来源： 作者： 时间：2009-05-15 点击：次
South Africa - Constitution
{ Adopted on: 8 May 1996 }
{ Amended on: 11 Oct 1996 }
{ In Foce since: 7 Feb 1997 }
{ ICL Document Status: 7 Feb 1997}
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 se雗 Suid-Afrika. God bless South Africa.
Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.
Chapter 1 Founding Provisions
Section 1 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 2 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 3 Citizenship
(1) There is a common South African citizenship.
(2) All citizens are -
(a) equally entitled to the rights, privileges and benefits of
citizenship; and
(b) equally subject to the duties and responsibilities of citizenship.
(3) National legislation must provide for the acquisition, loss and
restoration of citizenship.
Section 4 National anthem
The national anthem of the Republic is determined by the President by
proclamation.
Section 5 National flag
The national flag of the Republic is black, gold, green, white, red and
blue, as described and sketched in Schedule 1.
Section 6 Languages
(1) The official languages of the Republic are Sepedi, Sesotho, Setswana,
siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and
isiZulu.
(2) Recognising the historically diminished use and status of the
indigenous languages of our people, the state must take practical and
positive measures to elevate the status and advance the use of these
languages.
(3) (a) The national government and provincial governments may use any
particular official languages for the purposes of government, taking into
account usage, practicality, expense, regional circumstances and the
balance of the needs and preferences of the population as a whole or in
the province concerned; but the national government and each provincial
government must use at least two official languages.
(b) Municipalities must take into account the language usage and
preferences of their residents.
(4) The national government and provincial governments, by legislative and
other measures, must regulate and monitor their use of official languages.
Without detracting from the provisions of subsection (2), all official
languages must enjoy parity of esteem and must be treated equitably.
(5) A Pan South African Language Board established by national legislation
must -
(a) promote and create conditions for the development and use
of -
(i) all official languages;
(ii) the Khoi, Nama and San languages; and
(iii) sign language ; and
(b) promote and ensure respect for -
(i) all languages commonly used by communities in South Africa, including
German, Greek, Gujarati, Hindi, Portuguese, Tamil, Telegu and Urdu; and
(ii) Arabic, Hebrew, Sanskrit and other languages used for religious
purposes in South Africa.
Chapter 2 Bill of Rights
Section 7 Rights
(1) This Bill of Rights is a cornerstone of democracy in South Africa. It
enshrines the rights of all people in our country and affirms the
democratic values of human dignity, equality and freedom.
(2) The state must respect, protect, promote and fulfil the rights in the
Bill of Rights.
(3) The rights in the Bill of Rights are subject to the limitations
contained or referred to in section 36, or elsewhere in the Bill.
Section 8 Application
(1) The Bill of Rights applies to all law, and binds the legislature, the
executive, the judiciary and all organs of state.
(2) A provision of the Bill of Rights binds a natural or a juristic person
if, and to the extent that, it is applicable, taking into account the
nature of the right and the nature of any duty imposed by the right.
(3) When applying a provision of the Bill of Rights to a natural or
juristic person in terms of subsection (2), a court -
(a) in order to give effect to a right in the Bill, must apply, or if
necessary develop, the common law to the extent that legislation does not
give effect to that right; and
(b) may develop rules of the common law to limit the right, provided that
the limitation is in accordance with section 36(1).
(4) A juristic person is entitled to the rights in the Bill of Rights to
the extent required by the nature of the rights and the nature of that
juristic person.
Section 9 Equality
(1) Everyone is equal before the law and has the right to equal protection
and benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and
freedoms. To promote the achievement of equality, legislative and other
measures designed to protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds, including race, gender, sex, pregnancy,
marital status, ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief, culture, language and birth.
(4) No person may unfairly discriminate directly or indirectly against
anyone on one or more grounds in terms of subsection (3). National
legislation must be enacted to prevent or prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3)
is unfair unless it is established that the discrimination is fair.
Section 10 Human dignity
Everyone has inherent dignity and the right to have their dignity
respected and protected.
Section 11 Life
Everyone has the right to life.
Section 12 Freedom and security of the person
(1) Everyone has the right to freedom and security of the person, which
includes the right -
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or private
sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman or degrading way.
(2) Everyone has the right to bodily and psychological integrity, which
includes the right -
(a) to make decisions concerning reproduction;
(b) to security in and control over their body; and
(c) not to be subjected to medical or scientific experiments without their
informed consent.
Section 13 Slavery, servitude and forced labour
No one may be subjected to slavery, servitude or forced labour.
Section 14 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 15 Freedom of religion, belief and opinion
(1) Everyone has the right to freedom of conscience, religion, thought,
belief and opinion.
(2) Religious observances may be conducted at state or state-aided
institutions, provided that -
(a) those observances follow rules made by the appropriate public
authorities;
(b) they are conducted on an equitable basis; and
(c) attendance at them is free and voluntary.
(3) (a) This section does not prevent legislation recognising -
(i) marriages concluded under any tradition, or a system of religious,
personal or family law; or
(ii) systems of personal and family law under any tradition, or adhered to
by persons professing a particular religion.
(b) Recognition in terms of paragraph (a) must be consistent with this
section and the other provisions of the Constitution.
Section 16 Freedom of expression
(1) Everyone has the right to freedom of expression, which includes -
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to -
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or
religion, and that constitutes incitement to cause harm.
Section 17 Assembly, demonstration, picket and petition
Everyone has the right, peacefully and unarmed, to assemble, to
demonstrate, to picket and to present petitions.
Section 18 Freedom of association
Everyone has the right to freedom of association.
Section 19 Political rights
(1) Every citizen is free to make political choices, which includes the
right -
(a) to form a political party;
(b) to participate in the activities of, or recruit members for, a
political party; and
(c) to campaign for a political party or cause.
(2) Every citizen has the right to free, fair and regular elections for
any legislative body established in terms of the Constitution.
(3) Every adult citizen has the right -
(a) to vote in elections for any legislative body established in terms of
the Constitution, and to do so in secret; and
(b) to stand for public office and, if elected, to hold office.
Section 20 Citizenship
No citizen may be deprived of citizenship.
Section 21 Freedom of movement and residence
(1) Everyone has the right to freedom of movement.
(2) Everyone has the right to leave the Republic.
(3) Every citizen has the right to enter, to remain in and to reside
anywhere in, the Republic.
(4) Every citizen has the right to a passport.
Section 22 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 23 Labour relations
(1) Everyone has the right to fair labour practices.
(2) Every worker has the right -
(a) to form and join a trade union;
(b) to participate in the activities and programmes of a trade union; and
(c) to strike.
(3) Every employer has the right -
(a) to form and join an employers" organisation; and
(b) to participate in the activities and programmes of an employers"
organisation.
(4) Every trade union and every employers" organisation has the right -
(a) to determine its own administration, programmes and activities;
(b) to organise; and
(c) to form and join a federation.
(5) Every trade union, employers" organisation and employer has the right
to engage in collective bargaining. National legislation may be enacted to
regulate collective bargaining. To the extent that the legislation may
limit a right in this Chapter, the limitation must comply with section
36(1).
(6) National legislation may recognise union security arrangements
contained in collective agreements. To the extent that the legislation may
limit a right in this Chapter, the limitation must comply with section
36(1).
Section 24 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 25 Property
(1) No one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation of property.
(2) Property may be expropriated only in terms of law of general
application -
(a) for a public purpose or in the public interest; and
(b) subject to compensation, the amount of which and the time and manner
of payment of which have either been agreed to by those affected or
decided or approved by a court.
(3) The amount of the compensation and the time and manner of payment must
be just and equitable, reflecting an equitable balance between the public
interest and the interests of those affected, having regard to all
relevant circumstances, including -
(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the acquisition
and beneficial capital improvement of the property;
and
(e) the purpose of the expropriation.
(4) For the purposes of this section -
(a) the public interest includes the nation's commitment to land reform,
and to reforms to bring about equitable access to all South Africa's
natural resources; and
(b) property is not limited to land.
(5) The state must take reasonable legislative and other measures, within
its available resources, to foster conditions which enable citizens to
gain access to land on an equitable basis.
(6) A person or community whose tenure of land is legally insecure as a
result of past racially discriminatory laws or practices is entitled, to
the extent provided by an Act of Parliament, either to tenure which is
legally secure or to comparable redress.
(7) A person or community dispossessed of property after 19 June 1913 as a
result of past racially discriminatory laws or practices is entitled, to
the extent provided by an Act of Parliament, either to restitution of that
property or to equitable redress.
(8) No provision of this section may impede the state from taking
legislative and other measures to achieve land, water and related reform,
in order to redress the results of past racial discrimination, provided
that any departure from the provisions of this section is in accordance
with the provisions of section 36(1).
(9) Parliament must enact the legislation referred to in subsection (6).
Section 26 Housing
(1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures, within
its available resources, to achieve the progressive realisation of this
right.
(3) No one may be evicted from their home, or have their home demolished,
without an order of court made after considering all the relevant
circumstances. No legislation may permit arbitrary evictions.
Section 27 Health care, food, water and social security
(1) Everyone has the right to have access to -
(a) health care services, including reproductive health care;
(b) sufficient food and water; and
(c) social security, including, if they are unable to support themselves
and their dependants, appropriate social assistance.
(2) The state must take reasonable legislative and other measures, within
its available resources, to achieve the progressive realisation of each of
these rights.
(3) No one may be refused emergency medical treatment.
Section 28 Children
(1) Every child has the right -
(a) to a name and a nationality from birth;
(b) to family care or parental care, or to appropriate alternative care
when removed from the family environment;
(c) to basic nutrition, shelter, basic health care services and social
services;
(d) to be protected from maltreatment, neglect, abuse or degradation;
(e) to be protected from exploitative labour practices;
(f) not to be required or permitted to perform work or provide services
that -
(i) are inappropriate for a person of that child's age; or
(ii) place at risk the child's well-being, education, physical or mental
health or spiritual, moral or social development;
(g) not to be detained except as a measure of last resort, in which
case, in addition to the rights a child enjoys under sections 12 and 35,
the child may be detained only for the shortest appropriate period of
time, and has the right to be -
(i) kept separately from detained persons over the age of 18 years; and
(ii) treated in a manner, and kept in conditions, that take account of the
child's age;
(h) to have a legal practitioner assigned to the child by the state, and
at state expense, in civil proceedings affecting the child, if substantial
injustice would otherwise result; and
(i) not to be used directly in armed conflict, and to be protected in
times of armed conflict.
(2) A child's best interests are of paramount importance in every matter
concerning the child.
(3) In this section "child" means a person under the age of 18 years.
Section 29 Education
(1) Everyone has the right -
(a) to a basic education, including adult basic education; and
(b) to further education, which the state, through reasonable measures,
must make progressively available and accessible.
(2) Everyone has the right to receive education in the official language
or languages of their choice in public educational institutions where that
education is reasonably practicable. In order to ensure the effective
access to, and implementation of, this right, the state must consider all
reasonable educational alternatives, including single medium institutions,
taking into account -
(a) equity;
(b) practicability; and
(c) the need to redress the results of past racially discriminatory laws
and practices.
(3) Everyone has the right to establish and maintain, at their own
expense, independent educational institutions that -
(a) do not discriminate on the basis of race;
(b) are registered with the state; and
(c) maintain standards that are not inferior to standards at comparable
public educational institutions.
(4) Subsection (3) does not preclude state subsidies for independent
educational institutions.
Section 30 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 31 Cultural, religious and linguistic communities
(1) Persons belonging to a cultural, religious or linguistic community may
not be denied the right, with other members of that community -
(a) to enjoy their culture, practise their religion and use their
language; and
(b) to form, join and maintain cultural, religious and linguistic
associations and other organs of civil society.
(2) The rights in subsection (1) may not be exercised in a manner
inconsistent with any provision of the Bill of Rights.
Section 32 Access to information
(1) Everyone has the right of access to -
(a) any information held by the state; and
(b) any information that is held by another person and that is required
for the exercise or protection of any rights.
(2) National legislation must be enacted to give effect to this right, and
may provide for reasonable measures to alleviate the administrative and
financial burden on the state.
Section 33 Just administrative action
(1) Everyone has the right to administrative action that is lawful,
reasonable and procedurally fair.
(2) Everyone whose rights have been adversely affected by administrative
action has the right to be given written reasons.
(3) National legislation must be enacted to give effect to these rights,
and must -
(a) provide for the review of administrative action by a court or, where
appropriate, an independent and impartial tribunal;
(b) impose a duty on the state to give effect to the rights in subsections
(1) and (2); and
(c) promote an efficient administration.
Section 34 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 35 Arrested, detained and accused persons
(1) Everyone who is arrested for allegedly committing an offence has the
right -
(a) to remain silent;
(b) to be informed promptly -
(i) of the right to remain silent; and
(ii) of the consequences of not remaining silent;
(c) not to be compelled to make any confession or admission that could be
used in evidence against that person;
(d) to be brought before a court as soon as reasonably possible, but not
later than -
(i) 48 hours after the arrest; or
(ii) the end of the first court day after the expiry of the 48 hours, if
the 48 hours expire outside ordinary court hours or on a day which is not
an ordinary court day;
(e) at the first court appearance after being arrested, to be charged or
to be informed of the reason for the detention to continue, or to be
released; and
(f) to be released from detention if the interests of justice permit,
subject to reasonable conditions.
(2) Everyone who is detained, including every sentenced prisoner, has the
right -
(a) to be informed promptly of the reason for being detained;
(b) to choose, and to consult with, a legal practitioner, and to be
informed of this right promptly;
(c) to have a legal practitioner assigned to the detained person by the
state and at state expense, if substantial injustice would otherwise
result, and to be informed of this right promptly;
(d) to challenge the lawfulness of the detention in person before a court
and, if the detention is unlawful, to be released;
(e) to conditions of detention that are consistent with human dignity,
including at least exercise and the provision, at state expense, of
adequate accommodation, nutrition, reading material and medical treatment;
and
(f) to communicate with, and be visited by, that person's -
(i) spouse or partner;
(ii) next of kin;
(iii) chosen religious counsellor; and
(iv) chosen medical practitioner.
(3) Every accused person has a right to a fair trial, which includes the
right -
(a) to be informed of the charge with sufficient detail to answer it;
(b) to have adequate time and facilities to prepare a defence;
(c) to a public trial before an ordinary court;
(d) to have their trial begin and conclude without unreasonable delay;
(e) to be present when being tried;
(f) to choose, and be represented by, a legal practitioner, and to
be informed of this right promptly;
(g) to have a legal practitioner assigned to the accused person by the
state and at state expense, if substantial injustice would otherwise
result, and to be informed of this right promptly;
(h) to be presumed innocent, to remain silent, and not to testify during
the proceedings;
(i) to adduce and challenge evidence;
(j) not to be compelled to give self-incriminating evidence;
(k) to be tried in a language that the accused person understands or, if
that is not practicable, to have the proceedings interpreted in that
language;
(l) not to be convicted for an act or omission that was not an offence
under either national or international law at the time it was committed or
omitted;
(m) not to be tried for an offence in respect of an act or omission for
which that person has previously been either acquitted or convicted;
(n) to the benefit of the least severe of the prescribed punishments if
the prescribed punishment for the offence has been changed between the
time that the offence was committed and the time of sentencing; and
(o) of appeal to, or review by, a higher court.
(4) Whenever this section requires information to be given to a person,
that information must be given in a language that the person understands.
(5) Evidence obtained in a manner that violates any right in the Bill of
Rights must be excluded if the admission of that evidence would render the
trial unfair or otherwise be detrimental to the administration of justice.
Section 36 Limitation of rights
(1) The rights in the Bill of Rights may be limited only in terms of law
of general application to the extent that the limitation is reasonable and
justifiable in an open and democratic society based on human dignity,
equality and freedom, taking into account all relevant factors, including
-
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the
Constitution, no law may limit any right entrenched in the Bill of Rights.
Section 37 States of emergency
(1) A state of emergency may be declared only in terms of an Act of
Parliament, and only when -
(a) the life of the nation is threatened by war, invasion, general
insurrection, disorder, natural disaster or other public emergency; and
(b) the declaration is necessary to restore peace and order.
(2) A declaration of a state of emergency, and any legislation enacted or
other action taken in consequence of that declaration, may be effective
only -
(a) prospectively; and
(b) for no more than 21 days from the date of the declaration, unless the
National Assembly resolves to extend the declaration. The Assembly may
extend a declaration of a state of emergency for no more than three months
at a time. The first extension of the state of emergency must be by a
resolution adopted with a supporting vote of a majority of the members of
the Assembly. Any subsequent extension must be by a resolution adopted
with a supporting vote of at least 60 per cent of the members of the
Assembly. A resolution in terms of this paragraph may be adopted only
following a public debate in the Assembly.
(3) Any competent court may decide on the validity of -
(a) a declaration of a state of emergency;
(b) any extension of a declaration of a state of emergency; or
(c) any legislation enacted, or other action taken, in consequence of a
declaration of a state of emergency.
(4) Any legislation enacted in consequence of a declaration of a state of
emergency may derogate from the Bill of Rights only to the extent that -
(a) the derogation is strictly required by the emergency; and
(b) the legislation -
(i) is consistent with the Republic's obligations under international law
applicable to states of emergency;
(ii) conforms to subsection (5); and
(iii) is published in the national Government Gazette as soon as
reasonably possible after being enacted.
(5) No Act of Parliament that authorises a declaration of a state of
emergency, and no legislation enacted or other action taken in consequence
of a declaration, may permit or authorise -
(a) indemnifying the state, or any person, in respect of any unlawful act;
(b) any derogation from this section; or
(c) any derogation from a section mentioned in column 1 of the Table of
Non-Derogable Rights, to the extent indicated opposite that section in
column 3 of the Table.
Table of Non-Derogable Rights
Section NumberSection TitleExtent to which the right is protected
9EqualityWith respect to unfair discrimination solely on the grounds
of race, colour, ethnic or social origin, sex religion or language
10Human DignityEntirely
11LifeEntirely
12Freedom and Security of the personWith respect to subsections
(1)(d) and (e) and (2)(c).
13Slavery, servitude and forced labourWith respect to slavery and
servitude
28ChildrenWith respect to:
-subsection (1)(d) and (e);
-the rights in subparagraphs (i) and (ii) of subsection (1)(g); and
-subsection 1(i) in respect of children of 15 years and younger
35Arrested, detained and accused personsWith respect to:
-subsections (1)(a), (b) and (c) and (2)(d);
-the rights in paragraphs (a) to (o) of subsection (3), excluding
paragraph (d)
-subsection (4); and
-subsection (5) with respect to the exclusion of evidence if the
admission of that evidence would render the trial unfair.
(6) Whenever anyone is detained without trial in consequence of a
derogation of rights resulting from a declaration of a state of emergency,
the following conditions must be observed:
(a) An adult family member or friend of the detainee must be contacted as
soon as reasonably possible, and informed that the person has been
detained.
(b) A notice must be published in the national Government Gazette within
five days of the person being detained, stating the detainee's name and
place of detention and referring to the emergency measure in terms of
which that person has been detained.
(c) The detainee must be allowed to choose, and be visited at any
reasonable time by, a medical practitioner.
(d) The detainee must be allowed to choose, and be visited at any
reasonable time by, a legal representative.
(e) A court must review the detention as soon as reasonably possible, but
no later than 10 days after the date the person was detained, and the
court must release the detainee unless it is necessary to continue the
detention to restore peace and order.
(f) A detainee who is not released in terms of a review under paragraph
(e), or who is not released in terms of a review under this paragraph, may
apply to a court for a further review of the detention at any time after
10 days have passed since the previous review, and the court must release
the detainee unless it is still necessary to continue the detention to
restore peace and order.
(g) The detainee must be allowed to appear in person before any court
considering the detention, to be represented by a legal practitioner at
those hearings, and to make representations against continued detention.
(h) The state must present written reasons to the court to justify the
continued detention of the detainee, and must give a copy of those reasons
to the detainee at least two days before the court reviews the detention.
(7) If a court releases a detainee, that person may not be detained again
on the same grounds unless the state first shows a court good cause for
re-detaining that person.
(8) Subsections (6) and (7) do not apply to persons who are not South
African citizens and who are detained in consequence of an international
armed conflict. Instead, the state must comply with the standards binding
on the Republic under international humanitarian law in respect of the
detention of such persons.
Section 38 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 39 Interpretation of Bill of Rights
(1) When interpreting the Bill of Rights, a court, tribunal or
forum -
(a) must promote the values that underlie an open and democratic society
based on human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.
(2) When interpreting any legislation, and when developing the common law
or customary law, every court, tribunal or forum must promote the spirit,
purport and objects of the Bill of Rights.
(3)The Bill of Rights does not deny the existence of any other rights or
freedoms that are recognised or conferred by common law, customary law or
legislation, to the extent that they are consistent with the Bill.
Chapter 3 Co-operative Government
Section 40 Government of the Republic
(1) In the Republic, government is constituted as national, provincial and
local spheres of government, which are distinctive, interdependent and
interrelated.
(2) All spheres of government must observe and adhere to the principles in
this Chapter and must conduct their activities within the parameters that
the Chapter provides.
Section 41 Principles of co-operative government and intergovernmental
relations
(1) All spheres of government and all organs of state within each sphere
must -
(a) preserve the peace, national unity and the indivisibility of the
Republic;
(b) secure the well-being of the people of the Republic;
(c) provide effective, transparent, accountable and coherent government
for the Republic as a whole;
(d) be loyal to the Constitution, the Republic and its people;
(e) respect the constitutional status, institutions, powers and functions
of government in the other spheres;
(f) not assume any power or function except those conferred on them in
terms of the Constitution;
(g) exercise their powers and perform their functions in a manner that
does not encroach on the geographical, functional or institutional
integrity of government in another sphere; and
(h) co-operate with one another in mutual trust and good faith by -
(i) fostering friendly relations;
(ii) assisting and supporting one another;
(iii) informing one another of, and consulting one another on, matters of
common interest;
(iv) co-ordinating their actions and legislation with one another;
(v) adhering to agreed procedures; and
(vi) avoiding legal proceedings against one another.
(2) An Act of Parliament must -
(a) establish or provide for structures and institutions to promote and
facilitate intergovernmental relations; and
(b) provide for appropriate mechanisms and procedures to facilitate
settlement of intergovernmental disputes.
(3) An organ of state involved in an intergovernmental dispute must make
every reasonable effort to settle the dispute by means of mechanisms and
procedures provided for that purpose, and must exhaust all other remedies
before it approaches a court to resolve the dispute.
(4)If a court is not satisfied that the requirements of subsection (3)
have been met, it may refer a dispute back to the organs of state
involved.
Chapter 4 Parliament
[Title 0 General Provisions]
Section 42 Composition of Parliament
(1) Parliament consists of -
(a) the National Assembly; and
(b) the National Council of Provinces.
(2) The National Assembly and the National Council of Provinces
participate in the legislative process in the manner set out in the
Constitution.
(3) The National Assembly is elected to represent the people and to ensure
government by the people under the Constitution. It does this by choosing
the President, by providing a national forum for public consideration of
issues, by passing legislation and by scrutinizing and overseeing
executive action.
(4) The National Council of Provinces represents the provinces to ensure
that provincial interests are taken into account in the national sphere of
government. It does this mainly by participating in the national
legislative process and by providing a national forum for public
consideration of issues affecting the provinces.
(5) The President may summon Parliament to an extraordinary sitting at any
time to conduct special business.
(6) The seat of Parliament is Cape Town, but an Act of Parliament, enacted
in accordance with section 76(1) and (5), may determine that the seat of
Parliament is elsewhere.
Section 43 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 44;
(b) of the provincial sphere of government is vested in the provincial
legislatures, as set out in section 104; and
(c) of the local sphere of government is vested in the Municipal Councils,
as set out in section 156.
Section 44 National legislative authority
(1) The national legislative authority as vested in Parliament -
(a) confers on the National Assembly the power -
(i) to amend the Constitution;
(ii) to pass legislation with regard to any matter, including a matter
within a functional area listed in Schedule 4, but excluding, subject to
subsection (2), a matter within a functional area listed in Schedule 5;
and
(iii) to assign any of its legislative powers, except the power to amend
the Constitution, to any legislative body in another sphere of government;
and
(b) confers on the National Council of Provinces the power -
(i) to participate in amending the Constitution in accordance with section
74;
(ii) to pass, in accordance with section 76, legislation with regard to
any matter within a functional area listed in Schedule 4, and any other
matter required by the Constitution to be passed in accordance with
section 76; and
(iii) to consider, in accordance with section 75, any other legislation
passed by the National Assembly.
(2) Parliament may intervene by passing legislation, in accordance with
section 76(1), with regard to a matter falling within a functional area
listed in Schedule 5, when it is necessary -
(a) to maintain national security;
(b) to maintain economic unity;
(c) to maintain essential national standards;
(d) to establish minimum standards required for the rendering of services;
or
(e) to prevent unreasonable action taken by a province which is
prejudicial to the interests of another province or to the country as a
whole.
(3) Legislation with regard to a matter that is reasonably necessary for,
or incidental to, the effective exercise of a power concerning any matter
listed in Schedule 4 is, for all purposes, legislation with regard to a
matter listed in Schedule 4.
(4) When exercising its legislative authority, Parliament is bound only by
the Constitution, and must act in accordance with, and
within the limits of, the Constitution.
Section 45 Joint rules and orders and joint committees
(1) The National Assembly and the National Council of Provinces must
establish a joint rules committee to make rules and orders concerning the
joint business of the Assembly and Council, including rules and orders -
(a) to determine procedures to facilitate the legislative process,
including setting a time limit for completing any step in the process;
(b) to establish joint committees composed of representatives from both
the Assembly and the Council to consider and report on Bills envisaged in
sections 74 and 75 that are referred to such a committee;
(c) to establish a joint committee to review the Constitution at least
annually; and
(d) to regulate the business of -
(i) the joint rules committee;
(ii) the Mediation Committee;
(iii) the constitutional review committee; and
(iv) any joint committees established in terms of paragraph (b).
(2) Cabinet members, members of the National Assembly and delegates to the
National Council of Provinces have the same privileges and immunities
before a joint committee of the Assembly and the Council as they have
before the Assembly or the Council.
[Title 1] The National Assembly
Section 46 Composition and election
(1) The National Assembly consists of no fewer than 350 and no more than
400 women and men elected as members in terms of an electoral system that
-
(a) is prescribed by national legislation;
(b) is based on the national common voters roll;
(c) provides for a minimum voting age of 18 years; and
(d) results, in general, in proportional representation.
(2) An Act of Parliament must provide a formula for determining the number
of members of the National Assembly.
Section 47 Membership
(1) Every citizen who is qualified to vote for the National Assembly is
eligible to be a member of the Assembly, except -
(a) anyone who is appointed by, or is in the service of, the state and
receives remuneration for that appointment or service, other than -
(i) the President, Deputy President, Ministers and Deputy Ministers; and
(ii) other office-bearers whose functions are compatible with the
functions of a member of the Assembly, and have been declared compatible
with those functions by national legislation;
(b) permanent delegates to the National Council of Provinces or members of
a provincial legislature or a Municipal Council;
(c) unrehabilitated insolvents;
(d) anyone declared to be of unsound mind by a court of the Republic; or
(e) anyone who, after this section took effect, is convicted of an offence
and sentenced to more than 12 months imprisonment without the option of a
fine, either in the Republic, or outside the Republic if the conduct
constituting the offence would have been an offence in the Republic, but
no one may be regarded as having been sentenced until an appeal against
the conviction or sentence has been determined, or until the time for an
appeal has expired. A disqualification under this paragraph ends five
years after the sentence has been completed.
(2) A person who is not eligible to be a member of the National Assembly
in terms of subsection (1)(a) or (b) may be a candidate
for the Assembly, subject to any limits or conditions established by
national legislation.
(3) A person loses membership of the National Assembly if that person -
(a) ceases to be eligible; or
(b) is absent from the Assembly without permission in circumstances for
which the rules and orders of the Assembly prescribe loss of membership.
(4) Vacancies in the National Assembly must be filled in terms of national
legislation.
Section 48 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 2.
Section 49 Duration of National Assembly
(1) The National Assembly is elected for a term of five years.
(2) If the National Assembly is dissolved in terms of section 50, or when
its term expires, the President, by proclamation, must call and set dates
for an election, which must be held within 90 days of the date the
Assembly was dissolved or its term expired.
(3) If the result of an election of the National Assembly is not declared
within the period established in terms of section 190, or if an election
is set aside by a court, the President, by proclamation, must call and set
dates for another election, which must be held within 90 days of the
expiry of that period or of the date on which the election was set aside.
(4) The National Assembly remains competent to function from the time it
is dissolved or its term expires, until the day before the first day of
polling for the next Assembly.
Section 50 Dissolution of National Assembly before expiry of its term
(1) The President must dissolve the National Assembly if -
(a) the Assembly has adopted a resolution to dissolve with a supporting
vote of a majority of its members; and
(b) three years have passed since the Assembly was elected.
(2) The Acting President must dissolve the National Assembly if -
(a) there is a vacancy in the office of President; and
(b) the Assembly fails to elect a new President within 30 days after the
vacancy occurred.
Section 51 Sittings and recess periods
(1) After an election, the first sitting of the National Assembly must
take place at a time and on a date determined by the President of the
Constitutional Court, but not more than 14 days after the election result
has been declared. The National Assembly may determine the time and
duration of its other sittings and its recess periods.
(2) The President may summon the National Assembly to an extraordinary
sitting at any time to conduct special business.
(3) Sittings of the National Assembly are permitted at places other than
the seat of Parliament only on the grounds of public interest, security or
convenience, and if provided for in the rules and orders of the Assembly.
Section 52 Speaker and Deputy Speaker
(1) At the first sitting after its election, or when necessary to fill a
vacancy, the National Assembly must elect a Speaker and a Deputy Speaker
from among its members.
(2) The President of the Constitutional Court must preside over the
election of a Speaker, or designate another judge to do so. The Speaker
presides over the election of a Deputy Speaker.
(3) The procedure set out in Part A of Schedule 3 applies to the election
of the Speaker and the Deputy Speaker.
(4) The National Assembly may remove the Speaker or Deputy Speaker from
office by resolution. A majority of the members of
the Assembly must be present when the resolution is adopted.
(5) In terms of its rules and orders, the National Assembly may elect from
among its members other presiding officers to assist the Speaker and the
Deputy Speaker.
Section 53 Decisions
(1) Except where the Constitution provides otherwise -
(a) a majority of the members of the National Assembly must be present
before a vote may be taken on a Bill or an amendment to a Bill;
(b) at least one third of the members must be present before a vote may be
taken on any other question before the Assembly; and
(c) all questions before the Assembly are decided by a majority of the
votes cast.
(2) The member of the National Assembly presiding at a meeting of the
Assembly has no deliberative vote, but -
(a) must cast a deciding vote when there is an equal number of votes on
each side of a question; and
(b) may cast a deliberative vote when a question must be decided with a
supporting vote of at least two thirds of the members of the Assembly.
Section 54 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 55 Powers of National Assembly
(1) In exercising its legislative power, the National Assembly may -
(a) consider, pass, amend or reject any legislation before the Assembly;
and
(b) initiate or prepare legislation, except money Bills.
(2) The National Assembly must provide for mechanisms -
(a) to ensure that all executive organs of state in the national sphere of
government are accountable to it; and
(b) to maintain oversight of -
(i) the exercise of national executive authority, including the
implementation of legislation; and
(ii) any organ of state.
Section 56 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 57 Internal arrangements, proceedings and procedures of National
Assembly
(1) The National Assembly may -
(a) determine and control its internal arrangements, proceedings and
procedures; and
(b) make rules and orders concerning its business, with due regard to
representative and participatory democracy, accountability, transparency
and public involvement.
(2) The rules and orders of the National Assembly must provide for -
(a) the establishment, composition, powers, functions, procedures and
duration of its committees;
(b) the participation in the proceedings of the Assembly and its
committees of minority parties represented in the Assembly, in a manner
consistent with democracy;
(c) financial and administrative assistance to each party represented in
the Assembly in proportion to its representation, to
enable the party and its leader to perform their functions in the Assembly
effectively; and
(d) the recognition of the leader of the largest opposition party in the
Assembly as the Leader of the Opposition.
Section 58 Privilege
(1) Cabinet members and members of the National Assembly -
(a) have freedom of speech in the Assembly and in its committees, subject
to its rules and orders; and
(b) are not liable to civil or criminal proceedings, arrest, imprisonment
or damages for -
(i) anything that they have said in, produced before or submitted to the
Assembly or any of its committees; or
(ii) anything revealed as a result of anything that they have said in,
produced before or submitted to the Assembly or any of its committees.
(2) Other privileges and immunities of the National Assembly, Cabinet
members and members of the Assembly may be prescribed by national
legislation.
(3) Salaries, allowances and benefits payable to members of the National
Assembly are a direct charge against the National Revenue Fund.
Section 59 Public access to and involvement in National Assembly
(1) The National Assembly must -
(a) facilitate public involvement in the legislative and other processes
of the Assembly and its committees; and
(b) conduct its business in an open manner, and hold its sittings, and
those of its committees, in public, but reasonable measures may be taken -
(i) to regulate public access, including access of the media, to the
Assembly and its committees; and
(ii) to provide for the searching of any person and,where appropriate, the
refusal of entry to, or the removal of, any person.
(2) The National Assembly may not exclude the public, including the media,
from a sitting of a committee unless it is reasonable and justifiable to
do so in an open and democratic society.
[Title 2] National Council of Provinces
Section 60 Composition of National Council
(1) The National Council of Provinces is composed of a single delegation
from each province consisting of ten delegates.
(2) The ten delegates are -
(a) four special delegates consisting of-
(i) the Premier of the province or, if the Premier is not available, any
member of the provincial legislature designated by the Premier either
generally or for any specific business before the National Council of
Provinces; and
(ii) three other special delegates; and
(b) six permanent delegates appointed in terms of section 61(2).
(3) The Premier of a province, or if the Premier is not available, a
member of the province's delegation designated by the Premier, heads the
delegation.
Section 61 Allocation of delegates
(1) Parties represented in a provincial legislature are entitled to
delegates in the province's delegation in accordance with the formula set
out in Part B of Schedule 3.
(2) Within 30 days after the result of an election of a provincial
legislature is declared, the legislature must -
(a) determine, in accordance with national legislation, how many of each
party's delegates are to be permanent delegates and how many are to be
special delegates; and
(b) appoint the permanent delegates in accordance with the nominations of
the parties.
(3) The national legislation envisaged in subsection (2)(a) must ensure
the participation of minority parties in both the permanent
and special delegates" components of the delegation in a manner consistent
with democracy.
(4) The legislature, with the concurrence of the Premier and the leaders
of the parties entitled to special delegates in the province's delegation,
must designate special delegates, as required from time to time, from
among the members of the legislature.
Section 62 Permanent delegates
(1) A person nominated as a permanent delegate must be eligible to be a
member of the provincial legislature.
(2) If a person who is a member of a provincial legislature is appointed
as a permanent delegate, that person ceases to be a member of the
legislature.
(3) Permanent delegates are appointed for a term that expires immediately
before the first sitting of the provincial legislature after its next
election.
(4) A person ceases to be a permanent delegate if that person -
(a) ceases to be eligible to be a member of the provincial legislature for
any reason other than being appointed as a permanent delegate;
(b) becomes a member of the Cabinet;
(c) has lost the confidence of the provincial legislature and is recalled
by the party that nominated that person;
(d) ceases to be a member of the party that nominated that person and is
recalled by that party; or
(e) is absent from the National Council of Provinces without permission in
circumstances for which the rules and orders of the Council prescribe loss
of office as a permanent delegate.
(5) Vacancies among the permanent delegates must be filled in terms of
national legislation.
(6) Before permanent delegates begin to perform their functions in the
National Council of Provinces, they must swear or affirm faithfulness to
the Republic and obedience to the Constitution, in accordance with
Schedule 2.
Section 63 Sittings of National Council
(1) The National Council of Provinces may determine the time and duration
of its sittings and its recess periods.
(2) The President may summon the National Council of Provinces to an
extraordinary sitting at any time to conduct special business.
(3) Sittings of the National Council of Provinces are permitted at places
other than the seat of Parliament only on the grounds of public interest,
security or convenience, and if provided for in the rules and orders of
the Council.
Section 64 Chairperson and Deputy Chairpersons
(1) The National Council of Provinces must elect a Chairperson and two
Deputy Chairpersons from among the delegates.
(2) The Chairperson and one of the Deputy Chairpersons are elected from
among the permanent delegates for five years unless their terms as
delegates expire earlier.
(3) The other Deputy Chairperson is elected for a term of one year, and
must be succeeded by a delegate from another province, so that every
province is represented in turn.
(4) The President of the Constitutional Court must preside over the
election of the Chairperson, or designate another judge to do so. The
Chairperson presides over the election of the Deputy Chairpersons.
(5) The procedure set out in Part A of Schedule 3 applies to the election
of the Chairperson and the Deputy Chairpersons.
(6) The National Council of Provinces may remove the Chairperson or a
Deputy Chairperson from office.
(7) In terms of its rules and orders, the National Council of Provinces
may elect from among the delegates other presiding officers to assist the
Chairperson and Deputy Chairpersons.
Section 65 Decisions
(1) Except where the Constitution provides otherwise -
(a) each province has one vote, which is cast on behalf of the province by
the head of its delegation; and
(b) all questions before the National Council of Provinces are agreed when
at least five provinces vote in favour of the question.
(2) An Act of Parliament, enacted in accordance with the procedure
established by either subsection (1) or subsection (2) of section 76, must
provide for a uniform procedure in terms of which provincial legislatures
confer authority on their delegations to cast votes on their behalf.
Section 66 Participation by members of national executive
(1) Cabinet members and Deputy Ministers may attend, and may speak in, the
National Council of Provinces, but may not vote.
(2) The National Council of Provinces may require a Cabinet member, a
Deputy Minister or an official in the national executive or a provincial
executive to attend a meeting of the Council or a committee of the
Council.
Section 67 Participation by local government representatives
Not more than ten part-time representatives designated by organised local
government in terms of section 163, to represent the different categories
of municipalities, may participate when necessary in the proceedings of
the National Council of Provinces, but may not vote.
Section 68 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 4 or other legislation referred to in section 76(3),
but may not initiate or prepare money Bills.
Section 69 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 70 Internal arrangements, proceedings and procedures of National
Council
(1) The National Council of Provinces may -
(a) determine and control its internal arrangements, proceedings and
procedures; and
(b) make rules and orders concerning its business, with due regard to
representative and participatory democracy, accountability, transparency
and public involvement.
(2) The rules and orders of the National Council of Provinces must provide
for -
(a) the establishment, composition, powers, functions, procedures and
duration of its committees;
(b) the participation of all the provinces in its proceedings in a manner
consistent with democracy; and
(c) the participation in the proceedings of the Council and its committees
of minority parties represented in the Council, in a manner consistent
with democracy, whenever a matter is to be decided in accordance with
section 75.
Section 71 Privilege
(1) Delegates to the National Council of Provinces and the persons
referred to in sections 66 and 67 -
(a) have freedom of speech in the Council and in its committees, subject
to its rules and orders; and
(b) are not liable to civil or criminal proceedings, arrest, imprisonment
or damages for -
(i) anything that they have said in, produced before or submitted to the
Council or any of its committees; or
(ii) anything revealed as a result of anything that they have said in,
produced before or submitted to the Council or any of its committees.
(2) Other privileges and immunities of the National Council of Provinces,
delegates to the Council and persons referred to in sections 66 and 67 may
be prescribed by national legislation.
(3) Salaries, allowances and benefits payable to permanent members of the
National Council of Provinces are a direct charge against the National
Revenue Fund.
Section 72 Public access to and involvement in National Council
(1) The National Council of Provinces must -
(a) facilitate public involvement in the legislative and other processes
of the Council and its committees; and
(b) conduct its business in an open manner, and hold its sittings, and
those of its committees, in public, but reasonable measures may be taken -
(i) to regulate public access, including access of the media, to the
Council and its committees; and
(ii) to provide for the searching of any person and, where appropriate,
the refusal of entry to, or the removal of, any person.
(2) The National Council of Provinces may not exclude the public,
including the media, from a sitting of a committee unless it is reasonable
and justifiable to do so in an open and democratic society.
[Title 3] National Legislative Process
Section 73 All Bills
(1) Any Bill may be introduced in the National Assembly.
(2) Only a Cabinet member or a Deputy Minister, or a member or committee
of the Assembly, may introduce a Bill in the Assembly; but only the
Cabinet member responsible for national financial matters may introduce a
money Bill in the Assembly.
(3) A Bill referred to in section 76(3), except a money Bill, may be
introduced in the National Council of Provinces.
(4) Only a member or committee of the National Council of Provinces may
introduce a Bill in the Council.
(5) A Bill passed by the National Assembly must be referred to the
National Council of Provinces if it must be considered by the Council. A
Bill passed by the Council must be referred to the Assembly.
Section 74 Bills amending the Constitution
(1) Section 1 and this subsection may be amended by a Bill passed
by -
(a) the National Assembly, with a supporting vote of at least 75 per cent
of its members; and
(b) the National Council of Provinces, with a supporting vote of at least
six provinces.
(2) Chapter 2 may be amended by a Bill passed by -
(a) the National Assembly, with a supporting vote of at least two thirds
of its members; and
(b) the National Council of Provinces, with a supporting vote of at least
six provinces.
(3) Any other provision of the Constitution may be amended by a Bill
passed -
(a) by the National Assembly, with a supporting vote of at least two
thirds of its members; and
(b) also by the National Council of Provinces, with a supporting vote of
at least six provinces, if the amendment -
(i) relates to a matter that affects the Council;
(ii) alters provincial boundaries, powers, functions or institutions; or
(iii) amends a provision that deals specifically with a provincial matter.
(4) A Bill amending the Constitution may not include provisions other than
constitutional amendments and matters connected with the amendments.
(5) At least 30 days before a Bill amending the Constitution is introduced
in terms of section 73(2), the person or committee intending to introduce
the Bill must -
(a) publish in the national Government Gazette, and in accordance with the
rules and orders of the National Assembly, particulars of the proposed
amendment for public comment;
(b) submit, in accordance with the rules and orders of the Assembly, those
particulars to the provincial legislatures for their views; and
(c) submit, in accordance with the rules and orders of the National
Council of Provinces, those particulars to the Council for a public
debate, if the proposed amendment is not an amendment that is required to
be passed by the Council.
(6) When a Bill amending the Constitution is introduced, the person or
committee introducing the Bill must submit any written comments received
from the public and the provincial legislatures -
(a) to the Speaker for tabling in the National Assembly; and
(b) in respect of amendments referred to in subsection (1), (2), or
(3)(b), to the Chairperson of the National Council of Provinces for
tabling in the Council.
(7) A Bill amending the Constitution may not be put to the vote in the
National Assembly within 30 days of -
(a) its introduction, if the Assembly is sitting when the Bill is
introduced; or
(b) its tabling in the Assembly, if the Assembly is in recess when the
Bill is introduced.
(8) If a Bill referred to in subsection (3)(b), or any part of the Bill,
concerns only a specific province or provinces, the National Council of
Provinces may not pass the Bill or the relevant part unless it has been
approved by the legislature or legislatures of the province or provinces
concerned.
(9) A Bill amending the Constitution that has been passed by the National
Assembly and, where applicable, by the National Council of Provinces, must
be referred to the President for assent.
Section 75 Ordinary Bills not affecting provinces
(1) When the National Assembly passes a Bill other than a Bill to which
the procedure set out in section 74 or 76 applies, the Bill must be
referred to the National Council of Provinces and dealt with in accordance
with the following procedure:
(a) The Council must -
(i) pass the Bill;
(ii) pass the Bill subject to amendments proposed by it; or
(iii) reject the Bill.
(b) If the Council passes the Bill without proposing amendments, the Bill
must be submitted to the President for assent.
(c) If the Council rejects the Bill or passes it subject to amendments,
the Assembly must reconsider the Bill, taking into account any amendment
proposed by the Council, and may -
(i) pass the Bill again, either with or without amendments; or
(ii) decide not to proceed with the Bill.
(d) A Bill passed by the Assembly in terms of paragraph (c) must be
submitted to the President for assent.
(2) When the National Council of Provinces votes on a question in terms of
this section, section 65 does not apply; instead -
(a) each delegate in a provincial delegation has one vote;
(b) at least one third of the delegates must be present before a
vote may be taken on the question; and
(c) the question is decided by a majority of the votes cast, but if there
is an equal number of votes on each side of the question, the delegate
presiding must cast a deciding vote.
Section 76 Ordinary Bills affecting provinces
(1) When the National Assembly passes a Bill referred to in subsection
(3), (4) or (5), the Bill must be referred to the National Council of
Provinces and dealt with in accordance with the following procedure:
(a) The Council must -
(i) pass the Bill;
(ii) pass an amended Bill; or
(iii) reject the Bill.
(b) If the Council passes the Bill without amendment, the Bill must be
submitted to the President for assent.
(c) If the Council passes an amended Bill, the amended Bill must be
referred to the Assembly, and if the Assembly passes the amended Bill, it
must be submitted to the President for assent.
(d) If the Council rejects the Bill, or if the Assembly refuses to pass an
amended Bill referred to it in terms of paragraph (c), the Bill and, where
applicable, also the amended Bill, must be referred to the Mediation
Committee, which may agree on -
(i) the Bill as passed by the Assembly;
(ii) the amended Bill as passed by the Council; or
(iii) another version of the Bill.
(e) If the Mediation Committee is unable to agree within 30 days of the
Bill's referral to it, the Bill lapses unless the Assembly again passes
the Bill, but with a supporting vote of at least two thirds of its
members.
(f) If the Mediation Committee agrees on the Bill as passed by the
Assembly, the Bill must be referred to the Council, and if the Council
passes the Bill, the Bill must be submitted to the President for assent.
(g) If the Mediation Committee agrees on the amended Bill as passed by the
Council, the Bill must be referred to the Assembly, and if it is passed by
the Assembly, it must be submitted to the President for assent.
(h) If the Mediation Committee agrees on another version of the Bill, that
version of the Bill must be referred to both the Assembly and the Council,
and if it is passed by the Assembly and the Council, it must be submitted
to the President for assent.
(i) If a Bill referred to the Council in terms of paragraph (f) or (h) is
not passed by the Council, the Bill lapses unless the Assembly passes the
Bil with a supporting vote of at least two thirds of its members.
(j) If a Bill referred to the Assembly in terms of paragraph (g) or (h) is
not passed by the Assembly, that Bill lapses, but the Bill as originally
passed by the Assembly may again be passed by the Assembly, but with a
supporting vote of at least two thirds of its members.
(k) A Bill passed by the Assembly in terms of paragraph (e), (i) or (j)
must be submitted to the President for assent.
(2) When the National Council of Provinces passes a Bill referred to in
subsection (3) the Bill must be referred to the National Assembly and
dealt with in accordance with the following procedure:
(a) The Assembly must -
(i) pass the Bill;
(ii) pass an amended Bill; or
(iii) reject the Bill.
(b) A Bill passed by the Assembly in terms of paragraph (a)(i) must be
submitted to the President for assent.
(c) If the Assembly passes an amended Bill, the amended Bill must be
referred to the Council, and if the Council passes the amended Bill, it
must be submitted to the President for assent.
(d) If the Assembly rejects the Bill, or if the Council refuses to pass an
amended Bill referred to it in terms of paragraph (c), the Bill and, where
applicable, also the amended Bill must be referred to the Mediation
Committee, which may agree on -
(i) the Bill as passed by the Council;
(ii) the amended Bill as passed by the Assembly; or
(iii) another version of the Bill.
(e) If the Mediation Committee is unable to agree within 30 days of the
Bill's referral to it, the Bill lapses.
(f) If the Mediation Committee agrees on the Bill as passed by the
Council, the Bill must be referred to the Assembly, and if the Assembly
passes the Bill, the Bill must be submitted to the President for assent.
(g) If the Mediation Committee agrees on the amended Bill as passed by the
Assembly, the Bill must be referred to the Council, and if it is passed by
the Council, it must be submitted to the President for assent.
(h) If the Mediation Committee agrees on another version of the Bill, that
version of the Bill must be referred to both the Council and the Assembly,
and if it is passed by the Council and the Assembly, it must be submitted
to the President for assent.
(i) If a Bill referred to the Assembly in terms of paragraph (f) or (h) is
not passed by the Assembly, the Bill lapses.
(3) A Bill must be dealt with in accordance with the procedure established
by either subsection (1) or subsection (2) if it falls within a functional
area listed in Schedule 4 or provides for legislation envisaged in any of
the following sections:
(a) Section 65(2);
(b) section 163;
(c) section 182;
(d) section 195(3) and (4);
(e) section 196; and
(f) section 197.
(4) A Bill must be dealt with in accordance with the procedure established
by subsection (1) if it provides for legislation -
(a) envisaged in section 44(2) or 220(3); or
(b) envisaged in Chapter 13, and which affects the financial interests of
the provincial sphere of government.
(5) A Bill envisaged in section 42(6) must be dealt with in accordance
with the procedure established by subsection (1), except that -
(a) when the National Assembly votes on the Bill, the provisions of
section 53(1) do not apply; instead, the Bill may be passed only if a
majority of the members of the Assembly vote in favour of it; and
(b) if the Bill is referred to the Mediation Committee, the following
rules apply:
(i) If the National Assembly considers a Bill envisaged in subsection (1)
(g) or (h), that Bill may be passed only if a majority of the members of
the Assembly vote in favour of it.
(ii) If the National Assembly considers or reconsiders a Bill envisaged in
subsection (1)(e), (i) or (j), that Bill may be passed only if at least
two thirds of the members of the Assembly vote in favour of it.
(6) This section does not apply to money Bills.
Section 77 Money Bills
(1) A Bill that appropriates money or imposes taxes, levies or duties is a
money Bill. A money Bill may not deal with any other matter except a
subordinate matter incidental to the appropriation of money or the
imposition of taxes, levies or duties.
(2) All money Bills must be considered in accordance with the procedure
established by section 75. An Act of Parliament must provide for a
procedure to amend money Bills before Parliament.
Section 78 Mediation Committee
(1) The Mediation Committee consists of -
(a) nine members of the National Assembly elected by the Assembly in
accordance with a procedure that is prescribed by the rules and orders of
the Assembly and results in the representation of parties in substantially
the same proportion that the parties are represented in the Assembly; and
(b) one delegate from each provincial delegation in the National Council
of Provinces, designated by the delegation.
(2) The Mediation Committee has agreed on a version of a Bill, or decided
a question, when that version, or one side of a question, is supported by
-
(a) at least five of the representatives of the National Assembly; and
(b) at least five of the representatives of the National Council of
Provinces.
Section 79 Assent to Bills
(1) The President must either assent to and sign a Bill passed in terms of
this Chapter or, if the President has reservations about the
constitutionality of the Bill, refer it back to the National Assembly for
reconsideration.
(2) The joint rules and orders must provide for the procedure for the
reconsideration of a Bill by the National Assembly and the participation
of the National Council of Provinces in the process.
(3) The National Council of Provinces must participate in the
reconsideration of a Bill that the President has referred back to the
National Assembly if -
(a) the President's reservations about the constitutionality of the Bill
relate to a procedural matter that involves the Council; or
(b) section 74(1), (2) or (3)(b) or 76 was applicable in the passing of
the Bill.
(4) If, after reconsideration, a Bill fully accommodates the President's
reservations, the President must assent to and sign the Bill; if not, the
President must either -
(a) assent to and sign the Bill; or
(b) refer it to the Constitutional Court for a decision on its
constitutionality.
(5) If the Constitutional Court decides that the Bill is constitutional,
the President must assent to and sign it.
Section 80 Application by members of National Assembly to Constitutional
Court
(1) Members of the National Assembly may apply to the Constitutional Court
for an order declaring that all or part of an Act of Parliament is
unconstitutional.
(2) An application -
(a) must be supported by at least one third of the members of the
Assembly; and
(b) must be made within 30 days of the date on which the President
assented to and signed the Act.
(3) The Constitutional Court may order that all or part of an Act that is
the subject of an application in terms of subsection (1) has no force
until the Court has decided the application if -
(a) the interests of justice require this; and
(b) the application has a reasonable prospect of success.
(4) If an application is unsuccessful, and did not have a reasonable
prospect of success, the Constitutional Court may order the applicants to
pay costs.
Section 81 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 82 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 5 The President and National Executive
Section 83 The President
The President -
(a) is the Head of State and head of the national executive;
(b) must uphold, defend and respect the Constitution as the supreme law of
the Republic; and
(c) promotes the unity of the nation and that which will advance the
Republic.
Section 84 Powers and functions of President
(1) The President has the powers entrusted by the Constitution and
legislation, including those necessary to perform the functions of Head of
State and head of the national executive.
(2) The President is responsible for -
(a) assenting to and signing Bills;
(b) referring a Bill back to the National Assembly for reconsideration of
the Bill's constitutionality;
(c) referring a Bill to the Constitutional Court for a decision on the
Bill's constitutionality;
(d) summoning the National Assembly, the National Council of Provinces or
Parliament to an extraordinary sitting to conduct special business;
(e) making any appointments that the Constitution or legislation requires
the President to make, other than as head of the national executive;
(f) appointing commissions of inquiry;
(g) calling a national referendum in terms of an Act of Parliament;
(h) receiving and recognising foreign diplomatic and consular
representatives;
(i) appointing ambassadors, plenipotentiaries, and diplomatic and consular
representatives;
(j) pardoning or reprieving offenders and remitting any fines, penalties
or forfeitures; and
(k) conferring honours.
Section 85 Executive authority of the Republic
(1) The executive authority of the Republic is vested in the President.
(2) The President exercises the executive authority, together with the
other members of the Cabinet, by -
(a) implementing national legislation except where the Constitution or an
Act of Parliament provides otherwise;
(b) developing and implementing national policy;
(c) co-ordinating the functions of state departments and administrations;
(d) preparing and initiating legislation; and
(e) performing any other executive function provided for in the
Constitution or in national legislation.
Section 86 Election of President
(1) At its first sitting after its election, and whenever necessary to
fill a vacancy, the National Assembly must elect a woman or a man from
among its members to be the President.
(2) The President of the Constitutional Court must preside over the
election of the President, or designate another judge to do so. The
procedure set out in Part A of Schedule 3 applies to the election of the
President.
(3) An election to fill a vacancy in the office of President must be held
at a time and on a date determined by the President of the Constitutional
Court, but not more than 30 days after the vacancy occurs.
Section 87 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 2.
Section 88 Term of office of President
(1) The President's term of office begins on assuming office and ends upon
a vacancy occurring or when the person next elected President assumes
office.
(2) No person may hold office as President for more than two terms, but
when a person is elected to fill a vacancy in the office of President, the
period between that election and the next election of a President is not
regarded as a term.
Section 89 Removal of President
(1) The National Assembly, by a resolution adopted with a supporting vote
of at least two thirds of its members, may remove the President from
office only on the grounds of -
(a) a serious violation of the Constitution or the law;
(b) serious misconduct; or
(c) inability to perform the functions of office.
(2) Anyone who has been removed from the office of President in terms of
subsection (1) (a) or (b) may not receive any benefits of that office, and
may not serve in any public office.
Section 90 Acting President
(1) When the President is absent from the Republic or otherwise unable to
fulfil the duties of President, or during a vacancy in the office of
President, an office-bearer in the order below acts as President:
(a) The Deputy President.
(b) A Minister designated by the President.
(c) A Minister designated by the other members of the Cabinet.
(d) The Speaker, until the National Assembly designates one of its other
members.
(2) An Acting President has the responsibilities, powers and functions of
the President.
(3) Before assuming the responsibilities, powers and functions of the
President, the Acting President must swear or affirm faithfulness to the
Republic and obedience to the Constitution, in accordance with Schedule 2.
Section 91 Cabinet
(1) The Cabinet consists of the President, as head of the Cabinet, a
Deputy President and Ministers.
(2) The President appoints the Deputy President and Ministers, assigns
their powers and functions, and may dismiss them.
(3) The President -
(a) must select the Deputy President from among the members of the
National Assembly;
(b) may select any number of Ministers from among the members of the
Assembly; and
(c) may select no more than two Ministers from outside the Assembly.
(4) The President must appoint a member of the Cabinet to be the leader of
government business in the National Assembly.
(5) The Deputy President must assist the President in the execution of the
functions of government.
Section 92 Accountability and responsibilities
(1) The Deputy President and Ministers are responsible for the powers and
functions of the executive assigned to them by the President.
(2) Members of the Cabinet are accountable collectively and individually
to Parliament for the exercise of their powers and the performance of
their functions.
(3) Members of the Cabinet must -
(a) act in accordance with the Constitution; and
(b) provide Parliament with full and regular reports concerning matters
under their control.
Section 93 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 94 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 95 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 2.
Section 96 Conduct of Cabinet members and Deputy Ministers
(1) Members of the Cabinet and Deputy Ministers must act in accordance
with a code of ethics prescribed by national legislation.
(2) Members of the Cabinet and Deputy Ministers may not -
(a) undertake any other paid work;
(b) act in any way that is inconsistent with their office, or expose
themselves to any situation involving the risk of a conflict between their
official responsibilities and private interests; or
(c) use their position or any information entrusted to them, to enrich
themselves or improperly benefit any other person.
Section 97 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 98 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 99 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 Executive
Council or to a Municipal Council. An assignment -
(a) must be in terms of an agreement between the relevant Cabinet member
and the Executive Council member or Municipal Council;
(b) must be consistent with that of Parliament in terms of which the
relevant power or function is exercised or performed; and
(c) takes effect upon proclamation by the President.
Section 100 National supervision of provincial administration
(1) When a province cannot or does not fulfil an executive obligation in
terms of legislation or the Constitution, the national executive may
intervene by taking any appropriate steps to ensure fulfilment of that
obligation, including -
(a) issuing a directive to the provincial executive, describing the extent
of the failure to fulfil its obligations and stating any steps required to
meet its obligations; and
(b) assuming responsibility for the relevant obligation in that province
to the extent necessary to -
(i) maintain essential national standards or meet established minimum
standards for the rendering of a service;
(ii) maintain economic unity;
(iii) maintain national security; or
(iv) prevent that province from taking unreasonable action that is
prejudicial to the interests of another province or to the
country as a whole.
(2) If the national executive intervenes in a province in terms of
subsection (1)(b) -
(a) notice of the intervention must be tabled in the National Council of
Provinces within 14 days of its first sitting after the intervention
began;
(b) the intervention must end unless it is approved by the Council within
30 days of its first sitting after the intervention began; and
(c) the Council must review the intervention regularly and make any
appropriate recommendations to the national executive.
(3) National legislation may regulate the process established by this
section.
Section 101 Executive decisions
(1) A decision by the President must be in writing if it -
(a) is taken in terms of legislation; or
(b) has legal consequences.
(2) A written decision by the President must be countersigned by another
Cabinet member if that decision concerns a function assigned to that other
Cabinet member.
(3) Proclamations, regulations and other instruments of subordinate
legislation must be accessible to the public.
(4) National legislation may specify the manner in which, and the extent
to which, instruments mentioned in subsection (3) must be -
(a) tabled in Parliament; and
(b) approved by Parliament.
Section 102 Motions of no confidence
(1) If the National Assembly, by a vote supported by a majority of its
members, passes a motion of no confidence in the Cabinet excluding the
President, the President must reconstitute the Cabinet.
(2)If the National Assembly, by a vote supported by a majority of its
members, passes a motion of no confidence in the President, the President
and the other members of the Cabinet and any Deputy Ministers must resign.
Chapter 6 Provinces
[Title 0 General Provision]
Section 103 Provinces
(1) The Republic has the following provinces:
(a) Eastern Cape
(b) Free State
(c) Gauteng
(d) KwaZulu-Natal
(e) Mpumalanga
(f) Northern Cape
(g) Northern Province
(h) North West
(i) Western Cape.
(2) The boundaries of the provinces are those that existed when the
Constitution took effect.
[Title 1] Provincial Legislatures
Section 104 Legislative authority of provinces
(1) The legislative authority of a province is vested in its provincial
legislature, and confers on the provincial legislature the power -
(a) to pass a constitution for its province or to amend any constitution
passed by it in terms of sections 142 and 143;
(b) to pass legislation for its province with regard to -
(i) any matter within a functional area listed in Schedule 4;
(ii) any matter within a functional area listed in Schedule 5;
(iii) any matter outside those functional areas, and that is expressly
assigned to the province by national legislation; and
(iv) any matter for which a provision of the Constitution envisages the
enactment of provincial legislation; and
(c) to assign any of its legislative powers to a Municipal Council in that
province.
(2) The legislature of a province, by a resolution adopted with a
supporting vote of at least two thirds of its members, may request
Parliament to change the name of that province.
(3) A provincial legislature is bound only by the Constitution and, if it
has passed a constitution for its province, also by that constitution, and
must act in accordance with, and within the limits of, the Constitution
and that provincial constitution.
(4) Provincial legislation with regard to a matter that is reasonably
necessary for, or incidental to, the effective exercise of a power
concerning any matter listed in Schedule 4, is for all purposes
legislation with regard to a matter listed in Schedule 4.
(5) A provincial legislature may recommend to the National Assembly
legislation concerning any matter outside the authority of that
legislature, or in respect of which an Act of Parliament prevails over a
provincial law.
Section 105 Composition and election of provincial legislatures
(1) A provincial legislature consists of women and men elected as members
in terms of an electoral system that -
(a) is prescribed by national legislation;
(b) is based on that province's segment of the national common voters
roll;
(c) provides for a minimum voting age of 18 years; and
(d) results, in general, in proportional representation.
(2) A provincial legislature consists of between 30 and 80 members. The
number of members, which may differ among the provinces, must be
determined in terms of a formula prescribed by national legislation.
Section 106 Membership
(1) Every citizen who is qualified to vote for the National Assembly is
eligible to be a member of a provincial legislature, except -
(a) anyone who is appointed by, or is in the service of, the state and
receives remuneration for that appointment or service, other than -
(i) the Premier and other members of the Executive Council of a province;
and
(ii) other office-bearers whose functions are compatible with the
functions of a member of a provincial legislature, and have been declared
compatible with those functions by national legislation;
(b) members of the National Assembly, permanent delegates to the National
Council of Provinces or members of a Municipal Council;
(c) unrehabilitated insolvents;
(d) anyone declared to be of unsound mind by a court of the Republic; or
(e) anyone who, after this section took effect, is convicted of an offence
and sentenced to more than 12 months" imprisonment without the option of a
fine, either in the Republic, or outside the Republic if the conduct
constituting the offence would have been an offence in the Republic, but
no one may be regarded as having been sentenced until an appeal against
the conviction or sentence has been determined, or until the time for an
appeal has expired. A disqualification under this paragraph ends five
years after the sentence has been completed.
(2) A person who is not eligible to be a member of a provincial
legislature in terms of subsection (1) (a) or (b) may be a candidate for
the legislature, subject to any limits or conditions established by
national legislation.
(3) A person loses membership of a provincial legislature if that
person -
(a) ceases to be eligible; or
(b) is absent from the legislature without permission in circumstances for
which the rules and orders of the legislature prescribe loss of
membership.
(4) Vacancies in a provincial legislature must be filled in terms of
national legislation.
Section 107 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 2.
Section 108 Duration of provincial legislatures
(1) A provincial legislature is elected for a term of five years.
(2) If a provincial legislature is dissolved in terms of section 109, or
when its term expires, the Premier of the province, by proclamation, must
call and set dates for an election, which must be held within 90 days of
the date the legislature was dissolved or its term expired.
(3) If the result of an election of a provincial legislature is not
declared within the period referred to in section 190, or if an election
is set aside by a court, the President, by proclamation, must call and set
dates for another election, which must be held within 90 days of the
expiry of that period or of the date on which the election was set aside.
(4) A provincial legislature remains competent to function from the time
it is dissolved or its term expires, until the day before the first day of
polling for the next legislature.
Section 109 Dissolution of provincial legislatures before expiry of term
(1) The Premier of a province must dissolve the provincial legislature if
-
(a) the legislature has adopted a resolution to dissolve with a supporting
vote of a majority of its members; and
(b) three years have passed since the legislature was elected.
(2) An Acting Premier must dissolve the provincial legislature if -
(a) there is a vacancy in the office of Premier; and
(b) the legislature fails to elect a new Premier within 30 days after the
vacancy occurred.
Section 110 Sittings and recess periods
(1) After an election, the first sitting of a provincial legislature must
take place at a time and on a date determined by a judge designated by the
President of the Constitutional Court, but not more than 14 days after the
election result has been declared. A provincial legislature may determine
the time and duration of its other sittings and its recess periods.
(2) The Premier of a province may summon the provincial legislature to an
extraordinary sitting at any time to conduct special business.
(3) A provincial legislature may determine where it ordinarily will sit.
Section 111 Speakers and Deputy Speakers
(1) At the first sitting after its election, or when necessary to fill a
vacancy, a provincial legislature must elect a Speaker and a Deputy
Speaker from among its members.
(2) A judge designated by the President of the Constitutional Court must
preside over the election of a Speaker. The Speaker presides over the
election of a Deputy Speaker.
(3) The procedure set out in Part A of Schedule 3 applies to the election
of Speakers and Deputy Speakers.
(4) A provincial legislature may remove its Speaker or Deputy Speaker from
office by resolution. A majority of the members of the legislature must be
present when the resolution is adopted.
(5) In terms of its rules and orders, a provincial legislature may elect
from among its members other presiding officers to assist the Speaker and
the Deputy Speaker.
Section 112 Decisions
(1) Except where the Constitution provides otherwise -
(a) a majority of the members of a provincial legislature must be present
before a vote may be taken on a Bill or an amendment to a Bill;
(b) at least one third of the members must be present before a vote may be
taken on any other question before the legislature; and
(c) all questions before a provincial legislature are decided by a
majority of the votes cast.
(2) The member presiding at a meeting of a provincial legislature has no
deliberative vote, but -
(a) must cast a deciding vote when there is an equal number of votes on
each side of a question; and
(b) may cast a deliberative vote when a question must be decided with a
supporting vote of at least two thirds of the members of the legislature.
Section 113 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 114 Powers of provincial legislatures
(1) In exercising its legislative power, a provincial legislature may -
(a) consider, pass, amend or reject any Bill before the legislature; and
(b) initiate or prepare legislation, except money Bills.
(2) A provincial legislature must provide for mechanisms -
(a) to ensure that all provincial executive organs of state in the
province are accountable to it; and
(b) to maintain oversight of -
(i) the exercise of provincial executive authority in the province,
including the implementation of legislation; and
(ii) any provincial organ of state.
Section 115 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 116 Internal arrangements, proceedings and procedures of
provincial legislatures
(1) A provincial legislature may -
(a) determine and control its internal arrangements, proceedings and
procedures; and
(b) make rules and orders concerning its business, with due regard to
representative and participatory democracy, accountability, transparency
and public involvement.
(2) The rules and orders of a provincial legislature must provide for -
(a) the establishment, composition, powers, functions, procedures and
duration of its committees;
(b) the participation in the proceedings of the legislature and its
committees of minority parties represented in the legislature, in a manner
consistent with democracy;
(c) financial and administrative assistance to each party represented in
the legislature, in proportion to its representation, to enable the party
and its leader to perform their functions in the legislature effectively;
and
(d) the recognition of the leader of the largest opposition party in the
legislature, as the Leader of the Opposition.
Section 117 Privilege
(1) Members of a provincial legislature and the province's permanent
delegates to the National Council of Provinces -
(a) have freedom of speech in the legislature and in its committees,
subject to its rules and orders; and
(b) are not liable to civil or criminal proceedings, arrest, imprisonment
or damages for -
(i) anything that they have said in, produced before or submitted to the
legislature or any of its committees; or
(ii) anything revealed as a result of anything that they have said in,
produced before or submitted to the legislature or any of its committees.
(2) Other privileges and immunities of a provincial legislature and its
members may be prescribed by national legislation.
(3) Salaries, allowances and benefits payable to members of a provincial
legislature are a direct charge against the Provincial Revenue Fund.
Section 118 Public access to and involvement in provincial legislatures
(1) A provincial legislature must -
(a) facilitate public involvement in the legislative and other processes
of the legislature and its committees; and
(b) conduct its business in an open manner, and hold its sittings, and
those of its committees, in public, but reasonable measures may be taken -
(i) to regulate public access, including access of the media, to the
legislature and its committees; and
(ii) to provide for the searching of any person and, where appropriate,
the refusal of entry to,or the removal of, any person.
(2) A provincial legislature may not exclude the public, including the
media, from a sitting of a committee unless it is reasonable and
justifiable to do so in an open and democratic society.
Section 119 Introduction of Bills
Only members of the Executive Council of a province or a committee or
member of a provincial legislature may introduce a Bill in the
legislature; but only the member of the Executive Council who is
responsible for financial matters in the province may introduce a money
Bill in the legislature.
Section 120 Money Bills
(1) A Bill that appropriates money or imposes taxes, levies or
duties is a money Bill. A money Bill may not deal with any other matter
except a subordinate matter incidental to the appropriation of money or
the imposition of taxes, levies or duties.
(2) A provincial Act must provide for a procedure by which the province's
legislature may amend a money Bill.
Section 121 Assent to Bills
(1) The Premier of a province must either assent to and sign a Bill passed
by the provincial legislature in terms of this Chapter or, if the Premier
has reservations about the constitutionality of the Bill, refer it back to
the legislature for reconsideration.
(2) If, after reconsideration, a Bill fully accommodates the Premier's
reservations, the Premier must assent to and sign the Bill; if not, the
Premier must either -
(a) assent to and sign the Bill; or
(b) refer it to the Constitutional Court for a decision on its
constitutionality.
(3) If the Constitutional Court decides that the Bill is constitutional,
the Premier must assent to and sign it.
Section 122 Application by members to Constitutional Court
(1) Members of a provincial legislature may apply to the Constitutional
Court for an order declaring that all or part of a provincial Act is
unconstitutional.
(2) An application -
(a) must be supported by at least 20 per cent of the members of the
legislature; and
(b) must be made within 30 days of the date on which the Premier assented
to and signed the Act.
(3) The Constitutional Court may order that all or part of an Act that is
the subject of an application in terms of subsection (1) has no force
until the Court has decided the application if -
(a) the interests of justice require this; and
(b) the application has a reasonable prospect of success.
(4) If an application is unsuccessful, and did not have a reasonable
prospect of success, the Constitutional Court may order the applicants to
pay costs.
Section 123 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 124 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 2] Provincial Executives
Section 125 Executive authority of provinces
(1) The executive authority of a province is vested in the Premier of that
province.
(2) The Premier exercises the executive authority, together with the other
members of the Executive Council, by -
(a) implementing provincial legislation in the province;
(b) implementing all national legislation within the functional areas
listed in Schedule 4 or 5 except where the Constitution or an Act of
Parliament provides otherwise;
(c) administering in the province, national legislation outside the
functional areas listed in Schedules 4 and 5, the administration of which
has been assigned to the provincial executive in terms of an Act of
Parliament;
(d) developing and implementing provincial policy;
(e) co-ordinating the functions of the provincial administration and its
departments;
(f) preparing and initiating provincial legislation; and
(g) performing any other function assigned to the provincial executive in
terms of the Constitution or an Act of Parliament.
(3) A province has executive authority in terms of subsection (2) (b) only
to the extent that the province has the administrative capacity to assume
effective responsibility. The national government, by legislative and
other measures, must assist provinces to develop the administrative
capacity required for the effective exercise of their powers and
performance of their functions referred to in subsection (2).
(4) Any dispute concerning the administrative capacity of a province in
regard to any function must be referred to the National Council of
Provinces for resolution within 30 days of the date of the referral to the
Council.
(5) Subject to section 100, the implementation of provincial legislation
in a province is an exclusive provincial executive power.
(6) The provincial executive must act in accordance with -
(a) the Constitution; and
(b) the provincial constitution, if a constitution has been passed for the
province.
Section 126 Assignment of functions
A member of the Executive Council of a province may assign any power or
function that is to be exercised or performed in terms of an Act of
Parliament or a provincial Act, to a Municipal Council. An assignment -
(a) must be in terms of an agreement between the relevant Executive
Council member and the Municipal Council;
(b) must be consistent with the Act in terms of which the relevant power
or function is exercised or performed; and
(c) takes effect upon proclamation by the Premier.
Section 127 Powers and functions of Premiers
(1) The Premier of a province has the powers and functions entrusted to
that office by the Constitution and any legislation.
(2) The Premier of a province is responsible for -
(a) assenting to and signing Bills;
(b) referring a Bill back to the provincial legislature for
reconsideration of the Bill's constitutionality;
(c) referring a Bill to the Constitutional Court for a decision on the
Bill's constitutionality;
(d) summoning the legislature to an extraordinary sitting to conduct
special business;
(e) appointing commissions of inquiry; and
(f) calling a referendum in the province in accordance with national
legislation.
Section 128 Election of Premiers
(1) At its first sitting after its election, and whenever necessary to
fill a vacancy, a provincial legislature must elect a woman or a man from
among its members to be the Premier of the province.
(2) A judge designated by the President of the Constitutional Court must
preside over the election of the Premier. The procedure set out in Part A
of Schedule 3 applies to the election of the Premier.
(3) An election to fill a vacancy in the office of Premier must be held at
a time and on a date determined by the President of the Constitutional
Court, but not later than 30 days after the vacancy occurs.
Section 129 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 2.
Section 130 Term of office and removal of Premiers
(1) A Premier's term of office begins when the Premier assumes office and
ends upon a vacancy occurring or when the person next elected Premier
assumes office.
(2) No person may hold office as Premier for more than two terms, but when
a person is elected to fill a vacancy in the office of Premier, the period
between that election and the next election of a Premier is not regarded
as a term.
(3) The legislature of a province, by a resolution adopted with a
supporting vote of at least two thirds of its members, may remove the
Premier from office only on the grounds of -
(a) a serious violation of the Constitution or the law;
(b) serious misconduct; or
(c) inability to perform the functions of office.
(4) Anyone who has been removed from the office of Premier in terms of
subsection (3) (a) or (b) may not receive any benefits of that office, and
may not serve in any public office.
Section 131 Acting Premiers
(1) When the Premier is absent or otherwise unable to fulfil the duties of
the office of Premier, or during a vacancy in the office of Premier, an
office-bearer in the order below acts as the Premier:
(a) A member of the Executive Council designated by the Premier.
(b) A member of the Executive Council designated by the other members of
the Council.
(c) The Speaker, until the legislature designates one of its other
members.
(2) An Acting Premier has the responsibilities, powers and functions of
the Premier.
(3) Before assuming the responsibilities, powers and, functions of the
Premier, the Acting Premier must swear or affirm faithfulness to the
Republic and obedience to the Constitution, in accordance with Schedule 2.
Section 132 Executive Councils
(1) The Executive Council of a province consists of the Premier, as head
of the Council, and no fewer than five and no more than ten members
appointed by the Premier from among the members of the provincial
legislature.
(2) The Premier of a province appoints the members of the Executive
Council, assigns their powers and functions, and may dismiss them.
Section 133 Accountability and responsibilities
(1) The members of the Executive Council of a province are responsible for
the functions of the executive assigned to them by the Premier.
(2) Members of the Executive Council of a province are accountable
collectively and individually to the legislature for the exercise of their
powers and the performance of their functions.
(3) Members of the Executive Council of a province must -
(a) act in accordance with the Constitution and, if a provincial
consitution has been passed for the province, also that constitution; and
(b) provide the legislature with full and regular reports concerning
matters under their control.
Section 134 Continuation of Executive Councils after elections
When an election of a provincial legislature is held, the Executive
Council and its members remain competent to function until the person
elected Premier by the next legislature assumes office.
Section 135 Oath or affirmation
Before members of the Executive Council of a province begin to perform
their functions, they must swear or affirm faithfulness to the Republic
and obedience to the Constitution, in accordance with Schedule 2.
Section 136 Conduct of members of Executive Councils
(1) Members of the Executive Council of a province must act in accordance
with a code of ethics prescribed by national legislation.
(2) Members of the Executive Council of a province may not -
(a) undertake any other paid work;
(b) act in any way that is inconsistent with their office, or expose
themselves to any situation involving the risk of a conflict between their
official responsibilities and private interests; or
(c) use their position or any information entrusted to them, to enrich
themselves or improperly benefit any other person.
Section 137 Transfer of functions
The Premier by proclamation may transfer to a member of the Executive
Council -
(a) the administration of any legislation entrusted to another
member; or
(b) any power or function entrusted by legislation to another member.
Section 138 Temporary assignment of functions
The Premier of a province may assign to a member of the Executive Council
any power or function of another member who is absent from office or is
unable to exercise that power or perform that function.
Section 139 Provincial supervision of local government
(1) When a municipality cannot or does not fulfil an executive obligation
in terms of legislation, the relevant provincial executive may intervene
by taking any appropriate steps to ensure fulfilment of that obligation,
including -
(a) issuing a directive to the Municipal Council, describing the extent of
the failure to fulfil its obligations and stating any steps required to
meet its obligations; and
(b) assuming responsibility for the relevant obligation in that
municipality to the extent necessary -
(i) to maintain essential national standards or meet established minimum
standards for the rendering of a service;
(ii) to prevent that Municipal Council from taking unreasonable action
that is prejudicial to the interests of another municipality or to the
province as a whole; or
(iii) to maintain economic unity.
(2) If a provincial executive intervenes in a municipality in terms of
subsection (1)(b) -
(a) the intervention must end unless it is approved by the Cabinet member
responsible for local government affairs within 14 days of the
intervention;
(b) notice of the intervention must be tabled in the provincial
legislature and in the National Council of Provinces within 14 days of
their respective first sittings after the intervention began;
(c) the intervention must end unless it is approved by the Council within
30 days of its first sitting after the intervention began; and
(d) the Council must review the intervention regularly and make any
appropriate recommendations to the provincial executive.
(3) National legislation may regulate the process established by this
section.
Section 140 Executive decisions
(1) A decision by the Premier of a province must be in writing if it -
(a) is taken in terms of legislation; or
(b) has legal consequences.
(2) A written decision by the Premier must be countersigned by another
Executive Council member if that decision concerns a function assigned to
that other member.
(3) Proclamations, regulations and other instruments of subordinate
legislation of a province must be accessible to the public.
(4) Provincial legislation may specify the manner in which, and the extent
to which, instruments mentioned in subsection (3) must
be -
(a) tabled in the provincial legislature; and
(b) approved by the provincial legislature.
Section 141 Motions of no confidence
(1) If a provincial legislature, by a vote supported by a majority of its
members, passes a motion of no confidence in the province's Executive
Council excluding the Premier, the Premier must reconstitute the Council.
(2) If a provincial legislature, by a vote supported by a majority of its
members, passes a motion of no confidence in the Premier,
the Premier and the other members of the Executive Council must resign.
[Title 3] Provincial Constitutions
Section 142 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 143 Contents of provincial constitutions
(1) A provincial constitution, or constitutional amendment, must not be
inconsistent with this Constitution, but may provide for -
(a) provincial legislative or executive structures and procedures that
differ from those provided for in this Chapter; or
(b) the institution, role, authority and status of a traditional monarch,
where applicable.
(2) Provisions included in a provincial constitution or constitutional
amendment in terms of paragraphs (a) or (b) of subsection (1) -
(a) must comply with the values in section 1 and with Chapter 3 ; and
(b) may not confer on the province any power or function that falls -
(i) outside the area of provincial competence in terms of Schedules 4 and
5; or
(ii) outside the powers and functions conferred on the province by other
sections of the Constitution.
Section 144 Certification of provincial constitutions
(1) If a provincial legislature has passed or amended a constitution, the
Speaker of the legislature must submit the text of the constitution or
constitutional amendment to the Constitutional Court for certification.
(2) No text of a provincial constitution or constitutional amendment
becomes law until the Constitutional Court has certified -
(a) that the text has been passed in accordance with section 142; and
(b) that the whole text complies with section 143.
Section 145 Signing, publication and safekeeping of provincial
constitutions
(1) The Premier of a province must assent to and sign the text of a
provincial constitution or constitutional amendment that has been
certified by the Constitutional Court.
(2) The text assented to and signed by the Premier must be published in
the national Government Gazette and takes effect on publication or on a
later date determined in terms of that constitution or amendment.
(3) The signed text of a provincial constitution or constitutional
amendment is conclusive evidence of its provisions and, after publication,
must be entrusted to the Constitutional Court for safekeeping.
[Title 4] Conflicting Laws
Section 146 Conflicts between national and provincial legislation
(1) This section applies to a conflict between national legislation and
provincial legislation falling within a functional area listed in Schedule
4.
(2) National legislation that applies uniformly with regard to the country
as a whole prevails over provincial legislation if any of the following
conditions is met:
(a) The national legislation deals with a matter that cannot be regulated
effectively by legislation enacted by the respective provinces
individually.
(b) The national legislation deals with a matter that, to be dealt with
effectively, requires uniformity across the nation, and the
national legislation provides that uniformity by establishing -
(i) norms and standards;
(ii) frameworks; or
(iii) national policies.
(c) The national legislation is necessary for -
(i) the maintenance of national security;
(ii) the maintenance of economic unity;
(iii) the protection of the common market in respect of the mobility of
goods, services, capital and labour;
(iv) the promotion of economic activities across provincial boundaries;
(v) the promotion of equal opportunity or equal access to government
services; or
(vi) the protection of the environment.
(3) National legislation prevails over provincial legislation if the
national legislation is aimed at preventing unreasonable action by a
province that -
(a) is prejudicial to the economic, health or security interests of
another province or the country as a whole; or
(b) impedes the implementation of national economic policy.
(4) When there is a dispute concerning whether national legislation is
necessary for a purpose set out in subsection (2)(c) and that dispute
comes before a court for resolution, the court must have due regard to the
approval or the rejection of the legislation by the National Council of
Provinces.
(5) Provincial legislation prevails over national legislation if
subsection (2) or (3) does not apply.
(6) A law made in terms of an Act of Parliament or a provincial Act can
prevail only if that law has been approved by the National Council of
Provinces.
(7) If the National Council of Provinces does not reach a decision within
30 days of its first sitting after a law was referred to it, that law must
be considered for all purposes to have been approved by the Council.
(8) If the National Council of Provinces does not approve a law referred
to in subsection (6), it must, within 30 days of its decision, forward
reasons for not approving the law to the authority that referred the law
to it.
Section 147 Other conflicts
(1) If there is a conflict between national legislation and a provision of
a provincial constitution with regard to -
(a) a matter, concerning which this Constitution specifically requires or
envisages the enactment of national legislation, the national legislation
prevails over the affected provision of the provincial constitution;
(b) national legislative intervention in terms of section 44(2), the
national legislation prevails over the provision of the provincial
constitution; or
(c) a matter within a functional area listed in Schedule 4, section 146
applies as if the affected provision of the provincial constitution were
provincial legislation referred to in that section.
(2) National legislation referred to in section 44(2) prevails over
provincial legislation in respect of matters within the functional areas
listed in Schedule 5.
Section 148 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 149 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 150 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 7 Local Government
Section 151 Status of municipalities
(1) The local sphere of government consists of municipalities, which must
be established for the whole of the territory of the Republic.
(2) The executive and legislative authority of a municipality is vested in
its Municipal Council.
(3) A municipality has the right to govern, on its own initiative, the
local government affairs of its community, subject to national and
provincial legislation, as provided for in the Constitution.
(4) The national or a provincial government may not compromise or impede a
municipality's ability or right to exercise its powers or perform its
functions.
Section 152 Objects of local government
(1) The objects of local government are:
(a) To provide democratic and accountable government for local
communities;
(b) to ensure the provision of services to communities in a sustainable
manner;
(c) to promote social and economic development;
(d) to promote a safe and healthy environment; and
(e) to encourage the involvement of communities and community
organisations in the matters of local government.
(2) A municipality must strive, within its financial and administrative
capacity, to achieve the objects set out in subsection (1).
Section 153 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 154 Municipalities in co-operative government
(1) The national government and provincial governments, by legislative and
other measures, must support and strengthen the capacity of municipalities
to manage their own affairs, to exercise their powers and to perform their
functions.
(2) Draft national or provincial legislation that affects the status,
institutions, powers or functions of local government must be published
for public comment before it is introduced in Parliament or a provincial
legislature, in a manner that allows organised local government,
municipalities and other interested persons an opportunity to make
representations with regard to the draft legislation.
Section 155 Establishment of municipalities
(1) There are the following categories of municipality:
(a) Category A: A municipality that has exclusive municipal executive and
legislative authority in its area.
(b) Category B: A municipality that shares municipal executive and
legislative authority in its area with a category C municipality within
whose area it falls.
(c) Category C: A municipality that has municipal executive and
legislative authority in an area that includes more than one municipality.
(2) National legislation must define the different types of municipality
that may be established within each category.
(3) National legislation must -
(a) establish the criteria for determining when an area should have a
single category A municipality or when it should have municipalities of
both category B and category C;
(b) establish criteria and procedures for the determination of municipal
boundaries by an independent authority; and
(c) subject to section 229, make provision for an appropriate division of
powers and functions between municipalities when an area has
municipalities of both category B and category C. A division of powers and
functions between a category B municipality and a category C municipality
may differ from the division of powers and functions between another
category B municipality and that category C municipality.
(4) The legislation referred to in subsection (3) must take into account
the need to provide municipal services in an equitable and sustainable
manner.
(5) Provincial legislation must determine the different types of
municipality to be established in the province.
(6) Each provincial government must establish municipalities in its
province in a manner consistent with the legislation enacted in terms of
subsections (2) and (3) and, by legislative or other measures, must -
(a) provide for the monitoring and support of local government in the
province; and
(b) promote the development of local government capacity to enable
municipalities to perform their functions and manage their own affairs.
(7) The national government, subject to section 44, and the provincial
governments have the legislative and executive authority to see to the
effective performance by municipalities of their functions in respect of
matters listed in Schedules 4 and 5, by regulating the exercise by
municipalities of their executive authority referred to in section 156(1).
Section 156 Powers and functions of municipalities
(1) A municipality has executive authority in respect of, and has the
right to administer -
(a) the local government matters listed in Part B of Schedule 4 and Part B
of Schedule 5; and
(b) any other matter assigned to it by national or provincial legislation.
(2) A municipality may make and administer by-laws for the effective
administration of the matters which it has the right to administer.
(3) Subject to section 151(4), a by-law that conflicts with national or
provincial legislation is invalid. If there is a conflict between a by-law
and national or provincial legislation that is inoperative because of a
conflict referred to in section 149, the by-law must be regarded as valid
for as long as that legislation is inoperative.
(4) The national government and provincial governments must assign to a
municipality, by agreement and subject to any conditions, the
administration of a matter listed in Part A of Schedule 4 or Part A of
Schedule 5 which necessarily relates to local government, if -
(a) that matter would most effectively be administered locally; and
(b) the municipality has the capacity to administer it.
(5) A municipality has the right to exercise any power concerning a matter
reasonably necessary for, or incidental to, the effective performance of
its functions.
Section 157 Composition and election of Municipal Councils
(1) A Municipal Council consists of -
(a) members elected in accordance with subsections (2), (3), (4) and (5);
or
(b) if provided for by national legislation -
(i) members appointed by other Municipal Councils to represent those other
Councils; or
(ii) both members elected in accordance with paragraph (a) and members
appointed in accordance with subparagraph (i) of this paragraph.
(2) The election of members to a Municipal Council as anticipated in
subsection (1)(a) must be in accordance with national legislation, which
must prescribe a system -
(a) of proportional representation based on that municipality's segment of
the national common voters roll, and which provides for the election of
members from lists of party candidates drawn up in a party's order of
preference; or
(b) of proportional representation as described in paragraph (a) combined
with a system of ward representation based on that municipality's segment
of the national common voters roll.
(3) An electoral system in terms of subsection (2) must ensure that the
total number of members elected from each party reflects the total
proportion of the votes recorded for those parties.
(4) If the electoral system includes ward representation, the delimitation
of wards must be done by an independent authority appointed in terms of,
and operating according to, procedures and criteria prescribed by national
legislation.
(5) A person may vote in a municipality only if that person is registered
on that municipality's segment of the national common voters roll.
(6) The national legislation referred to in subsection (1)(b) must
establish a system that allows for parties and interests reflected within
the Municipal Council making the appointment, to be fairly represented in
the Municipal Council to which the appointment is made.
Section 158 Membership of Municipal Councils
(1) Every citizen who is qualified to vote for a Municipal Council is
eligible to be a member of that Council, except -
(a) anyone who is appointed by, or is in the service of, the municipality
and receives remuneration for that appointment or service, and who has not
been exempted from this disqualification in terms of national legislation;
(b) anyone who is appointed by, or is in the service of, the state in
another sphere, and receives remuneration for that appointment or service,
and who has been disqualified from membership of a Municipal Council in
terms of national legislation;
(c) anyone who is disqualified from voting for the National Assembly or is
disqualified in terms of section 47(1)(c), (d) or (e) from being a member
of the Assembly;
(d) a member of the National Assembly, a delegate to the National Council
of Provinces or a member of a provincial legislature; but this
disqualification does not apply to a member of a Municipal Council
representing local government in the National Council; or
(e) a member of another Municipal Council; but this disqualification does
not apply to a member of a Municipal Council representing that Council in
another Municipal Council of a different category.
(2) A person who is not eligible to be a member of a Municipal Council in
terms of subsection (1)(a), (b),(d) or (e) may be a candidate for the
Council, subject to any limits or conditions established by national
legislation.
Section 159 Terms of Municipal Councils
The term of a Municipal Council may be no more than four years, as
determined by national legislation.
Section 160 Internal procedures
(1) A Municipal Council -
(a) makes decisions concerning the exercise of all the powers and the
performance of all the functions of the municipality;
(b) must elect its chairperson;
(c) may elect an executive committee and other committees, subject to
national legislation; and
(d) may employ personnel that are necessary for the effective performance
of its functions.
(2) The following functions may not be delegated by a Municipal Council:
(a) The passing of by-laws;
(b) the approval of budgets;
(c) the imposition of rates and other taxes, levies and duties; and
(d) the raising of loans.
(3) (a) A majority of the members of a Municipal Council must be present
before a vote may be taken on any matter.
(b) All questions concerning matters mentioned in subsection (2) are
determined by a decision taken by a Municipal Council with a supporting
vote of a majority of its members.
(c) All other questions before a Municipal Council are decided by a
majority of the votes cast.
(4) No by-law may be passed by a Municipal Council unless -
(a) all the members of the Council have been given reasonable notice; and
(b) the proposed by-law has been published for public comment.
(5) National legislation may provide criteria for determining -
(a) the size of a Municipal Council;
(b) whether Municipal Councils may elect an executive committee or any
other committee; or
(c) the size of the executive committee or any other committee of a
Municipal Council;
(6) A Municipal Council may make by-laws which prescribe rules and orders
for -
(a) its internal arrangements;
(b) its business and proceedings; and
(c) the establishment, composition, procedures, powers and functions of
its committees.
(7) A Municipal Council must conduct its business in an open manner, and
may close its sittings, or those of its committees, only when it is
reasonable to do so having regard to the nature of the business being
transacted.
(8) Members of a Municipal Council are entitled to participate in its
proceedings and those of its committees in a manner that -
(a) allows parties and interests reflected within the Council to be fairly
represented;
(b) is consistent with democracy; and
(c) may be regulated by national legislation.
Section 161 Privilege
Provincial legislation within the framework of national legislation may
provide for privileges and immunities of Municipal Councils and their
members.
Section 162 Publication of municipal by-laws
(1) A municipal by-law may be enforced only after it has been published in
the official gazette of the relevant province.
(2) A provincial official gazette must publish a municipal by-law upon
request by the municipality.
(3) Municipal by-laws must be accessible to the public.
Section 163 Organised local government
An Act of Parliament enacted in accordance with the procedure established
by section 76 must -
(a) provide for the recognition of national and provincial organisations
representing municipalities; and
(b) determine procedures by which local government may -
(i) consult with the national or a provincial government;
(ii) designate representatives to participate in the National Council of
Provinces; and
(iii) nominate persons to the Financial and Fiscal Commission.
Section 164 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 8 Courts and Administration of Justice
Section 165 Judicial authority
(1) The judicial authority of the Republic is vested in the courts.
(2) The courts are independent and subject only to the Constitution and
the law, which they must apply impartially and without fear, favour or
prejudice.
(3) No person or organ of state may interfere with the functioning of the
courts.
(4) Organs of state, through legislative and other measures, must assist
and protect the courts to ensure the independence, impartiality, dignity,
accessibility and effectiveness of the courts.
(5) An order or decision issued by a court binds all persons to whom and
organs of state to which it applies.
Section 166 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 167 Constitutional Court
(1) The Constitutional Court consists of a President, a Deputy President
and nine other judges.
(2) A matter before the Constitutional Court must be heard by at least
eight judges.
(3) The Constitutional Court -
(a) is the highest court in all constitutional matters;
(b) may decide only constitutional matters, and issues connected with
decisions on constitutional matters; and
(c) makes the final decision whether a matter is a constitutional matter
or whether an issue is connected with a decision on a constitutional
matter.
(4) Only the Constitutional Court may -
(a) decide disputes between organs of state in the national or provincial
sphere concerning the constitutional status, powers or functions of any of
those organs of state;
(b) decide on the constitutionality of any parliamentary or provincial
Bill, but may do so only in the circumstances anticipated in section 79 or
121;
(c) decide applications envisaged in section 80 or 122;
(d) decide on the constitutionality of any amendment to the Constitution;
(e) decide that Parliament or the President has failed to fulfil a
constitutional obligation; or
(f) certify a provincial constitution in terms of section 144.
(5) The Constitutional Court makes the final decision whether an Act of
Parliament, a provincial Act or conduct of the President is
constitutional, and must confirm any order of invalidity made by the
Supreme Court of Appeal, a High Court, or a court of similar status,
before that order has any force.
(6) National legislation or the rules of the Constitutional Court must
allow a person, when it is in the interests of justice and with leave of
the Constitutional Court -
(a) to bring a matter directly to the Constitutional Court; or
(b) to appeal directly to the Constitutional Court from any other
court.
(7) A constitutional matter includes any issue involving the
interpretation, protection or enforcement of the Constitution.
Section 168 Supreme Court of Appeal
(1) The Supreme Court of Appeal consists of a Chief Justice, a Deputy
Chief Justice and the number of judges of appeal determined by an Act of
Parliament.
(2) A matter before the Supreme Court of Appeal must be decided by the
number of judges determined by an Act of Parliament.
(3) The Supreme Court of Appeal may decide appeals in any matter. It is
the highest court of appeal except in constitutional matters, and may
decide only -
(a) appeals;
(b) issues connected with appeals; and
(c) any other matter that may be referred to it in circumstances defined
by an Act of Parliament.
Section 169 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 170 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 171 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 172 Powers of courts in constitutional matters
(1) When deciding a constitutional matter within its power, a court -
(a) must declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency; and
(b) may make any order that is just and equitable, including -
(i) an order limiting the retrospective effect of the declaration of
invalidity; and
(ii) an order suspending the declaration of invalidity for any period and
on any conditions, to allow the competent authority to correct the defect.
(2) (a) The Supreme Court of Appeal, a High Court or a court of similar
status may make an order concerning the constitutional validity of an Act
of Parliament, a provincial Act or any conduct of the President, but an
order of constitutional invalidity has no force unless it is confirmed by
the Constitutional Court.
(b) A court which makes an order of constitutional invalidity may grant a
temporary interdict or other temporary relief to a party, or may adjourn
the proceedings, pending a decision of the Constitutional Court on the
validity of that Act or conduct.
(c) National legislation must provide for the referral of an order of
constitutional invalidity to the Constitutional Court.
(d) Any person or organ of state with a sufficient interest may appeal, or
apply, directly to the Constitutional Court to confirm or vary an order of
constitutional invalidity by a court in terms of this subsection.
Section 173 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 174 Appointment of judicial officers
(1) Any appropriately qualified woman or man who is a fit and proper
person may be appointed as a judicial officer. Any person to be appointed
to the Constitutional Court must also be a South African citizen.
(2) The need for the judiciary to reflect broadly the racial and gender
composition of South Africa must be considered when judicial officers are
appointed.
(3) The President as head of the national executive, after consulting the
Judicial Service Commission and the leaders of parties represented in the
National Assembly, appoints the President and Deputy President of the
Constitutional Court and, after consulting the Judicial Service
Commission, appoints the Chief Justice and Deputy Chief Justice.
(4) The other judges of the Constitutional Court are appointed by the
President as head of the national executive, after consulting the
President of the Constitutional Court and the leaders of parties
represented in the National Assembly, in accordance with the following
procedure:
(a) The Judicial Service Commission must prepare a list of nominees with
three names more than the number of appointments to be made, and submit
the list to the President.
(b) The President may make appointments from the list, and must advise the
Judicial Service Commission, with reasons, if any of the nominees are
unacceptable and any appointment remains to be made.
(c) The Judicial Service Commission must supplement the list with further
nominees and the President must make the remaining appointments from the
supplemented list.
(5) At all times, at least four members of the Constitutional Court must
be persons who were judges at the time they were appointed to the
Constitutional Court.
(6) The President must appoint the judges of all other courts on the
advice of the Judicial Service Commission.
(7) Other judicial officers must be appointed in terms of an Act of
Parliament which must ensure that the appointment, promotion, transfer or
dismissal of, or disciplinary steps against, these judicial officers take
place without favour or prejudice.
(8) Before judicial officers begin to perform their functions, they must
take an oath or affirm, in accordance with Schedule 2, that they will
uphold and protect the Constitution.
Section 175 Acting judges
(1) The President may appoint a woman or a man to be an acting judge of
the Constitutional Court if there is a vacancy or if a judge is absent.
The appointment must be made on the recommendation of the Cabinet member
responsible for the administration of justice acting with the concurrence
of the President of the Constitutional Court and the Chief Justice.
(2) The Cabinet member responsible for the administration of justice must
appoint acting judges to other courts after consulting the senior judge of
the court on which the acting judge will serve.
Section 176 Terms of office and remuneration
(1) A Constitutional Court judge is appointed for a non-renewable term of
12 years, but must retire at the age of 70.
(2) Other judges hold office until they are discharged from active service
in terms of an Act of Parliament.
(3) The salaries, allowances and benefits of judges may not be reduced.
Section 177 Removal
(1) A judge may be removed from office only if -
(a) the Judicial Service Commission finds that the judge suffers
from an incapacity, is grossly incompetent or is guilty of gross
misconduct; and
(b) the National Assembly calls for that judge to be removed, by a
resolution adopted with a supporting vote of at least two thirds of its
members.
(2) The President must remove a judge from office upon adoption of a
resolution calling for that judge to be removed.
(3) The President, on the advice of the Judicial Service Commission, may
suspend a judge who is the subject of a procedure in terms of subsection
(1).
Section 178 Judicial Service Commission
(1) There is a Judicial Service Commission consisting of -
(a) the Chief Justice, who presides at meetings of the Commission;
(b) the President of the Constitutional Court;
(c) one Judge President designated by the Judges President;
(d) the Cabinet member responsible for the administration of justice, or
an alternate designated by that Cabinet member;
(e) two practising advocates nominated from within the advocates"
profession to represent the profession as a whole, and appointed by the
President;
(f) two practising attorneys nominated from within the attorneys"
profession to represent the profession as a whole, and appointed by the
President;
(g) one teacher of law designated by teachers of law at South African
universities;
(h) six persons designated by the National Assembly from among its
members, at least three of whom must be members of opposition parties
represented in the Assembly;
(i) four permanent delegates to the National Council of Provinces
designated together by the Council with a supporting vote of at least six
provinces;
(j) four persons designated by the President as head of the national
executive, after consulting the leaders of all the parties in the National
Assembly; and
(k) when considering matters specifically relating to a provincial or
local division of the High Court, the Judge President of that division and
the Premier, or an alternate designated by the Premier, of the province
concerned.
(2) If the number of persons nominated from within the advocates" or
attorneys" profession in terms of subsection (1)(e) or (f) equals the
number of vacancies to be filled, the President must appoint them. If the
number of persons nominated exceeds the number of vacancies to be filled,
the President, after consulting the relevant profession, must appoint
sufficient of the nominees to fill the vacancies, taking into account the
need to ensure that those appointed represent the profession as a whole.
(3) Members of the Commission designated by the National Council of
Provinces serve until they are replaced together, or until any vacancy
occurs in their number. Other members who were designated or nominated to
the Commission serve until they are replaced by those who designated or
nominated them.
(4) The Judicial Service Commission has the powers and functions assigned
to it in the Constitution and national legislation.
(5) The Judicial Service Commission may advise the national government on
any matter relating to the judiciary or the administration of justice, but
when it considers any matter except the appointment of a judge, it must
sit without the members designated in terms of subsection (1) (h) and (i).
(6) The Judicial Service Commission may determine its own procedure, but
decisions of the Commission must be supported by a majority of its
members.
Section 179 Prosecuting authority
(1) There is a single national prosecuting authority in the Republic,
structured in terms of an Act of Parliament, and
consisting of -
(a) a National Director of Public Prosecutions, who is the head of the
prosecuting authority, and is appointed by the President as head of the
national executive; and
(b) Directors of Public Prosecutions and prosecutors as determined by an
Act of Parliament.
(2) The prosecuting authority has the power to institute criminal
proceedings on behalf of the state, and to carry out any necessary
functions incidental to instituting criminal proceedings.
(3) National legislation must ensure that the Directors of Public
Prosecutions -
(a) are appropriately qualified; and
(b) are responsible for prosecutions in specific jurisdictions, subject to
subsection (5).
(4) National legislation must ensure that the prosecuting authority
exercises its functions without fear, favour or prejudice.
(5) The National Director of Public Prosecutions -
(a) must determine, with the concurrence of the Cabinet member responsible
for the administration of justice, and after consulting the Directors of
Public Prosecutions, prosecution policy which must be observed in the
prosecution process;
(b) must issue policy directives which must be observed in the prosecution
process;
(c) may intervene in the prosecution process when policy directives are
not complied with; and
(d) may review a decision to prosecute or not to prosecute, after
consulting the relevant Director of Public Prosecutions and after taking
representations within a period specified by the National Director of
Public Prosecutions, from the following:
(i) The accused person.
(ii) The complainant.
(iii) Any other person or party whom the National Director considers to be
relevant.
(6) The Cabinet member responsible for the administration of justice must
exercise final responsibility over the prosecuting authority.
(7) All other matters concerning the prosecuting authority must be
determined by national legislation.
Section 180 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 9 State Institutions Supporting Constitutional Democracy
[Title 0 General Provision]
Section 181 Establishment and governing principles
(1) The following state institutions strengthen constitutional democracy
in the Republic:
(a) The Public Protector.
(b) The Human Rights Commission.
(c) The Commission for the Promotion and Protection of the Rights of
Cultural, Religious and Linguistic Communities.
(d) The Commission for Gender Equality.
(e) The Auditor-General.
(f) The Electoral Commission.
(2) These institutions are independent, and subject only to the
Constitution and the law, and they must be impartial and must exercise
their powers and perform their functions without fear, favour or
prejudice.
(3) Other organs of state, through legislative and other measures, must
assist and protect these institutions to ensure the independence,
impartiality, dignity and effectiveness of these institutions.
(4) No person or organ of state may interfere with the functioning of
these institutions.
(5) These institutions are accountable to the National Assembly, and must
report on their activities and the performance of their functions to the
Assembly at least once a year.
[Title 1] Public Protector
Section 182 Functions of Public Protector
(1) The Public Protector has the power, as regulated by national
legislation -
(a) to investigate any conduct in state affairs, or in the public
administration in any sphere of government, that is alleged or suspected
to be improper or to result in any impropriety or prejudice;
(b) to report on that conduct; and
(c) to take appropriate remedial action.
(2) The Public Protector has the additional powers and functions
prescribed by national legislation.
(3) The Public Protector may not investigate court decisions.
(4) The Public Protector must be accessible to all persons and
communities.
(5) Any report issued by the Public Protector must be open to the public
unless exceptional circumstances, to be determined in terms of national
legislation, require that a report be kept confidential.
Section 183 Tenure
The Public Protector is appointed for a non-renewable period of seven
years.
[Title 2] Human Rights Commission
Section 184 Functions of Human Rights Commission
(1) The Human Rights Commission must -
(a) promote respect for human rights and a culture of human rights;
(b) promote the protection, development and attainment of human rights;
and
(c) monitor and assess the observance of human rights in the Republic.
(2) The Human Rights Commission has the powers, as regulated by national
legislation, necessary to perform its functions, including the power -
(a) to investigate and to report on the observance of human rights;
(b) to take steps to secure appropriate redress where human rights have
been violated;
(c) to carry out research; and
(d) to educate.
(3) Each year, the Human Rights Commission must require relevant organs of
state to provide the Commission with information on the measures that they
have taken towards the realisation of the rights in the Bill of Rights
concerning housing, health care, food, water, social security, education
and the environment.
(4) The Human Rights Commission has the additional powers and functions
prescribed by national legislation.
[Title 3] Commission for the Promotion and Protection of the Rights of
Cultural, Religious and Linguistic Communities
Section 185 Functions of Commission
(1) The primary objects of the Commission for the Promotion and Protection
of the Rights of Cultural, Religious and Linguistic Communities are -
(a) to promote respect for the rights of cultural, religious and
linguistic communities;
(b) to promote and develop peace, friendship, humanity, tolerance and
national unity among cultural, religious and linguistic communities, on
the basis of equality, non-discrimination and free association; and
(c) to recommend the establishment or recognition, in accordance with
national legislation, of a cultural or other council or councils for a
community or communities in South Africa.
(2) The Commission has the power, as regulated by national legislation,
necessary to achieve its primary objects, including the power to monitor,
investigate, research, educate, lobby, advise and report on issues
concerning the rights of cultural, religious and linguistic communities.
(3) The Commission may report any matter which falls within its powers and
functions to the Human Rights Commission for investigation.
(4) The Commission has the additional powers and functions prescribed by
national legislation.
Section 186 Composition of Commission
(1) The number of members of the Commission for the Promotion and
Protection of the Rights of Cultural, Religious and Linguistic Communities
and their appointment and terms of office must be prescribed by national
legislation.
(2) The composition of the Commission must-
(a) be broadly representative of the main cultural, religious and
linguistic communities in South Africa; and
(b) broadly reflect the gender composition of South Africa.
[Title 4] Commission for Gender Equality
Section 187 Functions of Commission for Gender Equality
(1) The Commission for Gender Equality must promote respect for gender
equality and the protection, development and attainment of gender
equality.
(2) The Commission for Gender Equality has the power, as regulated by
national legislation, necessary to perform its functions, including the
power to monitor, investigate, research, educate, lobby, advise and report
on issues concerning gender equality.
(3) The Commission for Gender Equality has the additional powers and
functions prescribed by national legislation.
[Title 5] Auditor-General
Section 188 Functions of Auditor-General
(1) The Auditor-General must audit and report on the accounts, financial
statements and financial management of -
(a) all national and provincial state departments and administrations;
(b) all municipalities; and
(c) any other institution or accounting entity required by national or
provincial legislation to be audited by the Auditor-General.
(2) In addition to the duties prescribed in subsection (1), and subject to
any legislation, the Auditor-General may audit and report on the accounts,
financial statements and financial management of -
(a) any institution funded from the National Revenue Fund or a -
Provincial Revenue Fund or by a municipality; or
(b) any institution that is authorised in terms of any law to receive
money for a public purpose.
(3) The Auditor-General must submit audit reports to any legislature that
has a direct interest in the audit, and to any other authority prescribed
by national legislation. All reports must be made public.
(4) The Auditor-General has the additional powers and functions prescribed
by national legislation.
Section 189 Tenure
The Auditor-General must be appointed for a fixed, non-
renewable term of between five and ten years.
[Title 6] Electoral Commission
Section 190 Functions of Electoral Commission
(1) The Electoral Commission must -
(a) manage elections of national, provincial and municipal legislative
bodies in accordance with national legislation;
(b) ensure that those elections are free and fair; and
(c) declare the results of those elections within a period that must be
prescribed by national legislation and that is as short as reasonably
possible.
(2) The Electoral Commission has the additional powers and functions
prescribed by national legislation.
Section 191 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 7] Independent Authority to Regulate Broadcasting
Section 192 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 8] General Provisions
Section 193 Appointments
(1) The Public Protector and members of any Commission established by this
Chapter must be women or men who -
(a) are South African citizens;
(b) are fit and proper persons to hold the particular office; and
(c) comply with any other requirements prescribed by national legislation.
(2) The need for a Commission established by this Chapter to reflect
broadly the race and gender composition of South Africa must be considered
when members are appointed.
(3) The Auditor-General must be a woman or a man who is a South African
citizen and a fit and proper person to hold that office. Specialised
knowledge of, or experience in, auditing, state finances and public
administration must be given due regard in appointing the Auditor-General.
(4) The President, on the recommendation of the National Assembly, must
appoint the Public Protector, the Auditor-General and members of -
(a) the Human Rights Commission;
(b) the Commission for Gender Equality; and
(c) the Electoral Commission.
(5) The National Assembly must recommend persons -
(a) nominated by a committee of the Assembly proportionally composed of
members of all parties represented in the Assembly; and
(b) approved by the Assembly by a resolution adopted with a supporting
vote -
(i) of at least 60 per cent of the members of the Assembly, if the
recommendation concerns the appointment of the Public Protector or the
Auditor-General; or
(ii) of a majority of the members of the Assembly, if the recommendation
concerns the appointment of a member of a Commission.
(6) The involvement of civil society in the recommendation process may be
provided for as envisaged in section 59(1)(a).
Section 194 Removal from office
(1) The Public Protector, the Auditor-General or a member of a
Commission established by this Chapter may be removed from office only on
-
(a) the ground of misconduct, incapacity or incompetence;
(b) a finding to that effect by a committee of the National Assembly; and
(c) the adoption by the Assembly of a resolution calling for that person's
removal from office.
(2) A resolution of the National Assembly concerning the removal from
office of -
(a) the Public Protector or the Auditor-General must be adopted with a
supporting vote of at least two thirds of the members of the Assembly; or
(b) a member of a commission must be adopted with a supporting vote of a
majority of the members of the Assembly.
(2) The President -
(a) may suspend a person from office at any time after the start of the
proceedings of a committee of the National Assembly for the removal of
that person; and
(b)must remove a person from office upon adoption by the Assembly of the
resolution calling for that person's removal.
Chapter 10 Public Administration
Section 195 Basic values and principles governing public administration
(1) Public administration must be governed by the democratic values and
principles enshrined in the Constitution, including the following
principles:
(a) A high standard of professional ethics must be promoted and
maintained.
(b) Efficient, economic and effective use of resources must be promoted.
(c) Public administration must be development-oriented.
(d) Services must be provided impartially, fairly, equitably and without
bias.
(e) People's needs must be responded to, and the public must be encouraged
to participate in policy-making.
(f) Public administration must be accountable.
(g) Transparency must be fostered by providing the public with timely,
accessible and accurate information.
(h) Good human-resource management and career-development practices, to
maximise human potential, must be cultivated.
(i) Public administration must be broadly representative of the South
African people, with employment and personnel management practices based
on ability, objectivity, fairness, and the need to redress the imbalances
of the past to achieve broad representation.
(2) The above principles apply to -
(a) administration in every sphere of government;
(b) organs of state; and
(c) public enterprises.
(3) National legislation must ensure the promotion of the values and
principles listed in subsection (1).
(4) The appointment in public administration of a number of persons on
policy considerations is not precluded, but national legislation must
regulate these appointments in the public service.
(5) Legislation regulating public administration may differentiate between
different sectors, administrations or institutions.
(6) The nature and functions of different sectors, administrations or
institutions of public administration are relevant factors to be taken
into account in legislation regulating public administration.
Section 196 Public Service Commission
(1) There is a single Public Service Commission for the Republic.
(2) The Commission is independent and must be impartial, and must exercise
its powers and perform its functions without fear, favour or prejudice in
the interest of the maintenance of effective and efficient public
administration and a high standard of
professional ethics in the public service. The Commission must be
regulated by national legislation.
(3) Other organs of state, through legislative and other measures, must
assist and protect the Commission to ensure the independence,
impartiality, dignity and effectiveness of the Commission. No person or
organ of state may interfere with the functioning of the Commission.
(4) The powers and functions of the Commission are:
(a) To promote the values and principles set out in section 195,
throughout the public service;
(b) to investigate, monitor and evaluate the organisation and
administration, and the personnel practices, of the public service;
(c) to propose measures to ensure effective and efficient performance
within the public service;
(d) to give directions aimed at ensuring that personnel procedures
relating to recruitment, transfers, promotions and dismissals comply with
the values and principles set out in section 195;
(e) to report in respect of its activities and the performance of its
functions, including any finding it may make and directions and advice it
may give, and to provide an evaluation of the extent to which the values
and principles set out in section 195 are complied with; and
(f) either of its own accord or on receipt of any complaint -
(i) to investigate and evaluate the application of personnel and public
administration practices, and to report to the relevant executive
authority and legislature;
(ii) to investigate grievances of employees in the public service
concerning official acts or omissions, and recommend appropriate remedies;
(iii) to monitor and investigate adherence to applicable procedures in the
public service; and
(iv) to advise national and provincial organs of state regarding personnel
practices in the public service, including those relating to the
recruitment, appointment, transfer, discharge and other aspects of the
careers of employees in the public service.
(5) The Commission is accountable to the National Assembly.
(6) The Commission must report at least once a year in terms of subsection
(4)(e) -
(a) to the National Assembly; and
(b) in respect of its activities in a province, to the legislature of that
province.
(7) The Commission has the following 14 commissioners appointed by the
President:
(a) Five commissioners approved by the National Assembly in accordance
with subsection (8)(a); and
(b) one commissioner for each province nominated by the Premier of the
province in accordance with subsection (8)(b).
(8) (a) A commissioner appointed in terms of subsection (7)(a) must be -
(i) recommended by a committee of the National Assembly that is
proportionally composed of members of all parties represented in the
Assembly; and
(ii) approved by the Assembly by a resolution adopted with a supporting
vote of a majority of its members.
(b) A commissioner nominated by the Premier of a province must be -
(i) recommended by a committee of the provincial legislature that is
proportionally composed of members of all parties represented in the
legislature; and
(ii) approved by the legislature by a resolution adopted with a supporting
vote of a majority of its members.
(9) An Act of Parliament must regulate the procedure for the appointment
of commissioners.
(10) A commissioner is appointed for a term of five years, which is
renewable for one additional term only, and must be a woman or a man who
is -
(a) a South African citizen; and
(b) a fit and proper person with knowledge of, or experience in,
administration, management or the provision of public services.
(11) A commissioner may be removed from office only on -
(a) the ground of misconduct, incapacity or incompetence;
(b) a finding to that effect by a committee of the National Assembly or,
in the case of a commissioner nominated by the Premier of a province, by a
committee of the legislature of that province; and
(c) the adoption by the Assembly or the provincial legislature concerned,
of a resolution with a supporting vote of a majority of its members
calling for the commissioner's removal from office.
(12) The President must remove the relevant commissioner from office upon
-
(a) the adoption by the Assembly of a resolution calling for that
commissioner's removal; or
(b) written notification by the Premier that the provincial legislature
has adopted a resolution calling for that commissioner's removal.
(13) Commissioners referred to in subsection (7)(b) may exercise the
powers and perform the functions of the Commission in their provinces as
prescribed by national legislation.
Section 197 Public Service
(1) Within public administration there is a public service for the
Republic, which must function, and be structured, in terms of national
legislation, and which must loyally execute the lawful policies of the
government of the day.
(2) The terms and conditions of employment in the public service must be
regulated by national legislation. Employees are entitled to a fair
pension as regulated by national legislation.
(3) No employee of the public service may be favoured or prejudiced only
because that person supports a particular political party or cause.
(4)Provincial governments are responsible for the recruitment,
appointment, promotion, transfer and dismissal of members of the public
service in their administrations within a framework of uniform norms and
standards applying to the public service.
Chapter 11 Security Services
[Title 0 General Provisions]
Section 198 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 executive.
Section 199 Establishment, structuring and conduct of security services
(1) The security services of the Republic consist of a single defence
force, a single police service and any intelligence services established
in terms of the Constitution.
(2) The defence force is the only lawful military force in the Republic.
(3) Other than the security services established in terms of the
Constitution, armed organisations or services may be established only in
terms of national legislation.
(4) The security services must be structured and regulated by national
legislation.
(5) The security services must act, and must teach and require their
members to act, in accordance with the Constitution and the law, including
customary international law and international agreements binding on the
Republic.
(6) No member of any security service may obey a manifestly illegal order.
(7) Neither the security services, nor any of their members, may, in the
performance of their functions -
(a) prejudice a political party interest that is legitimate in terms of
the Constitution; or
(b) further, in a partisan manner, any interest of a political party.
(8) To give effect to the principles of transparency and accountability,
multi-party parliamentary committees must have oversight of all security
services in a manner determined by national legislation or the rules and
orders of Parliament.
[Title 1] Defence
Section 200 Defence force
(1) The defence force must be structured and managed as a disciplined
military force.
(2) The primary object of the defence force is to defend and protect the
Republic, its territorial integrity and its people in accordance with the
Constitution and the principles of international law regulating the use of
force.
Section 201 Political responsibility
(1) A member of the Cabinet must be responsible for defence.
(2) Only the President, as head of the national executive, may authorise
the employment of the defence force -
(a) in co-operation with the police service;
(b) in defence of the Republic; or
(c) in fulfilment of an international obligation.
(3) When the defence force is employed for any purpose mentioned in
subsection (2), the President must inform Parliament, promptly and in
appropriate detail, of -
(a) the reasons for the employment of the defence force;
(b) any place where the force is being employed;
(c) the number of people involved; and
(d) the period for which the force is expected to be employed.
(4) If Parliament does not sit during the first seven days after the
defence force is employed as envisaged in subsection (2), the President
must provide the information required in subsection (3) to the appropriate
oversight committee.
Section 202 Command of defence force
(1) The President as head of the national executive is Commander-
in- Chief of the defence force, and must appoint the Military Command of
the defence force.
(2) Command of the defence force must be exercised in accordance with the
directions of the Cabinet member responsible for defence, under the
authority of the President.
Section 203 State of national defence
(1) The President as head of the national executive may declare a state of
national defence, and must inform Parliament promptly and in appropriate
detail of -
(a) the reasons for the declaration;
(b) any place where the defence force is being employed; and
(c) the number of people involved.
(2) If Parliament is not sitting when a state of national defence is
declared, the President must summon Parliament to an extraordinary sitting
within seven days of the declaration.
(3) A declaration of a state of national defence lapses unless it is
approved by Parliament within seven days of the declaration.
Section 204 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 2] Police
Section 205 Police service
(1) The national police service must be structured to function in the
national, provincial and, where appropriate, local spheres of government.
(2) National legislation must establish the powers and functions of the
police service and must enable the police service to discharge its
responsibilities effectively, taking into account the requirements of the
provinces.
(3) The objects of the police service are to prevent, combat and
investigate crime, to maintain public order, to protect and secure the
inhabitants of the Republic and their property, and to uphold and enforce
the law.
Section 206 Political responsibility
(1) A member of the Cabinet must be responsible for policing and must
determine national policing policy after consulting the provincial
governments and taking into account the policing needs and priorities of
the provinces as determined by the provincial executives.
(2) The national policing policy may make provision for different policies
in respect of different provinces after taking into account the policing
needs and priorities of these provinces.
(3) Each province is entitled -(a) to monitor police conduct;
(b) to oversee the effectiveness and efficiency of the police service,
including receiving reports on the police service;
(c) to promote good relations between the police and the community;
(d) to assess the effectiveness of visible policing; and
(e) to liaise with the Cabinet member responsible for policing with
respect to crime and policing in the province.
(4) A provincial executive is responsible for policing functions -
(a) vested in it by this Chapter;
(b) assigned to it in terms of national legislation; and
(c) allocated to it in the national policing policy.
(5) In order to perform the functions set out in subsection (3), a
province -
(a) may investigate, or appoint a commission of inquiry into, any
complaints of police inefficiency or a breakdown in relations between the
police and any community; and
(b) must make recommendations to the Cabinet member responsible for
policing.
(6) On receipt of a complaint lodged by a provincial executive, an
independent police complaints body established by national legislation
must investigate any alleged misconduct of, or offence committed by, a
member of the police service in the province.
(7) National legislation must provide a framework for the establishment,
powers, functions and control of municipal police services.
(8) A committee composed of the Cabinet member and the members of the
Executive Councils responsible for policing must be established to ensure
effective co-ordination of the police service and effective co-operation
among the spheres of government.
(9) A provincial legislature may require the provincial commissioner of
the province to appear before it or any of its committees to answer
questions.
Section 207 Control of police service
(1) The President as head of the national executive must appoint a woman
or a man as the National Commissioner of the police service, to control
and manage the police service.
(2) The National Commissioner must exercise control over and manage the
police service in accordance with the national policing policy and the
directions of the Cabinet member responsible for policing.
(3) The National Commissioner, with the concurrence of the provincial
executive, must appoint a woman or a man as the provincial commissioner
for that province, but if the National Commissioner and the provincial
executive are unable to agree on the appointment, the Cabinet member
responsible for policing must mediate between the parties.
(4) The provincial commissioners are responsible for policing in their
respective provinces -
(a) as prescribed by national legislation; and
(b) subject to the power of the National Commissioner to exercise control
over and manage the police service in terms of subsection (2).
(5) The provincial commissioner must report to the provincial legislature
annually on policing in the province, and must send a copy of the report
to the National Commissioner.
(6) If the provincial commissioner has lost the confidence of the
provincial executive, that executive may institute appropriate proceedings
for the removal or transfer of, or disciplinary action against, that
Commissioner, in accordance with national legislation.
Section 208 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 3] Intelligence
Section 209 Establishment and control of intelligence services
(1) Any intelligence service, other than any intelligence division of the
defence force or police service, may be established only by the President,
as head of the national executive, and only in terms of national
legislation.
(2) The President as head of the national executive must appoint a woman
or a man as head of each intelligence service established in terms of
subsection (1), and must either assume political responsibility for the
control and direction of any of those services, or designate a member of
the Cabinet to assume that responsibility.
Section 210 Powers, functions and monitoring
National legislation must regulate the objects, powers and functions of
the intelligence services, including any intelligence division of the
defence force or police service, and must provide for -
(a) the co-ordination of all intelligence services; and
(b)civilian monitoring of the activities of those services by an inspector
appointed by the President as head of the national executive, and approved
by a resolution adopted by the National Assembly with a supporting vote of
at least two thirds of its members.
Chapter 12 Traditional Leaders
Section 211 Recognition
(1) The institution, status and role of traditional leadership, according
to customary law, are recognised, subject to the Constitution.
(2) A traditional authority that observes a system of customary law may
function subject to any applicable legislation and customs, which includes
amendments to, or repeal of, that legislation or those customs.
(3) The courts must apply customary law when that law is applicable,
subject to the Constitution and any legislation that
specifically deals with customary law.
Section 212 Role of traditional leaders
(1) National legislation may provide for a role for traditional leadership
as an institution at local level on matters affecting local communities.
(2) To deal with matters relating to traditional leadership, the role of
traditional leaders, customary law and the customs of communities
observing a system of customary law -
(a) national or provincial legislation may provide for the establishment
of houses of traditional leaders; and
(b) national legislation may establish a council of traditional leaders.
Chapter 13 Finance
[Title 1] General Financial Matters
Section 213 National Revenue Fund
(1) There is a National Revenue Fund into which all money received by the
national government must be paid, except money reasonably excluded by an
Act of Parliament.
(2) Money may be withdrawn from the National Revenue Fund only -
(a) in terms of an appropriation by an Act of Parliament; or
(b) as a direct charge against the National Revenue Fund, when it is
provided for in the Constitution or an Act of Parliament.
(3) A province's equitable share of revenue raised nationally is a direct
charge against the National Revenue Fund.
Section 214 Equitable shares and allocations of revenue
(1) An Act of Parliament must provide for -
(a) the equitable division of revenue raised nationally among the
national, provincial and local spheres of government;
(b) the determination of each province's equitable share of the provincial
share of that revenue; and
(c) any other allocations to provinces, local government or municipalities
from the national government's share of that revenue, and any conditions
on which those allocations may be made.
(2) The Act referred to in subsection (1) may be enacted only after the
provincial governments, organised local government and the Financial and
Fiscal Commission have been consulted, and any recommendations of the
Commission have been considered, and must take into account -
(a) the national interest;
(b) any provision that must be made in respect of the national debt and
other national obligations;
(c) the needs and interests of the national government, determined by
objective criteria;
(d) the need to ensure that the provinces and municipalities are able to
provide basic services and perform the functions allocated to them;
(e) the fiscal capacity and efficiency of the provinces and
municipalities;
(f) developmental and other needs of provinces, local government and
municipalities;
(g) economic disparities within and among the provinces;
(h) obligations of the provinces and municipalities in terms of national
legislation;
(i) the desirability of stable and predictable allocations of revenue
shares; and
(j) the need for flexibility in responding to emergencies or other
temporary needs, and other factors based on similar objective criteria.
Section 215 National, provincial and municipal budgets
(1) 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.
(2) National legislation must prescribe -
(a) the form of national, provincial and municipal budgets;
(b) when national and provincial budgets must be tabled; and
(c) that budgets in each sphere of government must show the sources of
revenue and the way in which proposed expenditure will comply with
national legislation.
(3) Budgets in each sphere of government must contain -
(a) estimates of revenue and expenditure, differentiating between capital
and current expenditure;
(b) proposals for financing any anticipated deficit for the period to
which they apply; and
(c) an indication of intentions regarding borrowing and other forms of
public liability that will increase public debt during the ensuing year.
Section 216 Treasury control
(1) National legislation must establish a national treasury and prescribe
measures to ensure both transparency and expenditure control in each
sphere of government, by introducing -
(a) generally recognised accounting practice;
(b) uniform expenditure classifications; and
(c) uniform treasury norms and standards.
(2) The national treasury, with the concurrence of the Cabinet member
responsible for national financial matters, may stop the transfer of funds
to an organ of state only for serious or persistent material breach of the
measures established in terms of subsection (1).
(3) A decision to stop the transfer of funds to a province may be taken
only in terms of subsection (2), and -
(a) may not stop the transfer of funds for more than 120 days; and
(b) may be enforced immediately, but will lapse retrospectively unless
Parliament approves it following a process substantially the same as that
established in terms of section 76(1) and prescribed by the joint rules
and orders of Parliament. This process must be completed within 30 days of
the decision by the national treasury.
(4) Parliament may renew a decision to stop the transfer of funds for no
more than 120 days at a time, following the process established in terms
of subsection (3).
(5) Before Parliament may approve or renew a decision to stop the transfer
of funds to a province -
(a) the Auditor-General must report to Parliament; and
(b) the province must be given an opportunity to answer the allegations
against it, and to state its case, before a committee.
Section 217 Procurement
(1) When an organ of state in the national, provincial or local sphere of
government, or any other institution identified in national legislation,
contracts for goods or services, it must do so in accordance with a system
which is fair, equitable, transparent, competitive and cost-effective.
(2) Subsection (1) does not prevent the organs of state or institutions
referred to in that subsection from implementing a procurement policy
providing for -
(a) categories of preference in the allocation of contracts; and
(b) the protection or advancement of persons, or categories of persons,
disadvantaged by unfair discrimination.
(3) National legislation must prescribe a framework within which the
policy referred to in subsection (2) may be implemented.
Section 218 Government guarantees
(1) The national government, a provincial government or a municipality may
guarantee a loan only if the guarantee complies with any conditions set
out in national legislation.
(2) National legislation referred to in subsection (1) may be
enacted only after any recommendations of the Financial and Fiscal
Commission have been considered.
(3) Each year, every government must publish a report on the guarantees it
has granted.
Section 219 Remuneration of persons holding public office
(1) An Act of Parliament must establish a framework for determining-
(a) the salaries, allowances and benefits of members of the National
Assembly, permanent delegates to the National Council of Provinces,
members of the Cabinet, Deputy Ministers, traditional leaders and members
of any councils of traditional leaders; and
(b) the upper limit of salaries, allowances or benefits of members of
provincial legislatures, members of Executive Councils and members of
Municipal Councils of the different categories.
(2) National legislation must establish an independent commission to make
recommendations concerning the salaries, allowances and benefits referred
to in subsection (1).
(3) Parliament may pass the legislation referred to in subsection (1) only
after considering any recommendations of the commission established in
terms of subsection (2).
(4) The national executive, a provincial executive, a municipality or any
other relevant authority may implement the national legislation referred
to in subsection (1) only after considering any recommendations of the
commission established in terms of subsection (2).
(5) National legislation must establish frameworks for determining the
salaries, allowances and benefits of judges, the Public Protector, the
Auditor-General, and members of any commission provided for in the
Constitution, including the broadcasting authority referred to in section
192.
[Title 2] Financial and Fiscal Commission
Section 220 Establishment and functions
(1) There is a Financial and Fiscal Commission for the Republic which
makes recommendations envisaged in this Chapter, or in national
legislation, to Parliament, provincial legislatures and any other
authorities determined by national legislation.
(2) The Commission is independent and subject only to the Constitution and
the law, and must be impartial.
(3) The Commission must function in terms of an Act of Parliament and, in
performing its functions, must consider all relevant factors, including
those listed in section 214(2).
Section 221 Appointment and tenure of members
(1) The Commission consists of the following women and men appointed by
the President as head of the national executive:
(a) A chairperson and a deputy chairperson who are full-time members;
(b) nine persons, each of whom is nominated by the Executive Council of a
province, with each province nominating only one person;
(c) two persons nominated by organised local government in terms of
section 163; and
(d) nine other persons.
(2) Members of the Commission must have appropriate expertise.
(3) Members serve for a term established in terms of national legislation.
The President may remove a member from office on the ground of misconduct,
incapacity or incompetence.
Section 222 Reports
The Commission must report regularly both to Parliament and to the
provincial legislatures.
[Title 3] Central Bank
Section 223 Establishment
The South African Reserve Bank is the central bank of the Republic and is
regulated in terms of an Act of Parliament.
Section 224 Primary object
(1) The primary object of the South African Reserve Bank is to protect the
value of the currency in the interest of balanced and sustainable economic
growth in the Republic.
(2) The South African Reserve Bank, in pursuit of its primary object, must
perform its functions independently and without fear, favour or prejudice,
but there must be regular consultation between the Bank and the Cabinet
member responsible for national financial matters.
Section 225 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 4] Provincial and Local Financial Matters
Section 226 Provincial Revenue Funds
(1) There is a Provincial Revenue Fund for each province into which all
money received by the provincial government must be paid, except money
reasonably excluded by an Act of Parliament.
(2) Money may be withdrawn from a Provincial Revenue Fund only -
(a) in terms of an appropriation by a provincial Act; or
(b) as a direct charge against the Provincial Revenue Fund, when it is
provided for in the Constitution or a provincial Act.
(3) Revenue allocated through a province to local government in that
province in terms of section 214(1), is a direct charge against that
province's Revenue Fund.
Section 227 National sources of provincial and local government funding
(1) Local government and each province -
(a) is entitled to an equitable share of revenue raised nationally to
enable it to provide basic services and perform the functions allocated to
it; and
(b) may receive other allocations from national government revenue, either
conditionally or unconditionally.
(2) Additional revenue raised by provinces or municipalities may not be
deducted from their share of revenue raised nationally, or from other
allocations made to them out of national government revenue. Equally,
there is no obligation on the national government to compensate provinces
or municipalities that do not raise revenue commensurate with their fiscal
capacity and tax base.
(3) A province's equitable share of revenue raised nationally must be
transferred to the province promptly and without deduction, except when
the transfer has been stopped in terms of section 216.
(4) A province must provide for itself any resources that it requires, in
terms of a provision of its provincial constitution, that are additional
to its requirements envisaged in the Constitution.
Section 228 Provincial taxes
(1) A provincial legislature may impose -
(a) taxes, levies and duties other than income tax, value-added tax,
general sales tax, rates on property or customs duties; and
(b) flat-rate surcharges on the tax bases of any tax, levy or duty that is
imposed by national legislation, other than the tax bases of corporate
income tax, value-added tax, rates on property or customs duties.
(2) The power of a provincial legislature to impose taxes, levies, duties
and surcharges -
(a) may not be exercised in a way that materially and
unreasonably prejudices national economic policies, economic activities
across provincial boundaries, or the national mobility of goods, services,
capital or labour; and
(b) must be regulated in terms of an Act of Parliament, which may be
enacted only after any recommendations of the Financial and Fiscal
Commission have been considered.
Section 229 Municipal fiscal powers and functions
(1) Subject to subsections (2), (3) and (4), a municipality may impose -
(a) rates on property and surcharges on fees for services provided by or
on behalf of the municipality; and
(b) if authorised by national legislation, other taxes, levies and duties
appropriate to local government or to the category of local government
into which that municipality falls, but no municipality may impose income
tax, value-added tax, general sales tax or customs duty.
(2) The power of a municipality to impose rates on property, surcharges on
fees for services provided by or on behalf of the municipality, or other
taxes, levies or duties -
(a) may not be exercised in a way that materially and unreasonably
prejudices national economic policies, economic activities across
municipal boundaries, or the national mobility of goods, services, capital
or labour; and
(b) may be regulated by national legislation.
(3) When two municipalities have the same fiscal powers and functions with
regard to the same area, an appropriate division of those powers and
functions must be made in terms of national legislation. The division may
be made only after taking into account at least the following criteria:
(a) The need to comply with sound principles of taxation;
(b) the powers and functions performed by each municipality;
(c) the fiscal capacity of each municipality;
(d) the effectiveness and efficiency of raising taxes, levies and duties;
and
(e) equity.
(4) Nothing in this section precludes the sharing of revenue raised in
terms of this section between municipalities that have fiscal power and
functions in the same area.
(5) National legislation envisaged in this section may be enacted only
after organised local government and the Financial and Fiscal Commission
have been consulted, and any recommendations of the Commission have been
considered.
Section 230 Provincial and municipal loans
(1) A province or a municipality may raise loans for capital or current
expenditure in accordance with reasonable conditions determined by
national legislation, but loans for current expenditure -
(a) may be raised only when necessary for bridging purposes during a
fiscal year; and
(b) must be repaid within twelve months.
(2)National legislation referred to in subsection (1) may be enacted only
after any recommendations of the Financial and Fiscal Commission have been
considered.
Chapter 14 General Provisions
[Title 1] International Law
Section 231 International agreements
(1) The negotiating and signing of all international agreements is the
responsibility of the national executive.
(2) An international agreement binds the Republic only after it has been
approved by resolution in both the National Assembly and the National
Council of Provinces, unless it is an agreement referred to in subsection
(3).
(3) An international agreement of a technical, administrative or executive
nature, or an agreement which does not require either ratification or
accession, entered into by the national executive, binds the Republic
without approval by the National Assembly and the National Council of
Provinces, but must be tabled in the Assembly and the Council within a
reasonable time.
(4) Any international agreement becomes law in the Republic when it is
enacted into law by national legislation; but a self-
executing provision of an agreement that has been approved by Parliament
is law in the Republic unless it is inconsistent with the Constitution or
an Act of Parliament.
(5) The Republic is bound by international agreements which were binding
on the Republic when this Constitution took effect.
Section 232 Customary international law
Customary international law is law in the Republic unless it is
inconsistent with the Constitution or an Act of Parliament.
Section 233 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 2] Other matters
Section 234 Charters of Rights
In order to deepen the culture of democracy established by the
Constitution, Parliament may adopt Charters of Rights consistent with the
provisions of the Constitution.
Section 235 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 236 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 237 Diligent performance of obligations
All constitutional obligations must be performed diligently and without
delay.
Section 238 Agency and delegation
An executive organ of state in any sphere of government may -
(a) delegate any power or function that is to be exercised or performed in
terms of legislation to any other executive organ of state, provided the
delegation is consistent with the legislation in terms of which the power
is exercised or the function is performed; or
(b) exercise any power or perform any function for any other executive
organ of state on an agency or delegation basis.
Section 239 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 240 Inconsistencies between different texts
In the event of an inconsistency between different texts of the
Constitution, the English text prevails.
Section 241 Transitional arrangements
Schedule 6 applies to the transition to the new constitutional order
established by this Constitution, and any matter incidental to that
transition.
Section 242 Repeal of laws
The laws mentioned in Schedule 7 are repealed, subject to section 243 and
Schedule 6.
Section 243 Short title and commencement
(1) This Act is called the Constitution of the Republic of South Africa,
1996, and comes into effect as soon as possible on a date set by the
President by proclamation, which may not be a date later than 1 July 1997.
(2) The President may set different dates before the date mentioned in
subsection (1) in respect of different provisions of the Constitution.
(3) Unless the context otherwise indicates, a reference in a provision of
the Constitution to a time when the Constitution took effect must be
construed as a reference to the time when that provision took effect.
(4) If a different date is set for any particular provision of the
Constitution in terms of subsection (2), any corresponding provision of
the Constitution of the Republic of South Africa, 1993 (Act 200 of 1993),
mentioned in the proclamation, is repealed with effect from the same date.
(5)Sections 213, 214, 215, 216, 218, 226, 227, 228, 229 and 230 come into
effect on 1 January 1998, but this does not preclude the enactment in
terms of this Constitution of legislation envisaged in any of these
provisions before that date. Until that date any corresponding and
incidental provisions of the Constitution of the Republic of South Africa,
1993, remain in force.
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