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Constituição da África do Sul – CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA

CONSTITUTIONAL LAW
CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1996
(Manner of reference to Act, previously ‘Constitution of the Republic of South Africa, Act
108 of 1996 ‘, substituted by s. 1 (1) of Act 5 of 2005 .)
[ASSENTED TO 16 DECEMBER 1996] [DATE OF COMMENCEMENT: 4 FEBRUARY 1997]
(Unless otherwise indicated – see also s. 243 (5))
(English text signed by the President)
as amended by
Constitution of the Republic of South Africa, 1996
Constitution First Amendment Act of 1997
Constitution Second Amendment Act of 1998
Constitution Third Amendment Act of 1998
Constitution Fourth Amendment Act of 1999
Constitution Fifth Amendment Act of 1999
Constitution Sixth Amendment Act of 2001
Constitution Seventh Amendment Act of 2001
Constitution Eighth Amendment Act of 2002
Constitution Ninth Amendment Act of 2002
Constitution Tenth Amendment Act of 2003
Constitution Eleventh Amendment Act of 2003
Constitution Twelfth Amendment Act of 2005
Citation of Constitutional Laws Act 5 of 2005
Constitution Thirteenth Amendment Act of 2007
Constitution Fourteenth Amendment Act of 2008
Constitution Fifteenth Amendment Act of 2008
Constitution Sixteenth Amendment Act of 2009
Regulations under this Act
REGULATIONS GOVERNING ‘THE ORDER FOR MERITORIOUS SERVICE – DIE ORDE VIR VOORTREFLIKE
DIENS’ ( GG 10493 of 24 October 1986)
RULES OF THE CONSTITUTIONAL COURT (GN R1675 in GG 25726 of 31 October 2003)
TRANSFER OF THE ADMINISTRATION OF THE LAND AND AGRICULTURAL DEVELOPMENT BANK ACT, 2002 (ACT
15 OF 2002) (THE ACT) AND POWERS AND FUNCTIONS ENTRUSTED BY THE ACT, FROM THE MINISTER
RESPONSIBLE FOR AGRICULTURE TO THE MINISTER OF FINANCE (Proc R28 in GG 31246 of 14 July 2008)
TRANSFER OF ADMINISTRATION AND POWERS AND FUNCTIONS ENTRUSTED BY LEGISLATION TO CERTAIN
CABINET MEMBERS (Proc 44 in GG 32367 of 1 July 2009)
TRANSFER OF ADMINISTRATION OF THE NATIONAL YOUTH DEVELOPMENT AGENCY ACT 54 OF 2008 AND
NATIONAL YOUTH COMMISSION ACT 19 OF 1996 (Proc 51 in GG 32513 of 19 August 2009)
TRANSFER OF ADMINISTRATION AND POWERS AND FUNCTIONS ENTRUSTED BY LEGISLATION TO THE
MINISTER OF HIGHER EDUCATION AND TRAINING (Proc 56 in GG 32549 of 4 September 2009)
TRANSFER OF POWERS AND FUNCTIONS ENTRUSTED BY THE PUBLIC SERVICE ACT, 1994 IN TERMS OF
SECTION 97 OF THE CONSTITUTION (Proc 86 in GG 32780 of 11 December 2009)
ACT
To introduce a new Constitution for the Republic of South Africa and to provide
for matters incidental thereto.
CONTENTS
*
CONSTITUTIONAL LAW Page 1 of 136
Preamble
Sections
CHAPTER 1
1-6 Founding Provisions
CHAPTER 2
7-39 Bill of Rights
CHAPTER 3
40-41 Co-operative Government
CHAPTER 4
42-82 Parliament
CHAPTER 5
83-102 The President and National Executive
CHAPTER 6
103-150 Provinces
CHAPTER 7
151-164 Local Government
CHAPTER 8
165-180 Courts and Administration of Justice
CHAPTER 9
181-194 State Institutions Supporting Constitutional Democracy
CHAPTER 10
195-197 Public Administration
CHAPTER 11
198-210 Security Services
CHAPTER 12
211-212 Traditional Leaders
CHAPTER 13
213-230A Finance
CHAPTER 14
231-243 General Provisions
Schedule 1 National Flag
Schedule 1A Geographical Areas of Provinces
[Schedule 1A inserted by s. 4 of the Constitution Twelfth Amendment Act of
2005.]
Schedule 2 Oaths and Solemn Affirmations
Schedule 3 Election Procedures
Schedule 4 Functional Areas of Concurrent National and Provincial Legislative
CONSTITUTIONAL LAW Page 2 of 136
Competence
Schedule 5 Functional Areas of Exclusive Provincial Legislative Competence
Schedule 6 Transitional Arrangements
Schedule 6A ……
[Schedule 6A inserted by s. 6 of the Constitution Tenth Amendment Act of 2003 and repealed
by s. 6 of the Constitution Fourteenth Amendment Act of 2008.]
Schedule 6B
[Schedule 6B, previously Schedule 6A, inserted by s. 2 of the Constitution Eighth Amendment
Act of 2002, renumbered by s. 6 of the Constitution Tenth Amendment Act of 2003 and
repealed by s. 5 of the Constitution Fifteenth Amendment Act of 2008.]
Schedule 7 Laws Repealed
Preamble
We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united in our diversity.
We therefore, through our freely elected representatives, adopt this Constitution as the
supreme law of the Republic so as to-
Heal the divisions of the past and establish a society based on democratic values,
social justice and fundamental human rights;
Lay the foundations for a democratic and open society in which government is
based on the will of the people and every citizen is equally protected by law;
Improve the quality of life of all citizens and free the potential of each person;
and
Build a united and democratic South Africa able to take its rightful place as a
sovereign state in the family of nations.
May God protect our people.
Nkosi Sikelel’ iAfrika. Morena boloka setjhaba sa heso.
God seën Suid-Afrika. God bless South Africa.
Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.
CHAPTER 1
FOUNDING PROVISIONS (ss 1-6)
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.
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(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.
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.
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.
4 National anthem
The national anthem of the Republic is determined by the President by proclamation.
5 National flag
The national flag of the Republic is black, gold, green, white, red and blue, as
described and sketched in Schedule 1.
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;
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(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 (ss 7-39)
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.
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.
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,
CONSTITUTIONAL LAW Page 5 of 136
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.
10 Human dignity
Everyone has inherent dignity and the right to have their dignity respected and
protected.
11 Life
Everyone has the right to life.
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.
13 Slavery, servitude and forced labour
No one may be subjected to slavery, servitude or forced labour.
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.
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,
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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.
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.
17 Assembly, demonstration picket and petition
Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to
picket and to present petitions.
18 Freedom of association
Everyone has the right to freedom of association.
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
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Constitution, and to do so in secret; and
(b) to stand for public office and, if elected, to hold office.
20 Citizenship
No citizen may be deprived of citizenship.
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.
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.
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).
24 Environment
Everyone has the right-
(a) to an environment that is not harmful to their health or well-being;
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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.
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
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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).
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.
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 dependents, 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.
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
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(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.
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.
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.
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
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(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.
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.
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.
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.
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;
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(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;
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(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.
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.
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
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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
1
Section number
2
Section title
3
Extent to which the right is nonderogable
9
Equality
With respect to unfair discrimination solely on
the grounds of race, colour, ethnic or social
origin, sex, religion or language
10
Human dignity
Entirely
11
Life
Entirely
12
Freedom and security of the person
With respect to subsections (1) (d) and (e)
and (2) (c)
13
Slavery, servitude and forced
labour
With respect to slavery and servitude
28 Children With respect to:
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(6) Whenever anyone is detained without trial in consequence of a derogation of rights
resulting from a declaration of a state of emergency, the following conditions must be
observed:
(a) An adult family member or friend of the detainee must be contacted
as soon as reasonably possible, and informed that the person has
been detained.
(b) A notice must be published in the national Government Gazette within
five days of the person being detained, stating the detainee’s name
and place of detention and referring to the emergency measure in
terms of which that person has been detained.
(c) The detainee must be allowed to choose, and be visited at any
reasonable time by, a medical practitioner.
(d) The detainee must be allowed to choose, and be visited at any
reasonable time by, a legal representative.
(e) A court must review the detention as soon as reasonably possible, but
no later than 10 days after the date the person was detained, and the
court must release the detainee unless it is necessary to continue the
detention to restore peace and order.
(f) A detainee who is not released in terms of a review under paragraph
(e) , or who is not released in terms of a review under this paragraph,
may apply to a court for a further review of the detention at any time
after 10 days have passed since the previous review, and the court
must release the detainee unless it is still necessary to continue the
detention to restore peace and order.
(g) The detainee must be allowed to appear in person before any court
considering the detention, to be represented by a legal practitioner at
those hearings, and to make representations against continued
detention.
(h) The state must present written reasons to the court to justify the
continued detention of the detainee, and must give a copy of those
reasons to the detainee at least two days before the court reviews the
detention.
(7) If a court releases a detainee, that person may not be detained again on the same
– subsection (1) (d) and (e) ;
– the rights in subparagraphs (i) and (ii) of
subsection (1) (g) ; and
– subsection (1) (i) in respect of children
of 15 years and younger.
35
Arrested, detained and accused
persons
With respect to:
– subsections (1) (a) , (b) and (c) and (2)
(d) ;
– the rights in paragraphs (a) to (o) of
subsection (3), excluding paragraph
(d) ;
– subsection (4); and
– subsection (5) with respect to the
exclusion of evidence if the admission of that
evidence would render the trial unfair.
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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.
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.
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 (ss 40-41)
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.
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;
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(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 (ss 42-82)
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.
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(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 at any time
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.
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.
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;
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(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.
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.
The National Assembly (ss 46-59)
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.
[Sub-s. (1) amended by s. 1 of the Constitution Tenth Amendment Act of 2003 and by s.
1 of the Constitution Fifteenth Amendment Act of 2008.]
CONSTITUTIONAL LAW Page 20 of 136
(2) An Act of Parliament must provide a formula for determining the number of
members of the National Assembly.
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;
(b) is absent from the Assembly without permission in circumstances for
which the rules and orders of the Assembly prescribe loss of
membership; or
(c) ceases to be a member of the party that nominated that person as a
member of the Assembly.
[Sub-s. (3) substituted by s. 2 of the Constitution Tenth Amendment Act of 2003 and by
s. 2 of the Constitution Fifteenth Amendment Act of 2008.]
(4) Vacancies in the National Assembly must be filled in terms of national legislation.
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.
49 Duration of National Assembly
(1) The National Assembly is elected for a term of five years.
CONSTITUTIONAL LAW Page 21 of 136
(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.
A proclamation calling and setting dates for an election may be issued before or after the
expiry of the term of the National Assembly.
[Sub-s. (2) substituted by s. 1 of the Constitution Fifth Amendment Act of 1999.]
(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.
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.
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 Chief Justice, but not more than 14 days after the
election result has been declared. The Assembly may determine the time and duration of
its other sittings and its recess periods.
[Sub-s. (1) substituted by s. 1 of the Constitution Sixth Amendment Act of 2001.]
(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.
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 Chief Justice 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.
[Sub-s. (2) substituted by s. 2 of the Constitution Sixth Amendment Act of 2001.]
(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
CONSTITUTIONAL LAW Page 22 of 136
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.
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.
54 Rights of certain Cabinet members and Deputy Ministers in the
National Assembly
The President and any member of the Cabinet or any Deputy Minister who is not a
member of the National Assembly may, subject to the rules and orders of the Assembly,
attend and speak in the Assembly, but may not vote.
[S. 54 substituted by s. 3 of the Constitution Sixth Amendment Act of 2001.]
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.
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;
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(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.
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.
58 Privilege
(1) Cabinet members, Deputy Ministers 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.
[Sub-s. (1) amended by s. 4 of the Constitution Sixth Amendment Act of 2001.]
(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.
59 Public access to and involvement in National Assembly
(1) The National Assembly must-
CONSTITUTIONAL LAW Page 24 of 136
(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.
National Council of Provinces (ss 60-72)
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.
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) (a) A provincial legislature must, within 30 days after the result of an election of
that legislature is declared-
(i) 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
(ii) appoint the permanent delegates in accordance with the nominations of the
parties.
(b) ……
[Para. (b) omitted by s. 1 of the Constitution Fourteenth Amendment Act of 2008.]
[Sub-s. (2) substituted by s. 1 of the Constitution Ninth Amendment Act of 2002 and by
s. 1 of the Constitution Fourteenth Amendment Act of 2008.]
CONSTITUTIONAL LAW Page 25 of 136
(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.
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-
(a) immediately before the first sitting of the provincial legislature after its
next election.
(b) ……
[Para. (b) omitted by s. 2 of the Constitution Fourteenth Amendment Act of 2008.]
[Sub-s. (3) substituted by s. 2 of the Constitution Ninth Amendment Act of 2002 and by
s. 2 of the Constitution Fourteenth Amendment Act of 2008.]
(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.
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.
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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 Chief Justice 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.
[Sub-s. (4) substituted by s. 5 of the Constitution Sixth Amendment Act of 2001.]
(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.
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.
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.
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.
68 Powers of National Council
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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.
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.
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.
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.
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(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.
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.
National Legislative Process (ss 73-82)
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
National Assembly, may introduce a Bill in the Assembly, but only the Cabinet member
responsible for national financial matters may introduce the following Bills in the
Assembly:
(a) a money Bill; or
(b) a Bill which provides for legislation envisaged in section 214.
[Sub-s. (2) substituted by s. 1 (a) of the Constitution Seventh Amendment Act of 2001.]
(3) A Bill referred to in section 76 (3), except a Bill referred to in subsection (2) (a) or
(b) of this section, may be introduced in the National Council of Provinces.
[Sub-s. (3) substituted by s. 1 (b) of the Constitution Seventh Amendment Act of 2001.]
(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.
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
CONSTITUTIONAL LAW Page 29 of 136
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.
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(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.
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.
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.
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(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
Bill 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.
CONSTITUTIONAL LAW Page 32 of 136
(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 includes any provision affecting
the financial interests of the provincial sphere of government.
[Para. (b) substituted by s. 1 of the Constitution Eleventh Amendment Act of 2003.]
(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
CONSTITUTIONAL LAW Page 33 of 136
(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.
77 Money Bills
(1) A Bill is a money Bill if it-
(a) appropriates money;
(b) imposes national taxes, levies, duties or surcharges;
(c) abolishes or reduces, or grants exemptions from, any national taxes,
levies, duties or surcharges; or
(d) authorises direct charges against the National Revenue Fund, except a
Bill envisaged in section 214 authorising direct charges.
(2) A money Bill may not deal with any other matter except-
(a) a subordinate matter incidental to the appropriation of money;
(b) the imposition, abolition or reduction of national taxes, levies, duties
or surcharges;
(c) the granting of exemption from national taxes, levies, duties or
surcharges; or
(d) the authorisation of direct charges against the National Revenue Fund.
(3) 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.
[S. 77 substituted by s. 2 of the Constitution Seventh Amendment Act of 2001.]
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 the question, is supported by-
(a) at least five of the representatives of the National Assembly; and
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(b) at least five of the representatives of the National Council of Provinces.
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.
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
National Assembly; and
(b) must be made within 30 days of the date on which the President
assented to and signed the Act.
(3) The Constitutional Court may order that all or part of an Act that is the subject of
an application in terms of subsection (1) has no force until the Court has decided the
application if-
(a) the interests of justice require this; and
(b) the application has a reasonable prospect of success.
(4) If an application is unsuccessful, and did not have a reasonable prospect of
success, the Constitutional Court may order the applicants to pay costs.
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.
82 Safekeeping of Acts of Parliament
CONSTITUTIONAL LAW Page 35 of 136
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 (ss 83-102)
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.
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.
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;
CONSTITUTIONAL LAW Page 36 of 136
(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.
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 Chief Justice 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.
[Sub-s. (2) substituted by s. 6 of the Constitution Sixth Amendment Act of 2001.]
(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 Chief Justice, but not more than 30 days after the vacancy
occurs.
[Sub-s. (3) substituted by s. 6 of the Constitution Sixth Amendment Act of 2001.]
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.
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.
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.
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.
CONSTITUTIONAL LAW Page 37 of 136
(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.
(4) A person who as Acting President has sworn or affirmed faithfulness to the
Republic need not repeat the swearing or affirming procedure for any subsequent term as
acting President during the period ending when the person next elected President
assumes office.
[Sub-s. (4) added by s. 1 of the Constitution First Amendment Act of 1997.]
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
National 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.
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.
93 Deputy Ministers
(1) The President may appoint-
(a) any number of Deputy Ministers from among the members of the
National Assembly; and
CONSTITUTIONAL LAW Page 38 of 136
(b) no more than two Deputy Ministers from outside the Assembly,
to assist the members of the Cabinet, and may dismiss them.
(2) Deputy Ministers appointed in terms of subsection (1) (b) are accountable to
Parliament for the exercise of their powers and the performance of their functions.
[S. 93 substituted by s. 7 of the Constitution Sixth Amendment Act of 2001.]
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.
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.
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.
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.
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.
99 Assignment of functions
A Cabinet member may assign any power or function that is to be exercised or
performed in terms of an Act of Parliament to a member of a provincial Executive Council
or to a Municipal Council. An assignment-
(a) must be in terms of an agreement between the relevant Cabinet
member and the Executive Council member or Municipal Council;
(b) must be consistent with the Act of Parliament in terms of which the
relevant power or function is exercised or performed; and
(c) takes effect upon proclamation by the President.
100 National intervention in provincial administration
CONSTITUTIONAL LAW Page 39 of 136
(1) When a province cannot or does not fulfil an executive obligation in terms of the
Constitution or legislation, 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.
[Sub-s. (1) amended by s. 2 (b) of the Constitution Eleventh Amendment Act of 2003.]
(2) If the national executive intervenes in a province in terms of subsection (1) (b) –
(a) it must submit a written notice of the intervention to the National
Council of Provinces within 14 days after the intervention began;
(b) the intervention must end if the Council disapproves the intervention
within 180 days after the intervention began or by the end of that
period has not approved the intervention; and
(c) the Council must, while the intervention continues, review the
intervention regularly and may make any appropriate
recommendations to the national executive.
[Sub-s. (2) substituted by s. 2 (c) of the Constitution Eleventh Amendment Act of 2003.]
(3) National legislation may regulate the process established by this section.
[S. 100 amended by s. 2 (a) of the Constitution Eleventh Amendment Act of 2003.]
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.
102 Motions of no confidence
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(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 (ss 103-150)
103 Provinces
(1) The Republic has the following provinces:
(a) Eastern Cape;
(b) Free State;
(c) Gauteng;
(d) KwaZulu-Natal;
(e) Limpopo;
(f) Mpumalanga;
(g) Northern Cape;
(h) North West;
(i) Western Cape.
[Sub-s. (1) amended by s. 3 of the Constitution Eleventh Amendment Act of 2003 and
substituted by s. 1 of the Constitution Twelfth Amendment Act of 2005. ]
(2) The geographical areas of the respective provinces comprise the sum of the
indicated geographical areas reflected in the various maps referred to in the Notice listed
in Schedule 1A.
[Sub-s. (2) substituted by s. 1 of the Constitution Twelfth Amendment Act of 2005.]
(3) (a) Whenever the geographical area of a province is re-determined by an
amendment to the Constitution, an Act of Parliament may provide for measures to
regulate, within a reasonable time, the legal, practical and any other consequences of the
re-determination.
(b) An Act of Parliament envisaged in paragraph (a) may be enacted and implemented
before such amendment to the Constitution takes effect, but any provincial functions,
assets, rights, obligations, duties or liabilities may only be transferred in terms of that Act
after that amendment to the Constitution takes effect.
[Sub-s. (3) added by s. 1 of the Constitution Twelfth Amendment Act of 2005. ]
[Date of commencement of s. 103 (3): 23 December 2005.]
Provincial Legislatures (ss 104-124)
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;
*
*
CONSTITUTIONAL LAW Page 41 of 136
(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 m 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.
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.
[Sub-s. (1) amended by s. 3 of the Constitution Tenth Amendment Act of 2003 and by s.
3 of the Constitution Fourteenth Amendment Act of 2008.]
(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.
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
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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;
(b) is absent from the legislature without permission in circumstances for
which the rules and orders of the legislature prescribe loss of
membership; or
(c) ceases to be a member of the party that nominated that person as a
member of the legislature.
[Sub-s. (3) substituted by s. 4 of the Constitution Tenth Amendment Act of 2003 and by
s. 4 of the Constitution Fourteenth Amendment Act of 2008.]
(4) Vacancies in a provincial legislature must be filled in terms of national legislation.
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.
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. A proclamation calling and setting dates for an election may be issued
before or after the expiry of the term of a provincial legislature.
[Sub-s. (2) substituted by s. 1 of the Constitution Fourth Amendment Act of 1999.]
(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.
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(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.
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.
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 Chief Justice, 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.
[Sub-s. (1) substituted by s. 8 of the Constitution Sixth Amendment Act of 2001.]
(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.
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 Chief Justice must preside over the election of a
Speaker. The Speaker presides over the election of a Deputy Speaker.
[Sub-s. (2) substituted by s. 9 of the Constitution Sixth Amendment Act of
2001.]
(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.
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
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(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.
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.
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.
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.
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.
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(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.
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.
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.
119 Introduction of Bills
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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.
120 Money Bills
(1) A Bill is a money Bill if it-
(a) appropriates money;
(b) imposes provincial taxes, levies, duties or surcharges;
(c) abolishes or reduces, or grants exemptions from, any provincial taxes,
levies, duties or surcharges; or
(d) authorises direct charges against a Provincial Revenue Fund.
(2) A money Bill may not deal with any other matter except-
(a) a subordinate matter incidental to the appropriation of money;
(b) the imposition, abolition or reduction of provincial taxes, levies, duties
or surcharges;
(c) the granting of exemption from provincial taxes, levies, duties or
surcharges; or
(d) the authorisation of direct charges against a Provincial Revenue Fund.
(3) A provincial Act must provide for a procedure by which the province’s legislature
may amend a money Bill.
[S. 120 substituted by s. 3 of the Constitution Seventh Amendment Act of 2001.]
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.
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.
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(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.
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.
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 .
Provincial Executives (ss 125-141)
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
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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.
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.
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.
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 Chief Justice 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.
[Sub-s. (2) substituted by s. 10 of the Constitution Sixth Amendment Act of 2001.]
(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 Chief Justice, but not later than 30 days after the vacancy occurs.
[Sub-s. (3) substituted by s. 10 of the Constitution Sixth Amendment Act of 2001.]
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
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with Schedule 2.
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.
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.
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.
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.
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(3) Members of the Executive Council of a province must-
(a) act in accordance with the Constitution and, if a provincial constitution
has been passed for the province, also that constitution; and
(b) provide the legislature with full and regular reports concerning matters
under their control.
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.
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.
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.
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.
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.
139 Provincial intervention in local government
(1) When a municipality cannot or does not fulfil an executive obligation in terms of
the Constitution or 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;
(b) assuming responsibility for the relevant obligation in that municipality
to the extent necessary to-
(i) maintain essential national standards or meet established
minimum standards for the rendering of a service;
(ii) prevent that Municipal Council from taking unreasonable action
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that is prejudicial to the interests of another municipality or to the province as
a whole; or
(iii) maintain economic unity; or
(c) dissolving the Municipal Council and appointing an administrator until
a newly elected Municipal Council has been declared elected, if
exceptional circumstances warrant such a step.
(2) If a provincial executive intervenes in a municipality in terms of subsection (1) (b)

(a) it must submit a written notice of the intervention to-
(i) the Cabinet member responsible for local government affairs;
and
(ii) the relevant provincial legislature and the National Council of
Provinces,
within 14 days after the intervention began;
(b) the intervention must end if-
(i) the Cabinet member responsible for local government affairs
disapproves the intervention within 28 days after the
intervention began or by the end of that period has not
approved the intervention; or
(ii) the Council disapproves the intervention within 180 days after
the intervention began or by the end of that period has not
approved the intervention; and
(c) the Council must, while the intervention continues, review the
intervention regularly and may make any appropriate
recommendations to the provincial executive.
(3) If a Municipal Council is dissolved in terms of subsection (1) (c) –
(a) the provincial executive must immediately submit a written notice of
the dissolution to-
(i) the Cabinet member responsible for local government affairs;
and
(ii) the relevant provincial legislature and the National Council of
Provinces; and
(b) the dissolution takes effect 14 days from the date of receipt of the
notice by the Council unless set aside by that Cabinet member or the
Council before the expiry of those 14 days.
(4) If a municipality cannot or does not fulfil an obligation in terms of the Constitution
or legislation to approve a budget or any revenue-raising measures necessary to give
effect to the budget, the relevant provincial executive must intervene by taking any
appropriate steps to ensure that the budget or those revenue-raising measures are
approved, including dissolving the Municipal Council and-
(a) appointing an administrator until a newly elected Municipal Council has
been declared elected; and
(b) approving a temporary budget or revenue-raising measures to provide
for the continued functioning of the municipality.
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(5) If a municipality, as a result of a crisis in its financial affairs, is in serious or
persistent material breach of its obligations to provide basic services or to meet its
financial commitments, or admits that it is unable to meet its obligations or financial
commitments, the relevant provincial executive must-
(a) impose a recovery plan aimed at securing the municipality’s ability to
meet its obligations to provide basic services or its financial
commitments, which-
(i) is to be prepared in accordance with national legislation; and
(ii) binds the municipality in the exercise of its legislative and
executive authority, but only to the extent necessary to solve
the crisis in its financial affairs; and
(b) dissolve the Municipal Council, if the municipality cannot or does not
approve legislative measures, including a budget or any revenueraising
measures, necessary to give effect to the recovery plan, and-
(i) appoint an administrator until a newly elected Municipal Council
has been declared elected; and
(ii) approve a temporary budget or revenue-raising measures or any
other measures giving effect to the recovery plan to provide for
the continued functioning of the municipality; or
(c) if the Municipal Council is not dissolved in terms of paragraph (b) ,
assume responsibility for the implementation of the recovery plan to
the extent that the municipality cannot or does not otherwise
implement the recovery plan.
(6) If a provincial executive intervenes in a municipality in terms of subsection (4) or
(5), it must submit a written notice of the intervention to-
(a) the Cabinet member responsible for local government affairs; and
(b) the relevant provincial legislature and the National Council of
Provinces,
within seven days after the intervention began.
(7) If a provincial executive cannot or does not or does not adequately exercise the
powers or perform the functions referred to in subsection (4) or (5), the national
executive must intervene in terms of subsection (4) or (5) in the stead of the relevant
provincial executive.
(8) National legislation may regulate the implementation of this section, including the
processes established by this section.
[S. 139 substituted by s. 4 of the Constitution Eleventh Amendment Act of 2003.]
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.
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(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.
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.
Provincial Constitutions (ss 142-145)
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.
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 paragraph (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.
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.
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
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Court.
(2) The text assented to and signed by the Premier must be published in the national
Government Gazette and takes effect on publication or on a later date determined in
terms of that constitution or amendment.
(3) The signed text of a provincial constitution or constitutional amendment is
conclusive evidence of its provisions and, after publication, must be entrusted to the
Constitutional Court for safekeeping.
Conflicting Laws (ss 146-150)
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.
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(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.
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.
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.
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.
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 (ss 151-164)
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.
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(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.
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).
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.
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.
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.
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(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.
(6A) ……
[Sub-s. (6A) inserted by s. 1 of the Constitution Third Amendment Act of 1998 and
deleted by s. 2 of the Constitution Twelfth Amendment Act of 2005.]
(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).
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.
CONSTITUTIONAL LAW Page 58 of 136
(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.
157 Composition and election of Municipal Councils
(1) A Municipal Council consists of-
(a) members elected in accordance with subsections (2) and (3); 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.
[Sub-s. (1) substituted by s. 1 (a) of the Constitution Eighth Amendment Act of 2002 and
amended by s. 3 of the Constitution Fifteenth Amendment Act of 2008.]
(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 result, in general, in
proportional representation.
[Sub-s. (3) substituted by s. 1 (b) of the Constitution Eighth Amendment
Act of 2002.]
(4) (a) 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.
(b) ……
[Para. (b) deleted by s. 3 of the Constitution Twelfth Amendment Act of 2005.]
[Sub-s. (4) substituted by s. 2 of the Constitution Third Amendment Act of 1998.]
(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
CONSTITUTIONAL LAW Page 59 of 136
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.
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.
(3) Vacancies in a Municipal Council must be filled in terms of national legislation.
[Sub-s. (3) added by s. 4 of the Constitution Fifteenth Amendment Act of 2008.]
159 Terms of Municipal Councils
(1) The term of a Municipal Council may be no more than five years, as determined by
national legislation.
(2) If a Municipal Council is dissolved in terms of national legislation, or when its term
expires, an election must be held within 90 days of the date that Council was dissolved or
its term expired.
(3) A Municipal Council, other than a Council that has been dissolved following an
intervention in terms of section 139, remains competent to function from the time it is
dissolved or its term expires, until the newly elected Council has been declared elected.
[S. 159 substituted by s. 1 of the Constitution Second Amendment Act of 1998.]
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;
[Date of commencement of para. (b) : 30 June 1997.]
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(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.
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161 Privilege
Provincial legislation within the framework of national legislation may provide for
privileges and immunities of Municipal Councils and their members.
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.
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) participate in the process prescribed in the national legislation
envisaged in section 221 (1) (c).
[Para. (b) substituted by s. 4 of the Constitution Seventh Amendment Act of 2001.]
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 (ss 165-180)
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.
166 Judicial system
The courts are-
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(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.
167 Constitutional Court
(1) The Constitutional Court consists of the Chief Justice of South Africa, the Deputy
Chief Justice and nine other judges.
[Sub-s. (1) substituted by s. 11 of the Constitution Sixth Amendment Act of 2001.]
(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.
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(7) A constitutional matter includes any issue involving the interpretation, protection
or enforcement of the Constitution.
168 Supreme Court of Appeal
(1) The Supreme Court of Appeal consists of a President, a Deputy President and the
number of judges of appeal determined in terms an Act of Parliament.
[Sub-s. (1) substituted by s. 12 of the Constitution Sixth Amendment Act of 2001.]
(2) A matter before the Supreme Court of Appeal must be decided by the number of
judges determined in terms of an Act of Parliament.
[Sub-s. (2) substituted by s. 12 of the Constitution Sixth Amendment Act of 2001.]
(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.
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.
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.
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.
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.
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(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.
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.
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 leader of parties represented in the National Assembly,
appoints the Chief Justice and the Deputy Chief Justice and, after consulting the Judicial
Service Commission, appoints the President and Deputy President of the Supreme Court
of Appeal.
[Sub-s. (3) substituted by s. 13 of the Constitution Sixth Amendment Act of 2001.]
(4) The other judges of the Constitutional Court are appointed by the President, as
head of the national executive, after consulting the Chief Justice 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.
[Sub-s. (4) substituted by s. 13 of the Constitution Sixth Amendment Act of 2001.]
(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.
CONSTITUTIONAL LAW Page 65 of 136
(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.
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 Chief Justice.
[Sub-s. (1) substituted by s. 14 of the Constitution Sixth Amendment Act of 2001.]
(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.
176 Terms of office and remuneration
(1) A Constitutional Court judge holds office for a non-renewable term of 12 years, or
until he or she attains the age of 70, whichever occurs first, except where an Act of
Parliament extends the term of office of a Constitutional Court judge.
[Sub-s. (1) substituted by s. 15 of the Constitution Sixth Amendment Act of 2001.]
(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.
177 Removal
(1) A judge may be removed from office only if-
(a) the Judicial Service Commission funds 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).
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 Supreme Court of Appeal;
[Para. (b) substituted by s. 16 (a) of the Constitution Sixth Amendment Act of 2001.]
(c) one Judge President designated by the Judges President;
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(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 relating to a specific High Court, the Judge
President of that Court and the Premier of the province concerned, or
an alternate designated by each of them.
[Para. (k) substituted by s. 2 of the Constitution Second Amendment Act of 1998 and by
s. 16 (b) of the Constitution Sixth Amendment Act of 2001.]
(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.
(7) If the Chief Justice or the President of the Supreme Court of Appeal is temporarily
unable to serve on the Commission, the Deputy Chief Justice or the Deputy President of
the Supreme Court of Appeal, as the case may be, acts as his or her alternate on the
Commission.
[Sub-s. (7) added by s. 2 (b) of the Constitution Second Amendment Act of 1998 and
CONSTITUTIONAL LAW Page 67 of 136
substituted by s. 16 (c) of the Constitution Sixth Amendment Act of 2001.]
(8) The President and the persons who appoint, nominate or designate the members of
the Commission in terms of subsection (1) (c) , (e) , (f) and (g) , may, in the same
manner appoint, nominate or designate an alternate for each of those members, to serve
on the Commission whenever the member concerned is temporarily unable to do so by
reason of his or her incapacity or absence from the Republic or for any other sufficient
reason.
[Sub-s. (8) added by s. 2 (b) of the Constitution Second Amendment Act of 1998.]
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
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final responsibility over the prosecuting authority.
(7) All other matters concerning the prosecuting authority must be determined by
national legislation.
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
(ss 181-194)
181 Establishment and governing principles
(1) The following state institutions strengthen constitutional democracy in the
Republic:
(a) The Public Protector.
(b) The South African Human Rights Commission.
[Para. (b) amended by s. 4 of the Constitution Second Amendment Act of
1998.]
(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.
Public Protector (ss 182-183)
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;
CONSTITUTIONAL LAW Page 69 of 136
(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) An 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.
183 Tenure
The Public Protector is appointed for a non-renewable period of seven years.
South African Human Rights Commission (s 184)
184 Functions of South African Human Rights Commission
(1) The South African 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 South African 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 South African 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 South African Human Rights Commission has the additional powers and
functions prescribed by national legislation.
[S. 184 amended by s. 4 of the Constitution Second Amendment Act of 1998.]
Commission for the Promotion and Protection of the Rights of Cultural, Religious
and Linguistic Communities (ss 185-186)
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;
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(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 South African Human Rights Commission for investigation.
[Sub-s. (3) amended by s. 4 of the Constitution Second Amendment Act of 1998.]
(4) The Commission has the additional powers and functions prescribed by national
legislation.
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.
Commission for Gender Equality (s 187)
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.
Auditor-General (ss 188-189)
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.
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(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.
189 Tenure
The Auditor-General must be appointed for a fixed, non-renewable term of between
five and ten years.
Electoral Commission (ss 190-191)
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.
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.
Independent Authority to Regulate Broadcasting (s 192)
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.
General Provisions (ss 193-194)
193 Appointments
(1) The Public Protector and the 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.
CONSTITUTIONAL LAW Page 72 of 136
(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 the members of-
(a) the South African Human Rights Commission;
[Para. (a) amended by s. 4 of the Constitution Second Amendment Act of 1998.]
(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) .
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.
(3) 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
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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 (ss 195-197)
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.
196 Public Service Commission
(1) There is a single Public Service Commission for the Republic.
CONSTITUTIONAL LAW Page 74 of 136
(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;
(g) to exercise or perform the additional powers or functions prescribed
by an Act of Parliament.
[Para. (g) added by s. 3 of the Constitution Second Amendment Act of 1998.]
(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.
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(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.
197 Public Service
CONSTITUTIONAL LAW Page 76 of 136
(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 (ss 198-210)
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.
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.
CONSTITUTIONAL LAW Page 77 of 136
(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.
Defence (ss 200-204)
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.
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.
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.
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
CONSTITUTIONAL LAW Page 78 of 136
declaration.
(3) A declaration of a state of national defence lapses unless it is approved by
Parliament within seven days of the declaration.
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.
Police (ss 205-208)
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.
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
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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.
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.
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.
Intelligence (ss 209-210)
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
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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.
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 (ss 211-212)
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.
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 (ss 213-230A)
General Financial Matters (ss 213-219)
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.
CONSTITUTIONAL LAW Page 81 of 136
[Date of commencement of s. 213: 1 January 1998.]
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.
[Date of commencement of s. 214: 1 January 1998.]
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.
CONSTITUTIONAL LAW Page 82 of 136
(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.
[Date of commencement of s. 215: 1 January 1998.]
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 must enforce compliance with the measures established in
terms of subsection (1), and may stop the transfer of funds to an organ of state if that
organ of state commits a serious or persistent material breach of those measures.
[Sub-s. (2) substituted by s. 5 (a) of the Constitution Seventh Amendment Act of 2001.]
(3) A decision to stop the transfer of funds due to a province in terms of section 214
(1) (b) may be taken only in the circumstances mentioned in 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.
[Sub-s. (3) amended by s. 5 (b) of the Constitution Seventh Amendment Act of 2001.]
(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.
[Date of commencement of s. 216: 1 January 1998.]
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.
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(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) must be implemented.
[Sub-s. (3) substituted by s. 6 of the Constitution Seventh Amendment Act of 2001.]
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.
[Date of commencement of s. 218: 1 January 1998.]
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.
(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.
Financial and Fiscal Commission (ss 220-222)
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,
CONSTITUTIONAL LAW Page 84 of 136
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).
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 deputy chairperson;
(b) three persons selected, after consulting the Premiers, from a list
compiled in accordance with a process prescribed by national
legislation;
(c) two persons selected, after consulting organised local government,
from a list compiled in accordance with a process prescribed by
national legislation; and
(d) two other persons.
[Sub-s. (1) amended by s. 2 of the Constitution Fifth Amendment Act of
1999 and substituted by s. 7 (a) of the Constitution Seventh Amendment
Act of 2001.]
(1A) National legislation referred to in subsection (1) must provide for the participation
of-
(a) the Premiers in the compilation of a list envisaged in subsection (1)
(b) ; and
(b) organised local government in the compilation of a list envisaged in
subsection (1) (c) .
[Sub-s. (1A) inserted by 7 (b) of the Constitution Seventh Amendment Act of 2001.]
(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.
222 Reports
The Commission must report regularly both to Parliament and to the provincial
legislatures.
Central Bank (ss 223-225)
223 Establishment
The South African Reserve Bank is the central bank of the Republic and is regulated in
terms of an Act of Parliament.
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.
CONSTITUTIONAL LAW Page 85 of 136
(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.
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.
Provincial and Local Financial Matters (ss 226-230A)
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.
(4) National legislation may determine a framework within which-
(a) a provincial Act may in terms of subsection (2) (b) authorise the
withdrawal of money as a direct charge against a Provincial Revenue
Fund; and
(b) revenue allocated through a province to local government in that
province in terms of subsection (3) must be paid to municipalities in
the province.
[Sub-s. (4) added by s. 8 of the Constitution Seventh Amendment Act of 2001.]
[Date of commencement of s. 226: 1 January 1998.]
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.
CONSTITUTIONAL LAW Page 86 of 136
(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.
[Date of commencement of s. 227: 1 January 1998.]
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 any tax, levy or duty that is imposed by
national legislation, other than on corporate income tax, value-added
tax, rates on property or customs duties.
[Para. (b) substituted by s. 9 of the Constitution Seventh Amendment Act of 2001.]
(2) The power of a provincial legislature to impose taxes, levies, duties and
surcharges-
(a) may not be exercised in 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.
[Date of commencement of s. 228: 1 January 1998.]
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.
CONSTITUTIONAL LAW Page 87 of 136
(c) The fiscal capacity of each municipality.
(d) The effectiveness and efficiency of raising taxes, levies and duties.
(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.
[Date of commencement of s. 229: 1 January 1998.]
230 Provincial loans
(1) A province may raise loans for capital or current expenditure in accordance with
national legislation, but loans for current expenditure may be raised only when necessary
for bridging purposes during a fiscal year.
(2) National legislation referred to in subsection (1) may be enacted only after any
recommendations of the Financial and Fiscal Commission have been considered.
[S. 230 substituted by s. 10 of the Constitution Seventh Amendment Act of 2001.]
[Date of commencement of s. 230: 1 January 1998.]
230A Municipal loans
(1) A Municipal Council may, in accordance with national legislation-
(a) raise loans for capital or current expenditure for the municipality, but
loans for current expenditure may be raised only when necessary for
bridging purposes during a fiscal year; and
(b) bind itself and a future Council in the exercise of its legislative and
executive authority to secure loans or investments for the
municipality.
(2) National legislation referred to in subsection (1) may be enacted only after any
recommendations of the Financial and Fiscal Commission have been considered.
[S. 230A inserted by s. 17 of the Constitution Sixth Amendment Act of 2001.]
CHAPTER 14
GENERAL PROVISIONS (ss 231-243)
International Law (ss 231-233)
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.
CONSTITUTIONAL LAW Page 88 of 136
(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.
232 Customary international law
Customary international law is law in the Republic unless it is inconsistent with the
Constitution or an Act of Parliament.
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.
Other Matters (ss 234-243)
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.
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 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.
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.
237 Diligent performance of obligations
All constitutional obligations must be performed diligently and without delay.
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.
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
CONSTITUTIONAL LAW Page 89 of 136
(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.
240 Inconsistencies between different texts
In the event of an inconsistency between different texts of the Constitution, the
English text prevails.
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.
242 Repeal of laws
The laws mentioned in Schedule 7 are repealed, subject to section 243 and Schedule
6.
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.
CONSTITUTIONAL LAW Page 90 of 136
Schedule 1
NATIONAL FLAG
(1) The national flag is rectangular; it is one and a half times longer than it is wide.
(2) It is black, gold, green, white, chilli red and blue.
(3) It has a green Y-shaped band that is one fifth as wide as the flag. The centre lines
of the band start in the top and bottom corners next to the flag post, converge in the
centre of the flag, and continue horizontally to the middle of the free edge.
(4) The green band is edged, above and below in white, and towards the flag post end,
in gold. Each edging is one fifteenth as wide as the flag.
(5) The triangle next to the flag post is black.
(6) The upper horizontal band is chilli red and the lower horizontal band is blue. These
bands are each one third as wide as the flag.
Schedule 1A
GEOGRAPHICAL AREAS OF PROVINCES
[Schedule 1A inserted by s. 4 of the Constitution Twelfth Amendment Act of 2005 and
amended by the Constitution Thirteenth Amendment Act of 2007 and by the Constitution
Sixteenth Amendment Act of 2009.]
The Province of the Eastern Cape
[Demarcation of the Province of the Eastern Cape substituted by the Constitution
Thirteenth Amendment Act of 2007.]
Map No. 3 of Schedule 1 to Notice 1998 of 2005
Map No. 6 of Schedule 2 to Notice 1998 of 2005
Map No. 7 of Schedule 2 to Notice 1998 of 2005
Map No. 8 of Schedule 2 to Notice 1998 of 2005
Map No. 9 of Schedule 2 to Notice 1998 of 2005
Map No. 10 of Schedule 2 to Notice 1998 of 2005
CONSTITUTIONAL LAW Page 91 of 136
Map No. 11 of Schedule 2 to Notice 1998 of 2005
The Province of the Free State
Map No. 12 of Schedule 2 to Notice 1998 of 2005
Map No. 13 of Schedule 2 to Notice 1998 of 2005
Map No. 14 of Schedule 2 to Notice 1998 of 2005
Map No. 15 of Schedule 2 to Notice 1998 of 2005
Map No. 16 of Schedule 2 to Notice 1998 of 2005
The Province of Gauteng
[Demarcation of the Province of Gauteng amended by the Constitution Sixteenth
Amendment Act of 2009.]
Map No. 4 in Notice 1490 of 2008
[Reference to Map No. 4 substituted by s. 1 (a) of the Constitution Sixteenth Amendment
Act of 2009.]
Map No. 17 of Schedule 2 to Notice 1998 of 2005
Map No. 18 of Schedule 2 to Notice 1998 of 2005
Map No. 19 of Schedule 2 to Notice 1998 of 2005
Map No. 20 of Schedule 2 to Notice 1998 of 2005
Map No. 21 of Schedule 2 to Notice 1998 of 2005
The Province of KwaZulu-Natal
[Demarcation of the Province of KwaZulu-Natal substituted by the Constitution Thirteenth
Amendment Act of 2007.]
Map No. 22 of Schedule 2 to Notice 1998 of 2005
Map No. 23 of Schedule 2 to Notice 1998 of 2005
Map No. 24 of Schedule 2 to Notice 1998 of 2005
Map No. 25 of Schedule 2 to Notice 1998 of 2005
Map No. 26 of Schedule 2 to Notice 1998 of 2005
Map No. 27 of Schedule 2 to Notice 1998 of 2005
Map No. 28 of Schedule 2 to Notice 1998 of 2005
Map No. 29 of Schedule 2 to Notice 1998 of 2005
Map No. 30 of Schedule 2 to Notice 1998 of 2005
Map No. 31 of Schedule 2 to Notice 1998 of 2005
CONSTITUTIONAL LAW Page 92 of 136
Map No. 32 of Schedule 2 to Notice 1998 of 2005
The Province of Limpopo
Map No. 33 of Schedule 2 to Notice 1998 of 2005
Map No. 34 of Schedule 2 to Notice 1998 of 2005
Map No. 35 of Schedule 2 to Notice 1998 of 2005
Map No. 36 of Schedule 2 to Notice 1998 of 2005
Map No. 37 of Schedule 2 to Notice 1998 of 2005
The Province of Mpumalanga
Map No. 38 of Schedule 2 to Notice 1998 of 2005
Map No. 39 of Schedule 2 to Notice 1998 of 2005
Map No. 40 of Schedule 2 to Notice 1998 of 2005
The Province of the Northern Cape
Map No. 41 of Schedule 2 to Notice 1998 of 2005
Map No. 42 of Schedule 2 to Notice 1998 of 2005
Map No. 43 of Schedule 2 to Notice 1998 of 2005
Map No. 44 of Schedule 2 to Notice 1998 of 2005
Map No. 45 of Schedule 2 to Notice 1998 of 2005
The Province of North West
[Demarcation of the Province of North West amended by the Constitution Sixteenth
Amendment Act of 2009.]
Map No. 5 in Notice 1490 of 2008
[Reference to Map No. 5 substituted by s. 1 (b) of the Constitution Sixteenth Amendment
Act of 2009.]
Map No. 46 of Schedule 2 to Notice 1998 of 2005
Map No. 47 of Schedule 2 to Notice 1998 of 2005
Map No. 48 of Schedule 2 to Notice 1998 of 2005
The Province of the Western Cape
Map No. 49 of Schedule 2 to Notice 1998 of 2005
Map No. 50 of Schedule 2 to Notice 1998 of 2005
Map No. 51 of Schedule 2 to Notice 1998 of 2005
Map No. 52 of Schedule 2 to Notice 1998 of 2005
Map No. 53 of Schedule 2 to Notice 1998 of 2005
CONSTITUTIONAL LAW Page 93 of 136
Map No. 54 of Schedule 2 to Notice 1998 of 2005
Schedule 2
OATHS AND SOLEMN AFFIRMATIONS
[Schedule 2 amended by s. 2 of the Constitution First Amendment Act of 1997 and
substituted by s. 18 of the Constitution Sixth Amendment Act of 2001.]
1 Oath or solemn affirmation of President and Acting President
The President or Acting President, before the Chief Justice, or another judge
designated by the Chief Justice, must swear/affirm as follows:
In the presence of everyone assembled here, and in full realisation of the high calling
I assume as President/Acting President of the Republic of South Africa, I, A.B.,
swear/ solemnly affirm that I will be faithful to the Republic of South Africa, and will
obey, observe, uphold and maintain the Constitution and all other law of the
Republic; and I solemnly and sincerely promise that I will always-
 promote all that will advance the Republic, and oppose all that may harm it;
 protect and promote the rights of all South Africans;
 discharge my duties with all my strength and talents to the best of my
knowledge and ability and true to the dictates of my conscience;
 do justice to all; and
 devote myself to the well-being of the Republic and all of its people
(In the case of an oath: So help me God.)
2 Oath or solemn affirmation of Deputy President
The Deputy President, before the Chief Justice or another judge designated by the
Chief Justice, must swear/affirm as follows:
In the presence of everyone assembled here, and in full realisation of the high calling
I assume as Deputy President of the Republic of South Africa, I, A.B.,
swear/solemnly affirm that I will be faithful to the Republic of South Africa and will
obey, observe, uphold and maintain the Constitution and all other law of the
Republic; and I solemnly and sincerely promise that I will always-
 promote all that will advance the Republic, and oppose all that may harm it;
 be a true and faithful counsellor;
 discharge my duties with all my strength and talents to the best of my
knowledge and ability and true to the dictates of my conscience;
 do justice to all; and
 devote myself to the well-being of the Republic and all of its people.
(In the case of an oath: So help me God.)
3 Oath or solemn affirmation of Ministers and Deputy Ministers
Each Minister and Deputy Minister, before the Chief Justice or another judge
designated by the Chief Justice, must swear/affirm as follows
I, A.B., swear/solemnly affirm that I will be faithful to the Republic of South Africa and
will obey, respect and uphold the Constitution and all other law of the Republic; and
I undertake to hold my office as Minister/Deputy Minister with honour and dignity;
to be a true and faithful counsellor; not to divulge directly or indirectly any secret
CONSTITUTIONAL LAW Page 94 of 136
matter entrusted to me; and to perform the functions of my office conscientiously and to
the best of my ability.
(In the case of an oath: So help me God.),
4 Oath or solemn affirmation of members of the National Assembly,
permanent delegates to the National Council of Provinces and members of
the provincial legislatures
(1) Members of the National Assembly, permanent delegates to the National Council of
Provinces and members of provincial legislatures, before the Chief Justice or a judge
designated by the Chief Justice, must swear or affirm as follows:
I, A.B., swear/solemnly affirm that I will be faithful to the Republic of South Africa and
will obey, respect and uphold the Constitution and all other law of the Republic; and
I solemnly promise to perform my functions as a member of the National Assembly/
permanent delegate to the National Council of Provinces/member of the legislature
of the province of C.D. to the best of my ability.
(In the case of an oath: So help me God.)
(2) Persons filling a vacancy in the National Assembly, a permanent delegation to the
National Council of Provinces or a provincial legislature may swear or affirm in terms of
subitem (1) before the presiding officer of the Assembly, Council or legislature, as the
case may be.
5 Oath or solemn affirmation of Premiers, Acting Premiers and members
of provincial Executive Councils
The Premier or Acting Premier of a province, and each member of the Executive
Council of a province, before the Chief Justice or a judge designated by the Chief Justice,
must swear/affirm as follows:
I, A.B., swear/solemnly affirm that I will be faithful to the Republic of South Africa and
will obey, respect and uphold the Constitution and all other law of the Republic; and
I undertake to hold my office as Premier/Acting Premier/ member of the Executive
Council of the province of C.D. with honour and dignity; to be a true and faithful
counsellor; not to divulge directly or indirectly any secret matter entrusted to me;
and to perform the functions of my office conscientiously and to the best of my
ability.
(In the case of an oath: So help me God.)
6 Oath or solemn affirmation of Judicial Officers
(1) Each judge or acting judge, before the Chief Justice or another judge designated by
the Chief Justice, must swear or affirm as follows:
I, A.B., swear/solemnly affirm that, as a Judge of the Constitutional Court/Supreme
Court of Appeal/High Court/ E.F. Court, I will be faithful to the Republic of South
Africa, will uphold and protect the Constitution and the human rights entrenched in
it, and will administer justice to all persons alike without fear, favour or prejudice, in
accordance with the Constitution and the law.
(In the case of an oath: So help me God.)
(2) A person appointed to the office of Chief Justice who is not already a judge at the
time of that appointment must swear or affirm before the Deputy Chief Justice, or failing
that judge, the next most senior available judge of the Constitutional Court.
(3) Judicial officers, and acting judicial officers, other than judges, must swear/affirm
in terms of national legislation.
CONSTITUTIONAL LAW Page 95 of 136
Schedule 3
ELECTION PROCEDURES
[Schedule 3 amended by s. 19 of the Constitution Sixth Amendment Act of 2001, by s. 3
of the Constitution Ninth Amendment Act of 2002 and by s. 5 of the Constitution
Fourteenth Amendment Act of 2008.]
Part A – Election procedures for constitutional office-bearers
1 Application
The procedure see out in this Schedule applies whenever-
(a) the National Assembly meets to elect the President, or the Speaker or
Deputy Speaker of the Assembly;
(b) the National Council of Provinces meets to elect its Chairperson or a
Deputy Chairperson; or
(c) a provincial legislature meets to elect the Premier of the province or
the Speaker or Deputy Speaker of the legislature.
2 Nominations
The person presiding at a meeting to which this Schedule applies must call for the
nomination of candidates at the meeting.
3 Formal requirements
(1) A nomination must be made on the form prescribed by the rules mentioned in item
9.
(2) The form on which a nomination is made must be signed-
(a) by two members of the National Assembly, if the President or the
Speaker or Deputy Speaker of the Assembly is to be elected;
(b) on behalf of two provincial delegations, if the Chairperson or a Deputy
Chairperson of the National Council of Provinces is to be elected; or
(c) by two members of the relevant provincial legislature, if the Premier of
the province or the Speaker or Deputy Speaker of the legislature is to
be elected.
(3) A person who is nominated must indicate acceptance of the nomination by signing
either the nomination form or any other form of written confirmation.
4 Announcement of names of candidates
At a meeting to which this Schedule applies, the person presiding must announce the
names of the persons who have been nominated as candidates, but may not permit any
debate.
5 Single candidate
If only one candidate is nominated, the person presiding must declare that candidate
elected.
6 Election procedure
If more the one candidate is nominated-
(a) a vote must be taken at the meeting by secret ballot;
(b) each member present, or if it is a meeting of the National Council of
Provinces each province represented, at the meeting may cast one
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vote; and
(c) the person presiding must declare elected the candidate who receives
a majority of the votes.
7 Elimination procedure
(1) If no candidate receives a majority of the votes, the candidate who receives the
lowest number of votes must be eliminated and a further vote taken on the remaining
candidates in accordance with item 6. This procedure must be repeated until a candidate
receives a majority of the votes.
(2) When applying subitem (1), if two or more candidates each have the lowest
number of votes, a separate vote must be taken on those candidates, and repeated as
often as may be necessary to determine which candidate is to be eliminated.
8 Further meetings
(1) If only two candidates are nominated, or if only two candidates remain after an
elimination procedure has been applied, and those two candidates receive the same
number of votes, a further meeting must be held within seven days, at a time determined
by the person presiding.
(2) If a further meeting is held in terms of subitem (1), the procedure prescribed in
this Schedule must be applied at that meeting as if it were the first meeting for the
election in question.
9 Rules
(1) The Chief Justice must make rules prescribing-
(a) the procedure for meetings to which this Schedule applies;
(b) the duties of any person presiding at a meeting, and of any person
assisting the person presiding;
(c) the form on which nominations must be submitted; and
(d) the manner in which voting is to be conducted.
(2) These Rules must be made known in the way that the Chief Justice determines.
[Item 9 substituted by s. 19 of the Constitution Sixth Amendment Act of
2001.]
Part B – Formula to determine party participation in provincial
delegations to the National Council of Provinces
1. The number of delegates in a provincial delegation to the National Council of
Provinces to which a party is entitled, must be determined by multiplying the
number of seats the party holds in the provincial legislature by ten and dividing the
result by the number of seats in the legislature plus one.
2. If a calculation in terms of item 1 yields a surplus not absorbed by the delegates
allocated to a party in terms of that item, the surplus must compete with similar
surpluses accruing to any other party or parties, and any undistributed delegates in
the delegation must be allocated to the party or parties in the sequence of the
highest surplus.
3. If the competing surpluses envisaged in item 2 are equal, the undistributed
delegates in the delegation must be allocated to the party or parties with the same
surplus in the sequence from the highest to the lowest number of votes that have
been recorded for those parties during the last election for the provincial legislature
concerned.
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[Item 3 added by s. 2 of the Constitution Fourth Amendment Act of 1999 and substituted
by s. 3 of the Constitution Ninth Amendment Act of 2002 and by s. 5 (a) of the
Constitution Fourteenth Amendment Act of 2008.]
4. If more than one party with the same surplus recorded the same number of votes
during the last election for the provincial legislature concerned, the legislature
concerned most allocate the undistributed delegates in the delegation to the party
or parties with the same surplus in a manner which is consistent with democracy.
[Item 4 added by s. 5 (b) of the Constitution Fourteenth Amendment Act of 2008.]
Schedule 4
FUNCTIONAL AREAS OF CONCURRENT NATIONAL AND PROVINCIAL
LEGISLATIVE COMPETENCE
PART A
Administration of indigenous forests
Agriculture
Airports other than international and national airports
Animal control and diseases
Casinos, racing, gambling and wagering, excluding lotteries and sports pools
Consumer protection
Cultural matters
Disaster management
Education at all levels, excluding tertiary education
Environment
Health services
Housing
Indigenous law and customary law, subject to Chapter 12 of the Constitution
Industrial promotion
Language policy and the regulation of official languages to the extent that the
provisions of section 6 of the Constitution expressly confer upon the provincial
legislatures legislative competence
Media services directly controlled or provided by the provincial government, subject to
section 192
Nature conservation, excluding national parks, national botanical gardens and marine
resources
Police to the extent that the provisions of Chapter 11 of the Constitution confer upon
the provincial legislatures legislative competence
Pollution control
Population development
Property transfer fees
Provincial public enterprises in respect of the functional areas in this Schedule and
Schedule 5
Public transport
Public works only in respect of the needs of provincial government departments in the
discharge of their responsibilities to administer functions specifically assigned to
them in terms of the Constitution or any other law
Regional planning and development
CONSTITUTIONAL LAW Page 98 of 136
Road traffic regulation
Soil conservation
Tourism
Trade
Traditional leadership, subject to Chapter 12 of the Constitution
Urban and rural development
Vehicle licensing
Welfare services
PART B
The following local government matters to the extent set out in section 155 (6) (a) and
(7):
Air pollution
Building regulations
Child care facilities
Electricity and gas reticulation
Firefighting services
Local tourism
Municipal airports
Municipal planning
Municipal health services
Municipal public transport
Municipal public works only in respect of the needs of municipalities in the discharge
of their responsibilities to administer functions specifically assigned to them under
this Constitution or any other law
Pontoons, ferries, jetties, piers and harbours, excluding the regulation of international
and national shipping and matters related thereto
Stormwater management systems in built-up areas
Trading regulations
Water and sanitation services limited to potable water supply systems and domestic
waste-water and sewage disposal systems
Schedule 5
FUNCTIONAL AREAS OF EXCLUSIVE PROVINCIAL LEGISLATIVE
COMPETENCE
PART A
Abattoirs
Ambulance services
Archives other than national archives
Libraries other than national libraries
Liquor licences
Museums other than national museums
Provincial planning
Provincial cultural matters
CONSTITUTIONAL LAW Page 99 of 136
Provincial recreation and amenities
Provincial sport
Provincial roads and traffic
Veterinary services, excluding regulation of the profession
PART B
The following local government matters to the extent set out for provinces in section 155
(6) (a) and (7):
Beaches and amusement facilities
Billboards and the display of advertisements in public places
Cemeteries, funeral parlours and crematoria
Cleansing
Control of public nuisances
Control of undertakings that sell liquor to the public
Facilities for the accommodation, care and burial of animals
Fencing and fences
Licensing of dogs
Licensing and control of undertakings that sell food to the public
Local amenities
Local sport facilities
Markets
Municipal abattoirs
Municipal parks and recreation
Municipal roads
Noise pollution
Pounds
Public places
Refuse removal, refuse dumps and solid waste disposal
Street trading
Street lighting
Traffic and parking
Schedule 6
TRANSITIONAL ARRANGEMENTS
[Schedule 6 amended by s. 3 of the Constitution First Amendment Act of 1997, by s. 5
(a) of the Constitution Second Amendment Act of 1998 and by s. 20 of the Constitution
Sixth Amendment Act of 2001.]
1 Definitions
In this Schedule, unless inconsistent with the context-
‘homeland’ means a part of the Republic which, before the previous Constitution took
effect, was dealt with in South African legislation as an independent or a self-governing
territory;
CONSTITUTIONAL LAW Page 100 of 136
‘new Constitution’ means the Constitution of the Republic of South Africa, 1996;
‘old order legislation’ means legislation enacted before the previous Constitution
took effect;
‘previous Constitution’ means the Constitution of the Republic of South Africa, 1993
(Act 200 of 1993).
2 Continuation of existing law
(1) All law that was in force when the new Constitution took effect, continues in force,
subject to-
(a) any amendment or repeal; and
(b) consistency with the new Constitution.
(2) Old order legislation that continues in force in terms of subitem (1)-
(a) does not have a wider application, territorially or otherwise, than it
had before the previous Constitution took effect unless subsequently
amended to have a wider application; and
(b) continues to be administered by the authorities that administered it
when the new Constitution took effect, subject to the new
Constitution.
3 Interpretation of existing legislation
(1) Unless inconsistent with the context or clearly inappropriate, a reference in any
legislation that existed when the new Constitution took effect-
(a) to the Republic of South Africa or a homeland (except when it refers to
a territorial area), must be construed as a reference to the Republic of
South Africa under the new Constitution;
(b) to Parliament, the National Assembly or the Senate, must be
construed as a reference to Parliament, the National Assembly or the
National Council of Provinces under the new Constitution;
(c) to the President, an Executive Deputy President, a Minister, a Deputy
Minister or the Cabinet, must be construed as a reference to the
President, the Deputy President, a Minister, a Deputy Minister or the
Cabinet under the new Constitution, subject to item 9 of this
Schedule;
(d) to the President of the Senate, must be construed as a reference to
the Chairperson of the National Council of Provinces;
(e) to a provincial legislature, Premier, Executive Council or member of an
Executive Council of a province, must be construed as a reference to
a provincial legislature, Premier, Executive Council or member of an
Executive Council under the new Constitution, subject to item 12 of
this Schedule; or
(f) to an official language or languages, must be construed as a reference
to any of the official languages under the new Constitution.
(2) Unless inconsistent with the context or clearly inappropriate, a reference in any
remaining old order legislation-
(a) to a Parliament, a House of a Parliament or a legislative assembly or
body of the Republic or of a homeland, must be construed as a
reference to-
CONSTITUTIONAL LAW Page 101 of 136
(i) Parliament under the new Constitution, if the administration of
that legislation has been allocated or assigned in terms of the
previous Constitution or this Schedule to the national executive;
or
(ii) the provincial legislature of a province, if the administration of
that legislation has been allocated or assigned in terms of the
previous Constitution or this Schedule to a provincial executive;
or
(b) to a State President, Chief Minister, Administrator or other chief
executive, Cabinet, Ministers’ Council or executive council of the
Republic or of a homeland, must be construed as a reference to-
(i) the President under the new Constitution, if the administration of
that legislation has been allocated or assigned in terms of the
previous Constitution or this Schedule to the national executive;
or
(ii) the Premier of a province under the new Constitution, if the
administration of that legislation has been allocated or assigned
in terms of the previous Constitution or this Schedule to a
provincial executive.
4 National Assembly
(1) Anyone who was a member or office-bearer of the National Assembly when the
new Constitution took effect, becomes a member or office-bearer of the National
Assembly under the new Constitution, and holds office as a member or office-bearer in
terms of the new Constitution.
(2) The National Assembly as constituted in terms of subitem (1) must be regarded as
having been elected under the new Constitution for a term that expires on 30 April 1999.
(3) The National Assembly consists of 400 members for the duration of its term that
expires on 30 April 1999, subject to section 49 (4) of the new Constitution.
(4) The rules and orders of the National Assembly in force when the new Constitution
took effect, continue in force, subject to any amendment or repeal.
5 Unfinished business before Parliament
(1) Any unfinished business before the National Assembly when the new Constitution
takes effect must be proceeded with in terms of the new Constitution.
(2) Any unfinished business before the Senate when the new Constitution takes effect
must be referred to the National Council of Provinces, and the Council must proceed with
that business in terms of the new Constitution.
6 Elections of National Assembly
(1) No election of the National Assembly may be held before 30 April 1999 unless the
Assembly is dissolved in terms of section 50 (2) after a motion of no confidence in the
President in terms of section 102 (2) of the new Constitution.
(2) Section 50 (1) of the new Constitution is suspended until 30 April 1999.
(3) Despite the repeal of the previous Constitution, Schedule 2 to that Constitution, as
amended by Annexure A to this Schedule, applies-
(a) to the first election of the National Assembly under the new
Constitution;
CONSTITUTIONAL LAW Page 102 of 136
(b) to the loss of membership of the Assembly in circumstances other
than those provided for in section 47 (3) of the new Constitution; and
(c) to the filling of vacancies in the Assembly, and the supplementation,
review and use of party lists for the filling of vacancies, until the
second election of the Assembly under the new Constitution.
(4) Section 47 (4) of the new Constitution is suspended until the second election of the
National Assembly under the new Constitution.
7 National Council of Provinces
(1) For the period which ends immediately before the first sitting of a provincial
legislature held after its first election under the new Constitution-
(a) the proportion of party representation in the province’s delegation to
the National Council of Provinces must be the same as the proportion
in which the province’s 10 senators were nominated in terms of
section 48 of the previous Constitution; and
(b) the allocation of permanent delegates and special delegates to the
parties represented in the provincial legislature, is as follows:
PROVINCE
PERMANENT DELEGATES
SPECIAL DELEGATES
1. Eastern Cape
ANC 5
NP 1
ANC 4
2. Free State
ANC 4
FF1
NP 1
ANC 4
3. Gauteng
ANC 3
DP 1
FF 1
NP 1
ANC 3
NP 1
4. KwaZulu-Natal
ANC 1
DP 1
IFP 3
NP 1
ANC 2
IFP 2
5. Mpumalanga
ANC 4
FF 1
NP 1
ANC 4
6. Northern Cape
ANC 3
FF 1
NP 2
ANC 2
NP 2
7. Northern Province
ANC 6
ANC 4
8. North West
ANC 4
FF 1
NP 1
ANC 4
9. Western Cape ANC 2 ANC 1
CONSTITUTIONAL LAW Page 103 of 136
(2) A party represented in a provincial legislature-
(a) must nominate its permanent delegates from among the persons who
were senators when the new Constitution took effect and are available
to serve as permanent delegates; and
(b) may nominate other persons as permanent delegates only if none or
an insufficient number of its former senators are available.
(3) A provincial legislature must appoint its permanent delegates in accordance with
the nominations of the parties.
(4) Subitems (2) and (3) apply only to the first appointment of permanent delegates to
the National Council of Provinces.
(5) Section 62 (1) of the new Constitution does not apply to the nomination and
appointment of former senators as permanent delegates in terms of this item.
(6) The rules and orders of the Senate in force when the new Constitution took effect,
must be applied in respect of the business of the National Council to the extent that they
can be applied, subject to any amendment or repeal.
8 Former senators
(1) A former senator who is not appointed as a permanent delegate to the National
Council of Provinces is entitled to become a full voting member of the legislature of the
province from which that person was nominated as a senator in terms of section 48 of the
previous Constitution.
(2) If a former senator elects not to become a member of a provincial legislature that
person is regarded as having resigned as a senator the day before the new Constitution
took effect.
(3) The salary, allowances and benefits of a former senator appointed as a permanent
delegate or as a member of a provincial legislature may not be reduced by reason only of
that appointment.
9 National executive
(1) Anyone who was the President, an Executive Deputy President, a Minister or a
Deputy Minister under the previous Constitution when the new Constitution took effect,
continues in and holds that office in terms of the new Constitution, but subject to subitem
(2).
(2) Until 30 April 1999, sections 84, 89, 90, 91, 93 and 96 of the new Constitution
must be regarded to read as set out in Annexure B to this Schedule.
(3) Subitem (2) does not prevent a Minister who was a senator when the new
Constitution took effect, from continuing as a Minister referred to in section 91 (1) (a) of
the new Constitution, as that section reads in Annexure B.
10 Provincial legislatures
(1) Anyone who was a member or office-bearer of a province’s legislature when the
new Constitution took effect, becomes a member or office-bearer of the legislature for
that province under the new Constitution, and holds office as a member or office-bearer
DP 1
NP 3
NP 3
CONSTITUTIONAL LAW Page 104 of 136
in terms of the new Constitution and any provincial constitution that may be enacted.
(2) A provincial legislature as constituted in terms of subitem (1) must be regarded as
having been elected under the new Constitution for a term that expires on 30 April 1999.
(3) For the duration of its term that expires on 30 April 1999, and subject to section
108 (4), a provincial legislature consists of the number of members determined for that
legislature under the previous Constitution plus the number of former senators who
became members of the legislature in terms of item 8 of this Schedule.
(4) The rules and orders of a provincial legislature in force when the new Constitution
took effect, continue in force, subject to any amendment or repeal.
11 Elections of provincial legislatures
(1) Despite the repeal of the previous Constitution, Schedule 2 to that Constitution, as
amended by Annexure A to this Schedule, applies-
(a) to the first election of a provincial legislature under the new
Constitution;
(b) to the loss of membership of a legislature in circumstances other than
those provided for in section 106 (3) of the new Constitution; and
(c) to the filling of vacancies in a legislature, and the supplementation,
review and use of party lists far the filling of vacancies, until the
second election of the legislature under the new Constitution.
(2) Section 106 (4) of the new Constitution is suspended in respect of a provincial
legislature until the second election of the legislature under the new Constitution.
12 Provincial executives
(1) Anyone who was the Premier or a member of the Executive Council of a province
when the new Constitution took effect, continues in and holds that office in terms of the
new Constitution and any provincial constitution that may be enacted, but subject to
subitem (2).
(2) Until the Premier elected after the first election of a province’s legislature under the
new Constitution assumes office, or the province enacts its constitution, whichever occurs
first, sections 132 and 136 of the new Constitution must be regarded to read as set out in
Annexure C to this Schedule.
13 Provincial constitutions
A provincial constitution passed before the new Constitution took effect must comply
with section 143 of the new Constitution.
14 Assignment of legislation to provinces
(1) Legislation with regard to a matter within a functional area listed in Schedule 4 or
5 to the new Constitution and which, when the new Constitution took effect, was
administered by an authority within the national executive, may be assigned by the
President, by proclamation, to an authority within a provincial executive designated by
the Executive Council of the province.
(2) To the extent that it is necessary for an assignment of legislation under subitem
(1) to be effectively carried out, the President, by proclamation, may-
(a) amend or adapt the legislation to regulate its interpretation or
application;
(b) where the assignment does not apply to the whole of any piece of
CONSTITUTIONAL LAW Page 105 of 136
legislation, repeal and re-enact, with or without any amendments or adaptations
referred to in paragraph (a) , those provisions to which the
assignment applies or to the extent that the assignment applies to
them; or
(c) regulate any other matter necessary as a result of the assignment,
including the transfer or secondment of staff, or the transfer of
assets, liabilities, rights and obligations, to or from the national or a
provincial executive or any department of state, administration,
security service or other institution.
(3) (a) A copy of each proclamation issued in terms of subitem (1) or (2) must be
submitted to the National Assembly and the National Council of Provinces within 10 days
of the publication of the proclamation.
(b) If both the National Assembly and the National Council by resolution disapprove
the proclamation or any provision of it, the proclamation or provision lapses, but without
affecting-
(i) the validity of anything done in terms of the proclamation or provision
before it lapsed; or
(ii) a right or privilege acquired or an obligation or liability incurred before
it lapsed.
(4) When legislation is assigned under subitem (1), any reference in the legislation to
an authority administering it, must be construed as a reference to the authority to which
it has been assigned.
(5) Any assignment of legislation under section 235 (8) of the previous Constitution,
including any amendment, adaptation or repeal and re-enactment of any legislation and
any other action taken under that section, is regarded as having been done under this
item.
15 Existing legislation outside Parliament’s legislative power
(1) An authority within the national executive that administers any legislation falling
outside Parliament’s legislative power when the new Constitution takes effect, remains
competent to administer that legislation until it is assigned to an authority within a
provincial executive in terms of item 14 of this Schedule.
(2) Subitem (1) lapses two years after the new Constitution took effect.
16 Courts
(1) Every court, including courts of traditional leaders, existing when the new
Constitution took effect, continues to function and to exercise jurisdiction in terms of the
legislation applicable to it, and anyone holding office as a judicial officer continues to hold
office in terms of the legislation applicable to that office, subject to-
(a) any amendment or repeal of that legislation; and
(b) consistency with the new Constitution.
(2) (a) The Constitutional Court established by the previous Constitution becomes the
Constitutional Court under the new Constitution.
(b) ……
[Subitem (b) deleted by s. 20 (a) of the Constitution Sixth Amendment Act
of 2001.]
CONSTITUTIONAL LAW Page 106 of 136
(3) (a) The Appellate Division of the Supreme Court of South Africa becomes the
Supreme Court of Appeal under the new Constitution.
(b) ……
[Subitem (b) deleted by s. 20 (a) of the Constitution Sixth Amendment Act
of 2001.]
(4) (a) A provincial or local division of the Supreme Court of South Africa or a supreme
court of a homeland or a general division of such a court, becomes a High Court under
the new Constitution without any alteration in its area of jurisdiction, subject to any
rationalisation contemplated in subitem (6).
(b) Anyone holding office or deemed to hold office as the Judge President, the Deputy
Judge President or a judge of a court referred to in paragraph (a) when the new
Constitution takes effect, becomes the Judge President, the Deputy Judge President or a
judge of such a court under the new Constitution, subject to any rationalisation
contemplated in subitem (6).
(5) Unless inconsistent with the context or clearly inappropriate, a reference in any
legislation or process to-
(a) the Constitutional Court under the previous Constitution, must be
construed as a reference to the Constitutional Court under the new
Constitution;
(b) the Appellate Division of the Supreme Court of South Africa, must be
construed as a reference to the Supreme Court of Appeal; and
(c) a provincial or local division of the Supreme Court of South Africa or a
supreme court of a homeland or general division of that court, must
be construed as a reference to a High Court.
(6) (a) As soon as is practical after the new Constitution took effect all courts,
including their structure, composition, functioning and jurisdiction, and all relevant
legislation, must be rationalised with a view to establishing a judicial system suited to the
requirements of the new Constitution.
(b) The Cabinet member responsible for the administration of justice, acting after
consultation with the Judicial Service Commission, must manage the rationalisation
envisaged in paragraph (a) .
(7) (a) Anyone holding office, when the Constitution of the Republic of South Africa
Amendment Act, 2001, takes effect, as-
(i) the President of the Constitutional Court, becomes the Chief Justice as
contemplated in section 167 (1) of the new Constitution;
(ii) the Deputy President of the Constitutional Court, becomes the Deputy Chief
Justice as contemplated in section 167 (1) of the new Constitution;
(iii) the Chief Justice, becomes the President of the Supreme Court of Appeal as
contemplated in section 168 (1) of the new Constitution; and
(iv) the Deputy Chief Justice, becomes the Deputy President of the Supreme
Court of Appeal as contemplated in section 168 (1) of the new Constitution.
(b) All rules, regulations or directions made by the President of the Constitutional
Court or the Chief Justice in force immediately before the Constitution of the Republic of
South Africa Amendment Act, 2001, takes effect, continue in force until repealed or
CONSTITUTIONAL LAW Page 107 of 136
amended.
(c) Unless inconsistent with the context or clearly inappropriate, a reference in any law
or process to the Chief Justice or to the President of the Constitutional Court, must be
construed as a reference to the Chief Justice as contemplated in section 167 (1) of the
new Constitution.
[Subitem (7) added by s. 20 (b) of the Constitution Sixth Amendment Act
of 2001.]
17 Cases pending before courts
All proceedings which were pending before a court when the new Constitution took
effect, must be disposed of as if the new Constitution had not been enacted, unless the
interests of justice require otherwise.
18 Prosecuting authority
(1) Section 108 of the previous Constitution continues in force until the Act of
Parliament envisaged in section 179 of the new Constitution takes effect. This subitem
does not affect the appointment of the National Director of Public Prosecutions in terms of
section 179.
(2) An attorney-general holding office when the new Constitution takes effect,
continues to function in terms of the legislation applicable to that office, subject to
subitem (1).
19 Oaths and affirmations
A person who continues in office in terms of this Schedule and who has taken the oath
of office or has made a solemn affirmation under the previous Constitution, is not obliged
to repeat the oath of office or solemn affirmation under the new Constitution.
20 Other constitutional institutions
(1) In this section ‘constitutional institution’ means-
(a) the Public Protector;
(b) the South African Human Rights Commission;
[Para. (b) amended by s. 4 of the Constitution Second Amendment Act of
1998.]
(c) the Commission on Gender Equality;
(d) the Auditor-General;
(e) the South African Reserve Bank;
(f) the Financial and Fiscal Commission;
(g) the Judicial Service Commission; or
(h) the Pan South African Language Board.
(2) A constitutional institution established in terms of the previous Constitution
continues to function in terms of the legislation applicable to it, and anyone holding office
as a commission member, a member of the board of the Reserve Bank or the Pan South
African Language Board, the Public Protector or the Auditor-General when the new
Constitution takes effect, continues to hold office in terms of the legislation applicable to
that office, subject to-
(a) any amendment or repeal of that legislation; and
CONSTITUTIONAL LAW Page 108 of 136
(b) consistency with the new Constitution.
(3) Sections 199 (1), 200 (1), (3) and (5) to (11) and 201 to 206 of the previous
Constitution continue in force until repealed by an Act of Parliament passed in terms of
section 75 of the new Constitution.
(4) The members of the Judicial Service Commission referred to in section 105 (1) (h)
of the previous Constitution cease to be members of the Commission when the members
referred to in section 178 (1) (i) of the new Constitution are appointed.
(5) (a) The Volkstaat Council established in terms of the previous Constitution
continues to function in terms of the legislation applicable to it, and anyone holding office
as a member of the Council when the new Constitution takes effect, continues to hold
office in terms of the legislation applicable to that office, subject to-
(i) any amendment or repeal of that legislation; and
(ii) consistency with the new Constitution.
(b) Sections 184A and 184B (1) (a) , (b) and (d) of the previous Constitution continue
in force until repealed by an Act of Parliament passed in terms of section 75 of the new
Constitution.
21 Enactment of legislation required by new Constitution
(1) Where the new Constitution requires the enactment of national or provincial
legislation, that legislation must be enacted by the relevant authority within a reasonable
period of the date the new Constitution took effect.
(2) Section 198 (b) of the new Constitution may not be enforced until the legislation
envisaged in that section has been enacted.
(3) Section 199 (3) (a) of the new Constitution may not be enforced before the expiry
of three months after the legislation envisaged in that section has been enacted.
(4) National legislation envisaged in section 217 (3) of the new Constitution must be
enacted within three years of the date on which the new Constitution took effect, but the
absence of this legislation during this period does not prevent the implementation of the
policy referred to in section 217 (2).
(5) Until the Act of Parliament referred to in section 65 (2) of the new Constitution is
enacted each provincial legislature may determine its own procedure in terms of which
authority is conferred on its delegation to cast votes on its behalf in the National Council
of Provinces.
(6) Until the legislation envisaged in section 229 (1) (b) of the new Constitution is
enacted, a municipality remains competent to impose any tax, levy or duty which it was
authorised to impose when the Constitution took effect.
22 National unity and reconciliation
(1) Notwithstanding the other provisions of the new Constitution and despite the
repeal of the previous Constitution, all the provisions relating to amnesty contained in the
previous Constitution under the heading ‘National Unity and Reconciliation’ are deemed to
be part of the new Constitution for the purposes of the Promotion of National Unity and
Reconciliation Act, 1995 ( Act 34 of 1995 ), as amended, including for the purposes of its
validity.
(2) For the purposes of subitem (1), the date ‘6 December 1993’ where it appears in
the provisions of the previous Constitution under the heading ‘National Unity and
CONSTITUTIONAL LAW Page 109 of 136
Reconciliation’, must be read as ’11 May 1994′.
[Subitem (2) added by s. 3 of the Constitution First Amendment Act of 1997.]
23 Bill of Rights
(1) National legislation envisaged in sections 9 (4), 32 (2) and 33 (3) of the new
Constitution must be enacted within three years of the date on which the new
Constitution took effect.
(2) Until the legislation envisaged in sections 32 (2) and 33 (3) of the new Constitution
is enacted-
(a) section 32 (1) must be regarded to read as follows
‘(1) Every person has the right of access to all information held by the
state or any of its organs in any sphere of government in so far as
that information is required for the exercise or protection of any of
their rights.’; and
(b) section 33 (1) and (2) must be regarded to read as follows:
‘Every person has the right to-
(a) lawful administrative action where any of their rights or
interests is affected or threatened;
(b) procedurally fair administrative action where any of their rights
or legitimate expectations is affected or threatened;
(c) be furnished with reasons in writing for administrative action
which affects any of their rights or interests unless the
reasons for that action have been made public; and
(d) administrative action which is justifiable in relation to the
reasons given for it where any of their rights is affected or
threatened.’.
(3) Sections 32 (2) and 33 (3) of the new Constitution lapse if the legislation
envisaged in those sections, respectively, is not enacted within three years of the date
the new Constitution took effect.
24 Public administration and security services
(1) Sections 82 (4) (b) , 215, 218 (1), 219 (1), 224 to 228, 236 (1), (2), (3), (6), (7)
(b) and (8), 237 (1) and (2) (a) and 239 (4) and (5) of the previous Constitution continue
in force as if the previous Constitution had not been repealed, subject to-
(a) the amendments to those sections as set out in Annexure D;
(b) any further amendment or any repeal of those sections by an Act of
Parliament passed in terms of section 75 of the new Constitution; and
(c) consistency with the new Constitution.
(2) The Public Service Commission and the provincial service commissions referred to
in Chapter 13 of the previous Constitution continue to function in terms of that Chapter
and the legislation applicable to it as if that Chapter had not been repealed, until the
Commission and the provincial service commissions are abolished by an Act of Parliament
passed in terms of section 75 of the new Constitution.
(3) The repeal of the previous Constitution does not affect any proclamation issued
under section 237 (3) of the previous Constitution, and any such proclamation continues
in force, subject to-
(a) any amendment or repeal; and
(b) consistency with the new Constitution
CONSTITUTIONAL LAW Page 110 of 136
25 Additional disqualification for legislatures
(1) Anyone who, when the new Constitution took effect, was serving a sentence in the
Republic of more than 12 months’ imprisonment without the option of a fine, is not
eligible to be a member of the National Assembly or a provincial legislature.
(2) The disqualification of a person in terms of subitem (1)-
(a) lapses if the conviction is set aside on appeal, or the sentence is
reduced on appeal to a sentence that does not disqualify that person;
and
(b) ends five years after the sentence has been completed.
26 Local government
(1) Notwithstanding the provisions of sections 151, 155, 156 and 157 of the new
Constitution-
(a) the provisions of the Local Government Transition Act, 1993 ( Act 209
of 1993 ), as may be amended from time to time by national
legislation consistent with the new Constitution, remain in force in
respect of a Municipal Council until a Municipal Council replacing that
Council has been declared elected as a result of the first general
election of Municipal Councils after the commencement of the new
Constitution; and
[Subitem (a) substituted by s. 5 (a) of the Constitution Second
Amendment Act of 1998.]
(b) a traditional leader of a community observing a system of indigenous
law and residing on land within the area of a transitional local council,
transitional rural council or transitional representative council,
referred to in the Local Government Transition Act, 1993, and who
has been identified as set out in section 182 of the previous
Constitution, is ex officio entitled to be a member of that council until
a Municipal Council replacing that council has been declared elected
as a result of the first general election of Municipal Councils after the
commencement of the new Constitution.
[Subitem (b) substituted by s. 5 (a) of the Constitution Second
Amendment Act of 1998.]
(2) Section 245 (4) of the previous Constitution continues in force until the application
of that section lapses. Section 16 (5) and (6) of the Local Government Transition Act,
1993, may not be repealed before 30 April 2000.
[Item (2) amended by s. 5 (b) of the Constitution Second Amendment Act
of 1998.]
27 Safekeeping of Acts of Parliament and provincial Acts
Sections 82 and 124 of the new Constitution do not affect the safekeeping of Acts of
Parliament or provincial Acts passed before the new Constitution took effect.
28 Registration of immovable property owned by the state
(1) On the production of a certificate by a competent authority that immovable
property owned by the state is vested in a particular government in terms of section 239
of the previous Constitution, a registrar of deeds must make such entries or
endorsements in or on any relevant register, title deed or other document to register that
immovable property in the name of that government.
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(2) No duty, fee or other charge is payable in respect of a registration in terms of
subitem (1).
ANNEXURE A
AMENDMENTS TO SCHEDULE 2 TO THE PREVIOUS CONSTITUTION
1. The replacement of item 1 with the following item:
‘1. Parties registered in terms of national legislation and contesting an election of
the National Assembly, shall nominate candidates for such election on lists of
candidates prepared in accordance with this Schedule and national legislation.’.
2. The replacement of item 2 with the following item:
‘2. The seats in the National Assembly as determined in terms of section 46 of the
new Constitution, shall be filled as follows:
(a) One half of the seats from regional lists submitted by the respective
parties, with a fixed number of seats reserved for each region as
determined by the Commission for the next election of the Assembly,
taking into account available scientifically based data in respect of
voters, and representations by interested parties.
(b) The other half of the seats from national lists submitted by the
respective parties, or from regional lists where national lists were not
submitted.’.
3. The replacement of item 3 with the following item:
‘3. The lists of candidates submitted by a party, shall in total contain the names of
not more than a number of candidates equal to the number of seats in the National
Assembly, and each such list shall denote such names in such fixed order of
preference as the party may determine.’.
4. The amendment of item 5 by replacing the words preceding paragraph (a) with the
following words:
‘5. The seats referred to in item 2 (a) shall be allocated per region to the parties
contesting an election, as follows:’.
5. The amendment of item 6-
(a) by replacing the words preceding paragraph (a) with the following
words:
‘6. The seats referred to in item 2 (b) shall be allocated to the parties
contesting an election, as follows:’; and
(b) by replacing paragraph (a) with the following paragraph:
‘ (a) A quota of votes per seat shall be determined by dividing the
total number of votes cast nationally by the number of seats
in the National Assembly, plus one, and the result plus one,
disregarding fractions, shall be the quota of votes per seat.’.
6. The amendment of item 7 (3) by replacing paragraph (b) with the following
paragraph:
‘ (b) An amended quota of votes per seat shall be determined by dividing
the total number of votes cast nationally, minus the number of votes
cast nationally in favour of the party referred to in paragraph (a) , by
the number of seats in the Assembly, plus one, minus the number of
seats finally allocated to the said party in terms of paragraph (a) .’.
7. The replacement of item 10 with the following item:
’10. The number of seats in each provincial legislature shall be as determined in
terms of section 105 of the new Constitution.’.
8. The replacement of item 11 with the following item:
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’11. Parties registered in terms of national legislation and contesting an election of a
provincial legislature, shall nominate candidates for election to such provincial
legislature on provincial lists prepared in accordance with this Schedule and national
legislation.’.
9. The replacement of item 16 with the following item:
‘Designation of representatives
16 (1) After the counting of votes has been concluded, the number of
representatives of each party has been determined and the election result has been
declared in terms of section 190 of the new Constitution, the Commission shall,
within two days after such declaration, designate from each list of candidates,
published in terms of national legislation, the representatives of each party in the
legislature.
(2) Following the designation in terms of subitem (1), if a candidate’s name appears
on more than one list for the National Assembly or on lists for both the National
Assembly and a provincial legislature (if an election of the Assembly and a provincial
legislature is held at the same time), and such candidate is due for designation as a
representative in more than one case, the party which submitted such lists shall,
within two days after the said declaration, indicate to the Commission from which
list such candidate will be designated or in which legislature the candidate will
serve, as the case may be, in which event the candidate’s name shall be deleted
from the other lists.
(3) The Commission shall forthwith publish the list of names of representatives in
the legislature or legislatures.’.
10. The amendment of item 18 by replacing paragraph (b) with the following
paragraph:
‘ (b) a representative is appointed as a permanent delegate to the
National Council of Provinces;’.
11. The replacement of item 19 with the following item:
’19. Lists of candidates of a party referred to in item 16 (1) may be supplemented
on one occasion only at any time during the first 12 months following the date on
which the designation of representatives in terms of item 16 has been concluded, in
order to fill casual vacancies: Provided that any such supplementation shall be
made at the end of the list.’.
12. The replacement of item 23 with the following item:
‘Vacancies
23 (1) In the event of a vacancy in a legislature to which this Schedule applies, the
party which nominated the vacating member shall fill the vacancy by nominating a
person-
(a) whose name appears on the list of candidates from which the vacating
member was originally nominated; and
(b) who is the next qualified and available person on the list.
(2) A nomination to fill a vacancy shall be submitted to the Speaker in writing.
(3) If a party represented in a legislature dissolves or ceases to exist and the
members in question vacate their seats in consequence of item 23A (1), the seats in
question shall be allocated to the remaining parties mutatis mutandis as if such
seats were forfeited seats in terms of item 7 or 14, as the case may be.’.
13. The insertion of the following item after item 23:
‘Additional ground for loss of membership of legislatures
23A (1) A person loses membership of a legislature to which this Schedule applies if
that person ceases to be a member of the party which nominated that person as a
member of the legislature.
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(2) Despite subitem (1) any existing political party may at any time change its
name.
(3) An Act of Parliament may, within a reasonable period after the new Constitution
took effect, be passed in accordance with section 76 (1) of the new Constitution to
amend this item and item 23 to provide for the manner in which it will be possible
for a member of a legislature who ceases to be a member of the party which
nominated that member, to retain membership of such legislature.
(4) An Act of Parliament referred to in subitem (3) may also provide for-
(a) any existing party to merge with another party; or
(b) any party to subdivide into more than one party.’.
14. The deletion of item 24.
15. The amendment of item 25-
(a) by replacing the definition of ‘Commission’ with the following
definition:
‘Commission’ means the Electoral Commission referred to in section
190 of the new Constitution;’; and
(b) by inserting the following definition after the definition of ‘national
list’:
‘new Constitution’ means the Constitution of the Republic of South
Africa, 1996;’.
16. The deletion of item 26.
ANNEXURE B
GOVERNMENT OF NATIONAL UNITY:
NATIONAL SPHERE
1. Section 84 of the new Constitution is deemed to contain the following additional
subsection:
‘(3) The President must consult the Executive Deputy Presidents-
(a) in the development and execution of the policies of the national
government;
(b) in all matters relating to the management of the Cabinet and
the performance of Cabinet business;
(c) in the assignment of functions to the Executive Deputy
Presidents;
(d) before making any appointment under the Constitution or any
legislation, including the appointment of ambassadors or
other diplomatic representatives;
(e) before appointing commissions of inquiry;
(f) before calling a referendum; and
(g) before pardoning or reprieving offenders.’.
2. Section 89 of the new Constitution is deemed to contain the following additional
subsection:
‘(3) Subsections (1) and (2) apply also to an Executive Deputy President.’.
3. Paragraph (a) of section 90 (1) of the new Constitution is deemed to read as
follows.
‘ (a) an Executive Deputy President designated by the President;’.
4. Section 91 of the new Constitution is deemed to read as follows:
‘Cabinet
91 (1) The Cabinet consists of the President, the Executive Deputy Presidents and-
CONSTITUTIONAL LAW Page 114 of 136
(a) not more than 27 Ministers who are members of the National
Assembly and appointed in terms of subsections (8) to (12); and
(b) not more than one Minister who is not a member of the National
Assembly and appointed in terms of subsection (13), provided the
President, acting in consultation with the Executive Deputy Presidents
and the leaders of the participating parties, deems the appointment of
such a Minister expedient.
(2) Each party holding at least 80 seats in the National Assembly is entitled to
designate an Executive Deputy President from among the members of the
Assembly.
(3) If no party or only one party holds 80 or more seats in the Assembly, the party
holding the largest number of seats and the party holding the second largest
number of seats are each entitled to designate one Executive Deputy President from
among the members of the Assembly.
(4) On being designated, an Executive Deputy President may elect to remain or
cease to be a member of the Assembly.
(5) An Executive Deputy President may exercise the powers and must perform the
functions vested in the office of Executive Deputy President by the Constitution or
assigned to that office by the President.
(6) An Executive Deputy President holds office-
(a) until 30 April 1999 unless replaced or recalled by the party entitled to
make the designation in terms of subsections (2) and (3); or
(b) until the person elected President after any election of the National
Assembly held before 30 April 1999, assumes office.
(7) A vacancy in the office of an Executive Deputy President may be filled by the
party which designated that Deputy President.
(8) A party holding at least 20 seats in the National Assembly and which has
decided to participate in the government of national unity, is entitled to be allocated
one or more of the Cabinet portfolios in respect of which Ministers referred to in
subsection (1) (a) are to be appointed, in proportion to the number of seats held by
it in the National Assembly relative to the number of seats held by the other
participating parties.
(9) Cabinet portfolios must be allocated to the respective participating parties in
accordance with the following formula:
(a) A quota of seats per portfolio must be determined by dividing the total
number of seats in the National Assembly held jointly by the
participating parties by the number of portfolios in respect of which
Ministers referred to in subsection (1) (a) are to be appointed, plus
one.
(b) The result, disregarding third and subsequent decimals, if any, is the
quota of seats per portfolio.
(c) The number of portfolios to be allocated to a participating party is
determined by dividing the total number of seats held by that party in
the National Assembly by the quota referred to in paragraph (b) .
(d) The result, subject to paragraph (e) , indicates the number of
portfolios to be allocated to that party.
(e) Where the application of the above formula yields a surplus not
absorbed by the number of portfolios allocated to a party, the surplus
competes with other similar surpluses accruing to another party or
parties, and any portfolio or portfolios which remain unallocated must
be allocated to the party or parties concerned in sequence of the
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highest surplus.
(10) The President after consultation with the Executive Deputy Presidents and the
leaders of the participating parties must-
(a) determine the specific portfolios to be allocated to the respective
participating parties in accordance with the number of portfolios
allocated to them in terms of subsection (9);
(b) appoint in respect of each such portfolio a member of the National
Assembly who is a member of the party to which that portfolio was
allocated under paragraph (a) , as the Minister responsible for that
portfolio;
(c) if it becomes necessary for the purposes of the Constitution or in the
interest of good government, vary any determination under paragraph
(a) , subject to subsection (9);
(d) terminate any appointment under paragraph (b) –
(i) if the President is requested to do so by the leader of the party of
which the Minister in question is a member; or
(ii) if it becomes necessary for the purposes of the Constitution or in
the interest of good government; or
(e) fill, when necessary, subject to paragraph (b) , a vacancy in the office
of Minister.
(11) Subsection (10) must be implemented in the spirit embodied in the concept of
a government of national unity, and the President and the other functionaries
concerned must in the implementation of that subsection seek to achieve consensus
at all times: Provided that if consensus cannot be achieved on-
(a) the exercise of a power referred to in paragraph (a) , (c) or (d) (ii) of
that subsection, the President’s decision prevails;
(b) the exercise of a power referred to in paragraph (b) , (d) (i) or (e) of
that subsection affecting a person who is not a member of the
President’s party, the decision of the leader of the party of which that
person is a member prevails; and
(c) the exercise of a power referred to in paragraph (b) or (e) of that
subsection affecting a person who is a member of the President’s
party, the President’s decision prevails.
(12 ) If any determination of portfolio allocations is varied under subsection (10)
(c) , the affected Ministers must vacate their portfolios but are eligible, where
applicable, for reappointment to other portfolios allocated to their respective parties
in terms of the varied determination.
(13) The President-
(a) in consultation with the Executive Deputy Presidents and the leaders
of the participating parties, must-
(i) determine a specific portfolio for a Minister referred to in
subsection (1) (b) should it become necessary pursuant to a
decision of the President under that subsection;
(ii) appoint in respect of that portfolio a person who is not a member
of the National Assembly, as the Minister responsible for that
portfolio; and
(iii) fill, if necessary, a vacancy in respect of that portfolio; or
(b) after consultation with the Executive Deputy Presidents and the
leaders of the participating parties, must terminate any appointment
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under paragraph (a) if it becomes necessary for the purposes of the Constitution
or in the interest of good government.
(14) Meetings of the Cabinet must be presided over by the President, or, if the
President so instructs, by an Executive Deputy President: Provided that the
Executive Deputy Presidents preside over meetings of the Cabinet in turn unless the
exigencies of government and the spirit embodied in the concept of a government
of national unity otherwise demand.
(15) The Cabinet must function in a manner which gives consideration to the
consensus-seeking spirit embodied in the concept of a government of national unity
as well as the need for effective government.’.
5. Section 93 of the new Constitution is deemed to read as follows:
‘Appointment of Deputy Ministers
93 (1) The President may, after consultation with the Executive Deputy Presidents
and the leaders of the parties participating in the Cabinet, establish deputy
ministerial posts.
(2) A party is entitled to be allocated one or more of the deputy ministerial posts in
the same proportion and according to the same formula that portfolios in the
Cabinet are allocated.
(3) The provisions of section 91 (10) to (12) apply, with the necessary changes, in
respect of Deputy Ministers, and in such application a reference in that section to a
Minister or a portfolio must be read as a reference to a Deputy Minister or a deputy
ministerial post, respectively.
(4) If a person is appointed as the Deputy Minister of any portfolio entrusted to a
Minister-
(a) that Deputy Minister must exercise and perform on behalf of the
relevant Minister any of the powers and functions assigned to that
Minister in terms of any legislation or otherwise which may, subject to
the directions of the President, be assigned to that Deputy Minister by
that Minister; and
(b) any reference in any legislation to that Minister must be construed as
including a reference to the Deputy Minister acting in terms of an
assignment under paragraph (a) by the Minister for whom that
Deputy Minister acts.
(5) Whenever a Deputy Minister is absent or for any reason unable to exercise or
perform any of the powers or functions of office, the President may appoint any
other Deputy Minister or any other person to act in the said Deputy Minister’s stead,
either generally or in the exercise or performance of any specific power or
function.’.
6. Section 96 of the new Constitution is deemed to contain the following additional
subsections:
‘(3) Ministers are accountable individually to the President and to the National
Assembly for the administration of their portfolios, and all members of the Cabinet
are correspondingly accountable collectively for the performance of the functions of
the national government and for its policies.
(4) Ministers must administer their portfolios in accordance with the policy
determined by the Cabinet.
(5) If a Minister fails to administer the portfolio in accordance with the policy of the
Cabinet, the President may require the Minister concerned to bring the
administration of the portfolio into conformity with that policy.
(6) If the Minister concerned fails to comply with a requirement of the President
under subsection (5), the President may remove the Minister from office-
(a) if it is a Minister referred to in section 91 (1) (a) , after consultation
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with the Minister and, if the Minister is not a member of the President’s party or is
not the leader of a participating party, also after consultation with the
leader of that Minister’s party; or
(b) if it is a Minister referred to in section 91 (1) (b) , after consultation
with the Executive Deputy Presidents and the leaders of the
participating parties.’.
ANNEXURE C
GOVERNMENT OF NATIONAL UNITY:
PROVINCIAL SPHERE
1. Section 132 of the new Constitution is deemed to read as follows:
‘Executive Councils
132 (1) The Executive Council of a province consists of the Premier and not more
than 10 members appointed by the Premier in accordance with this section.
(2) A party holding at least 10 per cent of the seats in a provincial legislature and
which has decided to participate in the government of national unity, is entitled to
be allocated one or more of the Executive Council portfolios in proportion to the
number of seats held by it in the legislature relative to the number of seats held by
the other participating parties.
(3) Executive Council portfolios must be allocated to the respective participating
parties according to the same formula set out in section 91 (9), and in applying that
formula a reference in that section to-
(a) the Cabinet, must be read as a reference to an Executive Council;
(b) a Minister, must be read as a reference to a member of an Executive
Council; and
(c) the National Assembly, must be read as a reference to the provincial
legislature.
(4) The Premier of a province after consultation with the leaders of the participating
parties must-
(a) determine the specific portfolios to be allocated to the respective
participating parties in accordance with the number of portfolios
allocated to them in terms of subsection (3);
(b) appoint in respect of each such portfolio a member of the provincial
legislature who is a member of the party to which that portfolio was
allocated under paragraph (a) , as the member of the Executive
Council responsible for that portfolio;
(c) if it becomes necessary for the purposes of the Constitution or in the
interest of good government, vary any determination under paragraph
(a) , subject to subsection (3);
(d) terminate any appointment under paragraph (b)-
(i) if the Premier is requested to do so by the leader of the party of
which the Executive Council member in question is a member;
or
(ii) if it becomes necessary for the purposes of the Constitution or in
the interest of good government;
(e) fill, when necessary, subject to paragraph (b) , a vacancy in the office
of a member of the Executive Council.
(5) Subsection (4) must be implemented in the spirit embodied in the concept of a
government of national unity, and the Premier and the other functionaries
concerned must in the implementation of that subsection seek to achieve consensus
CONSTITUTIONAL LAW Page 118 of 136
at all times: Provided that if consensus cannot be achieved on-
(a) the exercise of a power referred to in paragraph (a) , (c) or (d) (ii) of
that subsection, the Premier’s decision prevails;
(b) the exercise of a power referred to in paragraph (b) , (d) (i) or (e) of
that subsection affecting a person who is not a member of the
Premier’s party, the decision of the leader of the party of which such
person is a member prevails; and
(c) the exercise of a power referred to in paragraph (b) or (e) of that
subsection affecting a person who is a member of the Premier’s party,
the Premier’s decision prevails.
(6) If any determination of portfolio allocations is varied under subsection (4) (c) ,
the affected members must vacate their portfolios but are eligible, where applicable,
for reappointment to other portfolios allocated to their respective parties in terms of
the varied determination.
(7) Meetings of an Executive Council must be presided over by the Premier of the
province.
(8) An Executive Council must function in a manner which gives consideration to the
consensus-seeking spirit embodied in the concept of a government of national unity,
as well as the need for effective government.’.
2. Section 136 of the new Constitution is deemed to contain the following additional
subsections:
‘(3) Members of Executive Councils are accountable individually to the Premier and
to the provincial legislature for the administration of their portfolios, and all
members of the Executive Council are correspondingly accountable collectively for
the performance of the functions of the provincial government and for its policies.
(4) Members of Executive Councils must administer their portfolios in accordance
with the policy determined by the Council.
(5) If a member of an Executive Council fails to administer the portfolio in
accordance with the policy of the Council, the Premier may require the member
concerned to bring the administration of the portfolio into conformity with that
policy.
(6) If the member concerned fails to comply with a requirement of the Premier
under subsection (5), the Premier may remove the member from office after
consultation with the member, and if the member is not a member of the Premier’s
party or is not the leader of a participating party, also after consultation with the
leader of that member’s party.’.
ANNEXURE D
PUBLIC ADMINISTRATION AND SECURITY SERVICES: AMENDMENTS TO
SECTIONS OF THE PREVIOUS CONSTITUTION
1. The amendment of section 218 of the previous Constitution-
(a) by replacing in subsection (1) the words preceding paragraph (a) with
the following words:
‘(1) Subject to the directions of the Minister of Safety and Security, the
National Commissioner shall be responsible for-‘;
(b) by replacing paragraph (b) of subsection (1) with the following
paragraph:
‘ (b) the appointment of provincial commissioners;’;
(c) by replacing paragraph (d) of subsection (1) with the following
paragraph:
‘ (d) the investigation and prevention of organised crime or crime which
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requires national investigation and prevention or specialised skills;’; and
(d) by replacing paragraph (k) of subsection (1) with the following
paragraph:
‘ (k) the establishment and maintenance of a national public order
policing unit to be deployed in support of and at the request of the
Provincial Commissioner;’.
2. The amendment of section 219 of the previous Constitution by replacing in
subsection (1) the words preceding paragraph (a) with the following words:
‘(1) Subject to section 218 (1), a Provincial Commissioner shall be responsible for-‘.
3. The amendment of section 224 of the previous Constitution by replacing the proviso
to subsection (2) with the following proviso:
‘Provided that this subsection shall also apply to members of any armed force which
submitted its personnel list after the commencement of the Constitution of the
Republic of South Africa, 1993 (Act 200 of 1993), but before the adoption of the
new constitutional text as envisaged in section 73 of that Constitution, if the
political organisation under whose authority and control it stands or with which it is
associated and whose objectives it promotes did participate in the Transitional
Executive Council or did take part in the first election of the National Assembly and
the provincial legislatures under the said Constitution.’.
4. The amendment of section 227 of the previous Constitution by replacing subsection
(2) with the following subsection:
‘(2) The National Defence Force shall exercise its powers and perform its functions
solely in the national interest in terms of Chapter 11 of the Constitution of the
Republic of South Africa, 1996.’.
5. The amendment of section 236 of the previous Constitution-
(a) by replacing subsection (1) with the following subsection:
‘(1) A public service, department of state, administration or security
service which immediately before the commencement of the
Constitution of the Republic of South Africa, 1996 (hereinafter
referred to as ‘the new Constitution’), performed governmental
functions, continues to function in terms of the legislation applicable
to it until it is abolished or incorporated or integrated into any
appropriate institution or is rationalised or consolidated with any other
institution.’;
(b) by replacing subsection (6) with the following subsection:
‘(6) (a) The President may appoint a commission to review the
conclusion or amendment of a contract, the appointment or
promotion, or the award of a term or condition of service or other
benefit, which occurred between 27 April 1993 and 30 September
1994 in respect of any person referred to in subsection (2) or any
class of such persons.
(b) The commission may reverse or alter a contract, appointment,
promotion or award if not proper or justifiable in the circumstances of
the case.’; and
(c) by replacing ‘this Constitution’, wherever this occurs in section 236,
with ‘the new Constitution’.
6. The amendment of section 237 of the previous Constitution-
(a) by replacing paragraph (a) of subsection (1) with the following
paragraph:
‘ (a) The rationalisation of all institutions referred to in section 236
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(1), excluding military forces referred to in section 224 (2), shall after the
commencement of the Constitution of the Republic of South
Africa, 1996, continue, with a view to establishing-
(i) an effective administration in the national sphere of
government to deal with matters within the jurisdiction of
the national sphere; and
(ii) an effective administration for each province to deal with
matters within the jurisdiction of each provincial
government.’; and
(b) by replacing subparagraph (i) of subsection (2) (a) with the following
subparagraph:
‘(i) institutions referred to in section 236 (1), excluding military
forces, shall rest with the national government, which shall
exercise such responsibility in co-operation with the provincial
governments;’.
7. The amendment of section 239 of the previous Constitution by replacing subsection
(4) with the following subsection:
‘(4) Subject to and in accordance with any applicable law, the assets, rights, duties
and liabilities of all forces referred to in section 224 (2) shall devolve upon the
National Defence Force in accordance with the directions of the Minister of
Defence.’.
Schedule 6A
[Schedule 6A inserted by s. 6 of the Constitution Tenth Amendment Act of 2003 and
repealed by s. 6 of the Constitution Fourteenth Amendment Act of 2008.]
Schedule 6B
[Schedule 6B, previously Schedule 6A, inserted by s. 2 of the Constitution Eighth
Amendment Act of 2002, amended by s. 5 of the Constitution Tenth Amendment Act of
2003, renumbered by s. 6 of the Constitution Tenth Amendment Act of 2003 and
repealed by s. 5 of the Constitution Fifteenth Amendment Act of 2008.]
Schedule 7
LAWS REPEALED
Number and Year of Law
Title
Act 200 of 1993
Constitution of the Republic of South Africa, 1993
Act 2 of 1994
Constitution of the Republic of South Africa Amendment Act, 1994
Act 3 of 1994
Constitution of the Republic of South Africa Second Amendment
Act, 1994
Act 13 of 1994
Constitution of the Republic of South Africa Third Amendment Act,
1994
Act 14 of 1994
Constitution of the Republic of South Africa Fourth Amendment
Act, 1994
CONSTITUTIONAL LAW Page 121 of 136
CONSTITUTION FIRST AMENDMENT ACT OF 1997
(Short title, previously ‘Constitution of the Republic of South Africa Amendment Act 35 of
1997 ‘, substituted by s. 2 of Act 5 of 2005 .)
[ASSENTED TO 29 AUGUST 1997] [DATE OF COMMENCEMENT: 4 FEBRUARY 1997]
(English text signed by the President)
as amended by
Citation of Constitutional Laws Act 5 of 2005
ACT
To amend the Constitution of the Republic of South Africa, 1996, so
as to make further provision in relation to the oath sworn or
affirmation made by an Acting President; to extend the cut-off date
in respect of the granting of amnesty; and to provide matters
which are incidental therewith.
1 Amends section 90 of the Constitution of the Republic of South Africa, Act 108 of
1996 by adding subsection (4).
2 Amends Schedule 2 to the Constitution of the Republic of South Africa, Act 108 of
1996 by substituting in item (1) the words preceding the oath or solemn affirmation.
3 Amends Schedule 6 to the Constitution of the Republic of South Africa Act 108 of
1996 by adding item (22) (2), the existing subitem becoming subitem (1).
4 Short title and commencement
This Act is called the Constitution First Amendment Act of 1997, and
must be regarded as having taken effect on 4 February 1997.
[S. 4 substituted by s. 2 of Act 5 of 2005.]
CONSTITUTION SECOND AMENDMENT ACT OF 1998
(Short title, previously ‘Constitution of the Republic of South Africa Amendment Act 65 of
1998 ‘, substituted by s. 2 of Act 5 of 2005 .)
Act 24 of 1994
Constitution of the Republic of South Africa Sixth Amendment Act,
1994
Act 29 of 1994
Constitution of the Republic of South Africa Fifth Amendment Act,
1994
Act 20 of 1995
Constitution of the Republic of South Africa Amendment Act, 1995
Act 44 of 1995
Constitution of the Republic of South Africa Second Amendment
Act, 1995
Act 7 of 1996
Constitution of the Republic of South Africa Amendment Act, 1996
Act 26 of 1996
Constitution of the Republic of South Africa Third Amendment Act,
1996
CONSTITUTIONAL LAW Page 122 of 136
[ASSENTED TO: 28 SEPTEMBER 1998] [DATE OF COMMENCEMENT: 7 OCTOBER 1998]
(English text signed by the President)
as amended by
Citation of Constitutional Laws Act 5 of 2005
ACT
To amend the Constitution of the Republic of South Africa, 1996, so as to extend
the term of Municipal Councils to provide for the designation of alternates in
respect of certain members of the Judicial Service Commission; to amend the
name of the Human Rights Commission; to adjust the powers of the Public
Service Commission; and to extend and modify the application of transitional
arrangements in respect of local government; and to provide for matters
connected therewith.
1 Substitutes section 159 of the Constitution of the Republic of South Africa Act 108 of
1996 .
2 Amends section 178 of the Constitution of the Republic of South Africa, Act 108 of
1996 , as follows: paragraph (a) substitutes subsection (1) (k) ; and paragraph (b) adds
subsections (7) and (8).
3 Amends section 196 (4) of the Constitution of the Republic of South Africa, Act 108
of 1996 by adding paragraph (g) .
4 Amends the Constitution of the Republic of South Africa, Act 108 of 1996 by
substituting the expression ‘South African Human Rights Commission’ for the expression
‘Human Rights Commission’.
5 Amends item 26 of Schedule 6 to the Constitution of the Republic of South Africa,
Act 108 of 1996 , as follows: paragraph (a) substitutes subitem (1) (a) and (b) ; and
paragraph (b) substitutes in subitem (2) the expression ’30 April 2000′ for the expression
’30 April 1999′.
6 Short title
This Act is called the Constitution Second Amendment Act of 1998.
[S. 6 substituted by s. 2 of Act 5 of 2005.]
CONSTITUTION THIRD AMENDMENT ACT OF 1998
(Short title, previously ‘Constitution of the Republic of South Africa Second Amendment
Act 87 of 1998 ‘, substituted by s. 2 of Act 5 of 2005 .)
[ASSENTED TO 20 OCTOBER 1998] [DATE OF COMMENCEMENT: 30 OCTOBER 1998]
(English text signed by the President)
as amended by
Citation of Constitutional Laws Act 5 of 2005
ACT
To amend the Constitution of the Republic of South Africa, 1996, so as to
provide that, where a municipal boundary is determined across a provincial
boundary, national legislation must make provision for establishing a
municipality of a type agreed to by the provincial governments concerned and
for the exercising of executive authority over that municipality; and to provide
CONSTITUTIONAL LAW Page 123 of 136
for matters connected therewith.
1 Amends section 155 of the Constitution of the Republic of South Africa, Act 108 of
1996 by inserting subsection (6A).
2 Amends section 157 of the Constitution of the Republic of South Africa, Act 108 of
1996 by substituting subsection (4).
3 Short title
This Act is called the Constitution Third Amendment Act of 1998.
[S. 3 substituted by s. 2 of Act 5 of 2005.]
CONSTITUTION FOURTH AMENDMENT ACT OF 1999
(Short title, previously ‘Constitution of the Republic of South Africa Amendment Act 3 of
1999 ‘, substituted by s. 2 of Act 5 of 2005 .)
[ASSENTED TO 17 MARCH 1999] [DATE OF COMMENCEMENT: 19 MARCH 1999]
(English text signed by the President)
as amended by
Citation of Constitutional Laws Act 5 of 2005
ACT
To amend the Constitution of the Republic of South Africa, 1996, so as to enable
a proclamation calling and setting dates for an election of a provincial
legislature to be issued either before or after the expiry of the term of that
legislature; and to provide for the allocation of undistributed delegates in a
provincial delegation to the National Council of Provinces in a case where
competing surpluses are equal; and to provide for matters connected therewith.
1 Amends section 108 of the Constitution of the Republic of South Africa, Act 108 of
1996 by substituting subsection (2).
2 Amends Schedule 3, Part B of the Constitution of the Republic of South Africa, Act
108 of 1996 by adding item 3.
3 Short title
This Act is called the Constitution Fourth Amendment Act of 1999.
[S. 3 substituted by s. 2 of Act 5 of 2005.]
CONSTITUTION FIFTH AMENDMENT ACT OF 1999
(Short title, previously ‘Constitution of the Republic of South Africa Second Amendment
Act 2 of 1999 ‘, substituted by s. 2 of Act 5 of 2005 .)
[ASSENTED TO 17 MARCH 1999] [DATE OF COMMENCEMENT: 19 MARCH 1999]
(English text signed by the President)
as amended by
Citation of Constitutional Laws Act 5 of 2005
ACT
To amend the Constitution of the Republic of South Africa, 1996, so as to allow a
proclamation calling and setting dates for an election of the National Assembly
to be issued either before or after the expiry of the term of the National
Assembly; and to dispense with the requirement that the chairperson and
CONSTITUTIONAL LAW Page 124 of 136
deputy chairperson of the Financial and Fiscal Commission must be full-time
members of the Commission; and to provide for matters connected therewith.
1 Amends section 49 of the Constitution of the Republic of South Africa Act, 108 of
1996 by substituting subsection (2).
2 Amends section 221 (1) of the Constitution of the Republic of South Africa, Act 108
of 1996 by substituting paragraph (a) .
3 Short title
This Act is called the Constitution Fifth Amendment Act of 1999.
[S. 3 substituted by s. 2 of Act 5 of 2005.]
CONSTITUTION SIXTH AMENDMENT ACT OF 2001
(Short title, previously ‘Constitution of the Republic of South Africa Amendment Act 34 of
2001 ‘, substituted by s. 2 of Act 5 of 2005 .)
[ASSENTED TO 20 NOVEMBER 2001] [DATE OF COMMENCEMENT: 21 NOVEMBER 2001]
(English text signed by the President)
as amended by
Citation of Constitutional Laws Act 5 of 2005
ACT
To amend the Constitution of the Republic of South Africa, 1996, so as to change
the title of the President of the Constitutional Court to that of Chief Justice; to
provide for the offices of Deputy Chief Justice, President of the Supreme Court
of Appeal and Deputy President of the Supreme Court of Appeal; to provide for
the extension of the term of office of a Constitutional Court judge; to further
regulate the appointment of Deputy Ministers; to make provision for municipal
borrowing powers and to enable a Municipal Council to bind itself and a future
Council in the exercise of its legislative and executive authority to secure loans
or investments for the municipality; and to provide for matters connected
therewith.
1 Amends section 51 of the Constitution of the Republic of South Africa, Act 108 of
1996 by substituting subsection (1).
2 Amends section 52 of the Constitution of the Republic of South Africa, Act 108 of
1996 by substituting subsection (2).
3 Substitutes section 54 of the Constitution of the Republic of South Africa, Act 108 of
1996 .
4 Amends section 58 (1) of the Constitution of the Republic of South Africa, Act 108 of
1996 by substituting the words preceding paragraph (a) .
5 Amends section 64 of the Constitution of the Republic of South Africa, Act 108 of
1996 by substituting subsection (4).
6 Amends section 86 of the Constitution of the Republic of South Africa, Act 108 of
1996 by substituting subsections (2) and (3).
7 Substitutes section 93 of the Constitution of the Republic of South Africa, Act 108 of
1996 .
8 Amends section 110 of the Constitution of the Republic of South Africa, Act 108 of
CONSTITUTIONAL LAW Page 125 of 136
1996 by substituting subsection (1).
9 Amends section 111 of the Constitution of the Republic of South Africa, Act 108 of
1996 by substituting subsection (2).
10 Amends section 128 of the Constitution of the Republic of South Africa, Act 108 of
1996 by substituting subsections (2) and (3).
11 Amends section 167 of the Constitution of the Republic of South Africa, Act 108 of
1996 by substituting subsection (1).
12 Amends section 168 of the Constitution of the Republic of South Africa, Act 108 of
1996 by substituting subsections (1) and (2).
13 Amends section 174 of the Constitution of the Republic of South Africa, Act 108 of
1996 by substituting subsections (3) and (4).
14 Amends section 175 of the Constitution of the Republic of South Africa, Act 108 of
1996 by substituting subsection (1).
15 Amends section 176 of the Constitution of the Republic of South Africa, Act 108 of
1996 by substituting subsection (1).
16 Amends section 178 of the Constitution of the Republic of South Africa, Act 108 of
1996 , as follows: paragraph (a) substitutes subsection (1) (b) ; paragraph (b)
substitutes subsection (1) (k) ; and paragraph (c) substitutes subsection (7).
17 Inserts section 230A in the Constitution of the Republic of South Africa, Act 108 of
1996 .
18 Substitutes Schedule 2 to the Constitution of the Republic of South Africa, Act 108
of 1996 .
19 Amends Part A of Schedule 3 to the Constitution of the Republic of South Africa,
Act 108 of 1996 by substituting item 9.
20 Amends item 16 of Schedule 6 to the Constitution of the Republic of South Africa,
Act 108 of 1996 , as follows: paragraph (a) deletes subitems (2) (b) and (3) (b) ; and
paragraph (b) adds subitem (7).
21 Short title
This Act is called the Constitution Sixth Amendment Act of 2001.
[S. 21 substituted by s. 2 of Act 5 of 2005.]
CONSTITUTION SEVENTH AMENDMENT ACT OF 2001
(Short title, previously ‘Constitution of the Republic of South Africa Second Amendment
Act 61 of 2001 ‘, substituted by s. 2 of Act 5 of 2005 .)
[ASSENTED TO 7 DECEMBER 2001] [DATE OF COMMENCEMENT: 26 APRIL 2002]
(Unless otherwise indicated)
(English text signed by the President)
as amended by
Citation of Constitutional Laws Act 5 of 2005
ACT
CONSTITUTIONAL LAW Page 126 of 136
To amend the Constitution of the Republic of South Africa, 1996, so as-
– to provide for the introduction, only by the Cabinet member
responsible for national financial matters, of certain financial
legislation in the National Assembly;
– to extend the definition of a money Bill;
– to regulate the withholding of funds by the national treasury if organs
of state commit a serious and material breach of legislation
prescribing treasury norms and standards;
– to provide that the enactment of national framework legislation
governing the policies of organs of state on preferential procurement
should be obligatory;
– to provide for the enactment of national framework legislation in
connection with the withdrawal of money as direct charges against a
Provincial Revenue Fund and certain payments from a Provincial
Revenue Fund to municipalities;
– to reduce the number of members of the Financial and Fiscal
Commission and to change the appointment procedure;
– to make provision for provincial borrowing powers; and
– to provide for matters connected therewith.
1 Amends section 73 of the Constitution of the Republic of South Africa, Act 108 of
1996 , as follows: paragraph (a) substitutes subsection (2); and paragraph (b)
substitutes subsection (3).
2 and 3 Substitute respectively sections 77 and 120 of the Constitution of the Republic
of South Africa, Act 108 of 1996 .
4 Amends section 163 of the Constitution of the Republic of South Africa, Act 108 of
1996 by substituting paragraph (b) .
[Date of commencement of s. 4: 1 December 2003.]
5 Amends section 216 of the Constitution of the Republic of South Africa, Act 108 of
1996 , as follows: paragraph (a) substitutes subsection (2); and paragraph (b)
substitutes in subsection (3) the words preceding paragraph (a) .
6 Amends section 217 of the Constitution of the Republic of South Africa, Act 108 of
1996 by substituting subsection (3).
7 Amends section 221 of the Constitution of the Republic of South Africa, Act 108 of
1996 , as follows: paragraph (a) substitutes subsection (1); and paragraph (b) inserts
subsection (1A).
[Date of commencement of s. 7: 1 December 2003.]
8 Amends section 226 of the Constitution of the Republic of South Africa, Act 108 of
1996 by adding subsection (4).
9 Amends section 228 (1) of the Constitution of the Republic of South Africa, Act 108
of 1996 by substituting paragraph (b) .
10 Substitutes section 230 of the Constitution of the Republic of South Africa, Act 108
of 1996 .
CONSTITUTIONAL LAW Page 127 of 136
11 Short title and commencement
This Act is called the Constitution Seventh Amendment Act of 2001, and comes into
operation on a date to be fixed by the President by proclamation in the Gazette .
[S. 11 substituted by s. 2 of Act 5 of 2005.]
CONSTITUTION EIGHTH AMENDMENT ACT OF 2002
(Short title, previously ‘Constitution of the Republic of South Africa Amendment Act 18 of
2002 ‘, substituted by s. 2 of Act 5 of 2005 .)
[ASSENTED TO 19 JUNE 2002] [DATE OF COMMENCEMENT: 20 JUNE 2002]
(English text signed by the President)
as amended by
Citation of Constitutional Laws Act 5 of 2005
ACT
To amend the Constitution of the Republic of South Africa, 1996, so as to enable
a member of a Municipal Council to become a member of another party whilst
retaining membership of that Council; to enable an existing party to merge with
another party, or to subdivide into more than one party, or to subdivide and any
one of the subdivisions to merge with another party, whilst allowing a member
of a Council affected by such changes to retain membership of that Council; and
to provide for matters connected therewith.
Preamble
WHEREAS section 46 (1) (d) of the Constitution of the Republic of South Africa, 1996
(the Constitution), requires an electoral system for the National Assembly that results, in
general, in proportional representation;
AND WHEREAS section 47 (3) (a) of the Constitution provides that a person loses
membership of the National Assembly if that person ceases to be eligible on the grounds
listed in section 47 (1);
AND WHEREAS section 105 (1) (d) of the Constitution requires an electoral system for
provincial legislatures that results, in general, in proportional representation;
AND WHEREAS section 106 (3) (a) of the Constitution provides that a person loses
membership of a provincial legislature if that person ceases to be eligible on the grounds
listed in section 106 (1);
AND WHEREAS item 23A of Schedule 2 to the Constitution of the Republic of South
Africa, 1993, provides that an Act of Parliament may, within a reasonable period after the
new Constitution took effect, be passed in accordance with section 76 (1) of the new
Constitution to amend that item and item 23 in order to provide for-
* the manner in which it will be possible for a member of a legislature who
ceases to be a member of the party which nominated that member, to retain
membership of such legislature; and
* any existing party to merge with another party, or any party to subdivide into
more than one party, whilst allowing a member of a legislature affected by
such changes, to retain membership of such legislature;
AND WHEREAS section 157 of the Constitution requires an electoral system for local
government-
* comprising either proportional representation or proportional representation
CONSTITUTIONAL LAW Page 128 of 136
combined with a system of ward representation; and
* ensuring that the total number of members elected from each party reflects
the total proportion of the votes recorded for those parties;
AND WHEREAS section 158 provides for certain criteria for eligibility for membership of
a Municipal Council;
AND WHEREAS the Local Government: Municipal Structures Act, 1998, provides for an
electoral system for local government comprising proportional representation combined
with a system of ward representation;
AND WHEREAS no provision has been made in the Constitution in respect of local
government for-
* a councillor to retain membership of a Municipal Council where such a
councillor ceases to be a member of the party which nominated that
councillor; and
* any party to merge with another party, or any party to subdivide into more
than one party or any party to subdivide and any one of the subdivisions to
merge with another party, whilst allowing a member of a Council affected by
such changes, to retain membership of that Council;
AND WHEREAS section 27 of the Local Government: Municipal Structures Act, 1998,
provides that a councillor-
* who was elected from a party list and ceases to be a member of that party; or
* who was elected to represent a ward and who was-
(i) nominated by a party as a candidate in the ward election and ceases
to be a member of that party; or
(ii) not nominated by a party as a candidate in the ward election and
becomes a member of a party,
ceases to be a member of the Municipal Council in question;
AND WHEREAS the need exists for uniformity within the three spheres of government
regarding loss or retention of membership of any legislature or Municipal Council in the
event of a change of party membership, or mergers or subdivision or subdivision and
merger of parties,
BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as
follows:-
1 Amends section 157 of the Constitution of the Republic of South Africa, Act 108 of
1996 , as follows: paragraph (a) substitutes subsection (1); and paragraph (b)
substitutes subsection (3).
2 Inserts Schedule 6A in the Constitution of the Republic of South Africa, Act 108 of
1996 .
3 Short title
This Act is called the Constitution Eighth Amendment Act of 2002.
[S. 3 substituted by s. 2 of Act 5 of 2005.]
CONSTITUTION NINTH AMENDMENT ACT OF 2002
(Short title, previously ‘Constitution of the Republic of South Africa Second Amendment
CONSTITUTIONAL LAW Page 129 of 136
Act 21 of 2002 ‘, substituted by s. 2 of Act 5 of 2005 .)
[ASSENTED TO 19 JUNE 2002] [DATE OF COMMENCEMENT: 20 JUNE 2002]
(English text signed by the President)
as amended by
Citation of Constitutional Laws Act 5 of 2005
ACT
To amend the Constitution of the Republic of South Africa, 1996, in order to
regulate the allocation of delegates to the National Council of Provinces in the
event of changes of party membership, mergers between parties, subdivision of
parties or subdivision and merger of parties within a provincial legislature; and
to provide for matters connected therewith.
Preamble
WHEREAS the National Council of Provinces is composed of a single delegation from
each province consisting of six permanent and four special delegates;
AND WHEREAS parties represented in a provincial legislature are entitled to delegates
in the province’s delegation, and national legislation must determine how many of each
party’s delegates are to be permanent delegates and how many are to be special
delegates;
AND WHEREAS national legislation has been passed in accordance with item 23A of
Schedule 2 to the Constitution of the Republic of South Africa, 1993, providing for-
* the manner in which it will be possible for a member of a national or a
provincial legislature who ceases to be a member of the party which
nominated that member, to retain membership of such legislature; and
* any existing party to merge with another party, or any party to subdivide into
more than one party, or to subdivide and any one of the subdivisions to
merge with another party, whilst allowing a member of a legislature affected
by such changes, to retain membership of such legislature;
AND WHEREAS in terms of the national legislation in question, changes of party
membership, mergers between parties or subdivision of parties or subdivision and merger
of parties within a provincial legislature, may necessitate changes in respect of that
legislature’s delegation to the National Council of Provinces,
BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as
follows:-
1 Amends section 61 of the Constitution of the Republic of South Africa, Act 108 of
1996 by substituting subsection (2).
2 Amends section 62 of the Constitution of the Republic of South Africa, Act 108 of
1996 by substituting subsection (3).
3 Amends Part B of Schedule 3 to the Constitution of the Republic of South Africa, Act
108 of 1996 by substituting item 3.
4 Short title
This Act is called the Constitution Ninth Amendment Act of 2002.
[S. 4 substituted by s. 2 of Act 5 of 2005.]
CONSTITUTIONAL LAW Page 130 of 136
CONSTITUTION TENTH AMENDMENT ACT OF 2003
(Short title, previously ‘Constitution of the Republic of South Africa Amendment Act 2 of
2003 ‘, substituted by s. 2 of Act 5 of 2005 .)
[ASSENTED TO 19 MARCH 2003] [DATE OF COMMENCEMENT: 20 MARCH 2003]
(English text signed by the President)
as amended by
Citation of Constitutional Laws Act 5 of 2005
ACT
To amend the Constitution of the Republic of South Africa, 1996, so as to enable
a member of the National Assembly or a provincial legislature to become a
member of another party whilst retaining membership of the National Assembly
or that provincial legislature; to enable an existing party to merge with another
party, or to subdivide into more than one party, or to subdivide and to permit
any of the subdivisions to merge with another party, whilst allowing a member
of a legislature affected by such changes to retain membership of that
legislature; and to provide for matters connected therewith.
Preamble
WHEREAS section 46 (1) (d) of the Constitution of the Republic of South Africa, 1996
(the Constitution), requires an electoral system for the National Assembly that results, in
general, in proportional representation;
AND WHEREAS section 47 (3) (a) of the Constitution provides that a person loses
membership of the National Assembly if that person ceases to be eligible on the grounds
listed in section 47 (1);
AND WHEREAS section 105 (1) (d) of the Constitution requires an electoral system for
provincial legislatures that results, in general, in proportional representation;
AND WHEREAS section 106 (3) (a) of the Constitution provides that a person loses
membership of a provincial legislature if that person ceases to be eligible on the grounds
listed in section 106 (1);
AND WHEREAS the Constitution of the Republic of South Africa Amendment Act, 2002
( Act 18 of 2002 ), amended the Constitution in order to enable a member of a Municipal
Council to become a member of another party whilst retaining membership of that
Council; and to enable an existing party to merge with another party, or to subdivide into
more than one party, or to subdivide and any of the subdivisions to merge with another
party, whilst allowing a member of a Council affected by such changes to retain
membership of that Council;
AND WHEREAS the need exists for uniformity within the three spheres of government
regarding loss or retention of membership of the National Assembly, any provincial
legislature or any Municipal Council in the event of a change of party membership, or
mergers or subdivision or subdivision and merger of parties,
BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as
follows:-
1 Amends section 46 (1) of the Constitution of the Republic of South Africa, Act 108 of
1996 by substituting the words preceding paragraph (a) .
2 Amends section 47 of the Constitution of the Republic of South Africa, Act 108 of
CONSTITUTIONAL LAW Page 131 of 136
1996 by substituting subsection (3).
3 Amends section 105 (1) of the Constitution of the Republic of South Africa, Act 108
of 1996 by substituting the words preceding paragraph (a) .
4 Amends section 106 of the Constitution of the Republic of South Africa, Act 108 of
1996 by substituting subsection (3).
5 Amends Schedule 6A to the Constitution of the Republic of South Africa, Act 108 of
1996 by deleting item 9.
6 Inserts Schedule 6A into the Constitution of the Republic of South Africa, Act 108 of
1996 , the existing Schedule 6A becoming Schedule 6B.
7 Amends Schedule 2 to the Constitution of the Republic of South Africa, Act 200 of
1993, as follows: paragraph (a) substitutes item 23; and paragraph (b) substitutes item
23A.
8 Repeals the Loss or Retention of Membership of National and Provincial Legislatures
Act 22 of 2002.
9 The laws mentioned in column 2 of the Table are hereby amended to the extent
indicated in column 3 of the Table.
Table
10 Short title and commencement
This Act is called the Constitution Tenth Amendment Act of 2003, and comes into
operation on a date set by the President by proclamation.
[S. 10 substituted by s. 2 of Act 5 of 2005.]
CONSTITUTION ELEVENTH AMENDMENT ACT OF 2003
(Short title, previously ‘Constitution of the Republic of South Africa Second Amendment
Act 3 of 2003 ‘, substituted by s. 2 of Act 5 of 2005 .)
[ASSENTED TO 9 APRIL 2003] [DATE OF COMMENCEMENT: 11 JULY 2003]
(English text signed by the President)
as amended by
1
Act No.
2
Short title
3
Extent of amendment
117 of 1998
Local Government:
Municipal Structures Act, 1998
Amendment of sections 26, 29, 63,
66, 93A, 93B, item 10 of Schedule
1, item 4 of Schedule 2 and the
Table of Contents by the
substitution for the words
‘Schedule 6A to the Constitution’,
wherever they occur, of the words
‘Schedule 6B to the Constitution’.
20 of 2002
Local Government:
Municipal Structures Amendment
Act, 2002
Amendment of section 12 by the
substitution for the words
‘Schedule 6A to the Constitution’,
wherever they occur, of the words
‘Schedule 6B to the Constitution’.
CONSTITUTIONAL LAW Page 132 of 136
Citation of Constitutional Laws Act 5 of 2005
ACT
To amend the Constitution of the Republic of South Africa, 1996, so as to
provide for Bills regulating certain financial matters to be dealt with in terms of
section 76 (1) of the Constitution; to change the name of the Northern Province
to Limpopo; to further regulate provincial intervention in local government; and
to further regulate the process of review by the National Council of Provinces
where there has been national executive intervention in provincial government
and provincial executive intervention in local government; and to provide for
matters connected therewith.
1 Amends section 76 (4) of the Constitution of the Republic of South Africa, Act 108 of
1996 by substituting paragraph (b) .
2 Amends section 100 of the Constitution of the Republic of South Africa, Act 108 of
1996 , as follows: paragraph (a) substitutes the heading; paragraph (b) substitutes in
subsection (1) the words preceding paragraph (a) ; and paragraph (c) substitutes
subsection (2).
3 Amends section 103 (1) of the Constitution of the Republic of South Africa, Act 108
of 1996 by substituting paragraph (g) .
4 Substitutes section 139 of the Constitution of the Republic of South Africa, Act 108
of 1996 .
5 Short title and commencement
This Act is called the Constitution Eleventh Amendment Act of 2003, and takes effect
on a date determined by the President by proclamation in the Gazette .
[S. 5 substituted by s. 2 of Act 5 of 2005.]
CONSTITUTION TWELFTH AMENDMENT ACT OF 2005
[ASSENTED TO 22 DECEMBER 2005] [DATE OF COMMENCEMENT: 1 MARCH 2006]
(Unless otherwise indicated)
(English text signed by the President)
ACT
To amend the Constitution of the Republic of South Africa, 1996, so as to effect
a technical change; to re-determine the geographical areas of the nine provinces
of the Republic of South Africa; and to provide for matters connected therewith.
1 Substitutes section 103 of the Constitution of the Republic of South Africa, 1996.
[Date of commencement of s. 1 in so far as it inserts s. 103 (3): 23 December 2005.]
2 Amends section 155 of the Constitution of the Republic of South Africa, 1996, by
deleting subsection (6A).
3 Amends section 157 (4) of the Constitution of the Republic of South Africa, 1996, by
deleting paragraph (b) .
4 Inserts Schedule 1A to the Constitution of the Republic of South Africa, 1996.
5 Short title and commencement
*
CONSTITUTIONAL LAW Page 133 of 136
(1) This Act is called the Constitution Twelfth Amendment Act of 2005 , and takes
effect on a date determined by the President by proclamation in the Gazette .
(2) Despite subsection (1), section 103 (3) of the Constitution, as inserted by section
1, takes effect on the date of publication of this Act.
CONSTITUTION THIRTEENTH AMENDMENT ACT OF 2007
[ASSENTED TO 13 DECEMBER 2007] [DATE OF COMMENCEMENT: 14 DECEMBER 2007]
(English text signed by the President)
ACT
To amend the Constitution of the Republic of South Africa, 1996, so as to correct
invalid provisions inserted into the Constitution; and to provide for matters
connected therewith.
BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:-
1 Amends Schedule 1A to the Constitution of the Republic of South Africa, 1996, as
follows: paragraph (a) substitutes the determination of the geographical area of the
Province of the Eastern Cape; and paragraph (b) substitutes the determination of the
geographical area of the Province of Kwa-Zulu Natal.
2 Short title
This Act is called the Constitution Thirteenth Amendment Act of 2007.
CONSTITUTION FOURTEENTH AMENDMENT ACT OF 2008
[ASSENTED TO 6 JANUARY 2009] [DATE OF COMMENCEMENT: 17 APRIL 2009]
(English text signed by the President)
ACT
To amend the Constitution of the Republic of South Africa, 1996, so as to-
• further regulate the determination of political party participation in
provincial delegations to the National Council of Provinces; and
• abolish the right-
– of a member of the National Assembly or a provincial legislature to
become a member of another political party whilst retaining
membership of the National Assembly or that provincial legislature;
and
– of an existing political party to merge with another political party, or to
subdivide into more than one political party, or to subdivide and to
permit any of the subdivisions to merge with another political party,
whilst allowing a member of the National Assembly or a provincial
legislature affected by such changes to retain membership of the
National Assembly or that provincial legislature;
and to provide for matters connected therewith.
Parliament of the Republic of South Africa enacts as follows:-
1 Amends section 61 of the Constitution of the Republic of South Africa, 1996 by
substituting subsection (2).
2 Amends section 62 of the Constitution of the Republic of South Africa, 1996 by
substituting subsection (3).
CONSTITUTIONAL LAW Page 134 of 136
3 Amends section 105 (1) of the Constitution of the Republic of South Africa, 1996 by
substituting the words preceding paragraph (a) .
4 Amends section 106 of the Constitution of the Republic of South Africa, 1996 by
substituting subsection (3).
5 Amends Part B of Schedule 3 to the Constitution of the Republic of South Africa,
1996, as follows: paragraph (a) substitutes item 3; and paragraph (b) adds item 4.
6 Repeals Schedule 6A to the Constitution of the Republic of South Africa, 1996.
7 Short title and commencement
This Act is called the Constitution Fourteenth Amendment Act of 2008, and comes into
operation on a date set by the President by proclamation in the Gazette .
CONSTITUTION FIFTEENTH AMENDMENT ACT OF 2008
[ASSENTED TO 6 JANUARY 2009] [DATE OF COMMENCEMENT: 17 APRIL 2009]
(English text signed by the President)
ACT
To amend the Constitution of the Republic of South Africa, 1996, so as to-
• effect certain consequential amendments necessitated by the provisions of
the Constitution Fourteenth Amendment Act of 2008;
• provide for the filling of vacancies in a Municipal Council; and
• abolish the right-
– of a member of a Municipal Council to become a member of another
political party whilst retaining membership of that Council; and
– of an existing political party to merge with another political party, or to
subdivide into more than one political party, or to subdivide and to
permit any of the subdivisions to merge with another political party,
whilst allowing a member of a Council affected by such changes to
retain membership of that Council;
and to provide for matters connected therewith.
Parliament of the Republic of South Africa enacts as follows:-
1 Amends section 46 (1) of the Constitution of the Republic of South Africa, 1996 by
substituting the words preceding paragraph (a) .
2 Amends section 47 of the Constitution of the Republic of South Africa, 1996 by
substituting subsection (3).
3 Amends section 157 (1) of the Constitution of the Republic of South Africa, 1996 by
substituting the words preceding paragraph (a) .
4 Amends section 158 of the Constitution of the Republic of South Africa, 1996 by
adding subsection (3).
5 Repeals Schedule 6B to the Constitution of the Republic of South Africa, 1996.
7 Short title and commencement
This Act is called the Constitution Fifteenth Amendment Act of 2008, and comes into
CONSTITUTIONAL LAW Page 135 of 136
operation on a date set by the President by proclamation in the Gazette .
CONSTITUTION SIXTEENTH AMENDMENT ACT OF 2009
[ASSENTED TO 25 MARCH 2009] [DATE OF COMMENCEMENT: 3 APRIL 2009]
(English text signed by the President)
ACT
To amend the Constitution of the Republic of South Africa, 1996, in order to redetermine
the geographical areas of the provinces of Gauteng and North-West;
and to provide for matters connected therewith.
Parliament of the Republic of South Africa enacts as follows:-
1 Amends Schedule 1A to the Constitution of the Republic of South Africa, 1996, as
follows: paragraph (a) substitutes under the heading ‘The Province of Gauteng’ the
reference to ‘Map No. 4 of Schedule 1 to Notice 1998 of 2005’ with a reference to ‘Map
No. 4 in Notice 1490 of 2008’; and paragraph (b) substitutes under the heading ‘The
Province of North West’ the reference to ‘Map No. 5 of Schedule 1 to Notice 1998 of 2005’
with a reference to ‘Map No. 5 in Notice 1490 of 2008’.
2 Short title and commencement
This Act is called the Constitution Sixteenth Amendment Act of 2009, and comes into
operation on a date determined by the President by proclamation in the Gazette .
© 2005 Juta and Company, Ltd.
CONSTITUTIONAL LAW Page 136 of 136

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