests of another province or to the
country as a whole.
(۲) If the national execcccutive intervenes in a province in terms of
subsection (۱)(b) –
(a) notice of the intervention must be tabled in the National Council of
Provinces within ۱۴ days of its first sitting after the intervention began;
(b) the intervention must end unless it is approved by the Council within ۳۰
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 execcccutive.
(۳) National legislation may regulate the process established by this section.
Section ۱۰۱ execcccutive decisions
(۱) A decision by the President must be in writing if it –
(a) is taken in terms of legislation; or
(b) has legal consequences.
(۲) 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.
(۳) Proclamations٫ regulations and other instruments of subordinate legislation
must be accessible to the public.
(۴) National legislation may specify the manner in which٫ and the extent to
which٫ instruments mentioned in subsection (۳) must be –
(a) tabled in Parliament; and
(b) approved by Parliament.
Section ۱۰۲ Motions of no confidence
(۱) 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.
(۲)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 ۶ Provinces
[Title ۰ General Provision]
Section ۱۰۳ Provinces
(۱) 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.
(۲) The boundaries of the provinces are those that existed when the
Constitution took effect.
[Title ۱] Provincial Legislatures
Section ۱۰۴ Legislative authority of provinces
(۱) 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 ۱۴۲ and ۱۴۳;
(b) to pass legislation for its province with regard to –
(i) any matter within a functional area listed in Schedule ۴;
(ii) any matter within a functional area listed in Schedule ۵;
(iii) any matter outside those functional areas٫ and that is expressly
assigned to the province by national legislation; and
(iv) any matter for which a provision of the Constitution envisages the
enactment of provincial legislation; and
(c) to assign any of its legislative powers to a Municipal Council in that
province.
(۲) 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.
(۳) 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.
(۴) 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 ۴٫ is for all purposes legislation with regard to a matter
listed in Schedule ۴.
(۵) 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.
Section ۱۰۵ Composition and election of provincial legislatures
(۱) 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 ۱۸ years; and
(d) results٫ in general٫ in proportional representation.
(۲) A provincial legislature consists of between ۳۰ and ۸۰ members. The number
of members٫ which may differ among the provinces٫ must be determined in terms
of a formula prescribed by national legislation.
Section ۱۰۶ Membership
(۱) Every citizen who is qualified to vote for the National Assembly is
eligible to be a member of a provincial legislature٫ except –
(a) anyone who is appointed by٫ or is in the service of٫ the state and receives
remuneration for that appointment or service٫ other than –
(i) the Premier and other members of the execcccutive Council of a province;
and
(ii) other office-bearers whose functions are compatible with the functions of
a member of a provincial legislature٫ and have been declared compatible with
those functions by national legislation;
(b) members of the National Assembly٫ permanent delegates to the National
Council of Provinces or members of a Municipal Council;
(c) unrehabilitated insolvents;
(d) anyone declared to be of unsound mind by a court of the Republic; or
(e) anyone who٫ after this section took effect٫ is convicted of an offence and
sentenced to more than ۱۲ 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 havingggg 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.
(۲) A person who is not eligible to be a member of a provincial legislature in
terms of subsection (۱) (a) or (b) may be a candidate for the legislature٫
subject to any limits or conditions established by national legislation.
(۳) 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.
(۴) Vacancies in a provincial legislature must be filled in terms of national
legislation.
Section ۱۰۷ Oath or affirmation
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 ۲.
Section ۱۰۸ Duration of provincial legislatures
(۱) A provincial legislature is elected for a term of five years.
(۲) If a provincial legislature is dissolved in terms of section ۱۰۹٫ 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 ۹۰ days of the date the
legislature was dissolved or its term expired.
(۳) If the result of an election of a provincial legislature is not declared
within the period referred to in section ۱۹۰٫ 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 ۹۰ days of the expiry of that period or of
the date on which the election was set aside.
(۴) 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.
Section ۱۰۹ Dissolution of provincial legislatures before expiry of term
(۱) 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.
(۲) 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 ۳۰ days after the
vacancy occurred.
Section ۱۱۰ Sittings and recess periods
(۱) 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 ۱۴ 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.
(۲) The Premier of a province may summon the provincial legislature to an
extraordinary sitting at any time to conduct special business.
(۳) A provincial legislature may determine where it ordinarily will sit.
Section ۱۱۱ Speakers and Deputy Speakers
(۱) 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.
(۲) 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.
(۳) The procedure set out in Part A of Schedule ۳ applies to the election of
Speakers and Deputy Speakers.
(۴) 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.
(۵) 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.
Section ۱۱۲ Decisions
(۱) 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.
(۲) 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.
Section ۱۱۳ Permanent delegates" rights in provincial legislatures
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.
Section ۱۱۴ Powers of provincial legislatures
(۱) 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.
(۲) A provincial legislature must provide for mechanisms –
(a) to ensure that all provincial execcccutive organs of state in the province
are accountable to it; and
(b) to maintain oversight of –
(i) the exercise of provincial execcccutive authority in the province٫
including the implementation of legislation; and
(ii) any provincial organ of state.
Section ۱۱۵ Evidence or information before provincial legislatures
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.
Section ۱۱۶ Internal arrangements٫ proceedings and procedures of provincial
legislatures
(۱) 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.
(۲) 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.
Section ۱۱۷ Privilege
(۱) Members of a provincial legislature and the province''s permanent
delegates to the National Council of Provinces –
(a) have freedom of speech in the legislature and in its committees٫ subject to
its rules and orders; and
(b) are not liable to civil or criminal proceedings٫ arrest٫ imprisonment or
damages for –
(i) anything that they have said in٫ produced before or submitted to the
legislature or any of its committees; or
(ii) anything revealed as a result of anything that they have said in٫ produced
before or submitted to the legislature or any of its committees.
(۲) Other privileges and immunities of a provincial legislature and its members
may be prescribed by national legislation.
(۳) Salaries٫ allowances and benefits payable to members of a provincial
legislature are a direct charrrrge against the Provincial Revenue Fund.
Section ۱۱۸ Public access to and involvement in provincial legislatures
(۱) A provincial legislature must –
(a) facilitate public involvement in the legislative and other processes of the
legislature and its committees; and
(b) conduct its business in an open manner٫ and hold its sittings٫ and those of
its committees٫ in public٫ but reasonable measures may be taken –
(i) to regulate public access٫ including access of the media٫ to the
legislature and its committees; and
(ii) to provide for the searching of any person and٫ where appropriate٫ the
refusal of entry to٫or the removal of٫ any person.
(۲) 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.
Section ۱۱۹ Introduction of Bills
Only members of the execcccutive 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 execcccutive Council who is responsible for
financial matters in the province may introduce a money Bill in the
legislature.
Section ۱۲۰ Money Bills
(۱) 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.
(۲) A provincial Act must provide for a procedure by which the province''s
legislature may amend a money Bill.
Section ۱۲۱ Assent to Bills
(۱) 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.
(۲) 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.
(۳) If the Constitutional Court decides that the Bill is constitutional٫ the
Premier must assent to and sign it.
Section ۱۲۲ Application by members to Constitutional Court
(۱) 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.
(۲) An application –
(a) must be supported by at least ۲۰ per cent of the members of the
legislature; and
(b) must be made within ۳۰ days of the date on which the Premier assented to
and signed the Act.
(۳) The Constitutional Court may order that all or part of an Act that is the
subject of an application in terms of subsection (۱) 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.
(۴) If an application is unsuccessful٫ and did not have a reasonable prospect
of success٫ the Constitutional Court may order the applicants to pay costs.
Section ۱۲۳ Publication of provincial Acts
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.
Section ۱۲۴ Safekeeping of provincial Acts
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 .
[Title ۲] Provincial execcccutives
Section ۱۲۵ execcccutive authority of provinces
(۱) The execcccutive authority of a province is vested in the Premier of that
province.
(۲) The Premier exercises the execcccutive authority٫ together with the other
members of the execcccutive Council٫ by –
(a) implementing provincial legislation in the province;
(b) implementing all national legislation within the functional areas listed in
Schedule ۴ or ۵ 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 ۴ and ۵٫ the administration of which has been
assigned to the provincial execcccutive 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 execcccutive in
terms of the Constitution or an Act of Parliament.
(۳) A province has execcccutive authority in terms of subsection (۲) (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 (۲).
(۴) 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 ۳۰ days of the date of the referral to the Council.
(۵) Subject to section ۱۰۰٫ the implementation of provincial legislation in a
province is an exclusive provincial execcccutive power.
(۶) The provincial execcccutive must act in accordance with –
(a) the Constitution; and
(b) the provincial constitution٫ if a constitution has been passed for the
province.
Section ۱۲۶ Assignment of functions
A member of the execcccutive 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 execcccutive 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.
Section ۱۲۷ Powers and functions of Premiers
(۱) The Premier of a province has the powers and functions entrusted to that
office by the Constitution and any legislation.
(۲) 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.
Section ۱۲۸ Election of Premiers
(۱) 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.
(۲) 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 ۳ applies to the election of the Premier.
(۳) 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 ۳۰ days after the vacancy occurs.
Section ۱۲۹ Assumption of office by Premiers
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 ۲.
Section ۱۳۰ Term of office and removal of Premiers
(۱) 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.
(۲) 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.
(۳) 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.
(۴) Anyone who has been removed from the office of Premier in terms of
subsection (۳) (a) or (b) may not receive any benefits of that office٫ and may
not serve in any public office.
Section ۱۳۱ Acting Premiers
(۱) 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 execcccutive Council designated by the Premier.
(b) A member of the execcccutive Council designated by the other members of
the Council.
(c) The Speaker٫ until the legislature designates one of its other members.
(۲) An Acting Premier has the responsibilities٫ powers and functions of the
Premier.
(۳) 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 ۲.
Section ۱۳۲ execcccutive Councils
(۱) The execcccutive 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.
(۲) The Premier of a province appoints the members of the execcccutive
Council٫ assigns their powers and functions٫ and may dismiss them.
Section ۱۳۳ Accountability and responsibilities
(۱) The members of the execcccutive Council of a province are responsible for
the functions of the execcccutive assigned to them by the Premier.
(۲) Members of the execcccutive Council of a province are accountable
collectively and individually to the legislature for the exercise of their
powers and the performance of their functions.
(۳) Members of the execcccutive Council of a province must –
(a) act in accordance with the Constitution and٫ if a provincial consitution
has been passed for the province٫ also that constitution; and
(b) provide the legislature with full and regular reports concerning matters
under their control.
Section ۱۳۴ Continuation of execcccutive Councils after elections
When an election of a provincial legislature is held٫ the execcccutive Council
and its members remain competent to function until the person elected Premier
by the next legislature assumes office.
Section ۱۳۵ Oath or affirmation
Before members of the execcccutive 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 ۲.
Section ۱۳۶ Conduct of members of execcccutive Councils
(۱) Members of the execcccutive Council of a province must act in accordance
with a code of ethics prescribed by national legislation.
(۲) Members of the execcccutive 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.
Section ۱۳۷ Transfer of functions
The Premier by proclamation may transfer to a member of the execcccutive
Council –
(a) the administration of any legislation entrusted to another
member; or
(b) any power or function entrusted by legislation to another member.
Section ۱۳۸ Temporary assignment of functions
The Premier of a province may assign to a member of the execcccutive Council
any power or function of another member who is absent from office or is unable
to exercise that power or perform that function.
Section ۱۳۹ Provincial supervision of local government
(۱) When a municipality cannot or does not fulfil an execcccutive obligation
in terms of legislation٫ the relevant provincial execcccutive may intervene by
taking any appropriate steps to ensure fulfilment of that obligation٫ including
–
(a) issuing a directive to the Municipal Council٫ describing the extent of the
failure to fulfil its obligations and stating any steps required to meet its
obligations; and
(b) assuming responsibility for the relevant obligation in that municipality to
the extent necessary –
(i) to maintain essential national standards or meet established minimum
standards for the rendering of a service;
(ii) to prevent that Municipal Council from taking unreasonable action that is
prejudicial to the interests of another municipality or to the province as a
whole; or
(iii) to maintain economic unity.
(۲) If a provincial execcccutive intervenes in a municipality in terms of
subsection (۱)(b) –
(a) the intervention must end unless it is approved by the Cabinet member
responsible for local government affairs within ۱۴ days of the intervention;
(b) notice of the intervention must be tabled in the provincial legislature and
in the National Council of Provinces within ۱۴ days of their respective first
sittings after the intervention began;
(c) the intervention must end unless it is approved by the Council within ۳۰
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 execcccutive.
(۳) National legislation may regulate the process established by this section.
Section ۱۴۰ execcccutive decisions
(۱) 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.
(۲) A written decision by the Premier must be countersigned by another
execcccutive Council member if that decision concerns a function assigned to
that other member.
(۳) Proclamations٫ regulations and other instruments of subordinate legislation
of a province must be accessible to the public.
(۴) Provincial legislation may specify the manner in which٫ and the extent to
which٫ instruments mentioned in subsection (۳) must
be –
(a) tabled in the provincial legislature; and
(b) approved by the provincial legislature.
Section ۱۴۱ Motions of no confidence
(۱) If a provincial legislature٫ by a vote supported by a majority of its
members٫ passes a motion of no confidence in the province''s execcccutive
Council excluding the Premier٫ the Premier must reconstitute the Council.
(۲) 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 execcccutive Council must resign.
[Title ۳] Provincial Constitutions
Section ۱۴۲ Adoption of provincial constitutions
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.
Section ۱۴۳ Contents of provincial constitutions
(۱) A provincial constitution٫ or constitutional amendment٫ must not be
inconsistent with this Constitution٫ but may provide for –
(a) provincial legislative or execcccutive 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.
(۲) Provisions included in a provincial constitution or constitutional
amendment in terms of paragraphs (a) or (b) of subsection (۱) –
(a) must comply with the values in section ۱ and with Chapter ۳ ; and
(b) may not confer on the province any power or function that falls –
(i) outside the area of provincial competence in terms of Schedules ۴ and ۵;
or
(ii) outside the powers and functions conferred on the province by other
sections of the Constitution.
Section ۱۴۴ Certification of provincial constitutions
(۱) 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.
(۲) 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 ۱۴۲; and
(b) that the whole text complies with section ۱۴۳.
Section ۱۴۵ Signing٫ publication and safekeeping of provincial constitutions
(۱) 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.
(۲) 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.
(۳) 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.
[Title ۴] Conflicting Laws
Section ۱۴۶ Conflicts between national and provincial legislation
(۱) This section applies to a conflict between national legislation and
provincial legislation falling within a functional area listed in Schedule ۴.
(۲) National legislation that applies uniformly with regard to the country as a
whole prevails over provincial legislation if any of the following conditions
is met:
(a) The national legislation deals with a matter that cannot be regulated
effectively by legislation enacted by the respective provinces individually.
(b) The national legislation deals with a matter that٫ to be dealt with
effectively٫ requires uniformity across the nation٫ and the
national legislation provides that uniformity by establishing –
(i) norms and standards;
(ii) frameworks; or
(iii) national policies.
(c) The national legislation is necessary for –
(i) the maintenance of national security;
(ii) the maintenance of economic unity;
(iii) the protection of the common market in respect of the mobility of goods٫
services٫ capital and labour;
(iv) the promotion of economic activities across provincial boundaries;
(v) the promotion of equal opportunity or equal access to government services;
or
(vi) the protection of the environment.
(۳) 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.
(۴) When there is a dispute concerning whether national legislation is
necessary for a purpose set out in subsection (۲)(c) and that dispute comes
before a court for resolution٫ the court must have due regard to the approval
or the rejection of the legislation by the National Council of Provinces.
(۵) Provincial legislation prevails over national legislation if subsection (۲)
or (۳) does not apply.
(۶) 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.
(۷) If the National Council of Provinces does not reach a decision within ۳۰
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.
(۸) If the National Council of Provinces does not approve a law referred to in
subsection (۶)٫ it must٫ within ۳۰ days of its decision٫ forward reasons for
not approving the law to the authority that referred the law to it.
Section ۱۴۷ Other conflicts
(۱) 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 ۴۴(۲)٫ the national
legislation prevails over the provision of the provincial constitution; or
(c) a matter within a functional area listed in Schedule ۴٫ section ۱۴۶ applies
as if the affected provision of the provincial constitution were provincial
legislation referred to in that section.
(۲) National legislation referred to in section ۴۴(۲) prevails over provincial
legislation in respect of matters within the functional areas listed in
Schedule ۵.
Section ۱۴۸ Conflicts that cannot be resolved
If a dispute concerning a conflict cannot be resolved by a court٫ the national
legislation prevails over the provincial legislation or provincial
constitution.
Section ۱۴۹ Status of legislation that does not prevail
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.
Section ۱۵۰ Interpretation of conflicts
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.
Chapter ۷ Local Government
Section ۱۵۱ Status of municipalities
(۱) The local sphere of government consists of municipalities٫ which must be
established for the whole of the territory of the Republic.
(۲) The execcccutive and legislative authority of a municipality is vested in
its Municipal Council.
(۳) A municipality has the right to govern٫ on its own initiative٫ the local
government affairs of its community٫ subject to national and provincial
legislation٫ as provided for in the Constitution.
(۴) The national or a provincial government may not compromise or impede a
municipality''s ability or right to exercise its powers or perform its
functions.
Section ۱۵۲ objectttts of local government
(۱) The objectttts of local government are:
(a) To provide democratic and accountable government for local communities;
(b) to ensure the provision of services to communities in a sustainable manner;
(c) to promote social and economic development;
(d) to promote a safe and healthy environment; and
(e) to encourage the involvement of communities and community organisations in
the matters of local government.
(۲) A municipality must strive٫ within its financial and administrative
capacity٫ to achieve the objectttts set out in subsection (۱).
Section ۱۵۳ Developmental duties of municipalities
A municipality must –
(a) structure and manage its administration٫ and budgeting and planning
processes to give priority to the basic needs of the community٫ and to promote
the social and economic development of the community; and
(b) participate in national and provincial development programmes.
Section ۱۵۴ Municipalities in co-operative government
(۱) The national government and provincial governments٫ by legislative and
other measures٫ must support and strengthen the capacity of municipalities to
manage their own affairs٫ to exercise their powers and to perform their
functions.
(۲) Draft national or provincial legislation that affects the status٫
institutions٫ powers or functions of local government must be published for
public comment before it is introduced in Parliament or a provincial
legislature٫ in a manner that allows organised local government٫ municipalities
and other interested persons an opportunity to make representations with regard
to the draft legislation.
Section ۱۵۵ Establishment of municipalities
(۱) There are the following categories of municipality:
(a) Category A: A municipality that has exclusive municipal execcccutive and
legislative authority in its area.
(b) Category B: A municipality that shares municipal execcccutive and
legislative authority in its area with a category C municipality within whose
area it falls.
(c) Category C: A municipality that has municipal execcccutive and legislative
authority in an area that includes more than one municipality.
(۲) National legislation must define the different types of municipality that
may be established within each category.
(۳) National legislation must –
(a) establish the criteria for determining when an area should have a single
category A municipality or when it should have municipalities of both category
B and category C;
(b) establish criteria and procedures for the determination of municipal
boundaries by an independent authority; and
(c) subject to section ۲۲۹٫ make provision for an appropriate division of
powers and functions between municipalities when an area has municipalities of
both category B and category C. A division of powers and functions between a
category B municipality and a category C municipality may differ from the
division of powers and functions between another category B municipality and
that category C municipality.
(۴) The legislation referred to in subsection (۳) must take into account the
need to provide municipal services in an equitable and sustainable manner.
(۵) Provincial legislation must determine the different types of municipality
to be established in the province.
(۶) Each provincial government must establish municipalities in its province in
a manner consistent with the legislation enacted in terms of subsections (۲)
and (۳) and٫ by legislative or other measures٫ must –
(a) provide for the monitoring and support of local government in the province;
and
(b) promote the development of local government capacity to enable
municipalities to perform their functions and manage their own affairs.
(۷) The national government٫ subject to section ۴۴٫ and the provincial
governments have the legislative and execcccutive authority to see to the
effective performance by municipalities of their functions in respect of
matters listed in Schedules ۴ and ۵٫ by regulating the exercise by
municipalities of their execcccutive authority referred to in section ۱۵۶(۱).
Section ۱۵۶ Powers and functions of municipalities
(۱) A municipality has execcccutive authority in respect of٫ and has the right
to administer –
(a) the local government matters listed in Part B of Schedule ۴ and Part B of
Schedule ۵; and
(b) any other matter assigned to it by national or provincial legislation.
(۲) A municipality may make and administer by-laws for the effective
administration of the matters which it has the right to administer.
(۳) Subject to section ۱۵۱(۴)٫ a by-law that conflicts with national or
provincial legislation is invalid. If there is a conflict between a by-law and
national or provincial legislation that is inoperative because of a conflict
referred to in section ۱۴۹٫ the by-law must be regarded as valid for as long as
that legislation is inoperative.
(۴) The national government and provincial governments must assign to a
municipality٫ by agreement and subject to any conditions٫ the administration of
a matter listed in Part A of Schedule ۴ or Part A of Schedule ۵ which
necessarily relates to local government٫ if –
(a) that matter would most effectively be administered locally; and
(b) the municipality has the capacity to administer it.
(۵) A municipality has the right to exercise any power concerning a matter
reasonably necessary for٫ or incidental to٫ the effective performance of its
functions.
Section ۱۵۷ Composition and election of Municipal Councils
(۱) A Municipal Council consists of –
(a) members elected in accordance with subsections (۲)٫ (۳)٫ (۴) and (۵);
or
(b) if provided for by national legislation –
(i) members appointed by other Municipal Councils to represent those other
Councils; or
(ii) both members elected in accordance with paragraph (a) and members
appointed in accordance with subparagraph (i) of this paragraph.
(۲) The election of members to a Municipal Council as anticipated in subsection
(۱)(a) must be in accordance with national legislation٫ which must prescribe a
system –
(a) of proportional representation based on that municipality''s segment of
the national common voters roll٫ and which provides for the election of members
from lists of party candidates drawn up in a party''s order of preference;
or
(b) of proportional representation as described in paragraph (a) combined with
a system of ward representation based on that municipality''s segment of the
national common voters roll.
(۳) An electoral system in terms of subsection (۲) must ensure that the total
number of members elected from each party reflects the total proportion of the
votes recorded for those parties.
(۴) If the electoral system includes ward representation٫ the delimitation of
wards must be done by an independent authority appointed in terms of٫ and
operating according to٫ procedures and criteria prescribed by national
legislation.
(۵) A person may vote in a municipality only if that person is registered on
that municipality''s segment of the national common voters roll.
(۶) The national legislation referred to in subsection (۱)(b) must establish a
system that allows for parties and interests reflected within the Municipal
Council making the appointment٫ to be fairly represented in the Municipal
Council to which the appointment is made.
Section ۱۵۸ Membership of Municipal Councils
(۱) Every citizen who is qualified to vote for a Municipal Council is eligible
to be a member of that Council٫ except –
(a) anyone who is appointed by٫ or is in the service of٫ the municipality and
receives remuneration for that appointment or service٫ and who has not been
exempted from this disqualification in terms of national legislation;
(b) anyone who is appointed by٫ or is in the service of٫ the state in another
sphere٫ and receives remuneration for that appointment or service٫ and who has
been disqualified from membership of a Municipal Council in terms of national
legislation;
(c) anyone who is disqualified from voting for the National Assembly or is
disqualified in terms of section ۴۷(۱)(c)٫ (d) or (e) from being a member of
the Assembly;
(d) a member of the National Assembly٫ a delegate to the National Council of
Provinces or a member of a provincial legislature; but this
disqualification does not apply to a member of a Municipal Council representing
local government in the National Council; or
(e) a member of another Municipal Council; but this disqualification does
not apply to a member of a Municipal Council representing that Council in
another Municipal Council of a different category.
(۲) A person who is not eligible to be a member of a Municipal Council in terms
of subsection (۱)(a)٫ (b)٫(d) or (e) may be a candidate for the Council٫
subject to any limits or conditions established by national legislation.
Section ۱۵۹ Terms of Municipal Councils
The term of a Municipal Council may be no more than four years٫ as determined
by national legislation.
Section ۱۶۰ Internal procedures
(۱) A Municipal Council –
(a) makes decisions concerning the exercise of all the powers and the
performance of all the functions of the municipality;
(b) must elect its chairperson;
(c) may elect an execcccutive committee and other committees٫ subject to
national legislation; and
(d) may employ personnel that are necessary for the effective performance of
its functions.
(۲) The following functions may not be delegated by a Municipal Council:
(a) The passing of by-laws;
(b) the approval of budgets;
(c) the imposition of rates and other taxes٫ levies and duties; and
(d) the raising of loans.
(۳) (a) A majority of the members of a Municipal Council must be present before
a vote may be taken on any matter.
(b) All questions concerning matters mentioned in subsection (۲) are determined
by a decision taken by a Municipal Council with a supporting vote of a majority
of its members.
(c) All other questions before a Municipal Council are decided by a majority of
the votes cast.
(۴) No by-law may be passed by a Municipal Council unless –
(a) all the members of the Council have been given reasonable notice; and
(b) the proposed by-law has been published for public comment.
(۵) National legislation may provide criteria for determining –
(a) the size of a Municipal Council;
(b) whether Municipal Councils may elect an execcccutive committee or any
other committee; or
(c) the size of the execcccutive committee or any other committee of a
Municipal Council;
(۶) A Municipal Council may make by-laws which prescribe rules and orders for –
(a) its internal arrangements;
(b) its business and proceedings; and
(c) the establishment٫ composition٫ procedures٫ powers and functions of its
committees.
(۷) A Municipal Council must conduct its business in an open manner٫ and may
close its sittings٫ or those of its committees٫ only when it is reasonable to
do so havingggg regard to the nature of the business being transacted.
(۸) Members of a Municipal Council are entitled to participate in its
proceedings and those of its committees in a manner that –
(a) allows parties and interests reflected within the Council to be fairly
represented;
(b) is consistent with democracy; and
(c) may be regulated by national legislation.
Section ۱۶۱ Privilege
Provincial legislation within the framework of national legislation may provide
for privileges and immunities of Municipal Councils and their members.
Section ۱۶۲ Publication of municipal by-laws
(۱) A municipal by-law may be enforced only after it has been published in the
official gazette of the relevant province.
(۲) A provincial official gazette must publish a municipal by-law upon request
by the municipality.
(۳) Municipal by-laws must be accessible to the public.
Section ۱۶۳ Organised local government
An Act of Parliament enacted in accordance with the procedure established by
section ۷۶ must –
(a) provide for the recognition of national and provincial organisations
representing municipalities; and
(b) determine procedures by which local government may –
(i) consult with the national or a provincial government;
(ii) designate representatives to participate in the National Council of
Provinces; and
(iii) nominate persons to the Financial and Fiscal Commission.
Section ۱۶۴ Other matters
Any matter concerning local government not dealt with in the Constitution may
be prescribed by national legislation or by provincial legislation within the
framework of national legislation.
Chapter ۸ Courts and Administration of Justice
Section ۱۶۵ Judicial authority
(۱) The judicial authority of the Republic is vested in the courts.
(۲) The courts are independent and subject only to the Constitution and the
law٫ which they must apply impartially and without fear٫ favour or prejudice.
(۳) No person or organ of state may interfere with the functioning of the
courts.
(۴) Organs of state٫ through legislative and other measures٫ must assist and
protect the courts to ensure the independence٫ impartiality٫ dignity٫
accessibility and effectiveness of the courts.
(۵) An order or decision issued by a court binds all persons to whom and organs
of state to which it applies.
Section ۱۶۶ Judicial system
The courts are –
(a) the Constitutional Court;
(b) the Supreme Court of Appeal;
(c) the High Courts٫ including any high court of appeal that may be established
by an Act of Parliament to hear appeals from High Courts;
(d) the Magistrates" Courts; and
(e) any other court established or recognised in terms of an Act of Parliament٫
including any court of a status similar to either the High Courts or the
Magistrates" Courts.
Section ۱۶۷ Constitutional Court
(۱) The Constitutional Court consists of a President٫ a Deputy President and
nine other judges.
(۲) A matter before the Constitutional Court must be heard by at least eight
judges.
(۳) The Constitutional Court –
(a) is the highest court in all constitutional matters;
(b) may decide only constitutional matters٫ and issues connected with decisions
on constitutional matters; and
(c) makes the final decision whether a matter is a constitutional matter or
whether an issue is connected with a decision on a constitutional matter.
(۴) Only the Constitutional Court may –
(a) decide disputes between organs of state in the national or provincial
sphere concerning the constitutional status٫ powers or functions of any of
those organs of state;
(b) decide on the constitutionality of any parliamentary or provincial Bill٫
but may do so only in the circumstances anticipated in section ۷۹ or ۱۲۱;
(c) decide applications envisaged in section ۸۰ or ۱۲۲;
(d) decide on the constitutionality of any amendment to the Constitution;
(e) decide that Parliament or the President has failed to fulfil a
constitutional obligation; or
(f) certify a provincial constitution in terms of section ۱۴۴.
(۵) The Constitutional Court makes the final decision whether an Act of
Parliament٫ a provincial Act or conduct of the President is constitutional٫ and
must confirm any order of invalidity made by the Supreme Court of Appeal٫ a
High Court٫ or a court of similar status٫ before that order has any force.
(۶) National legislation or the rules of the Constitutional Court must allow a
person٫ when it is in the interests of justice and with leave of the
Constitutional Court –
(a) to bring a matter directly to the Constitutional Court; or
(b) to appeal directly to the Constitutional Court from any other
court.
(۷) A constitutional matter includes any issue involving the interpretation٫
protection or enforcement of the Constitution.
Section ۱۶۸ Supreme Court of Appeal
(۱) The Supreme Court of Appeal consists of a Chief Justice٫ a Deputy Chief
Justice and the number of judges of appeal determined by an Act of Parliament.
(۲) A matter before the Supreme Court of Appeal must be decided by the number
of judges determined by an Act of Parliament.
(۳) The Supreme Court of Appeal may decide appeals in any matter. It is the
highest court of appeal except in constitutional matters٫ and may decide only –
(a) appeals;
(b) issues connected with appeals; and
(c) any other matter that may be referred to it in circumstances defined by an
Act of Parliament.
Section ۱۶۹ High Courts
A High Court may decide –
(a) any constitutional matter except a matter that –
(i) only the Constitutional Court may decide; or
(ii) is assigned by an Act of Parliament to another court of a status similar
to a High Court; and
(b) any other matter not assigned to another court by an Act of Parliament.
Section ۱۷۰ Magistrates" Courts and other courts
Magistrates" Courts and all other courts may decide any matter determined by an
Act of Parliament٫ but a court of a status lower than a High Court may not
enquire into or rule on the constitutionality of any legislation or any conduct
of the President.
Section ۱۷۱ Court procedures
All courts function in terms of national legislation٫ and their rules and
procedures must be provided for in terms of national legislation.
Section ۱۷۲ Powers of courts in constitutional matters
(۱) When deciding a constitutional matter within its power٫ a court –
(a) must declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency; and
(b) may make any order that is just and equitable٫ including –
(i) an order limiting the retrospective effect of the declaration of
invalidity; and
(ii) an order suspending the declaration of invalidity for any period and on
any conditions٫ to allow the competent authority to correct the defect.
(۲) (a) The Supreme Court of Appeal٫ a High Court or a court of similar status
may make an order concerning the constitutional validity of an Act of
Parliament٫ a provincial Act or any conduct of the President٫ but an order of
constitutional invalidity has no force unless it is confirmed by the
Constitutional Court.
(b) A court which makes an order of constitutional invalidity may grant a
temporary interdict or other temporary relief to a party٫ or may adjourn the
proceedings٫ pending a decision of the Constitutional Court on the validity of
that Act or conduct.
(c) National legislation must provide for the referral of an order of
constitutional invalidity to the Constitutional Court.
(d) Any person or organ of state with a sufficient interest may appeal٫ or
apply٫ directly to the Constitutional Court to confirm or vary an order of
constitutional invalidity by a court in terms of this subsection.
Section ۱۷۳ Inherent power
The Constitutional Court٫ Supreme Court of Appeal and High Courts have the
inherent power to protect and regulate their own
process٫ and to develop the common law٫ taking into account the interests of
justice.
Section ۱۷۴ Appointment of judicial officers
(۱) Any appropriately qualified woman or man who is a fit and proper person may
be appointed as a judicial officer. Any person to be appointed to the
Constitutional Court must also be a South African citizen.
(۲) The need for the judiciary to reflect broadly the racial and gender
composition of South Africa must be considered when judicial officers are
appointed.
(۳) The President as head of the national execcccutive٫ after consulting the
Judicial Service Commission and the leaders of parties represented in the
National Assembly٫ appoints the President and Deputy President of the
Constitutional Court and٫ after consulting the Judicial Service Commission٫
appoints the Chief Justice and Deputy Chief Justice.
(۴) The other judges of the Constitutional Court are appointed by the President
as head of the national execcccutive٫ after consulting the President of the
Constitutional Court and the leaders of parties represented in the National
Assembly٫ in accordance with the following procedure:
(a) The Judicial Service Commission must prepare a list of nominees with three
names more than the number of appointments to be made٫ and submit the list to
the President.
(b) The President may make appointments from the list٫ and must advise the
Judicial Service Commission٫ with reasons٫ if any of the nominees are
unacceptable and any appointment remains to be made.
(c) The Judicial Service Commission must supplement the list with further
nominees and the President must make the remaining appointments from the
supplemented list.
(۵) At all times٫ at least four members of the Constitutional Court must be
persons who were judges at the time they were appointed to the Constitutional
Court.
(۶) The President must appoint the judges of all other courts on the advice of
the Judicial Service Commission.
(۷) Other judicial officers must be appointed in terms of an Act of Parliament
which must ensure that the appointment٫ promotion٫ transfer or dismissal of٫ or
disciplinary steps against٫ these judicial officers take place without favour
or prejudice.
(۸) Before judicial officers begin to perform their functions٫ they must take
an oath or affirm٫ in accordance with Schedule ۲٫ that they will uphold and
protect the Constitution.
Section ۱۷۵ Acting judges
(۱) The President may appoint a woman or a man to be an acting judge of the
Constitutional Court if there is a vacancy or if a judge is absent. The
appointment must be made on the recommendation of the Cabinet member
responsible for the administration of justice acting with the concurrence of
the President of the Constitutional Court and the Chief Justice.
(۲) The Cabinet member responsible for the administration of justice must
appoint acting judges to other courts after consulting the senior judge of the
court on which the acting judge will serve.
Section ۱۷۶ Terms of office and remuneration
(۱) A Constitutional Court judge is appointed for a non-renewable term of ۱۲
years٫ but must retire at the age of ۷۰.
(۲) Other judges hold office until they are discharrrrged from active service
in terms of an Act of Parliament.
(۳) The salaries٫ allowances and benefits of judges may not be reduced.
Section ۱۷۷ Removal
(۱) A judge may be removed from office only if –
(a) the Judicial Service Commission finds that the judge suffers
from an incapacity٫ is grossly incompetent or is guilty of gross misconduct;
and
(b) the National Assembly calls for that judge to be removed٫ by a resolution
adopted with a supporting vote of at least two thirds of its members.
(۲) The President must remove a judge from office upon adoption of a resolution
calling for that judge to be removed.
(۳) The President٫ on the advice of the Judicial Service Commission٫ may
suspend a judge who is the subject of a procedure in terms of subsection (۱).
Section ۱۷۸ Judicial Service Commission
(۱) There is a Judicial Service Commission consisting of –
(a) the Chief Justice٫ who presides at meetings of the Commission;
(b) the President of the Constitutional Court;
(c) one Judge President designated by the Judges President;
(d) the Cabinet member responsible for the administration of justice٫ or an
alternate designated by that Cabinet member;
(e) two practising advocates nominated from within the advocates" profession to
represent the profession as a whole٫ and appointed by the President;
(f) two practising attorneys nominated from within the attorneys" profession to
represent the profession as a whole٫ and appointed by the President;
(g) one teacher of law designated by teachers of law at South African
universities;
(h) six persons designated by the National Assembly from among its members٫ at
least three of whom must be members of opposition parties represented in the
Assembly;
(i) four permanent delegates to the National Council of Provinces designated
together by the Council with a supporting vote of at least six provinces;
(j) four persons designated by the President as head of the national
execcccutive٫ after consulting the leaders of all the parties in the National
Assembly; and
(k) when considering matters specifically relating to a provincial or local
division of the High Court٫ the Judge President of that division and the
Premier٫ or an alternate designated by the Premier٫ of the province concerned.
(۲) If the number of persons nominated from within the advocates" or attorneys"
profession in terms of subsection (۱)(e) or (f) equals the number of vacancies
to be filled٫ the President must appoint them. If the number of persons
nominated exceeds the number of vacancies to be filled٫ the President٫ after
consulting the relevant profession٫ must appoint sufficient of the nominees to
fill the vacancies٫ taking into account the need to ensure that those appointed
represent the profession as a whole.
(۳) Members of the Commission designated by the National Council of Provinces
serve until they are replaced together٫ or until any vacancy occurs in their
number. Other members who were designated or nominated to the Commission serve
until they are replaced by those who designated or nominated them.
(۴) The Judicial Service Commission has the powers and functions assigned to it
in the Constitution and national legislation.
(۵) The Judicial Service Commission may advise the national government on any
matter relating to the judiciary or the administration of justice٫ but when it
considers any matter except the appointment of a judge٫ it must sit without the
members designated in terms of subsection (۱) (h) and (i).
(۶) The Judicial Service Commission may determine its own procedure٫ but
decisions of the Commission must be supported by a majority of its members.
Section ۱۷۹ Prosecuting authority
(۱) There is a single national prosecuting authority in the Republic٫
structured in terms of an Act of Parliament٫ and
consisting of –
(a) a National Director of Public Prosecutions٫ who is the head of the
prosecuting authority٫ and is appointed by the President as head of the
national execcccutive; and
(b) Directors of Public Prosecutions and prosecutors as determined by an Act of
Parliament.
(۲) The prosecuting authority has the power to institute criminal proceedings
on behalf of the state٫ and to carry out any necessary functions incidental to
instituting criminal proceedings.
(۳) National legislation must ensure that the Directors of Public Prosecutions
–
(a) are appropriately qualified; and
(b) are responsible for prosecutions in specific jurisdictions٫ subject to
subsection (۵).
(۴) National legislation must ensure that the prosecuting authority exercises
its functions without fear٫ favour or prejudice.
(۵) The National Director of Public Prosecutions –
(a) must determine٫ with the concurrence of the Cabinet member responsible for
the administration of justice٫ and after consulting the Directors of Public
Prosecutions٫ prosecution policy which must be observed in the prosecution
process;
(b) must issue policy directives which must be observed in the prosecution
process;
(c) may intervene in the prosecution process when policy directives are not
complied with; and
(d) may review a decision to prosecute or not to prosecute٫ after consulting
the relevant Director of Public Prosecutions and after taking representations
within a period specified by the National Director of Public Prosecutions٫ from
the following:
(i) The accused person.
(ii) The complainant.
(iii) Any other person or party whom the National Director considers to be
relevant.
(۶) The Cabinet member responsible for the administration of justice must
exercise final responsibility over the prosecuting authority.
(۷) All other matters concerning the prosecuting authority must be determined
by national legislation.
Section ۱۸۰ Other matters concerning administration of justice
National legislation may provide for any matter concerning the administration
of justice that is not dealt with in the Constitution٫ including –
(a) training programmes for judicial officers;
(b) procedures for dealing with complaints about judicial officers; and
(c)the participation of people other than judicial officers in court decisions.
Chapter ۹ State Institutions Supporting Constitutional Democracy
[Title ۰ General Provision]
Section ۱۸۱ Establishment and governing principles
(۱) The following state institutions strengthen constitutional democracy in the
Republic:
(a) The Public Protector.
(b) The Human Rights Commission.
(c) The Commission for the Promotion and Protection of the Rights of Cultural٫
Religious and Linguistic Communities.
(d) The Commission for Gender Equality.
(e) The Auditor-General.
(f) The Electoral Commission.
(۲) These institutions are independent٫ and subject only to the Constitution
and the law٫ and they must be impartial and must exercise their powers and
perform their functions without fear٫ favour or prejudice.
(۳) Other organs of state٫ through legislative and other measures٫ must assist
and protect these institutions to ensure the independence٫ impartiality٫
dignity and effectiveness of these institutions.
(۴) No person or organ of state may interfere with the functioning of these
institutions.
(۵) These institutions are accountable to the National Assembly٫ and must
report on their activities and the performance of their functions to the
Assembly at least once a year.
[Title ۱] Public Protector
Section ۱۸۲ Functions of Public Protector
(۱) The Public Protector has the power٫ as regulated by national legislation –
(a) to investigate any conduct in state affairs٫ or in the public
administration in any sphere of government٫ that is alleged or suspected to be
improper or to result in any impropriety or prejudice;
(b) to report on that conduct; and
(c) to take appropriate remedial action.
(۲) The Public Protector has the additional powers and functions prescribed by
national legislation.
(۳) The Public Protector may not investigate court decisions.
(۴) The Public Protector must be accessible to all persons and communities.
(۵) Any report issued by the Public Protector must be open to the public unless
exceptional circumstances٫ to be determined in terms of national legislation٫
require that a report be kept confidential.
Section ۱۸۳ Tenure
The Public Protector is appointed for a non-renewable period of seven years.
[Title ۲] Human Rights Commission
Section ۱۸۴ Functions of Human Rights Commission
(۱) The Human Rights Commission must –
(a) promote respect for human rights and a culture of human rights;
(b) promote the protection٫ development and attainment of human rights; and
(c) monitor and assess the observance of human rights in the Republic.
(۲) The Human Rights Commission has the powers٫ as regulated by national
legislation٫ necessary to perform its functions٫ including the power –
(a) to investigate and to report on the observance of human rights;
(b) to take steps to secure appropriate redress where human rights have been
violated;
(c) to carry out research; and
(d) to educate.
(۳) Each year٫ the Human Rights Commission must require relevant organs of
state to provide the Commission with information on the measures that they have
taken towards the realisation of the rights in the Bill of Rights concerning
housing٫ health care٫ food٫ water٫ social security٫ education and the
environment.
(۴) The Human Rights Commission has the additional powers and functions
prescribed by national legislation.
[Title ۳] Commission for the Promotion and Protection of the Rights of
Cultural٫ Religious and Linguistic Communities
Section ۱۸۵ Functions of Commission
(۱) The primary objectttts of the Commission for the Promotion and Protection
of the Rights of Cultural٫ Religious and Linguistic Communities are –
(a) to promote respect for the rights of cultural٫ religious and linguistic
communities;
(b) to promote and develop peace٫ friendship٫ humanity٫ tolerance and national
unity among cultural٫ religious and linguistic communities٫ on the basis of
equality٫ non-discrimination and free association; and
(c) to recommend the establishment or recognition٫ in accordance with national
legislation٫ of a cultural or other council or councils for a community or
communities in South Africa.
(۲) The Commission has the power٫ as regulated by national legislation٫
necessary to achieve its primary objectttts٫ including the power to monitor٫
investigate٫ research٫ educate٫ lobby٫ advise and report on issues concerning
the rights of cultural٫ religious and linguistic communities.
(۳) The Commission may report any matter which falls within its powers and
functions to the Human Rights Commission for investigation.
(۴) The Commission has the additional powers and functions prescribed by
national legislation.
Section ۱۸۶ Composition of Commission
(۱) The number of members of the Commission for the Promotion and Protection of
the Rights of Cultural٫ Religious and Linguistic Communities and their
appointment and terms of office must be prescribed by national legislation.
(۲) The composition of the Commission must-
(a) be broadly representative of the main cultural٫ religious and linguistic
communities in South Africa; and
(b) broadly reflect the gender composition of South Africa.
[Title ۴] Commission for Gender Equality
Section ۱۸۷ Functions of Commission for Gender Equality
(۱) The Commission for Gender Equality must promote respect for gender equality
and the protection٫ development and attainment of gender equality.
(۲) The Commission for Gender Equality has the power٫ as regulated by national
legislation٫ necessary to perform its functions٫ including the power to
monitor٫ investigate٫ research٫ educate٫ lobby٫ advise and report on issues
concerning gender equality.
(۳) The Commission for Gender Equality has the additional powers and functions
prescribed by national legislation.
[Title ۵] Auditor-General
Section ۱۸۸ Functions of Auditor-General
(۱) The Auditor-General must audit and report on the accounts٫ financial
statements and financial management of –
(a) all national and provincial state departments and administrations;
(b) all municipalities; and
(c) any other institution or accounting entity required by national or
provincial legislation to be audited by the Auditor-General.
(۲) In addition to the duties prescribed in subsection (۱)٫ and subject to any
legislation٫ the Auditor-General may audit and report on the accounts٫
financial statements and financial management of –
(a) any institution funded from the National Revenue Fund or a –
Provincial Revenue Fund or by a municipality; or
(b) any institution that is authorised in terms of any law to receive money for
a public purpose.
(۳) The Auditor-General must submit audit reports to any legislature that has a
direct interest in the audit٫ and to any other authority prescribed by national
legislation. All reports must be made public.
(۴) The Auditor-General has the additional powers and functions prescribed by
national legislation.
Section ۱۸۹ Tenure
The Auditor-General must be appointed for a fixed٫ non-
renewable term of between five and ten years.
[Title ۶] Electoral Commission
Section ۱۹۰ Functions of Electoral Commission
(۱) The Electoral Commission must –
(a) manage elections of national٫ provincial and municipal legislative bodies
in accordance with national legislation;
(b) ensure that those elections are free and fair; and
(c) declare the results of those elections within a period that must be
prescribed by national legislation and that is as short as reasonably possible.
(۲) The Electoral Commission has the additional powers and functions prescribed
by national legislation.
Section ۱۹۱ Composition of Electoral Commission
The Electoral Commission must be composed of at least three persons. The number
of members and their terms of office must be prescribed by national
legislation.
[Title ۷] Independent Authority to Regulate Broadcasting
Section ۱۹۲ Broadcasting Authority
National legislation must establish an independent authority to regulate
broadcasting in the public interest٫ and to ensure fairness and a diversity of
views broadly representing South African society.
[Title ۸] General Provisions
Section ۱۹۳ Appointments
(۱) The Public Protector and members of any Commission established by this
Chapter must be women or men who –
(a) are South African citizens;
(b) are fit and proper persons to hold the particular office; and
(c) comply with any other requirements prescribed by national legislation.
(۲) The need for a Commission established by this Chapter to reflect broadly
the race and gender composition of South Africa must be considered when members
are appointed.
(۳) The Auditor-General must be a woman or a man who is a South African citizen
and a fit and proper person to hold that office. Specialised knowledge of٫ or
experience in٫ auditing٫ state finances and public administration must be given
due regard in appointing the Auditor-General.
(۴) The President٫ on the recommendation of the National Assembly٫ must appoint
the Public Protector٫ the Auditor-General and members of –
(a) the Human Rights Commission;
(b) the Commission for Gender Equality; and
(c) the Electoral Commission.
(۵) The National Assembly must recommend persons –
(a) nominated by a committee of the Assembly proportionally composed of members
of all parties represented in the Assembly; and
(b) approved by the Assembly by a resolution adopted with a supporting vote –
(i) of at least ۶۰ per cent of the members of the Assembly٫ if the
recommendation concerns the appointment of the Public Protector or the
Auditor-General; or
(ii) of a majority of the members of the Assembly٫ if the recommendation
concerns the appointment of a member of a Commission.
(۶) The involvement of civil society in the recommendation process may be
provided for as envisaged in section ۵۹(۱)(a).
Section ۱۹۴ Removal from office
(۱) The Public Protector٫ the Auditor-General or a member of a
Commission established by this Chapter may be removed from office only on –
(a) the ground of misconduct٫ incapacity or incompetence;
(b) a finding to that effect by a committee of the National Assembly; and
(c) the adoption by the Assembly of a resolution calling for that person''s
removal from office.
(۲) A resolution of the National Assembly concerning the removal from office of
–
(a) the Public Protector or the Auditor-General must be adopted with a
supporting vote of at least two thirds of the members of the Assembly; or
(b) a member of a commission must be adopted with a supporting vote of a
majority of the members of the Assembly.
(۲) The President –
(a) may suspend a person from office at any time after the start of the
proceedings of a committee of the National Assembly for the removal of that
person; and
(b)must remove a person from office upon adoption by the Assembly of the
resolution calling for that person''s removal.
Chapter ۱۰ Public Administration
Section ۱۹۵ Basic values and principles governing public administration
(۱) Public administration must be governed by the democratic values and
principles enshrined in the Constitution٫ including the following principles:
(a) A high standard of professional ethics must be promoted and maintained.
(b) Efficient٫ economic and effective use of resources must be promoted.
(c) Public administration must be development-oriented.
(d) Services must be provided impartially٫ fairly٫ equitably and without bias.
(e) People''s needs must be responded to٫ and the public must be encouraged
to participate in policy-making.
(f) Public administration must be accountable.
(g) Transparency must be fostered by providing the public with timely٫
accessible and accurate information.
(h) Good human-resource management and career-development practices٫ to
maximise human potential٫ must be cultivated.
(i) Public administration must be broadly representative of the South African
people٫ with employment and personnel management practices based on ability٫
objecttttivity٫ fairness٫ and the need to redress the imbalances of the past
to achieve broad representation.
(۲) The above principles apply to –
(a) administration in every sphere of government;
(b) organs of state; and
(c) public enterprises.
(۳) National legislation must ensure the promotion of the values and principles
listed in subsection (۱).
(۴) The appointment in public administration of a number of persons on policy
considerations is not precluded٫ but national legislation must regulate these
appointments in the public service.
(۵) Legislation regulating public administration may differentiate between
different sectors٫ administrations or institutions.
(۶) The nature and functions of different sectors٫ administrations or
institutions of public administration are relevant factors to be taken into
account in legislation regulating public administration.
Section ۱۹۶ Public Service Commission
(۱) There is a single Public Service Commission for the Republic.
(۲) The Commission is independent and must be impartial٫ and must exercise its
powers and perform its functions without fear٫ favour or prejudice in the
interest of the maintenance of effective and efficient public administration
and a high standard of
professional ethics in the public service. The Commission must be regulated by
national legislation.
(۳) Other organs of state٫ through legislative and other measures٫ must assist
and protect the Commission to ensure the independence٫ impartiality٫ dignity
and effectiveness of the Commission. No person or organ of state may interfere
with the functioning of the Commission.
(۴) The powers and functions of the Commission are:
(a) To promote the values and principles set out in section ۱۹۵٫ throughout the
public service;
(b) to investigate٫ monitor and evaluate the organisation and administration٫
and the personnel practices٫ of the public service;
(c) to propose measures to ensure effective and efficient performance within
the public service;
(d) to give directions aimed at ensuring that personnel procedures relating to
recruitment٫ transfers٫ promotions and dismissals comply with the values and
principles set out in section ۱۹۵;
(e) to report in respect of its activities and the performance of its
functions٫ including any finding it may make and directions and advice it may
give٫ and to provide an evaluation of the extent to which the values and
principles set out in section ۱۹۵ are complied with; and
(f) either of its own accord or on receipt of any complaint –
(i) to investigate and evaluate the application of personnel and public
administration practices٫ and to report to the relevant execcccutive authority
and legislature;
(ii) to investigate grievances of employees in the public service concerning
official acts or omissions٫ and recommend appropriate remedies;
(iii) to monitor and investigate adherence to applicable procedures in the
public service; and
(iv) to advise national and provincial organs of state regarding personnel
practices in the public service٫ including those relating to the recruitment٫
appointment٫ transfer٫ discharrrrge and other aspects of the careers of
employees in the public service.
(۵) The Commission is accountable to the National Assembly.
(۶) The Commission must report at least once a year in terms of subsection (۴)
(e) –
(a) to the National Assembly; and
(b) in respect of its activities in a province٫ to the legislature of that
province.
(۷) The Commission has the following ۱۴ commissioners appointed by the
President:
(a) Five commissioners approved by the National Assembly in accordance with
subsection (۸)(a); and
(b) one commissioner for each province nominated by the Premier of the province
in accordance with subsection (۸)(b).
(۸) (a) A commissioner appointed in terms of subsection (۷)(a) must be –
(i) recommended by a committee of the National Assembly that is proportionally
composed of members of all parties represented in the Assembly; and
(ii) approved by the Assembly by a resolution adopted with a supporting vote of
a majority of its members.
(b) A commissioner nominated by the Premier of a province must be –
(i) recommended by a committee of the provincial legislature that is
proportionally composed of members of all parties represented in the
legislature; and
(ii) approved by the legislature by a resolution adopted with a supporting vote
of a majority of its members.
(۹) An Act of Parliament must regulate the procedure for the appointment of
commissioners.
(۱۰) A commissioner is appointed for a term of five years٫ which is renewable
for one additional term only٫ and must be a woman or a man who is –
(a) a South African citizen; and
(b) a fit and proper person with knowledge of٫ or experience in٫
administration٫ management or the provision of public services.
(۱۱) A commissioner may be removed from office only on –
(a) the ground of misconduct٫ incapacity or incompetence;
(b) a finding to that effect by a committee of the National Assembly or٫ in the
case of a commissioner nominated by the Premier of a province٫ by a committee
of the legislature of that province; and
(c) the adoption by the Assembly or the provincial legislature concerned٫ of a
resolution with a supporting vote of a majority of its members calling for the
commissioner''s removal from office.
(۱۲) The President must remove the relevant commissioner from office upon –
(a) the adoption by the Assembly of a resolution calling for that
commissioner''s removal; or
(b) written notification by the Premier that the provincial legislature has
adopted a resolution calling for that commissioner''s removal.
(۱۳) Commissioners referred to in subsection (۷)(b) may exercise the powers and
perform the functions of the Commission in their provinces as prescribed by
national legislation.
Section ۱۹۷ Public Service
(۱) Within public administration there is a public service for the Republic٫
which must function٫ and be structured٫ in terms of national legislation٫ and
which must loyally execcccute the lawful policies of the government of the
day.
(۲) The terms and conditions of employment in the public service must be
regulated by national legislation. Employees are entitled to a fair pension as
regulated by national legislation.
(۳) No employee of the public service may be favoured or prejudiced only
because that person supports a particular political party or cause.
(۴)Provincial governments are responsible for the recruitment٫ appointment٫
promotion٫ transfer and dismissal of members of the public service in their
administrations within a framework of uniform norms and standards applying to
the public service.
Chapter ۱۱ Security Services
[Title ۰ General Provisions]
Section ۱۹۸ Governing principles
The following principles govern national security in the Republic:
(a) National security must reflect the resolve of South Africans٫ as
individuals and as a nation٫ to live as equals٫ to live in peace and harmony٫
to be free from fear and want and to seek a better life.
(b) The resolve to live in peace and harmony precludes any South African
citizen from participating in armed conflict٫ nationally or internationally٫
except as provided for in terms of the Constitution or national legislation.
(c) National security must be pursued in compliance with the law٫ including
international law.
(d) National security is subject to the authority of Parliament and the
national execcccutive.
Section ۱۹۹ Establishment٫ structuring and conduct of security services
(۱) The security services of the Republic consist of a single defence force٫ a
single police service and any intelligence services established in terms of the
Constitution.
(۲) The defence force is the only lawful military force in the Republic.
(۳) Other than the security services established in terms of the Constitution٫
armed organisations or services may be established only in terms of national
legislation.
(۴) The security services must be structured and regulated by national
legislation.
(۵) The security services must act٫ and must teach and require their members to
act٫ in accordance with the Constitution and the law٫ including customary
international law and international agreements binding on the Republic.
(۶) No member of any security service may obey a manifestly illegal order.
(۷) Neither the security services٫ nor any of their members٫ may٫ in the
performance of their functions –
(a) prejudice a political party interest that is legitimate in terms of the
Constitution; or
(b) further٫ in a partisan manner٫ any interest of a political party.
(۸) To give effect to the principles of transparency and accountability٫
multi-party parliamentary committees must have oversight of all security
services in a manner determined by national legislation or the rules and orders
of Parliament.
[Title ۱] Defence
Section ۲۰۰ Defence force
(۱) The defence force must be structured and managed as a disciplined military
force.
(۲) The primary objectttt of the defence force is to defend and protect the
Republic٫ its territorial integrity and its people in accordance with the
Constitution and the principles of international law regulating the use of
force.
Section ۲۰۱ Political responsibility
(۱) A member of the Cabinet must be responsible for defence.
(۲) Only the President٫ as head of the national execcccutive٫ may authorise
the employment of the defence force –
(a) in co-operation with the police service;
(b) in defence of the Republic; or
(c) in fulfilment of an international obligation.
(۳) When the defence force is employed for any purpose mentioned in subsection
(۲)٫ the President must inform Parliament٫ promptly and in appropriate detail٫
of –
(a) the reasons for the employment of the defence force;
(b) any place where the force is being employed;
(c) the number of people involved; and
(d) the period for which the force is expected to be employed.
(۴) If Parliament does not sit during the first seven days after the defence
force is employed as envisaged in subsection (۲)٫ the President must provide
the information required in subsection (۳) to the appropriate oversight
committee.
Section ۲۰۲ Command of defence force
(۱) The President as head of the national execcccutive is Commander-
in- Chief of the defence force٫ and must appoint the Military Command of the
defence force.
(۲) Command of the defence force must be exercised in accordance with the
directions of the Cabinet member responsible for defence٫ under the authority
of the President.
Section ۲۰۳ State of national defence
(۱) The President as head of the national execcccutive may declare a state of
national defence٫ and must inform Parliament promptly and in appropriate detail
of –
(a) the reasons for the declaration;
(b) any place where the defence force is being employed; and
(c) the number of people involved.
(۲) If Parliament is not sitting when a state of national defence is declared٫
the President must summon Parliament to an extraordinary sitting within seven
days of the declaration.
(۳) A declaration of a state of national defence lapses unless it is approved
by Parliament within seven days of the declaration.
Section ۲۰۴ Defence civilian secretariat
A civilian secretariat for defence must be established by national legislation
to function under the direction of the Cabinet member responsible for defence.
[Title ۲] Police
Section ۲۰۵ Police service
(۱) The national police service must be structured to function in the national٫
provincial and٫ where appropriate٫ local spheres of government.
(۲) National legislation must establish the powers and functions of the police
service and must enable the police service to discharrrrge its
responsibilities effectively٫ taking into account the requirements of the
provinces.
(۳) The objectttts of the police service are to prevent٫ combat and
investigate crime٫ to maintain public order٫ to protect and secure the
inhabitants of the Republic and their property٫ and to uphold and enforce the
law.
Section ۲۰۶ Political responsibility
(۱) A member of the Cabinet must be responsible for policing and must determine
national policing policy after consulting the provincial governments and taking
into account the policing needs and priorities of the provinces as determined
by the provincial execcccutives.
(۲) The national policing policy may make provision for different policies in
respect of different provinces after taking into account the policing needs and
priorities of these provinces.
(۳) Each province is entitled -(a) to monitor police conduct;
(b) to oversee the effectiveness and efficiency of the police service٫
including receiving reports on the police service;
(c) to promote good relations between the police and the community;
(d) to assess the effectiveness of visible policing; and
(e) to liaise with the Cabinet member responsible for policing with respect to
crime and policing in the province.
(۴) A provincial execcccutive is responsible for policing functions –
(a) vested in it by this Chapter;
(b) assigned to it in terms of national legislation; and
(c) allocated to it in the national policing policy.
(۵) In order to perform the functions set out in subsection (۳)٫ a province –
(a) may investigate٫ or appoint a commission of inquiry into٫ any complaints of
police inefficiency or a breakdown in relations between the police and any
community; and
(b) must make recommendations to the Cabinet member responsible for policing.
(۶) On receipt of a complaint lodged by a provincial execcccutive٫ an
independent police complaints body established by national legislation must
investigate any alleged misconduct of٫ or offence committed by٫ a member of the
police service in the province.
(۷) National legislation must provide a framework for the establishment٫
powers٫ functions and control of municipal police services.
(۸) A committee composed of the Cabinet member and the members of the
execcccutive Councils responsible for policing must be established to ensure
effective co-ordination of the police service and effective co-operation among
the spheres of government.
(۹) A provincial legislature may require the provincial commissioner of the
province to appear before it or any of its committees to answer questions.
Section ۲۰۷ Control of police service
(۱) The President as head of the national execcccutive must appoint a woman or
a man as the National Commissioner of the police service٫ to control and manage
the police service.
(۲) The National Commissioner must exercise control over and manage the police
service in accordance with the national policing policy and the directions of
the Cabinet member responsible for policing.
(۳) The National Commissioner٫ with the concurrence of the provincial
execcccutive٫ must appoint a woman or a man as the provincial commissioner for
that province٫ but if the National Commissioner and the provincial
execcccutive are unable to agree on the appointment٫ the Cabinet member
responsible for policing must mediate between the parties.
(۴) The provincial commissioners are responsible for policing in their
respective provinces –
(a) as prescribed by national legislation; and
(b) subject to the power of the National Commissioner to exercise control over
and manage the police service in terms of subsection (۲).
(۵) The provincial commissioner must report to the provincial legislature
annually on policing in the province٫ and must send a copy of the report to the
National Commissioner.
(۶) If the provincial commissioner has lost the confidence of the provincial
execcccutive٫ that execcccutive may institute appropriate proceedings for the
removal or transfer of٫ or disciplinary action against٫ that Commissioner٫ in
accordance with national legislation.
Section ۲۰۸ Police civilian secretariat
A civilian secretariat for the police service must be established by national
legislation to function under the direction of the Cabinet member responsible
for policing.
[Title ۳] Intelligence
Section ۲۰۹ Establishment and control of intelligence services
(۱) Any intelligence service٫ other than any intelligence division of the
defence force or police service٫ may be established only by the President٫ as
head of the national execcccutive٫ and only in terms of national legislation.
(۲) The President as head of the national execcccutive must appoint a woman or
a man as head of each intelligence service established in terms of subsection
(۱)٫ and must either assume political responsibility for the control and
direction of any of those services٫ or designate a member of the Cabinet to
assume that responsibility.
Section ۲۱۰ Powers٫ functions and monitoring
National legislation must regulate the objectttts٫ powers and functions of the
intelligence services٫ including any intelligence division of the defence force
or police service٫ and must provide for –
(a) the co-ordination of all intelligence services; and
(b)civilian monitoring of the activities of those services by an inspector
appointed by the President as head of the national execcccutive٫ and approved
by a resolution adopted by the National Assembly with a supporting vote of at
least two thirds of its members.
Chapter ۱۲ Traditional Leaders
Section ۲۱۱ Recognition
(۱) The institution٫ status and role of traditional leadership٫ according to
customary law٫ are recognised٫ subject to the Constitution.
(۲) A traditional authority that observes a system of customary law may
function subject to any applicable legislation and customs٫ which includes
amendments to٫ or repeal of٫ that legislation or those customs.
(۳) The courts must apply customary law when that law is applicable٫ subject to
the Constitution and any legislation that
specifically deals with customary law.
Section ۲۱۲ Role of traditional leaders
(۱) National legislation may provide for a role for traditional leadership as
an institution at local level on matters affecting local communities.
(۲) To deal with matters relating to traditional leadership٫ the role of
traditional leaders٫ customary law and the customs of communities observing a
system of customary law –
(a) national or provincial legislation may provide for the establishment of
houses of traditional leaders; and
(b) national legislation may establish a council of traditional leaders.
Chapter ۱۳ Finance
[Title ۱] General Financial Matters
Section ۲۱۳ National Revenue Fund
(۱) There is a National Revenue Fund into which all money received by the
national government must be paid٫ except money reasonably excluded by an Act of
Parliament.
(۲) Money may be withdrawn from the National Revenue Fund only –
(a) in terms of an appropriation by an Act of Parliament; or
(b) as a direct charrrrge against the National Revenue Fund٫ when it is
provided for in the Constitution or an Act of Parliament.
(۳) A province''s equitable share of revenue raised nationally is a direct
charrrrge against the National Revenue Fund.
Section ۲۱۴ Equitable shares and allocations of revenue
(۱) An Act of Parliament must provide for –
(a) the equitable division of revenue raised nationally among the national٫
provincial and local spheres of government;
(b) the determination of each province''s equitable share of the provincial
share of that revenue; and
(c) any other allocations to provinces٫ local government or municipalities from
the national government''s share of that revenue٫ and any conditions on which
those allocations may be made.
(۲) The Act referred to in subsection (۱) may be enacted only after the
provincial governments٫ organised local government and the Financial and Fiscal
Commission have been consulted٫ and any recommendations of the Commission have
been considered٫ and must take into account –
(a) the national interest;
(b) any provision that must be made in respect of the national debt and other
national obligations;
(c) the needs and interests of the national government٫ determined by
objecttttive criteria;
(d) the need to ensure that the provinces and municipalities are able to
provide basic services and perform the functions allocated to them;
(e) the fiscal capacity and efficiency of the provinces and municipalities;
(f) developmental and other needs of provinces٫ local government and
municipalities;
(g) economic disparities within and among the provinces;
(h) obligations of the provinces and municipalities in terms of national
legislation;
(i) the desirability of stable and predictable allocations of revenue shares;
and
(j) the need for flexibility in responding to emergencies or other temporary
needs٫ and other factors based on similar objecttttive criteria.
Section ۲۱۵ National٫ provincial and municipal budgets
(۱) National٫ provincial and municipal budgets and budgetary processes must
promote transparency٫ accountability and the effective financial management of
the economy٫ debt and the public sector.
(۲) National legislation must prescribe –
(a) the form of national٫ provincial and municipal budgets;
(b) when national and provincial budgets must be tabled; and
(c) that budgets in each sphere of government must show the sources of revenue
and the way in which proposed expenditure will comply with national
legislation.
(۳) Budgets in each sphere of government must contain –
(a) estimates of revenue and expenditure٫ differentiating between capital and
current expenditure;
(b) proposals for financing any anticipated deficit for the period to which
they apply; and
(c) an indication of intentions regarding borrowing and other forms of public
liability that will increase public debt during the ensuing year.
Section ۲۱۶ Treasury control
(۱) National legislation must establish a national treasury and prescribe
measures to ensure both transparency and expenditure control in each sphere of
government٫ by introducing –
(a) generally recognised accounting practice;
(b) uniform expenditure classifications; and
(c) uniform treasury norms and standards.
(۲) The national treasury٫ with the concurrence of the Cabinet member
responsible for national financial matters٫ may stop the transfer of funds to
an organ of state only for serious or persistent material breach of the
measures established in terms of subsection (۱).
(۳) A decision to stop the transfer of funds to a province may be taken only in
terms of subsection (۲)٫ and –
(a) may not stop the transfer of funds for more than ۱۲۰ days; and
(b) may be enforced immediately٫ but will lapse retrospectively unless
Parliament approves it following a process substantially the same as that
established in terms of section ۷۶(۱) and prescribed by the joint rules and
orders of Parliament. This process must be completed within ۳۰ days of the
decision by the national treasury.
(۴) Parliament may renew a decision to stop the transfer of funds for no more
than ۱۲۰ days at a time٫ following the process established in terms of
subsection (۳).
(۵) Before Parliament may approve or renew a decision to stop the transfer of
funds to a province –
(a) the Auditor-General must report to Parliament; and
(b) the province must be given an opportunity to answer the allegations against
it٫ and to state its case٫ before a committee.
Section ۲۱۷ Procurement
(۱) When an organ of state in the national٫ provincial or local sphere of
government٫ or any other institution identified in national legislation٫
contracts for goods or services٫ it must do so in accordance with a system
which is fair٫ equitable٫ transparent٫ competitive and cost-effective.
(۲) Subsection (۱) does not prevent the organs of state or institutions
referred to in that subsection from implementing a procurement policy providing
for –
(a) categories of preference in the allocation of contracts; and
(b) the protection or advancement of persons٫ or categories of persons٫
disadvantaged by unfair discrimination.
(۳) National legislation must prescribe a framework within which the policy
referred to in subsection (۲) may be implemented.
Section ۲۱۸ Government guarantees
(۱) The national government٫ a provincial government or a municipality may
guarantee a loan only if the guarantee complies with any conditions set out in
national legislation.
(۲) National legislation referred to in subsection (۱) may be
enacted only after any recommendations of the Financial and Fiscal Commission
have been considered.
(۳) Each year٫ every government must publish a report on the guarantees it has
granted.
Section ۲۱۹ Remuneration of persons holding public office
(۱) An Act of Parliament must establish a framework for determining-
(a) the salaries٫ allowances and benefits of members of the National Assembly٫
permanent delegates to the National Council of Provinces٫ members of the
Cabinet٫ Deputy Ministers٫ traditional leaders and members of any councils of
traditional leaders; and
(b) the upper limit of salaries٫ allowances or benefits of members of
provincial legislatures٫ members of execcccutive Councils and members of
Municipal Councils of the different categories.
(۲) National legislation must establish an independent commission to make
recommendations concerning the salaries٫ allowances and benefits referred to in
subsection (۱).
(۳) Parliament may pass the legislation referred to in subsection (۱) only
after considering any recommendations of the commission established in terms of
subsection (۲).
(۴) The national execcccutive٫ a provincial execcccutive٫ a municipality or
any other relevant authority may implement the national legislation referred to
in subsection (۱) only after considering any recommendations of the commission
established in terms of subsection (۲).
(۵) National legislation must establish frameworks for determining the
salaries٫ allowances and benefits of judges٫ the Public Protector٫ the
Auditor-General٫ and members of any commission provided for in the
Constitution٫ including the broadcasting authority referred to in section ۱۹۲.
[Title ۲] Financial and Fiscal Commission
Section ۲۲۰ Establishment and functions
(۱) There is a Financial and Fiscal Commission for the Republic which makes
recommendations envisaged in this Chapter٫ or in national legislation٫ to
Parliament٫ provincial legislatures and any other authorities determined by
national legislation.
(۲) The Commission is independent and subject only to the Constitution and the
law٫ and must be impartial.
(۳) The Commission must function in terms of an Act of Parliament and٫ in
performing its functions٫ must consider all relevant factors٫ including those
listed in section ۲۱۴(۲).
Section ۲۲۱ Appointment and tenure of members
(۱) The Commission consists of the following women and men appointed by the
President as head of the national execcccutive:
(a) A chairperson and a deputy chairperson who are full-time members;
(b) nine persons٫ each of whom is nominated by the execcccutive Council of a
province٫ with each province nominating only one person;
(c) two persons nominated by organised local government in terms of section
۱۶۳; and
(d) nine other persons.
(۲) Members of the Commission must have appropriate expertise.
(۳) Members serve for a term established in terms of national legislation. The
President may remove a member from office on the ground of misconduct٫
incapacity or incompetence.
Section ۲۲۲ Reports
The Commission must report regularly both to Parliament and to the provincial
legislatures.
[Title ۳] Central Bank
Section ۲۲۳ Establishment
The South African Reserve Bank is the central bank of the Republic and is
regulated in terms of an Act of Parliament.
Section ۲۲۴ Primary objectttt
(۱) The primary objectttt of the South African Reserve Bank is to protect the
value of the currency in the interest of balanced and sustainable economic
growth in the Republic.
(۲) The South African Reserve Bank٫ in pursuit of its primary objectttt٫ must
perform its functions independently and without fear٫ favour or prejudice٫ but
there must be regular consultation between the Bank and the Cabinet member
responsible for national financial matters.
Section ۲۲۵ Powers and functions
The powers and functions of the South African Reserve Bank are those
customarily exercised and performed by central banks٫ which powers and
functions must be determined by an Act of Parliament and must be exercised or
performed subject to the conditions prescribed in terms of that Act.
[Title ۴] Provincial and Local Financial Matters
Section ۲۲۶ Provincial Revenue Funds
(۱) There is a Provincial Revenue Fund for each province into which all money
received by the provincial government must be paid٫ except money reasonably
excluded by an Act of Parliament.
(۲) Money may be withdrawn from a Provincial Revenue Fund only –
(a) in terms of an appropriation by a provincial Act; or
(b) as a direct charrrrge against the Provincial Revenue Fund٫ when it is
provided for in the Constitution or a provincial Act.
(۳) Revenue allocated through a province to local government in that province
in terms of section ۲۱۴(۱)٫ is a direct charrrrge against that province''s
Revenue Fund.
Section ۲۲۷ National sources of provincial and local government funding
(۱) Local government and each province –
(a) is entitled to an equitable share of revenue raised nationally to enable it
to provide basic services and perform the functions allocated to it; and
(b) may receive other allocations from national government revenue٫ either
conditionally or unconditionally.
(۲) Additional revenue raised by provinces or municipalities may not be
deducted from their share of revenue raised nationally٫ or from other
allocations made to them out of national government revenue. Equally٫ there is
no obligation on the national government to compensate provinces or
municipalities that do not raise revenue commensurate with their fiscal
capacity and tax base.
(۳) A province''s equitable share of revenue raised nationally must be
transferred to the province promptly and without deduction٫ except when the
transfer has been stopped in terms of section ۲۱۶.
(۴) A province must provide for itself any resources that it requires٫ in terms
of a provision of its provincial constitution٫ that are additional to its
requirements envisaged in the Constitution.
Section ۲۲۸ Provincial taxes
(۱) A provincial legislature may impose –
(a) taxes٫ levies and duties other than income tax٫ value-added tax٫ general
sales tax٫ rates on property or customs duties; and
(b) flat-rate surcharrrrges on the tax bases of any tax٫ levy or duty that is
imposed by national legislation٫ other than the tax bases of corporate income
tax٫ value-added tax٫ rates on property or customs duties.
(۲) The power of a provincial legislature to impose taxes٫ levies٫ duties and
surcharrrrges –
(a) may not be exercised in a way that materially and
unreasonably prejudices national economic policies٫ economic activities across
provincial boundaries٫ or the national mobility of goods٫ services٫ capital or
labour; and
(b) must be regulated in terms of an Act of Parliament٫ which may be enacted
only after any recommendations of the Financial and Fiscal Commission have been
considered.
Section ۲۲۹ Municipal fiscal powers and functions
(۱) Subject to subsections (۲)٫ (۳) and (۴)٫ a municipality may impose –
(a) rates on property and surcharrrrges on fees for services provided by or on
behalf of the municipality; and
(b) if authorised by national legislation٫ other taxes٫ levies and duties
appropriate to local government or to the category of local government into
which that municipality falls٫ but no municipality may impose income tax٫
value-added tax٫ general sales tax or customs duty.
(۲) The power of a municipality to impose rates on property٫ surcharrrrges on
fees for services provided by or on behalf of the municipality٫ or other taxes٫
levies or duties –
(a) may not be exercised in a way that materially and unreasonably prejudices
national economic policies٫ economic activities across municipal boundaries٫ or
the national mobility of goods٫ services٫ capital or labour; and
(b) may be regulated by national legislation.
(۳) When two municipalities have the same fiscal powers and functions with
regard to the same area٫ an appropriate division of those powers and functions
must be made in terms of national legislation. The division may be made only
after taking into account at least the following criteria:
(a) The need to comply with sound principles of taxation;
(b) the powers and functions performed by each municipality;
(c) the fiscal capacity of each municipality;
(d) the effectiveness and efficiency of raising taxes٫ levies and duties;
and
(e) equity.
(۴) Nothing in this section precludes the sharing of revenue raised in terms of
this section between municipalities that have fiscal power and functions in the
same area.
(۵) National legislation envisaged in this section may be enacted only after
organised local government and the Financial and Fiscal Commission have been
consulted٫ and any recommendations of the Commission have been considered.
Section ۲۳۰ Provincial and municipal loans
(۱) A province or a municipality may raise loans for capital or current
expenditure in accordance with reasonable conditions determined by national
legislation٫ but loans for current expenditure –
(a) may be raised only when necessary for bridging purposes during a fiscal
year; and
(b) must be repaid within twelve months.
(۲)National legislation referred to in subsection (۱) may be enacted only after
any recommendations of the Financial and Fiscal Commission have been
considered.
Chapter ۱۴ General Provisions
[Title ۱] International Law
Section ۲۳۱ International agreements
(۱) The negotiating and signing of all international agreements is the
responsibility of the national execcccutive.
(۲) An international agreement binds the Republic only after it has been
approved by resolution in both the National Assembly and the National Council
of Provinces٫ unless it is an agreement referred to in subsection (۳).
(۳) An international agreement of a technical٫ administrative or execcccutive
nature٫ or an agreement which does not require either ratification or
accession٫ entered into by the national execcccutive٫ binds the Republic
without approval by the National Assembly and the National Council of
Provinces٫ but must be tabled in the Assembly and the Council within a
reasonable time.
(۴) Any international agreement becomes law in the Republic when it is enacted
into law by national legislation; but a self-
execcccuting provision of an agreement that has been approved by Parliament is
law in the Republic unless it is inconsistent with the Constitution or an Act
of Parliament.
(۵) The Republic is bound by international agreements which were binding on the
Republic when this Constitution took effect.
Section ۲۳۲ Customary international law
Customary international law is law in the Republic unless it is inconsistent
with the Constitution or an Act of Parliament.
Section ۲۳۳ Application of international law
When interpreting any legislation٫ every court must prefer any reasonable
interpretation of the legislation that is consistent with international law
over any alternative interpretation that is inconsistent with international
law.
[Title ۲] Other matters
Section ۲۳۴ charrrrters of Rights
In order to deepen the culture of democracy established by the Constitution٫
Parliament may adopt charrrrters of Rights consistent with the provisions of
the Constitution.
Section ۲۳۵ Self-determination
The right of the South African people as a whole to self-
determination٫ as manifested in this Constitution٫ does not preclude٫ within
the framework of this right٫ recognition of the notion of the right of
self-determination of any community sharing a common cultural and language
heritage٫ within a territorial entity in the Republic or in any other way٫
determined by national legislation.
Section ۲۳۶ Funding for political parties
To enhance multi-party democracy٫ national legislation must provide for the
funding of political parties participating in national and provincial
legislatures on an equitable and proportional basis.
Section ۲۳۷ Diligent performance of obligations
All constitutional obligations must be performed diligently and without delay.
Section ۲۳۸ Agency and delegation
An execcccutive organ of state in any sphere of government may –
(a) delegate any power or function that is to be exercised or performed in
terms of legislation to any other execcccutive organ of state٫ provided the
delegation is consistent with the legislation in terms of which the power is
exercised or the function is performed; or
(b) exercise any power or perform any function for any other execcccutive
organ of state on an agency or delegation basis.
Section ۲۳۹ Definitions
In the Constitution٫ unless the context indicates otherwise –
"national legislation" includes –
(a) subordinate legislation made in terms of an Act of Parliament; and
(b) legislation that was in force when the Constitution took effect and that is
administered by the national government;
"organ of state" means –
(a) any department of state or administration in the national٫ provincial or
local sphere of government; or
(b) any other functionary or institution –
(i) exercising a power or performing a function in terms of the Constitution or
a provincial constitution; or
(ii) exercising a public power or performing a public function in terms of any
legislation٫ but does not include a court or a judicial officer;
"provincial legislation" includes –
(a) subordinate legislation made in terms of a provincial Act; and
(b) legislation that was in force when the Constitution took effect and that is
administered by a provincial government.
Section ۲۴۰ Inconsistencies between different texts
In the event of an inconsistency between different texts of the Constitution٫
the English text prevails.
Section ۲۴۱ Transitional arrangements
Schedule ۶ applies to the transition to the new constitutional order
established by this Constitution٫ and any matter incidental to that transition.
Section ۲۴۲ Repeal of laws
The laws mentioned in Schedule ۷ are repealed٫ subject to section ۲۴۳ and
Schedule ۶.
Section ۲۴۳ Short title and commencement
(۱) This Act is called the Constitution of the Republic of South Africa٫ ۱۹۹۶٫
and comes into effect as soon as possible on a date set by the President by
proclamation٫ which may not be a date later than ۱ July ۱۹۹۷.
(۲) The President may set different dates before the date mentioned in
subsection (۱) in respect of different provisions of the Constitution.
(۳) Unless the context otherwise indicates٫ a reference in a provision of the
Constitution to a time when the Constitution took effect must be construed as a
reference to the time when that provision took effect.
(۴) If a different date is set for any particular provision of the Constitution
in terms of subsection (۲)٫ any corresponding provision of the Constitution of
the Republic of South Africa٫ ۱۹۹۳ (Act ۲۰۰ of ۱۹۹۳)٫ mentioned in the
proclamation٫ is repealed with effect from the same date.
(۵)Sections ۲۱۳٫ ۲۱۴٫ ۲۱۵٫ ۲۱۶٫ ۲۱۸٫ ۲۲۶٫ ۲۲۷٫ ۲۲۸٫ ۲۲۹ and ۲۳۰ come into
effect on ۱ January ۱۹۹۸٫ but this does not preclude the enactment in terms of
this Constitution of legislation envisaged in any of these provisions before
that date. Until that date any corresponding and incidental provisions of the
Constitution of the Republic of South Africa٫ ۱۹۹۳٫ remain in force.