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Constitution of the Republic of South Africa

Constitution of the Republic of South Africa DOKUMENTATION * I CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA ACT To introduce a new Constitution for the Republic of South Africa and to provide for malters incidental thereto TABLE OF CONTENTS Sections CHAPTER I Constituent and Formal Provisions 1- 4 CHAPTER 2 Citizenship and Franchise 5-6 CHAPTER 3 Fundamental Rights 7 - 35 CHAPTER 4 Parliament 36 - 67 CHAPTER 5 The Adoption of the new Constitution 68 -7 4 CHAPTER 6 The National Executive 75 - 95 CHAPTER 7 The Judicial Authority and the Administration of Justice 96 - 109 CHAPTER 8 The Public Protector, Human Rights Commission, Commission on Gender Equality and Restitution of Land Rights 1l 0 - 123 CHAPTER 9 Provincial Govemment 124 - 173 CHAPTER 10 Local Govemment 174 - 180 CHAPTER II Traditional Authorities 181 - 184 CHAPTER II A Volkstaat Council 184A - 184B CHAPTER 12 Finance 185 - 208 CHAPTER 13 Public Service Commission and Public Service 209 - 213 CHAPTER 14 Police and Defence 214 - 228 CHAPTER 15 General and Transitional Provisions 229 - 25 1 SCHEDULE I _ 7 2 PREAMBLE In humble submission to Almighty God, We, the people of South Africa declare that- WHEREAS there is a need to create a new order in which all South Afri cans will be entitled to a common South African citizenship in a sovereign and democratic constitutional state in which there is equality between men and women and people of all races so that all citizens shall be able to enjoy and exercise their fundamental rights and freedoms; AND WHEREAS in order to secure the achievement of this goal, elected representatives of all the people of South Africa should be mandated to adopt a new Constitution in accordance with a solemn pact recorded as Constitutional Principles; Governrnent Gazette of the Republic of South Africa, Vol. 343, No. 15466, January 28, 1994, Act No. 200 of 1993 Die sich durch die ersten zwei Arnendments (Constitution of the Republic of South Africa Arnendment Act, Act No. 2 of 1994 vom 3. March 1994, Goverment Gazette, Vol 345, No. 15550 und Constitution of the Republic of South Africa Second Amendment Act, Act No. 3 of 1994, vom 26 April 1994, Goverment Gazette, Vol 346, No. 1568 1) ergebenden Änderungen wurden von den Verfassern in den Text eingearbeitet und sind wie folgt kenntlich: einfach unterstrichener Text zeigt Einfügungen durch das 1. Arnendment an; [-----------] durchgestrichener Text in eckigen Klammern kennzeichnet Streichung en im bestehenden Verfassungstext durch das 1. Arnendment; ======== doppellt unterstrichener Text zeigt Einfügungen durch das 2. Amendment an. Vom Abdruck der Schedules I (DefInitions of Provinces und Affected Areas) und 3 (Oaths of Office and Solemn Affirmations) wurde abgesehen. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb AND WHEREAS it is necessary for such purposes that provision should be made for the promotion of national unity and the restructuring and continued govemance of South Africa while an elected Constitutional Assembly draws up a final Constitution; NOW THEREFORE the following provisions are adopted as the Constitution of the Republic of South Africa: CHAPTER 1 Constituent and Formal Provisions 1. Republic of South Africa (I) The Republic of South Africa shall be one, sovereign state. (2) The national territory of the Republic shall comprise the areas defined in Part 1 of Schedule 1. 2. National symbols (1) The national flag of the Republic shall be the flag the design of which is detennined by the President by proc\amation in the Gazette. (2) The national anthem of the Republic shall be as detennined by the President by proc\amation in the Gazette. (3) The coat of arms of the Republic and the seal of the Republic under the previous Constitution shall be the national coat of arms of the Republic and the seal of the Republic under this Constitution. 3. Languages (I) Afrikaans, English, isiNdebele, Sesotho sa Leboa, Sesotho, siSwati, Xitsonga, Setswana, Tshivenda, isiXhosa and isiZulu shall be the official South African languages at national level, and conditions shall be created for their development and for the promotion of their equal use and enjoyment. (2) Rights relating to language and the status of languages existing at the commencement of this Constitution shall not be dirninished, and provision shall be made by an Act of Parliament for rights relating to language and the status of languages existing only at regional level, to be extended nationally in accordance with the principles set out in subsection (9). (3) Wherever practicable, a person shall have the right to use and to be addressed in his or her deaIings with any public administration at the national level of govemment in any official South African language of his or her choice. (4) Regional differentiation in relation to language policy and practice shall be pennissible. (5) A provincial legislature may, by a resolution adopted by a majority of at least two-thirds of all its members, dec\are any language referred to in subsection (1) to be an official language for the whole or any part of the province and for any or all powers and functions within the competence of that legislature, save that neither the rights relating to language nor the status of an official language as existing in any area or in relation to any function at the time of the commencement of this Constitution, shall be diminished. (6) Wherever practicable, a person shall have the right to use and to be addressed in his or her deaIings with any public administration at the provincial level of govemrnent in any one of the official languages of his or her choice as contemplated in subsection (5). (7) A member of Parliament may address Parliament in the official South African language of his or her choice. (8) Parliament and any provincial legislature may, subject to this section, make provision by legislation for the use of official languages for the purposes of the functioning of govemrnent, taking into account questions of usage, practicality and expense. (9) Legislation, as weil as official policy and practice, in relation to the use of languages at any level of govemment shall be subject to and based on the provisions of this section and the following principles: (a) The creation of conditions for the development and for the promotion of the equal use and enjoyment of all official South African languages; (b) the extension of those rights relating to language and the status of languages which at the commencement of this Constitution are restricted to certain regions; (c) the prevention of the use of any language for the purposes of exploitation, domination or division; (d) the promotion of multilingualism and the provision of translation facilities; (e) the fostering of respect for languages spoken in the Republic other than the official languages, and the encouragement of their use in appropriate circumstances; and https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (f) the non-diminution of rights relating to language and the status of languages existing at the commencement of this Constitution. (lO ) (a) Provision shall be made by an Act of Parliament for the establishment by the Senate of an independent Pan South African Language Board to promote respect for the principles referred to in subsection (9) and to further the development of the official South African languages. (b) The Pan South African Language Board shall be consulted, and be given the opportunity to make recommendations, in relation to any proposed legislation contemplated in this section. (c) The Pan South African Language Board shall be responsible for promoting respect for and the development of German, Greek, Gujerati, Hindi, Portuguese, Tamil, Telegu, Urdu and other languages used by communities in South Africa, as weil as Arabic, Hebrew and Sanskrit and other languages used for religious purposes. 4. Supremacy of the Constitution (l) This Constitution shall be the supreme law of the Republic and any law or act inconsistent with its provisions shall, unless otherwise provided expressly or by necessary implication in this Constitution, be of no force and effect to the extent of the inconsistency. (2) This Constitution shall bind all legislative, executive and judicial organs of state at all levels of govemment. CHAPTER 2 Citizenship and Franchise 5. Citizenship (l) There shall be a South African citizenship. (2) South African citizenship and the acquisition, loss and restoration of South African citizenship shall, subject to section 20 read with section 33 (l), be regulated by an Act of Parliament. (3) Every person who is a South African citizen shall, subject to this Constitution, be entitled to enjoy all rights, privileges and benefits of South African citizenship, and shall be subject to all duties, obligations and responsibilities of South African citizenship as are accorded or imposed upon him or her in terms of this Constitution or an Act of Parliament. 6. The franchise Every person who is (a) (i) a South African citizen; or (ii) not such a citizen but who in terms of an Act of Parliament has been accorded the right to exercise the franchise; (b) of or over the age of 18 years; and (c) not subject to any disqualifications as may be prescribed by law, shall be entitled to vote in elections of the National Assembly, a provincial legislature or a local govemment and in referenda or plebiscites contemplated in this Constitution, in accordance with and subject to the laws regulating such elections, referenda and plebiscites. CHAPTER 3 Fundamental Rights 7. Application (I) This Chapter shall bind all legislative and executive organs of state at all levels of govemment. (2) This Chapter shall apply to ali law in force and all administrative decisions taken and acts performed during the period of operation of this Constitution. (3) Juristic persons shall be entitled to the rights contained in this Chapter where, and to the extent that, the nature of the rights perrnits. (4) (a) When an infringement of or threat to any right entrenched in this Chapter is alleged, any person referred to in paragraph (b) shall be entitled to apply to a competent court of law for appropriate relief, which may include a declaration of rights. (b) The relief referred to in paragraph (a) may be sought by­ (i) a person acting in his or her own interest; (ii) an association acting in the interest of its members; https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (iii) a person acting on behalf of another person who is not in a position to seek such relief in his or her ownname; (iv) a person acting as a member of or in the interest of a group or class of persons; or (v) a person acting in the public interest. 8. Equality (I) Every person shall have the right to equality before the law and to equal protection of the law. (2) No person shall be unfairly discriminated against, directly or indirectly, and, without derogating !Tom the generality of this provision, on one or more of the following grounds in particular: race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability , religion, conscience, belief, culture or language. (3) (a) This section shall not preclude measures designed to achieve the adequate protection and advancement of persons or groups or categories of persons disadvantaged by unfair discrimina tion, in order to enable their fuH and equal enjoyment of a11 rights and freedoms. (b) Every person or community dispossessed of rights in land before the commencement of this Constitution under any law which would have been inconsistent with subsection (2) had that subsection been in operation at the time of the dispossession, shall be entitled to claim restitution of such rights subject to and in accordance with sections 121, 122 and 123. (4) Prima facie proof of discrimination on any of the grounds specified in subsection (2) shall be presumed to be sufficient proof of unfair discrimination as contemplated in that subsection, until the contrary is established. 9. Li fe Every person shall have the right to life. 10. Human dignity Every person shall have the right to respect for and protection of his or her dignity. 11. Freedom and security of the person (I) Every person shall have the right to fre edom and security of the person, which shall include the right not to be detained without trial. (2) No person shall be subject to torture of any kind, whether physical, mental or emotional, nor shall any person be subject to cruel, inhuman or degrading treatment or punishment. 12. Servitude andf orced labour No person shall be subject to servitude or forced labour. 13. Privacy Every person shall have the right to his or her personal privacy, which shall include the right not to be subject to searches of his or her person, horne or property, the seizure of private possessions or the violation of private communications. 14. Religion, belie f and opinion (I) Every person shall have the right to freedom of conscience, religion, thought, belief and opinion, which shall include academic !Teedom in institutions of higher leaming. (2) Without derogating from the generality of subsection (I), religious observances may be conducted at state or state-aided institutions under mIes established by an appropriate authority for that purpose, provided that such religious observances are conducted on an equitable basis and attendance at them is !Tee and voluntary. (3) Nothing in this Chapter shall preclude legislation recognising- (a) a system of personal and family law adhered to by persons professing a particular religion; and (b) the validity of marriages concluded under a system of religious law subject to specified procedures. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb 15. Freedom of expression (I) Every person shall have the right to free dom of sch pee and expression, which shall inc1ude freedom of the press and other media, and the freedom of artistic creativity and scientific research. (2) All media financed by or under the control of the state shall be regulated in a manner which ensures impartiality and the expression of a diversity of opinion. 16. Assembly, demonstration and petition Every person shall have the right to assemble and demonstrate with others peacefully and unarmed, and to present petitions. 17. Freedom of association Every person shall have the right to fre edom of association. 18. Freedom ofmovement Every person shall have the right to fre edom of movement anywhere within the national territory. 19. Residence Every person shall have the right freely to choose his or her place of residence anywhere in the national terri tory. 20. Citizens ' rights Every citizen shall have the right to enter, remain in and leave the Republic, and no citizen shall without justification be deprived of his or her citizenship. 21. Political rights (I) Every citizen shall have the right- (a) to form, to participate in the activities of and to recruit members for a political party; (b) to campaign for a political party or cause; and (c) freely to make political choices. (2) Every citizen shall have the right to vote, to do so in secret and to stand for election to public office. 22. Access to court Every person shall have the right to have justiciable disputes settled by a coun of law or, where appropriate, another independent and impartial forum. 23. Access to information Every person shall have the right of access to all information held by the state or any of its organs at any level of govemment in so far as such information is required for the exercise or protection of any of his or her rights. 24. Administrative justice Every person shall have the right to- (a) lawful administrative action where any of his or her rights or interests is affected or threatened; (b) procedurally fair administrative action where any of his or her rights or legitimate expectations is affected or threatened; (c) be furnished with reasons in writing for administra tive action which affects any of his or her rights or interests unless the reasons for such action have been made public; and (d) administrative action which is justifiable in relation to the reasons given for it where any of his or her rights is affected or threatened 25. Detained, arrested and accused persons (I) Every person who is detained, inc1uding every sentenced prisoner, shall have the right- (a) to be informed promptly in a language which he or she understands of the reason for his or her detention; https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (b) to be detained under conditions consonant with human dignity, which shall include at least the provision of adequate nutrition, reading mate rial and medical treatment at state expense; (c) to consult with a legal practitioner of his or her choice, to be informed of this right promptly and, where substantial injustice would otherwise result, to be provided with the services of a legal practitioner by the state; (d) to be given the opportunity to communicate with, and to be visited by, his or her spouse or partner, next-of-kin, religious counsellor and a medical practitioner of his or her choice; and (e) to challenge the lawfulness of his or her detention in person before a court of law and to be released if such detention is unlawful. (2) Every person arrested for the alleged cOlnmission of an offence shall, in addition to the rights which he or she has as a detained person, have the right- (a) promptly to be informed, in a language which he or she understands, that he or she has the right to remain silent and to be warned of the consequences of making any statement; (b) as soon as it is reasonably possible, but not later than 48 hours after the arrest or, if the said period of 48 hours expires outside ordinary court hours or on a day which is not a court day, the fIrst court day after such expiry, to be brought before an ordinary court of law and to be charged or to be informed of the reason for his or her further detention, failing which he or she shall be entitled to be released; (c) not to be compelled to make a confession or admission which could be used in evidence against him or her; and (d) to be released from detention with or without bail, unless the interests of justice require otherwise. (3) Every accused person shall have the right to a fair triaI, which shall include the right- (a) to a public trial before an ordinary court of law within a reasonable time after having been charged; (b) to be informed with suffIcient particularity of the charge; (c) to be presumed innocent and to remain silent during plea proceedings or trial and not to testify during triaI; (d) to adduce and challenge evidence, and not to be a compellable witness against himself or herself; (e) to be represented by a legal practitioner of his or her choice or, where substantial injustice would otherwise result, to be provided with legal representation at state expense, and to be informed of these rights; (f) not to be convicted of an offence in respect of any act or omission which was not an offence at the time it was comrnitted, and not to be sentenced to a more severe punishment than that which was applicable when the offence was comrnitted; (g) not to be tried again for any offence of which he or she has previously been convicted or acquitted; (h) to have recourse by way of appeal or review to a higher court than the court of fIrst instance; (i) to be tried in a language which he or she understands or, failing this, to have the proceedings interpreted to him or her; and (j) to be sentenced within a reasonable time after conviction. 26. Economic activity (I) Every person shall have the right free ly to engage in economic activity and to pursue a livelihood anywhere in the national territory. (2) Subsection (I) shall not preclude measures designed to promote the protection or the improvement of the quality of life, economic growth, human development, social justice, basic conditions of employment, fair labour practices or equal opportunity for all, provided such measures are justifIable in an open and democratic society based on free dom and equality. 27. Labour relations (I) Every person shall have the right to fair labour practices. (2) Workers shall have the right to form and join trade unions, and employers shall have the right to form and join employers' organisations. (3) Workers and employers shall have the right to organise and bargain collectively. (4) Workers shall have the right to strike for the purpose of collective bargaining. (5) Employers' recourse to the lock-out for the purpose of collective bargaining shall not be impaired, subject to section 33 (I). https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb 28. Property (I) Every person shall have the right to acquire and hold rights in property and, to the extent that the nature of the rights permits, to dispose of such rights. (2) No deprivation of any rights in property shall be permitted otherwise than in accordance with a law. (3) Where any rights in property are expropriated pursuant to a law referred to in subsection (2), such expropriation shall be permissible for public purposes only and shall be subject to the payment of agreed compensation or, failing agreement, to the payment of such compensation and within such period as may be determined by a court of law as just and equitable, taking into account all relevant factors, incJuding, in the case of the determination of compensation, the use to which the property is being put, the history of its acquisition, its market value, the value of the investments in it by those affected and the interests of those aff ected. 29. Environment Every person shall have the right to an environment which is not detrimental to his or her health or well­ being. 30. Children (I) Every child shall have the right- (a) to a name and nationality as from birth; (b) to parental care; (c) to security, basic nutrition and basic health and social services; (d) not to be subject to neglect or abuse; and (e) not to be subject to exploitative labour practices nor to be required or permitted to perform work which is hazardous or harmful to his or her education, health or well- being. (2) Every child who is in detention shall, in addition to the rights which he or she has in terms of section 25 , have the right to be detained under conditions and to be treated in a manner that takes account of his or her age. (3) For the purpose of this section a child shall mean a person under the age of 18 years and in all matters concerning such child his or her best interest shall be paramount. 31. Language and culture Every person shall have the right to use the language and to participate in the cultural life of his or her choice. 32. Education Every person shall have the right- (a) to basic education and to equal access to educational institutions; (b) to instruction in the language of his or her choice where this is reasonably practicable; and (c) to establish, where practicable, educational institutions based on a comrnon culture, language or religion, provided that there shall be no discrimination on the ground of race. 33. Limitation (I) The rights entrenched in this Chapter may be limited by law of general application, provided that such limitation- (a) shall be permissible only to the extent that it is­ (i) reasonable; and (ii) justifiable in an open and democratic society based on freedom and equality; and (b) shall not negate the essential content of the right in question, and provided further that any limitation to- (aa) a right entrenched in section 10, 11 , 12, 14 (I), 21, 25 or 30 (I) (d) or (e) or (2) ; or (bb) a right entrenched in section 15, 16, 17, 18 , 23 or 24, in so far as such right relates to free and fair political activity, shall, in addition to being reasonable as required in paragraph (a) (i) , also be necessary. (2) Save as provided for in subsection (I) or any other provision of this Constitution, no law, whether a rule of the comrnon law, customary law or legislation, shail limit any right entrenched in this Chapter. 55 1 https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (3) The entrenchment of the rights in tenns of this Chapter shall not be construed as denying the existence of any other rights or freedoms recognised or conferred by common law, customary law or legislation to the extent that they are not inconsistent with this Chapter. (4) This Chapter shall not preclude measures designed to prohibit unfair discrimination by bodies and persons other than those bound in tenns of section 7 (I). (5) (a) The provisions of a law in force at the commencement of this Constitution promoting fair employment practices, orderly and equitable collective bargaining and the regulation of industrial action shall remain of full force and effect until repealed or amended by the legislature. (b) If a proposed enactment amending or repeaIing a law referred to in paragraph (a) deals with a matter in respect of which the National Manpower Commission, referred to in section 2A of the Labour Relations Act, 1956 (Act 28 of 19 56), or any other similar body which may replace the Commission, is competent in tenns of a law then in force to consider and make recommendations, such proposed enactment shall not be introduced in Parliament unless the said Commission or such other body has been given an opportunity to consider the proposed enactment and to make recommendations with regard thereto. 34. State oj emergency and suspension (I) A state of emergency shall be proclaimed prospectively under an Act of Parliament, and shall be declared only where the security of the Republic is threatened by war, invasion, general insurrection or disorder or at a time of national disaster, and if the declaration of a state of emergency is necessary to restore peace or order. (2) The declaration of a state of emergency and any action taken, including any regulation enacted, in consequence thereof, shall be of force for ape riod of not more than 21 days, unless it is extended for a period of not longer than three months, or consecutive periods of not longer than three months at a time, by resolution of the National Assembly adopted by a majority of at least two-thirds of all its members. (3) Any superior court shall be competent to enquire into the validity of a declaration of a state of emer gency, any extension thereof, and any action taken, including any regulation enacted, under such declaration. (4) The rights entrenched in this Chapter may be suspended only in consequence of the declaration of a state of emergency, and only to the extent necessary to restore peace or order. (5) Neither any law which provides for the declaration of a state of emerge ncy, nor any action taken, including any regulation enacted, in consequence thereof, shall pennit or authorise- (a) the creation of retr ospective crimes; (b) the indemnification of the state or of persons acting under its authority for unlawful actions during the state of emergen cy; or (c) the suspension of this section, and sections 7, 8 (2), 9, 10 , ll (2), 12 , 14, 27 (I) and (2), 30 (I) (d) and (e) and (2) and 33 (I) and (2). (6) Where a person is detained under a state of emergency the detention shall be subject to the following conditions: (a) An adult family member or friend of the detainee shall be notified of the detention as soon as is reasonably possible; (b) the names of all detainees and a refere nce to the measures in tenns of which they are being detained shall be published in the Gazette within five days of their detention; (c) when rights entrenched in section ll or 25 have been suspended (i) the detention of a detainee shall, as soon as it is reasonably possible but not later than 10 days after his or her detention, be reviewed by a court of law, and the court shall order the release of the detainee if it is satisfied that the detention is not necessary to restore peace or order; (ii) a detainee shall at any stage after the expiry of a period of IO days after a review in tenns of subparagraph (i) be entitIed to apply to a court of law for a further review of his or her detention, and the court shall order the release of the detainee if it is satisfied that the detention is no longer necessary to restore peace or order; (d) the detainee shall be entitIed to appear before the court in person, to be represented by legal counsel, and to make representations against his or her continued detention; (e) the detainee shall be entitIed at all reasonable times to have access to a legal repr esentative of his or her choice; https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (f) the detainee shall be entitled at all times to have access to a medical practitioner of his or her choice; and (g) the state shall for the purpose of a review referred to in paragraph (c) (i) or (ii) submit written reasons to justify the detention or further detention of the detainee to the court, and shall fumish the detainee with such reasons not later than two days before the review. (7) If a court of law, having found the grounds for a detainee's detention unjustified, orders his or her release, such a person shall not be detained again on the same grounds unless the state shows good cause to a court of law prior to such re-detention. 35. Interpretation (I) In interpreting the provisions of this Chapter a court of law shall promote the values which underlie an open and democratic society based on free dom and equality and shall, where applicable, have regard to public international law applicable to the protection of the rights entrenched in this Chapter, and may have regard to comparable foreign case law. (2) No law which limits any of the rights entrenched in this Chapter, shall be constitutionally invalid solely by reason of the fact that the wording used prima facie exceeds the limits imposed in this Chapter, provided such a law is reasonably capable of a more restricted interpretation which does not exceed such limits, in which event such law shall be construed as having a meaning in accordance with the said more restricted interpretation. (3) In the interpretation of any law and the application and development of the common law and customary law, a court shall have due regard to the spirit, purport and objects of this Chapter. CHAPTER 4 Parliament 36. Constitution of Parliament Parliament shall consist of the National Assembly and the Senate. 37. Legislative authority of Republic The legislative authority of the Republic shall, subject to this Constitution, vest in Parliament, which shall have the power to make laws for the Republic in accordance with this Constitution. 38. Duration of Parliament (1) Parliament as constituted in terms of the first election under this Constitution shall, subject to subsection (2), continue for five years as from the date of the first sitting of the National Assembly under this Constitution. (2) If during the period referred to in subsection (I) Parliament is dissolved under section 73 (9) or 93 (1) or (3) (c), the Houses of Parliament as constituted then, shall continue for the period up to the day immediately preceding the commencement of polling for the election of the National Assembly held in pursuance of such dissolution. (3) Notwithstanding any dissolution of Parliament- (a) every person who at the date of the dissolution is a member of the National Assembly or the Senate shall remain a member thereof; (b) the National Assembly and the Senate shall remain competent to perform their functions; and (e) the President shall be competent to summon Parliament by proclamation in the Gazette to an e xtraordinary sitting for the despatch of urgent business, during the period for which the Houses of Parliament continue in terms of subsection (2) after the dissolution. (4) If Parliament is dissolved and a new Parliament is constituted as contemplated in section 39, this section shall apply mutatis mutandis in respect of such new Parliament save that the new Parliament shall continue for the unexpired part ofthe period referred to in subsection (I) . 39. Elections (I) Upon a dissolution of Parliament in terms of section 73 (9) or 93 (I) or (3) (c), the President shall by proclamation in the Gazette- (a) call an election of the National Assembly, which election shall take place within 90 days after the dissolution of Parliament on a date or dates specified in the proclamation; and https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (b) request parties represented in the provincial legisla tures to nominate persons as senators for the respective provinces in accordance with section 48 (I) (b). (2) An election referred to in subsection (I) (a) shall be held in accordance with the E1ectoral Act, 1993. THE NATIONAL ASSEMBLY 40. Composition 01 National Assembly (I) The National Assembly shall consist of 400 members elected in accordance with the system of proportional representation ofvoters as provided for in Schedule 2 and the Electoral Act, 1993. (2) A person nominated as a candidate for election to the National Assembly on a regional list contemplated in Schedule 2, shall, subject to subsection (3), at the time of the nomination be ordinarily resident in the province in respect of which that regional list applies. (3) Notwithstanding subsection (2), a regional list may contain the names of candidates who are not ordinarily resident in the province in respect of which that list applies , provided that no such list shall contain the names of more than one such candidate or more than 10 per cent of the total number of candidates the party concemed is entitled to nominate on that list, whichever is the greater number. (4) For the purposes of this section, a person shall be deemed to be ordinarily resident at the place where he or she normally Iives and to which he or she returns regularly after any period of temporary absence, incIuding the place where he or she was previously so ordinarily resident and to which he or she returns regularly after any period of absence. (5) If a regional list contemplated in subsection (2) contains more names of candidates not ordinarily resident in the province in respect of which that list applies than are pennissible under that subsection, the surplus of such names so contained shall be deleted mutatis mutandis in accordance with section 22 (8) of the Electoral Act, 1993. 41. Speaker and Deputy Speaker 01 National Assembly (1) At its fir st sirting after it has been convened under section 46 (2), and after the election of the President, the National Assembly, with the Chief lustice or a judge of the Supreme Court designated by hirn or her acting as the chairperson, shall elect one of its members to be the Speaker, and shall thereafter elect another of its members to be the Deputy Speaker. (2) The provisions of Schedule 5 shall apply mutatis mutandis to the election of the Speaker and the Deputy Speaker. (3) The Speaker shall be vested with a11 powers and functions assigned to him or her by this Constitution, an Act of Parliament and the rules and orders. (4) If the Speaker is absent or for any reason unable to exercise or perform the powers or functions vested in the office of Speaker, or when the office of Speaker is vacant, the Deputy Speaker shall act as Speaker during the Speaker's absence or inability or until a Speaker is elected. (5) If any of the circumstances described in subsection (4) applies with refere nce to both the Speaker and the Deputy Speaker, a member of the National Assembly designated in terms of the rules and orders shall act as Speaker while the said circumstances prevail. (6) The Deputy Speaker or the member designated under subsection (5), while acting as Speaker, may exercise the powers and shall perform the functions vested in the office of Speaker. (7) The Spe aker, the Deputy Speaker or any other member of the National Assembly designated for that purpose in terms ofthe rules and orders, shall preside over siUings ofthe National Assembly. (8) While presiding at a sitting of the National Assembly, the Speaker, Deputy Speaker or other member presiding shall not have a deliberative vote, but shall have and exercise a casting vote in the case of an equality of votes. (9) The Speaker or Deputy Speaker shall vacate his or her office if he or she ceases to be a member of the National Assembly, and may be removed from office by resolution of the National Assembly, and may resign by lodging his or her resignation in writing with the Secretary to Parliament. (10) If the office of Speaker or Deputy Speaker becomes vacant, the National Assembly, under the chairpersonship of the Chief lustice or a judge as provided in subsection (I) , shall elect a member to fitl the vacancy: Provided that the Speaker shall in such event preside at the election of the Deputy Speaker. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb 42. Qualification for membership of National Assembly (1) No person shall become or remain a member of the National Assembly unless he or she is a South Afrlcan citizen and is and remains qualified in terms of section 6 to vote in an election of the National Assembly, or if he or she- (a) at the time of the first election of the National Assembly held under this Constitution is serving a sentence of imprisonrnent of more than 12 months without the option of a fine; (b) at any time after the promulgation of this Constitution is convicted of an offence in the Republic, or outside the Republic if the conduct constituting such offence would have constituted an off ence in the Republic, and for which he or she has been sentenced to imprisonment of more than 12 months without the option of a fine, unless he or she has received a pardon; (c) is an unrehabilitated insolvent; (d) is of unsound mind and has been so declared by a competent court; or (e) holds any office of profit under the Republic: Provided that the following persons shall be deemed not to hold an office of profit under the Republic for the purpose of this paragraph, namely- (i) an Executive Deputy President, a Minister or a Deputy Minister; (ii) a person in receipt of a pension paid from public funds or from a pension fund aided by public funds; (iii) a justice of the peace or appraiser; or (iv) a member of any council, board, committee, commission or similar body established by or under law or a committee of the National Assembly who receives remuneration not in excess of an amount equal to his or her salary as a member of the National Assembly. (2) For the purposes of subsection (1) (b) no person shall be dee med as having been convicted of an offence until any appeal against the conviction or sentence has been determined, or, if no appeal against the conviction or sentence has been noted, the time for noting such an appeal has expired. 43. Vacation ofseats A member ofthe National Assembly shall vacate his or her seat if he or she- (a) ceases to be eligible to be a member ofthe National Assembly in terms of section 42; (b) ceases to be a member of the party which nominated hirn or her as a member of the National Assembly; (c) resigns his or her seat by submitting his or her resignation in writing to the Secretary to Parliament; (d) without having obtained leave in accordance with the rules and orders, absents himself or herself voluntarily from sittings of the National Assembly or any other parliamentary forum of which he or she is a member, for 15 consecutive days on which the National Assembly or any such forum sat; or (e) becomes a member of the Senate, a provincial legislature or a local govemment. 44. Filling of vacancies (1) If a member of the National Assembly vacates his or her seat, the vacancy shall be mied by a person nominated in terms of subsection (2) by the party which nominated the vacating member. (2) The party entitled in terms of subsection (1) to fill a vacancy shall nominate a person- (a) whose name appears on that list of candidates of that party, compiled in terms of Sche dule 2, from which the vacating member was nominated to the National Assembly; and (b) who according to the order of preference of the candidates on such list is the next qualifled and available person entitled in terms of Schedule 2 to represent that party in the National Assembly. (3) A nomination in terms of this section shall be submitted in writing to the Speaker. 45. Oath or affi rmation by members of National Assembly Every member of the National Assembly, before taking his or her seat, shall make and subscribe an oath or solemn affirm ation in the terms set out in Schedule 3 before the Chief Justice, or a judge of the Supreme Court designated by the Chief Justice for this purpose, or, in the case of a member nominated under section 44, before the Speaker. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb 46. Sittings of National Assembly (I) The National Assembly shall sit at the Houses of Parliament in Cape Town, unless the Speaker, in accordance with the mies and orders and in consultation with the President of the Senate, directs otherwise on the grounds of public interest, security or convenience. (2) The Chief Justice shall convene the National Assembly within 10 days after an election of the National Assembly. (3) The National Assembly shall sit during such periods and on such days and during such hours as it may determine: Provided that the President may at any time by proc1amation in the Gazette summon the National Assembly to an extraordinary sitting for the despatch of urgent business. 47. Quorum The presence of at least one third or, when a vote is taken on a Bill, of at least one half of all the rnembers of the National Assembly, other than the Speaker or other presiding member, shall be necessary to constitute a meeting of the National Assembly. THE SENATE 48. Composition of Senate (I) The Senate shall be composed of 10 senators for each province, nominated by the parties represented in a provincial legisla ture within 10 days of- (a) the first sitting of such legisla ture after an election of the legislature; or (b) an election of the National Assembly held in pursuance of a dissolution of Parliament. (2) Each party represented in a provincial legislature shall be entitled to nominate a senator or senators for the relevant province in accordance with the principle of proportional representation as detel1Ilined by the following formula: (a) The number of senators each party shall be entitled to nominate, shallsubject to paragraph (b) be detel1Ilined by multiplying the number of seats such party holds in the provincial legisla ture by 10 and dividing the result by the total number of seats in the legislature plus one. (b) If the application of paragraph (a) yields a surplus not absorbed by the number of senators allocated to that party, such surplus shall compete with sirnilar surpluses accming to any other party or parties, and any undistributed senatorial seat or seats shall be allocated to the party or parties concemed in sequence of the highest surplus. (3) A membe r of a provincial legisla ture or local govemment nominated as a senator in terms of tltis section, shall vacate his or her seat in the provincial legislature or local govemment upon his or her acceptance of such nomination. 49. President and Deputy President of Senate (I) At its first sitting after it has been convened under section 53 (2), and before proceeding to dispatch any other business, the Senate, with the Chief Justice or a judge of the Supreme Court designated by hirn or her acting as the chairperson, shall elect one of its members to be the President of the Senate, and shall thereafter elect another of its members to be the Deputy President of the Senate. (2) The provisions of Schedule 5 shall apply mutatis mutandis to the election of the President and the Deputy President of the Senate. (3) The President of the Senate shall be vested with all the powers and functions assigned to hirn or her by this Constitution, an Act of Parliament and the mies and orders. (4) If the President of the Senate is absent or for any reason unable to exercise and perform the powers and functions vested in the office of President of the Senate, or when the office of President of the Senate is vacant, the Deputy President of the Senate shall act as President of the Senate during the absence or inability of the President of the Senate or until a President of the Senate is elected. (5) If any of the circumstances described in subsection (4) applies with reference to both the President and the Deputy President of the Senate, a senator designated in terms of the mies and orders shall act as President of the Senate while the said circumstances prevail. (6) The Deputy President of the Senate or the senator designated under subsection (5), while acting as President of the Senate, may exercise the powers and shall perform the functions vested in the office of President of the Senate. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (7) The President or Deputy President of the Senate or any other senator designated for that purpose in tenns of the rules and orders shall preside over sittings of the Senate. (8) While presiding at a sitting of the Senate, the President or Deputy President of the Senate or other senator presiding shall not have a deliberative vote, but shall have and exercise a casting vote in the case of an equality of votes. (9) The President or Deputy President of the Senate shall vacate his or her office if he or she ceases to be a senator, and may be removed from office by resolution of the Senate, and may resign by lodging his or her resignation in writing with the Secretary to Parliament. (10 ) If the office of President or Deputy President of the Senate becomes vacant, the Senate, under the chairpersonship of the Chief lustice or a judge as provided in subsection (1) , shall elect a member to fill the vacancy: Provided that the President of the Senate shall in such event preside at the election of the Deputy President of the Senate. 50. Qua lification for membership of Senate No person shall be qualified to become or remain a senator unless he or she is or remains qualified to become a member of the National Assembly. 51. Vacation of seats by senators andfilling of vacancies (I) A senator shall vacate his or her seat if he or she- (a) ceases to qualify to be a senator in tenns of section 50; (b) ceases to be a member of the party which nominated hirn or her as a senator in tenns of section 48; (c) resigns his or her seat by submitting his or her resignation in writing to the Secretary to Parliament; (d) without having obtained leave in accordance with the rules and orders, absents hirnself or herself voluntarily from sittings of the Senate or any other parliamentary forum of which he or she is a member, for 15 consecutive days on which the Senate or any such forum sat; or (e) becomes a member of the National Assembly, a provincial legisla ture or a local govemment. (2) (a) If a senator vacates his or her seat, the vacancy shall be filled by a person nominated by the party which nominated the vacating senator and who is qualified and available to fill the vacancy. (b) A nomination in tenns of this subsection shall be submitted in writing to the President of the Senate. (3) If a provincial legislature is dissolved, the senators from the province in question shall vacate their seats in the Senate with effect from the date of the first sitting of such legisla ture after the election of such legisla ture held in pursuance of such dissolution, whereupon the vacancies shall be filled in tenns of section 48 (1) (a). 52. Oath or affi rmation by senators Every senator, before taking his or her seat, shall make and subscribe an oath or solemn affinnation in the tenns set out in Schedule 3 before the Chief lustice, or a judge of the Supreme Court designated by the Chief lustice for this purpose, or, in the case of a senator nominated under section 51 (2), before the President of the Senate. 53. Sittings of Senate (1) The Senate shall sit at the Houses of Parliament in Cape Town, unless the President of the Senate, in accordance with the mies and orders and in consultation with the Speaker, directs otherwise on the grounds of public interest, security or convenience. (2) The Chief lustice shall after an election of the National Assembly convene the Senate as soon as is practically possible, but not later than 30 days after such election. (3) The Senate shall sit during such periods and on such days and during such hours as it may detennine: Provided that the President may at any time by proclamation in the Gazette surnmon the Senate to an extraordinary sitting for the dispatch of urgent business. 54. Quorum The presence of at least one third or, when a vote is taken on a Bill, of at least one half of all the senators, other than the President of the Senate or other presiding senator, shall be necessary to constitute a meeting of the Senate. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb THE NATIONAL ASSEMBL Y AND THE SENATE 55. Powers, privileges and immunities of Parliament and benefits of members (I) Parliarnent shall have full power to control, regulate and dispose of its internal aff airs, and shall have all such other powers, privileges and immunities as may, subject to this Constitution, be precribed by an Act of Parliarnent. (2) Subject to the mies and orders there shall be freedom of speech and debate in or before Parliarnent and any committee thereof, and such free dom shall not be impeached or questioned in any court. (3) A member of Parliarnent shall not be liable to any civil or crirninal proceedings, arrest, imprisonment or darnages by reason of anything which he or she has said, produced or submitted in or before or to Parliarnent or any comrnittee thereof or by reason of anything which may have been revealed as a result of what he or she has said, produced or submitted in or before or to Parliament or any committee thereof. (4) There shall be paid out of and as a charge on the National Revenue Fund to a member of the National Assembly or the Senate such salary and allowances, and upon his or her retirement, or to his or her widow or widower upon his or her death, such pension and pension benefits as may be prescribed by an Act of Parliarnent. 56. Penalty for sitting or voting when disqualified by law Any person who in terms of this Constitution is disqualified to sit as a member of a House and who, while so disqualified and knowing that he or she is so disqualified, sits or votes as a member of a House in question, shall be liable to a penalty deterrnined by the mies and orders for each day on which he or she so sits or votes, which may be recovered for credit ofthe National Revenue Fund by action in a court of law. 57. Joint sittings of Houses (I) Whenever necessary the National Assembly and the Senate shall convene in a joint sitting, which shall be presided over by the Speaker, the President of the Senate or any other member of the National Assembly or the Senate as may be determined by the mies and orders. (2) While presiding at a joint sitting the Speaker, the President of the Senate or the other member presiding, shall not have a deliberative vote, but shall have and exercise a casting vote in the case of an equality of votes. (3) Without derogating from the power of Parliarnent to regulate its business and proceedings, the President of the Republic may, whenever he or she deerns it desirable, request by message to the Speaker and the President of the Senate that a joint sitting of the National Assembly and the Senate be convened. 58. Rules and orders (I) The National Assembly or the Senate may make mies and orders in connection with the conduct of its business and proceedings, and the National Assembly and the Senate may make joint mies and orders in connection with the conduct of their joint business and proceedings, inc1uding mies and orders regulating- (a) the establishment, constitution, powers and functions, procedures and duration of comrnittees of Parliarnent; (b) restrictions on access to such committees; (c) the competency of any such committee to perform or dispose of its business and proceedings at venues other than the Houses of Parliarnent; and (d) the designation of members of the National Assembly and the Senate as presiding officers to preside over sittings of the National Assembly or the Senate or joint sittings of the National Assembly and the Senate, as the case may be, as and when the Speaker or the President of the Senate so requires. (2) For the purposes of exercising its powers and perforrning its functions, any committee established under subsection (I) (a) shall have the power to summon persons to appear before it to give evidence on oath or affirmation and to produce any documents required by it, and to receive representations from interested persons. 59. Ordinary Bills (I) An ordinary Bill may be introduced in either the National Assembly or the Senate and shall for its passing by Parliament, subject to subsection (2), be required to be adopted by each House. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (2) An ordinary Bill passed by one House and re jected by the other shall be referred to a joint comrnittee consisting of members of both Houses and of all the parties represented in Parliament and willing to participate in the joint committee, to consider and report on any proposed amendments to the Bill, whereafter the Bill shall be referred to a joint sitting of both Houses, at which it may be passed with or without amendment by a majority of the total number of members of both Houses. (3) All Bills, except the new constitutional text and those referred to in sections 60 (1), 61 and 62, shall for the purposes of this Constitution be considered to be ordinary Bills. 60. Money Bills (I) Bills appropriating revenue or moneys or imposing taxation shall be introduced in the National Assembly only. (2) Bills appropriating revenue or moneys for services provided by the national government shall deal with such appropriation only. (3) The National Assembly shall not consider any Bill appropriating revenue or moneys unless such Bill was initiated by the Minister responsible for national financial matters, or by any other Minister acting with the concurrence of the said Minister. (4) The National Assembly shall not pass a Bill referred to in subsection (I) unless it has been considered and reported on by a joint comrnittee of both Houses and, in so far as it may be required in terms of this Constitution, by the Financial and Fiscal Comrnission. (5) A Bill shall not be deemed to appropriate revenue or moneys or to impose taxation by reason only of its containing provisions for the imposition or appropriation of fines or other pecuniary penalties. (6) The Senate may not amend any Bill in so far as it appropriates revenue or moneys or imposes taxation. (7) If the National Assembly passes a Bill irnposing taxation or dealing with the appropriation of revenue or moneys and the Senate rej ects it or proposes amendments to it or fails to pass it within 30 days after it has been passed by the National Assembly, the Bill shall be referred back to the National Assembly for reconsideration. (8) The National Assembly may pass a Bill referred to in subsection (7), with or without amendment, and ifpassed by the National Assembly such Bill shall be deemed to have been passed by Parliament. 61. Bills aff ecting certain provincial malters Bills aff ecting the boundaries or the exercise or performance of the powers and functions of the provinces shall be deemed not to be passed by Parliament unless passed separately by both Houses and, in the case of a Bill, other than a Bill referred to in section 62, affecting the boundaries or the exercise or performance of the powers or functions of a particular province or provinces only, unIess also approved by a majority of the senators of the province or provinces in question in the Senate. 62. Bills amending Constitution (I) Subject to subsection (2) and section 74, a Bill amending this Constitution shall, for its pass ing by Parliament, be required to be adopted at a joint sitting of the National Assembly and the Senate by a majority of at least two-thirds of the total number of members of both Houses. (2) No amendment of sections 126 and 144 shall be of any force and effect unless passed separately by both Houses by a majority of at least two-thirds of all the members in each House: Provided that the boundaries and legislative and executive competences of a province shall not be amended without the consent of arelevant provinciallegislature. 63. Requisite majorities Save where otherwise required in this Constitution, all questions before the National Assembly or the Senate or before the National Assembly and the Senate in a joint sitting, shall be deterrnined by a majority of votes cast. 64. Assent to Bills (I) A Bill duly passed by Parliament in accordance with this Constitution shall be assented to by the President subject to section 82 (I) (b). (2) A Bill referred to in subsection (I) to which the President has assented and a copy of which he or she has signed, shall upon its promulgation be an Act of Parliament. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb 65. Signature and enrolment 0/ Aets (1) An Act of Parliament referred to in section 64 (2) shall be enrolled of record in the office of the Registrar of the Appellate Division of the Supreme Court in such official South African languages as may be required in terms of section 3, and copies of the Act so enrolled shall be conclusive evidence of the provisions ofthe Ac!. (2) In the case of a conflict between copies of an Act enrolled in terms of subsection (1), the copy signed by the President shall prevail. (3) The public shall have the right of access to copies of an Act so enrolled, subject to such laws as may be passed by Parliament to protect the safety and durability of the said copies and with due regard to the convenience of the Registrar's staff. 66. Rights and duties 0/ President, Exeeutive Deputy Presidents, Ministers and Deputy Mini sters in Houses The President, an Executive Deputy President, a Minister and a Deputy Minister shall be entitled to si! and to speak in any House and at a joint sitting of the Houses, but may not vote in the House of which he or she is not a member. 67. Publie aeeess to Parliament Sittings of the National Assembly or the Senate andjoint"sittings of the National Assembly and the Senate shall be held in public, and the public, including the media, shall have access to such sittings: Provided that reasonable measures may be taken to regulate such access and to provide for the search and, where appropriate, the refusal of entry or the removal of any person. CHAPTER 5 The Adoption of the new Constitution 68. Constitution-making Body (1) The National Assembly and the Senate, sitting jointly for the purposes of this Chapter, chall be the Constitutional Assembly. (2) The Constitutional Assembly shall draft and adopt a new constitutional text in accordance with this Chapter. (3) (a) The first sitting of the Constitutional Assembly shall be convened by the President of the Senate not later than seven days as from the first sitting of the Senate under this Constitution. (b) Any subsequent sittings of the Constitutional Assembly shall be convened by the Chairperson of the Constitutional Assembly after consultation with the Speaker and the President of the Senate. (4) Subject to the rules and orders comtemplated in section 70 and save where c1early inappropriate, sections 55 and 56 and the provisions of this Constitution with regard to joint sittings of the National Assembly and the Senate shall apply mutatis mutandis in respect of the Constitutional Assembly. 69. Chairperson and Deputy Chairperson (1) At its first sitting and before proceeding to dispatch any other business, the Constitutional Assembly, with the President of the Senate presiding, shall elect one of the members of the Constitutional Assembly to be the Chairperson and another of its members to be the Deputy Chairperson of the Constitutional Assembly. (2) The provisions of Schedule 5 shall apply mutatis mutandis in respect of the election of the Chairperson and the Deputy Chairperson ofthe Constitutional Assembly. (3) The Chairperson shall be vested with all powers and functions assigned to hirn or her under this Constitution, an Act of Parliament and the rules and orders. (4) Section 49 (4) to (10) shall apply mutatis mutandis in respect of the Chairperson and Deputy Chairperson of the Constitutional Assembly, and in any such application refere nces in the said sections to the Senate and a senator shall be construed as ref erences to the Constitutional Assembly and a member of the Constitutional Assembly, respectively. 70. Rufes and orders (1) The Constitutional Assembly may make rules and orders in connection with the conduct of its business and proceedings. (2) The provisions of section 58 shall apply mutatis mutandis in respect of the Constitutional Assembly. 56 0 https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb 71. Constitutional Principles and certification (1) A new constitutional text shall- (a) comply with the Constitutional Principles containes in Schedule 4; and (b) be passed by the Constitutional Assembly in accordance with this Chapter. (2) The new constitutional text passed by the Constitutional Assembly, or any provision thereof, shall not be of any force and effect unless the Constitutional Court has certified that all the provisions of such text comply with the Constitutional Principles referred to in subsection (1) (a) . (3) A decision of the Constitutional Court in terms of subsection (2) certifying that the provisions of the new constitutional text comply with the Constitutional Principles, shall be final and binding, and not court of law shall have jurisdiction to enquire into or pronounce upon the validity of such text or any provision thereof. (4) During the course of the proceedings of the Constitutional Assembly any proposed draft of the constitutional text before the Constitutional Assembly, or any part or provision of such text, shall be referred to the Constitutional Court by the Chairperson of petitioned to do so by at least one tifth of all the members of the Constitutional Assembly, in order to obtain an opinion from the Court as to whether such proposed text, or part or provision thereof, would, if passed by the Constitutional Assembly, comply with the Constitutional Principles. 72. Appointment of commissions, committees and bodies (I) The Constitutional Assembly shall, in addition to appointing committees of its members, be competent to appoint any commission, technical committees and other advisory bodies to assist it in the performance of its functions. (2) The Constitutional Assembly shall, subject to subsection (3), appoint an independent panel of five South African citizens being recognised constitutional experts, not being members of Parliament or any other legislature and not holding office in any political party, to advise it, or the Chairperson, on matters pertaining to its functions, and to perform such other tasks as are provided for in this Constitution. (3) A majority of at least two-thirds of all the members of the Constitutional Assembly shall be required for the appointment of the panel of constitutional experts, and, in the event of such mahority not being achieved, a panel of constitutional experts complying with the requirements mentioned in subsection (2) and consisting of a nominee of each party which holds at least 40 seats in the Constitutional Assembly and wishes to make such a nomination, shall be appointed. 73. Adoption of new constitutional text (1) The Constitutional Assembly shall pass the new constitutional text within two years as from the date of the first sittig of the National Assembly under this Constitutionl (2) For the passing of the new constitutional text by the Constitutional Assembly, a mahority of at least two-thirds of all the members of the Constitutional Assembly shall be required: Provided that provision of such text relating to the boundaries, powers and functions of provinces shall not be considered passed by the Constitutional Assembly unless approved also by a majority of two-thirds of all the members of the Senate. (3) lf the Constitutional Assembly fai ls to pass a proposed draft of the new constitutional text in accordance with subsection (2), but such draft is supported by a mahority of all its members, such proposed draft shall be referred by the Chairperson to the panel of constitutional experts referred to in section 72 (2) for its advice, to be given within 30 days of such referral, on amendments to the proposed draft, within the framework of the Constitutional Principles, which might secure the support required in terms of subsection (2). (4) An amended draft text unanimously recommended by the panel of constitutional experts and submitted to the Constitutional Assembly within the said period of 30 days, shall be considered by the Constitutional Assembly, and if passed in accordance with subsection (2), it shall become the Constitution of the Republic of South Africa. (5) Should the panel of constitutional experts fail to submit within the said period of 30 days to the Constitutional Assembly an amended draft text which is unanimously recommended by the panel, or should such an amended draft text not be passed by theConstitutional Assembly in accordance with subsection (2), any proposed draft text before the Constitutional Assembly may be approved by it by resolution of a majority of its members for the purposes of subsection (6). https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (6) A text approved under subsection (5) shall, after it has been certified by the Constitutional Court in tenns of section 71 (2), be referred by the President for a decision by the electorate by way of a national referen dum. (7) The question put before the electorate in the referendum shall be the acceptance or re jection of the text approved under subsection (5). (8) The text presented to the elec torate in the referendum shall, if approved by a majority of at least 60 per cent of the votes cast in the referendum and subject of subsection (13), become the Constitution of the Republic of South Africa. (9) If the relevant text is not approved in the refere ndum in accordance with subsection (8), or if a new constitutional text is not passed in tenns of this Chapter within the period of two years referred to in subsection (I), the President shall dissolve Parliament by proclamation in the Gazette within 14 days after the referendum or the expiry of the said period, whereupon an election contemplated in section 39 (I) (a) shall be held. (10) The Constitutional Assembly as constituted after such an election, shall pass the new constitutional text within ape riod of one year as from the date of its first sitting after such election. (I I) For the passing of the new constitutional text referred to in subsection (10) by the Constitutional Assembly, a mahority of at least 60 per cent of all the members of the Constitutional Assembly shall be required: Provided that provisions of such text relating to the boundaries, powers and functions of provinces shall not be considered passed by the Constitutional Assembly unless approved also by a majority of at least 60 per cent of alI the members of the Senate. (12) The provisions of subsection (5) to (9) of this section and the other sections of this Chapter shall apply mutatis mutandis in respect of the Constitutional Assembly referred to in subsection (10) of this section. (13) A new constitutional text adopted in tenns of this Chapter shall be assented to by the President and shall upon its promulgation be the Constitution of the Republic of South Africa. 74. Amendments relating to this Chapter and Schedule 4 (I) No amendment or repeaI of- (a) this section or the Constitutional Principles set out in Schedule 4; or (b) any other provision of this Chapter in so far as it relates to- (i) the Constitutional Principles; or (ii) the requirement that the new constitutional text shall comply with the Constitutional Principles, or that such text shall be certified by the Constitutional Court as being in compliance therewith shall be permissible. (2) The other provisions of this Chapter may be amended by the Constitutional Assembly by resolution of a majority of at least two-thirds of all its members. CHAPTER 6 The National Executive 75. Executive authority of the Republic The executive authority of the Republic with regard to alI matters falling within the legislative competence of Parliament shall vest in the President, who shall exercise and perfonn his or her powers and functions subject to and in accordance with this Constitution. 76. Head of State The President shall be the Head of State. 77. Election of President (I) (a) The National Assembly shall at its first sitting after it has been convened in tenns of section 46 (2) elect one of its members as the President. (b) The National Assembly and the Senate shall thereafter, as often as it again becomes necessary to elect a President, elect at ajoint sitting one of the members of the National Assembly as the President. (2) (a) The Chief Justice, or ajudge of the Supreme Court designated by the Chief Justice for this purpose, shall preside over any sitting at which an election referred to in subsection (I) takes place. (b) An election referred to in subsection (I) shall be conducted in accordance with Schedule 5. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (3) The election of a President in terms of subsection (I) (b) shall take place at a time and on a date fixed by the Chief lustice: Provided that- (a) if such an election of a President is occasioned by reason of a dissolution of Parliament, it shall take place within 10 days after the Senate was convened after the election of the National Assembly held in pursuance of such dissolution; or (b) if such an election of a President is occasioned by reason of a vacancy in the office of President, it shall take place within 30 days after the vacancy arose. (4) On being elected, the President shall vacate bis or her seat in the National Assembly. (5) During the period in whieh the President continues in office in terms of section 80 (I) (b), he or she shall for the purposes of section 42 (l)(e) be deemed not to hold an office of profit under the Republic. 78. Oath or affi rmation The President -elect shalI, before formally assuming office, make and subscribe an oath or solemn affirmation in the terms set out in Schedule 3 before the Chief lustice or a judge of the Supreme Court designated by the Chief lustice for this purpose. 79. Remuneration of President There shall be paid to the President out of and as a charge on the National Revenue Fund and apart from any privilege which he or she may enjoy, such remuneration and allowances, and upon his or her retirement, or to his or her widow or widower on his or her death, such pension and pension benefits, as may be determined from time to time by resolution of Parliament. 80. Tenure of offi ce of President (I) The President elected in terms of section 77 (I) (a) shall, subject to sections 87 and 93 (2), hold offic e-- (a) for the period tenninating on a date five years as from the date of the first siuing of the National Assembly under this Constitution; or (b) if Parliament is dissolved during such period, for the period until a President has been elected in terms of section 77 (1) (b) after such dissolution and has assumed office. (2) A President elected in terms of section 77 (I) (b) shall, subject to subsection (I) (b) of this section and sections 87 and 93 (2), hold office for the unexpired part of the period referred to in subseetion (I) (a) of this section. 81. Responsibilities of President (1) The President shall be responsible for the observance of the provisions of this Constitution by the executive and shall as head of state defend and uphold the Constitution as the supreme law of the land. (2) The President shall with dignity provide executive leadership in the interest of national unity in accordance with this Constitution and the law of the Republic. (3) The President shall not hold any other public office and shall not perform remunerative work outside the duties of his or her office. 82. Powers andfunctions of President (1) The President shall be competent to exercise and perform the following powers and functions, namely- (a) to assent to, sign and promulgate Bills duly passed by Parliament; (b) in the event of a procedural shortcoming in the legislative process, to refer a Bill passed by Parliament back for further consideration by Parliament; (c) to convene meetings of the Cabinet; (d) to refer disputes of a constitutional nature between parties represented in Parliament or between organs of state at any level of govemment to the Constitutional Court or other appropriate institution, conunission or body for resolution; (e) to confer honours; (f) to appoint, accredit, receive and recognise ambassadors, plenipotentiaries, diplomatie representa tives and other diplomatie officers, consuls and consular officers; https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (g) to appoint commissions of enquiry; (h) to make such appointments as may be necessary under powers conferred upon hirn or her by this Constitution or any other law; (i) to negotiate and sign international agreemen ts ; (j) to procJaim referenda and plebiscites in terms of this Constitution or an Act of Parliament; and (k) to pardon or reprieve offenders, either uncondition ally or subject to such conditions as he or she may deern fit, and to remit any fines, penalties or forfeitures. (2) The President shall 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 and allocation of functions contemplated in section 84 (5) to an Executive Deputy President; (d) regarding appointtnents under subsection (I) (1); and (e) before exercising any of the competences referred to in subsection (I) (g) to (k). (3) The President shall exercise and perform all powers and functions assigned to hirn or her by this Constitution or any other law, except those specified in subsections (I) and (2) or where otherwise expressly or by implication provided in this Constitu tion, in consultation with the Cabinet: Provided that the Cabinet may delegate its consultation function in terms of this subsection, with reference to any particular power or function of the President, to any Minister or Ministers. (4) (a) The President shall be the Commander-i n-Chief of the National Defence Force. (b) The President may- (i) with the approval of Parliament, decJare a state of national defence; (ii) employ the National Defence Force in accordance with and subject to sections 227 and 228; and (iii) confer upon members of the National Defence Force permanent commissions and cancel such commissions. 83. Confirmation of executive acts of President (I) Decisions of the President taken in terms of sec tion 82 shall be expressed in writing under his or her signature. (2) Any instrument signed by the President in the exercise or performance of a power or function referred to in section 82 (3) shall be countersigned by a Minister. (3) The signature of the President on any instrument shall be confirmed by the seal of the Republic. 84. Executive Deputy Presidents (I) Every party holding at least 80 seats in the National Assembly shall be entitled to designate an Executive Deputy President from among the members of the National Assembly. (2) Should no party or only one party hold 80 or more seats in the National Assembly, the party holding the largest number of seats and the party holding the second largest number of seats shall each be entitled to designate one Executive Deputy President from among the members of the National Assembly. (3) On being designated as such, an Executive Deputy President may elect to vacate or not to vacate his or her seat in the National Assembly. (4) Section 81 shall apply mutatis mutandis to an Executive Deputy President. (5) An Executive Deputy President may exercise the powers and shall perform the functions vested in the office of Executive Deputy President by this Constitution or assigned to hirn or her by the President. (6) An Executive Deputy President shall, before formally assuming office, make and subscribe an oath or solemn affirmation in the terms set out in Schedule 3 before the Chief lustice or a judge of the Supreme Court designated by the Chief lustice for this purpose. 85. Tenure of offi ce of Executive Deputy Presidents andfilling of vacancies (I) An Executive Deputy President shall, subject to section 87, hold office- (a) for the period terminating on a date live years as from the date of the fu st sitting of the National Assembly under this Constitution, unless he or she is before the expiry of such period replaced as Executive Deputy President by the party which designated him or her; or (b) if Parliament is dissolved during such period, for the period until a President has been elected in terms of section 77 (I) (b) after such dissolution and has assumed office. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (2) If an Executive Deputy President vacates his or her office, section 84 (1) or (2) shall apply mutatis mutandis in respect of the filling of the vacancy. (3) An Executive Deputy President designated to fill a vacancy shall, subject to subsection (1) (b) of this section and section 87, hold office for the unexpired part of the period referred to in subsection (1) (a) of this section. 86. Acting President (I) The President shall appoint one of the Executive Deputy Presidents, or if no Executive Deputy President is available, aM inister, to act as President during bis or her absence or temporary incapacity. (2) In designating an Acting President under subsection (1), the President shall take into consideration the exigencies of govemment and the spirit underlying the concept of a govemment of national unity. (3) Should it be necessary that an Acting President be appointed and the President is absent or unable to make such an appointment, or if the office of President is vacant, the other members of the Cabinet shall make such appointment, taking into consideration the exigencies of govemment and the spirit underlying the concept of a govemment of national unity. (4) An Acting President shall while acting as President have all the powers and functions vested in the office of President. 87. Removalfrom offi ce of President or Executive Deputy President The President or an Executive Deputy President shall cease to hold office on a resolution adopted at a joint sitting of the National Assembly and the Senate by a majority of at least two-thirds of the total number of members of the Houses and impeaching the President or such Executive Deputy President on the ground of a serious violation of this Constitution or the other laws of the Republic, or of misconduct or inability rendering bim or her unfit to exercise and perform his or her powers and functions in accordance with section 81 or 84 (4), as the case may be. 88. Cabinet (1) The Cabinet shall consist of the President, the Executive Deputy Presidents and not more than 27 Mini sters appointed by the President in accordance with this section. (2) A party holding at least 20 seats in the National Assembly and which has decided to participate in the govemment of national unity, shall be entitled to be aIlocated one or more of the Cabinet portfolios 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. (3) Cabinet portfolios shall for the purposes of subsection (2) be aIlocated to the respective participating parties in accordance with the following formula: (a) A quota of seats per portfolio shall be determined by dividing the total number of seats in the National Assembly held jointly by the participating parties by the number of portfolios plus one. (b) The result, disregarding third and subsequent decimals, if any, shall be the quota of seats per portfolio. (c) The number of portfolios to be aIlocated to a participating party shall be determined by dividing the total number of seats held by such party in the National Assembly by the quota referred to in paragraph (b). (d) The result shalI, subject to paragraph (e), indicate the number of portf olios to be allocated to such party. (e) Where the application of the above formula yields a surplus not absorbed by the number of portfolios allocated to a party, such surplus shall compete with other similar surpluses accruing to another party or parties, and any portfolio or portfolios wbich remain unallocated shall be aIlocated to the party or parties concemed in sequence of the highest surplus. (4) The President shall after consultation with the Executive Deputy Presidents and the leaders of the participating parties- (a) determine the specific portf olios 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 Parliament who is a member of the party to which that portfolio was allocated under paragrap h (a), as the Minister responsible for that portfolio; (c) if it becomes necessary for the purposes of this Constitution or in the interest of good govemment, vary any determination under paragraph (a) subject to subsection (3); https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (d) tenninate any appointment under paragraph (b)- (i) if he or she 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 this Constitution or in the interest of good govemment; or (e) fill, when necessary, subject to paragraph (b), a vacancy in the office of Minister. (5) Subsection (4) shall be implemented in the spirit underlying the concept of a govemment of national unity, and the President and the other functionaries concemed shall in the implementation of that subsection endeavour to achieve consensus at a11 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 shall prevail; (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 such person is a member shall prevail; 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 shall prevail. (6) If any detennination of portfolio a1locations is varied under subsection (4) (c), the affected Ministers shall vacate their portfolios but shall be eligible, where applicable, for re-appointment to other portfolios a1located to their respective parties in tenns of the varied deter mination, (7) A Minister shall, before fonnally assuming office, make and subscribe an oath or solemn affInn ation in the tenns set out in Schedule 3 before the Chief Justice or a judge of the Supreme Court designated by the Chief Justice for this purpose, (8) No member of the Cabinet may take up any other paid employment, engage in activities inconsistent with his or her rnembership of the Cabinet, or expose hirnself or herself to any situation which canies with it the risk of a conflict between his or her responsibilities as a member of the Cabinet and his or her private interests. (9) No member of the Cabinet shall use his or her position as such, or directly or indirectly use infonnation entrusted confIdentially to hirn or her in such capacity , to enrich hirnself or herself or any other person. (10) There shall be paid out of and as a charge on the National Revenue Fund to an Executive Deputy President or a Minister such remuneration and a1lowances, and upon his or her retirement, or to his or her widow or widower upon his or her death, such pension and pension benefits, as rnay be prescribed by an Act of Parliament. 89. Cabinet procedure (I) Meetings of the Cabinet shall be presided over by the President, or, if the President so instructs, by an Executive Deputy President: Provided that the Executive Deputy Presidents shall preside over meetings of the Cabinet in turn unless the exigencies of govemment and the spirit underlying the concept of a govemment of national unity otherwise dictate. (2) The Cabinet shall function in a manner which gives consideration to the consensus-seeking spirit underlying the concept of a govemment of national unity as weIl as the need for eff ective govemment. (3) Where an Executive Deputy President presides over a meeting of the Cabinet otherwise than in the capacity of Acting President, a decision in the Cabinet on any matter shall be submitted to the President before its implementation and shall upon its ratifIcation by the President be deemed to be a decision taken in consultation with the Cabinet in accordance with section 82 (3). 90. Temporary assignment of Minister's powers andfunctions to another Minister Whenever a Minister is absent or for any reason unable to exercise and perfonn any of the powers and functions assigned to hirn or her, or whenever a Minister has vacated his or her office and a successor has not yet been appointed, the President may appoint any other Minister to act in the said Minister's stead, either generally or in the exercise or perfonnance of any specific power or function. 91. Trans fer of Minister's powers and functions to another Minister (I) The President may assign the administratio n of a law which is entrusted to any particular Minister or which entrusts to any particular Minister any power or function, to any other Minister. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (2) Any reference in such a law to a particular Minister as the Minister to whom the administration of such law is entrusted, shall upon the assignment under subsection (I) of its administration to another Minister, be construed as a refere nce to the latter. 92. Accountability 01 Ministers and Cabinet (I) A Minister shall be accountable individually both to the President and to Parliament for the administration of the portfolio entrusted to him or her, and all members of the Cabinet shall correspondingly be accountable collectively for the performance of the functions of the national government and for its policies. (2) A Minister shall administer his or her portfolio in accordance with the policy deterrnined by the Cabinet. (3) If a Minister fails to administer his or her portfolio in accordance with the policy of the Cabinet, the President may require the Minister concemed to bring the administration of the portfolio into conforrnity with such policy. (4) If the Minister concemed fails to comply with a requirement of the President under subsection (3), the President may, after consultation 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 such Minister's party, remove the Minister from office. 93. Votes ol no confide nce (1) If Parliament passes a vote of no confidence in the Cabinet, including the President, the President shall, unless he or she resigns, dissolve Parliament and call an election in accordance with section 39. (2) If Parliament passes a vote of no confidence in the President, but not in the other members of the Cabinet, the President shall resign. (3) If Parliament passes a vote of no confidence in the Cabinet, excluding the President, the President may- (a) resign; (b) reconstitute the Cabinet in accordance with section 88 (4); or (c) dissolve Parliament and call an election in accordance with section 39. (4) The President shall where required, or where he or she elects, to do so in terms of this section, dissolve Parliament by proclamation in the Gazette within 14 days of the relevant vote of no confidence. 94. Appointment 01 Deputy Ministers (I) The President may, after consultation with the Executive Deputy Presidents and the leaders of the parties serving in the Cabinet, establish deputy ministerial posts. (2) A party shall be entitled to be allocated one or more of the deputy ministerial posts in the same proportion and according to the same formula as that in which the portfolios in the Cabinet are allocated to it. (3) The provisions of section 88 (4) to (10) shall apply mutatis mutandis in respect of Deputy Ministers, and in such application a reference to- (a) a Minister or portfolio shall be construed as a reference to a Deputy Minister and a deputy ministerial post, respectively; and (b) subsection (3) of section 88 shall be construed as a reference to subsection (2) of this section. (4) If a person is appointed as the Deputy Minister of any portfolio entrusted to a Minister- (a) such Deputy Minister shall exercise and perform on behalf of the relevant Minister any of the powers and functions assigned to such Minister in terms of any law or otherwise which rnay, subject to the directions of the President, be assigned to hirn or her by such Minister; and (b) any reference in any law to such a Minister shall be construed as including a reference to the Deputy Minister acting in pursuance of an assignment under paragraph (a) by the Minister for whom he or she acts. (5) Whenever a Deputy Minister is absent or for any reason unable to exercise or perform any of the powers or functions of his or her 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. 56 7 https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb 95. Composition andfunctioning of Cabinet in event ofnon-participation by parties (I) If every party entitled to designate an Executive Deputy President, other than the President's party, fails to do so, the Executive Deputy President of the President's party shall exercise and perform the powers and functions of the Executive Deputy Presidents. (2) If any party entitled to Cabinet portfolios dec1ines to serve in the Cabinet, such party shall be disregarded in the determination of portfolio allocations in terms of section 88. (3) If all parties entitled to Cabinet portfol ios, other than the President's party, dec1ine to serve in the Cabinet, appointments to the Cabinet shall be made at the discretion of the President. CHAPTER 7 The Judicial Authority and the Administration of Justice 96. ludicial authority (1) The judicial author ity of the Republic shall vest in the courts established by this Constitution and any other law. (2) The judiciary shall be independent, impartial and subject only to this Constitution and the law . (3) No person and no organ of state shall interfere with judicial officers in the performance of their functions. 97. Appointment of Chief lustice and President of Constitutional Court (1) There shall be a Chief lustice of the Supreme Court of South Africa, who shall, subject to section 104, be appointed by the President in consultation with the Cabinet and after consultation with the ludicial Service Commission. (2)(a) There shall be a President of the Constitutional Court, who shall, subject to section 99, be appointed by the President in consultation with the Cabinet and after consultation with the Chief Justice. (b) Unless the new constitutional text provides otherwise, the President of the Constitutional Court shall hold office for a non-renewable period of seven years. 98. Constitutional Court and its jurisdiction (1) There shall be a Constitutional Court consisting of a President and 10 other judges appointed in terms of section 99. (2) The Constitutional Court shall have jurisdiction in the Republic as the court of final instance over all matters relating to the interpret ation, protection and enforcement of the provisions of this Constitution, including- (a) any alleged violation or threatened violation of any fundamental right entrenched in Chapter 3; (b) any dispute over the constitutionality of any executive or administrative act or conduct or threatened executive or administrative act or conduct of any organ of state; (c) any inquiry into the constitutionality of any law, inc1uding an Act of Parliament, irrespective of whether such law was passed or made before or after the commencement of this Constitution; (d) any dispute over the constitutionality of any Bill before Parliament or a provincial legislature, subject to subsection (9); (e) any dispute of a constitutional nature between organs of state at any level of government; (f) the determination of questions whether any matter falls within its jurisdiction; and (g) the determination of any other matters as may be entrusted to it by this Constitution or any other law. (3) The Constitutional Court shall be the only court having jurisdiction over a matter referred to in subsection (2), save where otherwise provided in section 10 1 (3) and (6). (4) Adecision of the Constitutional Court shall bind all persons and all legislative, executive and judicial organs of state. (5) In the event of the Constitutional Court finding that any law or any provision thereof is inconsistent with this Constitu tion, it shall dec1are such law or provision invalid to the extent of its inconsistency: Provided that the Constitutional Court may, in the interests of justice and good govemment, require Parliament or any other competent authority, within ape riod specified by the Court, to correct the defect in the law or provision, which shall then remain in force pending correction or the expiry of the period so specified. (6) Unless the Constitutional Court in the interests of justice and good government orders otherwise, and save to the extent that it so orders, the dec1aration of invalidity of a law or a provision thereof - https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (a) existing at the commencement of this Constitution, shall not invalidate anything done or permitted in terms thereof before the coming into effect of such decIaration of invalidity; or (b) passed after such commencement, shall invalidate everything done or permitted in terms thereof. (7) In the event of the Constitutional Court decIaring an executive or administrative act or conduct or threatened executive or administrative act or conduct of an organ of state to be unconstitutional, it may order the relevant organ of state to refrain from such act or conduct, or, subject to such conditions and within such time as may be specified by it, to correct such act or conduct in accordance with this Constitution. (8) The Constitutional Court may in respect of the proceedings before it make such order as to costs as it may deern just and equitable in the circumstances. (9) The Constitutional Court shall exerci se jurisdiction in any dispute referred to in subsection (2) (d) only at the request of the Speaker of the National Assembly, the President of the Senate or the Speak er of a provincial legislature, who shall make such a request to the Court upon receipt of a petition by at least one­ third of all the members of the National Assembly, the Senate or such provincial legislature, as the case may be, requiring him or her to do so. 99. Composition of Constitutional Court and appointment of judges of Constitutional Courts (1) Unless the new constitutional text provides otherwise, the judges of the Constitutional Court shall be appointed by the President for a non-renewable period of seven years. (2) No person shall be qualified to be appointed President or a judge of the Constitutional Court unless he or she- (a) is a South African citizen; and (b) is a fit and proper person to be a judge of the Constitutional Court; and (c) (i) is a judge of the Supreme Court or is qualified to be admitted as an advocate or attomey and has, for a cumulative period of at least 10 years after having so qualified, practised as an advocate or an attomey or lectured in law at a university; or (ii) is a person who, by reason of his or her training and experience, has expertise in the field of constitu tionaI law relevant to the application of this Constitution and the law of the Republic. (3) Four judges of the Constitutional Court shall be appointed from among the judges of the Supreme Court by the President in consultation with the Cabinet and with the Chief Justice. (4) Subject to subsection (5), six judges of the Constitu tional Court shall be appointed by the President in consultation with the Cabinet and after consultation with the President of the Constitutional Court: Provided that not more than two persons may be appointed from the category of persons referred to in subsection (2) (c) (ii). (5) (a) Subject to subsection (6), an appointrnent or appointments under section 97 (2) or subsection (4) or (7) of this section shaIl only be made from the recommendations of the Judicial Service Commission, and with due regard to its reasons for such recommendati ons, of not more than three nominees in excess of the number of persons required to be appointed: Provided that in respect of the first appointrnent after the commencement of this Constitution of the six judges referred to in subsection (4), the Judicial Service Commission shall submit a list of ten nominees. (b) If the appointing authorities decide not to accept any or some of such recommendations, the JudiciaI Service Commission shall be informed thereof and be fumished with the reasons therefor. (c) After having been informed in terms of paragraph (b), the Judicial Service Commission shall, in accordance with paragraph (a), submit further recommendations, whereafter the appointing authorities shall make the appointrnent or appointments from the recommendations as supplemented in terms of this paragraph. (d) In submitting its recommendations to the appointing authorities in terms of paragraphs (a) and (c) the Judicial Service Commission shall have regard to the need to constitute a court which is independent and competent and representative in respect of race and gender. (6) Subsection (5) shall not apply to the first appointrnent after the commencement of this Constitution of the President of the Constitutional Court under seetion 97 (2). (7) Vacancies in the Constitutional Court shall be filled- (a) in the case of a vacancy in the office of a judge appointed under subsection (3), in accordance with that subsection; and https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (b) in the case of a vacancy in the office of a judge appointed under subsection (4), in accordance with that subsection. JOD. Engaging the Constitutional Court (1) The conditions upon which the Constitutional Court may be seized of any matter within its jurisdiction, and all matters relating to the proceedings of and before the Court, shall be regulated by rules prescribed by the President of the Constitu tional Court in consultation with the Chief Justice, which rules shall be published in the Gazette. (2) The rules of the Constitutional Court may make provision for direct access to the Court where it is in the interest of justice to do so in respect of any matter over which it has jurisdiction. J01. Supreme Court (1) There shall be a Supreme Court of South Africa, which shall consist of an Appellate Division and such provincial and local divisions, and with such areas of jurisdiction, as may be prescribed by law. (2) Subject to this Constitution, the Supreme Court shall have the jurisdiction, incIuding the inherent jurisdiction, vested in the Supreme Court imrnediately before the comrnencement of this Constitution, and any further jurisdiction conferred upon it by this Constitution or by any law. (3) Subject to this Constitution, a provincial or local division of the Supreme Court shall, within its area of jurisdic tion, have jurisdiction in respect of the following additional matters, namely- (a) any alleged violation or threatened violation of any fundamental right entrenched in Chapter 3; (b) any dispute over the constitutionality of any executive or administrative act or conduct or threatened executive or administrative act or conduct of any organ of state; (c) any inquiry into the constitutionality of any law applicable within its area of jurisdiction, other than an Act of Parliament, irrespective of whether such law was passed or made before or after the comrnencement of this Constitution; (d) any dispute of a constitutional nature between local govemments or between a local and a provincial govemment; (e) any dispute over the constitutionality of a B ill before a provincial legislature, subject to section 98 (9); (0 the determination of questions whether any matter falls within its jurisdiction; and (g) the determination of any other matters as may be entrusted to it by an Act of Parliament. (4) For the purposes of exercising its jurisdiction under subsection (3), a provincial or local division of the Supreme Court shall have the powers of the Constitutional Court in terms of section 98 (5), (6), (7), (8) and (9) relating to the interpreta tion, protection and enforcement of this Constitution. (5) The Appellate Division shall have no jurisdiction to adjudicate any matter within the jurisdiction of the Constitutional Court. (6) If the parties to a matter falling outside the additional jurisdiction of a provincial or local division of the Supreme Court in terms of subsection (3), agree thereto, a provincial or local division shall, notwithstanding any provision to the contrary, have jurisdiction to determine such matter: Provided that a provincial or local division shall not acquire jurisdiction in terms of this subsection with regard to any matter referred to in section 102 (12). J02. Procedural matters (I) If, in any matter before a provincial or local division of the Supreme Court, there is an issue which may be decisive for the case, and which falls within the excIusive jurisdiction of the Constitutional Court in terms of section 98 (2) and (3), the provincial or local division concemed shall, if it considers it to be in the interest of justice to do so, refer such matter to the Constitutional Court for its decision: Provided that, if it is necessary for evidence to be heard for the purposes of deciding such issue, the provincial or local division concemed shall hear such evidence and make a finding thereon, before referring the matter to the Constitutional Court. (2) If, in any matter before a local or provincial division, there is any issue other than an issue referred to the Constitu tional Court in terms of subsection (I), the provincial or local division shall, if it refers the relevant issue to the Constitu tional Court, suspend the proceedings before it, pending the decision of the Constitutional Court. (3) If, in any matter before a provincial or local division, there are both constitutional and other issues, the provincial or local division concemed shall, if it does not refer an issue to the Constitutional Court, hear https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb the matter, make findings of fact which may be relevant to a constitutional issue within the excIusive jurisdiction of the Constitutional Court, and give adecision on such issues as are within its jurisdiction. (4) An appeal shali lie to the Appellate Division against adecision of a provincial or local division in terms of subsection (3). (5) If the Appellate Division is able to dispose of an appeal brought in terms of subsection (4), without dealing with any constitutional issue that has been raised, it shall do so. (6) If it is necessary for the purposes of disposing of the said appeal for the constitutional issue to be decided, the Appellate Division shall refer such issue to the Constitutional Court for its decision. (7) The Chief lustice and the President of the Constitutional Court shall jointly make rules to facilitate the procedure for dealing with appeals in which there are both constitutional and other issues, which may provide for the constitutional issues to be referred to the Constitutional Court before or after any such appeal has been heard by the Appellate Division. (8) If any division of the Supreme Court disposes of a matter in which a constitutional issue has n bee raised and such court is of the opinion that the constitutional issue is of such public importance that a ruling should be given thereon, it may, notwithstanding the fact that the matter has been disposed of, refer such issue to the Constitutional Court for a decision. (9) When a constitutional issue has been referred to the Constitutional Court by a division of the Supreme Court in terms of subsection (8), the Minister responsible for the administration of justice shall, at the request of the President of the Constitu tional Court, appoint counsel to argue such constitutional issue. (10) If the validity of a law is in dispute in any matter, and a relevant government is not a party to the proceedings, it shall be entitled to intervene as a party before the court in question, or shall be entitled to submit written argument to the said court. (11) Appeals to the Appellate Division and the Constitutional Court shall be regulated by law, incIuding the rules of such courts, which may provide that leave of the court from which the appeal is brought, or to which the appeal is noted, shall be required as a condition for such appeal. (12) Appeals arising from matters referred to in section 101 (3) and which relate to issues of constitutionality shali lie to the Constitutional Court. (13) If a dispute arises between organs of state (other than a dispute referred to in section 101 (3) (d)) regarding the question whether or not any executive or administrative act or conduct or any threatened executive or administrative act or conduct of one of those organs is consistent with this Constitu tion, the organ disputing the validity of the act or conduct may apply to a provincial or local division to refer the question of the validity of such act or conduct to the Constitutional Court for its decision. (14) If the provincial or local division concemed is of the opinion that the act or conduct or threatened act or conduct referred to in subsection (13) may be unconstitutional, it shall refer the matter to the Constitutional Court. (15) If evidence is necessary for the purpose of deciding a matt er referred to in subsections (13) and (14), the provincial or local division concemed shall hear such evidence and make a finding thereon, before referring such matter to the Constitutional Court. (16) A decision not to refer a matter to the Constitutional Court in terms of subsection (14), shall be appealable to the Constitutional Court. (17) If, in any matter before a provincial or local division, the only issue raised is a constitutional issue within the excIusive jurisdiction of the Constitutional Court in terms of section 98 (2) and (3), a refusal to refer such issue to the Constitutional Court shall be appealable to the Constitutional Court. 103. Other courts (I) The establishment, jurisdiction, composition and functioning of all other courts shall be as prescribed by or under a law. (2) If in any proceedings before a court referred to in subsection (1), it is alleged that any law or provision of such law is invalid on the ground of its inconsistency with a provision of this Constitution, the court shall, subject to the other provisions of this section, decide the matter on the assumption that the law or provision is valid. (3) If in any proceedings before a court referred to in subsection (1), the presiding officer is of the opinion that it is in the interest of justice to do so, he or she may postpone the proceedings to enable the party who has alleged that are levant law or provision is invalid, to apply to a provincial or local division of the Supreme Court for relief in terms of subsection (4). 57 1 https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (4) If the provincial or local division hearing an application referred to in subsection (3), is of the opinion that a decision regarding the validity of the law or provision is material to the adjudication of the matter before the court referred to in subsection (I), and that there is a reasonable prospect that the relevant law or provision will be held to be invalid, and that it is in the interest of justice to do so, the provincial or local division shall- (a) if the issue raised is within its jurisdiction, deal with such issue itself, and if it is in the excIusive jurisdiction of the Constitutional Court, refer it to the Constitutional Court for its decision after making a finding on any evidence which may be relevant to such issue; and (b) suspend the proceedings before the court referred to in subsection (1) pending the decision of the provincial or local division or the Constitutional Court, as the case may be. 104. Appointment, removalfrom of fice and remuneration ofjudges (1) Judges of the Supreme Court shall be fit and proper persons appointed by the President acting on the advice of the Judicial Service Commission. (2) Judges of the Constitutional Court and the Supreme Court shall receive such remuneration as may be prescribed by or under law, and their remuneration shall not be reduced during their continuation in office. (3) Any judge shalI, before commencing to perform the functions of his or her office, make and subscribe an oath or solemn affinn ation in the terms set out in Schedule 3 before any other judge. (4) A judge may only be removed from office by the President on the grounds of misbehaviour, incapacity or incompetence established by the Judicial Service Commission and upon receipt of an address from both the National Assembly and the Senate praying for such removal. (5) A judge who is the subject of an investigation by the Judicial Service Commission in terms of subsection (4) may be suspe nded by the President pending such investigation. 105. ludicial Service Commission (1) There shall be a Judicial Service Commission, which shall, subject to subsection (3), consist of­ (a) the Chief Justice, who shall preside at meetings of the Commission; (b) the President of the Constitutional Court; (c) one Judge President designated by the Judges President; (d) the Minister responsible for the administration of justice or his or her nominee; (e) two practising advocates designated by the advocates' profes sion; (f) two practising attomeys designated by the attomeys' profession; (g) one professor of law designated by the deans of all the law faculties at South African universities; (h) four senators designated en bloc by the Senate by resolution adopted by a majority of at least two-thirds of all its members; (i) four persons, two of whom shall be practising attomeys or advocates, who shall be designated by the President in consultation with the Cabinet; (j) on the occasion of the consideration of matters specifically relating to a provincial division of the Supreme Court, the Judge President of the relevant division and the Premier of the relevant province. (2) The functions of the Judicial Service Commission shall (a) to make recommendations regarding the appointment, removal from office, term of office and tenure of judges of the Supreme Court in terms of section 104; (b) to make recommendations regarding the removal from office of judges of the Constitutional Court in terms of section 104 (4) ; and (c) to advise the national and provincial govemments on all matters relating to the judiciary and the administration of justice. (3) When the Commission performs its functions in terms of subsection (2) (c), it shall sit without the four senators referred to in subsection (1) (h). (4) The Commission shall determine its own procedure, provided that the support of at least an ordinary majority of all its members shall be required for its decisions. (5) The Commission may appoint committees from among ist number and assign any of its powers and functions to such committee. 106. Seats of Constitutional Court and Appellate Division (I) The seat of the Constitutional Court shall be Johannesburg. (2) The seat ofthe Appellate Division ofthe Supreme Court shall be Bloemfontein. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb be- 107. Languages (1) A party to litigation, an accused person and a witness may, during the proceedings of a court, use the South African language of his or her choice, and may require such proceedings of a court in which he or she is involved to be interpreted in a language understood by hirn or her. (2) The record of the proceedings of a court shall, subject to section 3, be kept in any official language: Provided that the relevant rights relating to language and the status of languages in this regard existing at the commencement of this Constitution shall not be diminished. 108. Attorney-General (I) The authority to institute criminal prosecutions on behalf of the state shall vest in the attomey-g eneral of the Republic. (2) The area of jurisdiction, powers and functions of an attomey-general shall be as prescribed by or under law. (3) No person shall be appointed as an attomey-general unless he or she is appropriately qualified in tenns of a law regulating the appointment of attomeys-general in the Republic. 109. Magistrates Commission There shall be a Magistrates Commission established by law to ensure that the appointment, promotion, transfer or dismissal of, or disciplinary steps against magistrates, take place without favour or pre judice, and that the applicable laws and administra tive directives in this regard are applied uniformly and properly, and to ensure that no victimization or improper influencing of magistrates occurs. CHAPTER 8 The Public Protector, Human Rights Commission, Commission on Gender Issues and Restitution of Land Rights THE PUBLIC PROTECTOR 110. Establishment and appointment (I) There shall be a Public Protector for the Republic. (2) The President shall, whenever it becomes necessary,appoint as the Public Protector a person- (a) nominated by a joint committee of the Houses of Parliament composed of one member of each party represented in Parliament and willing to serve on the committee; and (b) approved by the National Assembly and the Senate by aresolution adopted by a majority of at least 75 per cent of the members present and voting at a joint meeting: Provided that if any nomination is not approved as required in paragraph (b), the joint committee shall nominate another person. (3) The first appointrnent of a person as the Public Protector after the commencement of this Constitution shall be made within 60 days of the fIrSt sitting of the Senate under this Constitution. (4) The Public Protector shall be a South African citizen who is a fit and proper person to hold such office, and who-- (a) is a Judge of the Supreme Court of South Africa; or (b) is qualified to be admitted as an advocate and has, for a cumulative period of at least \0 years after having so qualified- (i) practised as an advocate or an attorne y; or (ii) lectured in law at a university; or (c) has specialised knowledge of or experience for ape riod of at least 10 years in the administration of justice, public administration or public finance. (5) Unless the new constitutional text provides otherwise, the Public Protector shall hold office for a period of seven years. (6) The remuneration and other tenns and conditions of employment of the Public Protector shall be as prescribed by or under an Act of Parliament, and such remuneration shall not be reduced, nor shall such tenns and conditions be adversely altered, during his or her tenn of office. (7) The Public Protector shall not perfonn remunerative work outside his or her official duties. (8) The Public Protector may be removed from office by the President, but only on the grounds of misbehaviour, incapacity or incompetence, determined by a joint committee of the Houses of Parliament, https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb composed as provided in subsection (2) (a), and upon receipt of an address from both the National Assembly and the Senate requesting such removal. (9) A Public Protector who is the subject of an investigation by a joint committee in terms of subsection (8), may be suspended by the President pending a decision in such investigation. 111. lndependence and impartiality (I) The Public Protector shall be independent and impartialand shall exercise and perform his or her powers and functions subject only to this Constitution and the law. (2) The Public Protector and the persons appointed in terms of section 113 (I) shall have such immunities and privileges as may be assigned to them by or under an Act of Parliament for the purpose of ensuring the independent and impartial exercise and performance oftheir powers and functions. (3) No organ of state and no member or employee of an organ of state nor any other person shall interfere with the Public Protector or a person appointed under section 113 in the exercise and performance of his or her powers and functions. (4) All organs of state shall accord such assistance as may be reasonably required for the protection of tbe independence, impartiality, dignity and effecti veness of the Public Protector in the exercise and performance of his or her powers and functions. 112. Powers andjunctions (I) The Public Protector shalI, in addition to any powers and functions assigned to him or her by any law, be competent- (a) to investigate, on his or her own initiative or on receipt of a complaint, any alleged­ (i) mal administration in connection with the affairs of government at any level; (ii) abuse or unjustifiable exercise of power or unfair, capricious, discourteous or other improper conduct or undue delay by a person performing a public function; (iii) improper or dishonest act, or omission or corruption, with respect to public money; (iv) improper or unlawful enrichment, or receipt of any improper advantage, or promise of such enrichment or advantage, by a person as a result of an act or omission in the public administration or in connection with the affairs of government at any level or of a person performing a public function; or (v) act or omission by a person in the employ of government at any level, or a person performing a public function, which results in unlawful or improper prejudice to any other person; (b) to endeavour, in his or her sole discretion, to resolve any dispute or rectify any act or omission by­ (i) mediation, conciliation or negotiation; (ii) advising, where necessary, any complainant regarding appropriate remedies; or (iii) any other means that may be expedient in the circumstances; or (c) at any time prior to, during or after an investigation- (i) if he or she is of the opinion that the facts disclose the commission of an offence by any person, to bring the matter to the notice of the relevant authority charged with prosecutions; or (ii) if he or she deerns it advisable, to refer any matter which has a bearing on an investigation, to the appropriate public body or authority affected by it or to make an appropriate recommendation regarding the redress of the prejudice resulting therefrom or make any other appropriate recommendation he or she deerns expedient to the aff ected public body or authority. (2) Nothing in subsection (I) shall be construed as empowering the Public Protector to investigate the performance of judicial functions by any court of law. (3) The Public Protector shall conduct an investigation under subsection (I) with due regard to tbe circumstances of each case, and shall for the purposes of such investigation, in addition to such powers as may be prescribed by law, but subject to the provisions of this Constitution and the law of privilege, be competent to- (a) direct any person to appear before hirn or her to give evidence or to produce any docurnent in his or her possession or under his or her control which, in the opinion of the Public Protector, has a bearing on the matter being inquired into, and may examine such person for that purpose; and (b) enter, or authorise another person to enter, any building or premises and there to make such investigation or inquiry as he or she rnay deern necessary, and seize anything on those premises which in his or her opinion has a bearing on the purpose of the investigation. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (4) The Public Protector or any member of his or her staff shall be competent, but not compellable, to answer questions in any proceedings in or before a court of law or any body or institution established by or under any law, in connection with any information which in the course of his or her investigation has come to his or her knowledge. (5) Recourse to, or the exercise and performance of any powers and functions of, the Public Protector shall not oust the jurisdiction of a court of law to hear any matter or cause whatsoever. (6) The Public Protector shall report in writing on his or her activities to Parliament at least once every year. 113 . StaJf and expenditure (I) The Public Protector may appoint, on such terms and conditions of service as may be determined by or under a law, such persons as may be necessary for the discharge of the work of the office of the Public Protector. (2) The Public Protector may delegate any of his or her powers or functions to persons referred to in subsection (I) subject to such conditions as may be determined by or under a law. (3) Expenditure incidental to the exercise and performance of the powers and functions of the Public Protector in terms of this Constitution or under any other law shall be defrayed from money appropriated by Parliament. 11 4. Provincial public protectors (I) A provinciallegislature may, subject to subsections (2) and (3), by law provide for the establishment, appointrnent, powers and functions of a provincial public protector and for matters in connection therewith. (2) A provincial law referred to in subsection (I) shall not in any way derogate from the powers and functions of the Public Protector. (3) A provincial public protector shall be appointed by the Premier of a province in consultation with the Public Protector, provided that the appointrnent shall be confirrn ed by resolution of a majority of at least two-thirds of all the members of the provinciallegislature. (4) A provincial public protector shall exercise and perform his or her powers and functions in consultation with the Public Protector, who shall have concurrent jurisdiction in the provinces. HUMAN RIGHTS COMMISSION 11 5. Establishment and appointments (I) There shall be a Human Rights Comrnission, which shall consist of a chairperson and 10 members who are fit and proper persons, South African citizens and broadly representative of the South African comrnunity . (2) The members of the Commission shall be appointed as provided in subsection (3) and vacancies in the Commission shall be filled accordingly. (3) The President shall, whenever it becomes necessary, appoint as a member of the Commission a person- (a) nominated by a joint committee of the Houses of Parliament composed of one member of each party represented in Parliarnent and willing to participate in the committee; and (b) approved by the National Assembly and the Senate by a resolution adopted by a majority of at least 75 per cent of the members present and voting at a joint meeting: Provided that if any nomination is not approved as required in paragraph (b), the joint committee shall nominate another person. (4) The first members of the Commission after the comrnencement of this Constitution, shall be appointed within 60 days of the first sitting of the Senate under this Constitution. (5) A Chairperson and a Deputy Chairperson of the Commission shall as often as it becomes necessary be elected by the members of the Commission from among their number. 116 . Powers andfunctions (I) The Commission shall, in addition to any powers and functions assigned to it by law, be competent and be obliged to- (a) promote the observance of, respect for and the protection of fundamental rights; (b) develop an awareness of fundamental rights among all people of the Republic; https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (c) make recommendations to organs of state at all levels of government where it considers such action advisable for the adoption of progressive measures for the promotion of fundamental rights within the framework of the law and this Constitution, as weil as appropriate measures for the further observance of such rights; (d) undertake such studies for report on or relating to fundamental rights as it considers advisable in the performance of its functions; and (e) request any organ of state to supply it with information on any legislative or executive measures adopted by it relating to fundamental rights. (2) If the Commission is of the opinion that any proposed legislation might be contrary to Chapter 3 or to norms of international human rights law which form part of South African law or to other relevant norms of international law, it shall immediately report that fact to the relevant legislature. (3) The Commission shall be competent to investigate on its own initiative or on receipt of a complaint, any alleged violation of fundamental rights, and if, after due investigation, the Commission is of the opinion that there is substance in any complaint made to it, it shall, in so far as it is able to do so, assist the complainant and other persons adversely aff ected thereb y, to secure redr ess, and where it is necessary for that purpose to do so, it may arrange for or provide financial assistance to enable proceedings to be taken to a competent court for the necessary relief or may direct a complainant to an appropriate forum. 117. Stajf and expenditure (1) The Commission shall appoint a director, who shall be the chief executive officer of the Commission and who shaIl be empowered to appoint staff subject to the approval of the Commission and on such terms and conditions of service as may be determined by or under an Act of Parliament. (2) Expenditure incidental to the exercise and perform ance of the powers and functions of the Commission in terms of this Constitution or any other law shall be defrayed from money appropriated by Parliament. 118. Reports The Commission shall report to the President at least once every year on its activities, and the President shall cause such report to be tabled promptly in the National Assembly and the Senate. COMMISSION ON GENDER EQUALITY 119. Establishment (1) There shall be a Commission on Gender Equality, which shall consist of a chairperson and such number of rnembers as may be determined by an Act of Parliament. (2) The Commission shall consist of persons who are fit and proper for appointment, South African citizens and broadly representative of the South African community. (3) The object of the Commission shall be to promote gender equality and to advise and to make recommendations to Parliament or any other legislature with regard to any laws or proposed legislation which affects gender equality and the status of women. 120. Composition andfunctioning The Act of Parliament referred to in section 119 shall provide for the composition, powers, functions and functioning of the Commission on Gender Issues and for aIl other matters in connection therewith. RESTITUTION OF LAND RIGHTS 121. Claims (I) An Act of Parliament shall provide for malters relating to the restitution of land rights, as envisaged in this section and in sections 122 and 123. (2) A person or a community shall be entitled to claim restitution of a right in land from the state if- (a) such person or community was dispossessed of such right at any time after a date to be fixed by the Act referred to in subsection (I); and (b) such dispossession was effected under or for the purpose of furthering the object of a law which would have been inconsistent with the prohibition of racial discrimination contained in seetion 8 (2), had that section been in operation at the time of such dispossession. (3) The date fixed by virtue of subseetion (2) (a) shall not be a date earlier than 19 lune 1913. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (4) (a) The provISIons of this section shall not apply to any rights in land expropriated under the Expropriation Act, 1975 (Act 63 of 1975), or any other law incorporating by refere nce that Act, or the provisions of that Act with regard to compensation, if just and equitable compensation as contemplated in section 123 (4) was paid in respect of such expropriation. (b) In this section 'Expropriation Act, 1975' shall include any expropriation law repealed by that Ac!. (5) No claim under this section shall be lodged before the passing of the Act contemplated in subsection (1). (6) Any claims under subsection (2) shall be subject to such conditions, limitations and exclusions as may be prescribed by such Act, and shall not be justiciable by a court of law unless the claim has been dealt with in terms of section 122 by the Commission established by that section. 122. Commission (1) The Act contemplated in section 121 (1) shall establish a Commission on Restitution of Land Rights, which shall be competent to- (a) investigate the merits of any claims; (b) mediate and senle disputes arising from such claims; (c) draw up reports on unsenled claims for submission as evidence to a court of law and to present any other relevant evidence to the court; and (d) exercise and perform any such other powers and functions as may be provided for in the said Ac!. (2) The procedures to be followed for dealing with claims in terms of this section shall be as prescribed by or under the said Ac!. 123. Court orders (1) Where a claim contemplated in section 121 (2) is lodged with a court of law and the land in question is- (a) in the possession of the state and the state certifies that the restoration of the right in question is feas ible, the court may, subject to subsection (4), order the state to res tore the relevant right to the claimant; or (b) in the possession of a private owner and the state certifies that the acquisition of such land by the state is fea sible, the court may, subject to subsection (4), order the state to purchase or expropriate such land and restore the relevant right to the claiman!. (2) The court shall not issue an order under subsection (I) (b) unless it is just and equitable to do so, taking into account all relevant factors, including the history of the dispossession, the hardship caused, the use to which the property is being put, the history of its acquisition by the owner, the interests of the owner and others affected by any expropriation, and the interests of the dispossessed: Provided that any expropriation under subsection (1) (b) shall be sub ject to the payment of compensation calculated in the manner provided for in section 28 (3). (3) If the state certifies that any restoration in terms of subsection (I) (a) or any acquisition in terms of subsection (1) (b) is not fe asible, or if the claimant instead of the restoration of the right prefers alternative relief, the court may, subject to subsection (4), order the state, in lieu of the restoration of the said right­ (a) to grant the claimant an appropriate right in available alternative state-owned land designated by the state to the satisfaction of the court, provided that the state certifies that it is feas ible to designate alternative state-owned land; (b) to pay the claimant compensation; or (c) to grant the claimant any alternative relief. (4) (a) The compensation referred to in subsection (3) shall be deterrnined by the court as being just and equitable, taking into account the circumstances which prevailed at the time of the dispossession and all such other factors as may be prescribed by the Act referred to in section 121 (1) , including any compensation that was paid upon such dispossession. (b) If the court grants the claimant the relief contemplated in subsection (I) or (3), it shall take into account, and, where appropriate, make an order with regard to, any compensation that was paid to the claimant upon the dispossession of the right in question. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb CHAPTER 9 Provincial Goverment 124. Establishment ojprovinces (I) The following provinces are hereby established, which for the purposes of this Constitution, but subject to subsection (2), shall be recognised as the provinces of the Republic: (a) Eastern Cape; (b) Eastern Transvaal; (c) KwaZuluINatal; (d) Northem Cape; (e) Northern Transvaal; (t) North-West; (g) Orange Free State; (h) Pretor ia-Witwatersrand-Ver eeniging; and (i) Western Cape: Provided that Parliament shall at the request of a provincial legisla ture alter the name of a province in accordance with the request of such legislature. (2) The areas of the respective provinces shall be as defined in Part I of Schedule I: Provided that the establishment of the Northern Cape as a separate province, the establishment in the area of the Eastern Cape of one province, and the inclusion of the areas specified in paragraphs (a) to (t) and (i) to (n) of Part 2 of Schedule 1 within the provinces as defined in Part I of Schedule I, shall be sub ject to alteration in accordance with this section. (3) (a) A refere ndum may be held in terms ofthis section in each of the areas specified in paragraphs (a) to (n) of Part 2 of Schedule I (hereinafter referred to as an affected area) to detennine the views of the voters ordinarily resident in such area regarding an issue referred to in subsection (5) or (6). (b) A ref erendum referred to in paragraph (a) shall be held in an aff ected area within three months of the lodging with the Secretary to Parliament of a petition signed by persons entitled to vote and ordinarily resident in such area. (c) The number of signatures on such a petition shall be at least equal in number to such percentage of the votes recorded in terms of subsection (4) in respect of the aff ected area in question, as may be detennined by the Independent Electoral Commission. (d) The Independent Electoral Commission shall not be dissolved in terms of the Independent Electoral Commission Act, 1993 (Act 150 of 1993), after the flfS t election held under this Constitution until it has made a determination in terms of paragraph (c) in respect of a11 the aff ected areas. (e) Such a petition shall be lodged with the Secretary to Parliament within ape riod of six months of the commencement of this Constitution or a period referred to in subsection (10), whichever period expires fust. (4) In the flfS t election of the National Assembly and the provincial legislatures held under this Constitution, votes cast in each of the aff ected areas shall be counted separately and recorded for use for the purposes of this section. (5) Subject to subsection (7), the object of a ref erendum in respect of an area referred to in paragraph (e), (t), (g) or (h) ofPart 2 of Schedule I, shall be the determination ofthe views ofvoters ordinarily resident in such an area, concerning, as the case may be- (a) the continued inclusion of the area referred to in the said paragraph (e) in the provincial territory of the Eastern Cape, or its inclusion in the provincial territory of KwaZuluINatal ; (b) the continued inclusion of the area referred to in the said paragraph (t) in the provincial territory of Pretori a-Witwa tersran d-Vereeniging, or its inclusion in the provincial territory ofthe Eastern Transvaal ; (c) the continued existence of the area referred to in the said paragraph (g) as one province, or its division into two separate provinces on either side of the line fonning the eastern boundaries of the districts of Venterstad, Steynsburg, Hofmeyr, Tarka, Fort Beaufort, Albany and Bathurst; or (d) the continued existence of the area referred to in the said paragraph (h) as a separate province, or its discontinuance as a separate province, in which event those districts of the said area north of the Orange River shall be included in the provincial territory ofthe North-West, and those districts south ofthe Orange Rive r shall be included in the provincial territory of the Western Cape: Provided that in the case of a ref erendum regarding an issue referred to in- https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (i) paragraphs (a) and (b) of this subsection, a majority of votes cast shall be required to sanction the incIusion of the areas in question in the provincial territories of KwaZuluINatal or the Bastern TransvaaI, as the case may be; (ii) paragraph (c) of this subsection, a majority of at least 60 per cent of the votes cast in either of the two blocks mentioned in paragraph (g) of Part 2 of Schedule I shall be required to sanction the division of the said area into two separate provinces; and (iii) paragraph (d) of this subsection, a majority of at least 60 per cent of the votes cast shall be required to sanction the discontinuance of the Northern Cape as a separate province. (6) Subject to subsection (7), the object of a ref erendum inrespect of an area referred to in paragraph (a), (b), (c), (d), (i), (j), (k), (I), (m) or (n) of Part 2 of Schedule 1, shall be the determination of the views of the majority of the voters ordinarily resident in such an area, concerning- (a) in the case of the area referred to in the said paragraph (a), the continued incIusion of such area in the provincial territory of the Nortbern TransvaaI, or its incIusion in the provincial territory of the Bastern TransvaaI; (b) in the case of the area referred to in the said paragraph (b), the continued incIusion of such area in the provincial territory of the Northern Cape, or its incIusion in the provincial territory of the Western Cape; (c) in the case of the area referred to in the said paragraph (c), the continued incIusion of such area in the provincial territory of the Bastern Transvaal, or its incIusion in the provincial territory of the Nortbern TransvaaI; (d) in the case of the area referred to in the said paragraph (d), the continued incIusion of such area in the provincial territory of the Eastern Cape, or its incIusion in the provincial territory of KwaZuluINatal; (e) in the case of the area referred to in the said paragraph (i), the continued incIusion of such area in the provincial territory of the Bastern Transvaal, or its incIusion in the provincial territory of Pretoria­ Witw atersrand- Vereeniging ; (f) in the case of the area referred to in the said paragraph (j), the continued incIusion of such area in the provincial territory of the Orange Free State, or its incIusion in the provincial territory of Pretoria­ Witwatersrand- Vereeniging ; (g) in the case of the area referred to in the said paragraph (k), the continued incIusion of such area in the provincial territory of the Western Cape, or its incIusion in the provincial territory of the Northern Cape; (h) in the case of the area referred to in the said paragraph (I), the continued incIusion of such area in the provincial territory of K waZuluINatal, or its incIusion in the provincial territory of the Eastern Cape; (i) in the case of the area referred to in the said paragraph (m), the continued incIusion of such area in the provincial territory of the Northern Cape, or its incIusion in the provincial territory of the North-West; or (j) in the case of the area referred to in the said paragraph (n), the continued incIusion of such area in the provincial territory of the North-West, or its inclusion in the provincial territory of Pretori a-Witwatersrand­ Veree niging. (7) (a) The Independent Electoral Commission shall be competent to make regulations or give directions conceming the implementation of this section, incIuding- (i) the formulation of the question to be put before the electorate in any particular refer endum; (ii) the determination of the sequence of refere ndums with reference to a province in respect of which more than one petition contemplated in subsection (3) (e) or (10) is received; (iii) the drawing up and registering of party lists for an affected area; (iv) the identification of persons entitled to vote in a ref erendum or electio n held in terms of this section; (v) procedures relating to the drawing up of petitions for the purposes of this section; and (vi) any other matters which it considers necessary for such implementation. (b) This subsection shall come into operation on the date of promulgation of this Constitution. (8) A party or parties representing a majority of voters in an affected area may within a period of one month of the date of the first election under this Constitution of members of the provinciallegisla ture of the province within which such area falls in terms of Part I of Schedule I, petition the Independent Electoral Commission to publish a notice in terms of subsection (9). (9) If a petition is lodged with the Independent Electoral Commission in terms of subsection (8), requesting that an aff ected area be altered as contemplated in subsection (5) or (6), and the Independent Electoral Commission is satisfied that the petition has the support of a party or parties representing a majority of voters in that affected area, it shall fortbwith cause to be published in the Gazette, notice of the fact that it has received such a petition. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (10) Within live months of the date of publication of a notice referred to in subsection (9) a petition may be lodged with the Secretary to Parliament, calling for a ref erendum contemplated in subsection (3) to be held in the area in respect of which such notice was published. (11) If a petition for a ref erendum as provided for in subsection (10) is lodged with the Secretary to Parliament, the petition lodged with the Independent Electoral Commission under subsection (8) will iapse, and the result of the refere ndum in respect of such area will be decisive. (12 ) If a petition for a refer endum as provided for in subsection (10) is not lodged with the Secretary to Parliament within the period referred to in that subsection, the Independent Electoral Commission shall, upon the expiry of that prescribed period, forthwith cause to be published in the Gazette, notice of that fact, and the alteration contemplated in the notice published in terms of subsection (9) shall thereupon be implemented in accordance with subsection (13). (13) (a) For the purpose of irnplementing an alteration in terms of subsection (12 ), or an alteration pursuant to a referendum held in terms of subsection (3), the Independent Electoral Commission shall, if it considers it necessary to do so as a result of an alteration to be made, give directions concerning- (i) the establishment of a new provincial legislature or the reconstitution of an existing provincial legislature; (ii) the holding of an election of a new or reconstituted provincial legislature; (iii) the allocation of seats within such new or reconstituted provincial legislature; and (iv) the names of the persons who will bec ome or remain members of such provincial legislature. (b) The Independent Electoral Commission shall for the purposes of any directions under paragraph (a) have regard to- (i) representations made to it by political parties who will or may be affected by any such directions; (ii) party Iists compiled by parties for the purpose of the election of the provincial legisla tures which will be dissolved or reconstituted; (iii) party Iists compiled pursuant to any regulation made or directions given by it in terms of subsection (7); (iv) the provisions of Schedule 2 (without necessarily being bound thereby in regard to the sequence in which seats are to be awarded or forfeited); and (v) all other factors which in its opinion are relevant to such direct ions : Provided that if it is of the opinion that any particular alteration does not require an existing provincial legisla ture to be reconstituted, it may direct that notwithstanding such altera tion, such provincial legislature shall not be reconstituted. (c) If a Premier, member of the Executive Council of a province, senator or other officer has been elected, appointed or nominated in terms of this Constitution by the members of any provincial legislature affected by directions given by the Independent Electoral Commission in terms of paragraph(a), the Independent Electoral Commission may also give directions that new elections, appointments or nominations be made, in which event such elections, appointments or nominations shall be carried out in accordance with this Constitution, and within such times as the Independent Electoral Commission may prescribe. (14) The President shall by proclamation in the Gazette, to take effect on such date as may be detennined by the Independent Electoral Comrnission, amend subsection (1) and Schedule I to give effect to any alteration made in terms of this section. (15) Notwithstanding the provisions of section 62, Parliament may by a majority of votes in each House, effect consequential amendments to this Constitution arising out of any alterations to provinces or provincial boundaries, or directions given by the Independent Electoral Commission in terms of this section. PROVINCIAL LEGISLATIVE AUTHORITY 125. Provincial legislature (I) There shall be a legislature for each province. (2) The legislative authority of a province shall, subject to this Constitution, vest in the provincial legislature, which shall have the power to make laws for the province in accordance with this Constitution. (3) Laws made by a provincial legisla ture shall, subject to any exceptions as may be provided for by an Act of Parliament, be applicable only within the territory of the province. 58 0 https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb 126. Legislative competence of provinces (I) A provincial legislatuI'e shall �" �"QQ1 (l!! ��nt, subject to subsections (3) and (4), haye C8ftC I!freftt c8mfleteftce with Parliame ftt to make laws for the province with regard to all mauers which fall within the functional areas specified in Schedule 6. (2) The legislative competence referred to in subsection (I), shall indude the competence to make laws which are reasonably necessary for or incidentaJ to the eff ective exercise of such legislative competence. (2A) competent, subject to subsection (3) and (4), to make laws with regard to maUers Parliament shall be reffered to in subsection (I) and (2) (3) [Aft Act sfParliameHt v/hich deals with a matleffeferred Is ift slleseCl isft (I) 8r (2) shall flre"/ail 8'/er a flr8'1iftcial lavi iftC8ftsi steftt therewi!h, 8ftly 18 !he Il*leftl Ihat] A law passed by a provincial legislature in terms of this Constitution shall prevail over an Act of Parliament which deals with a matter reffered to in subsection (I) or (2) exept in so far-:-:- (a) [it] the Act of Parliament deals with a matter that cannot be regulated eff ectively by provincial legislation; (b) [it] the Act of Parliament deals with a matter that, to be performed effe ctively, requires to be regulated or co-ordinated by uniform norms or standards that apply generally throughout the Republic; (c) [itlthe Act of Parliament is necessary to set minimum standards across the nation for the rendering of public services; (d) [it] the Act of Parliament is necessary for [!he delermiftatisft sf ftatisftal ecSft8miC fl81icies,l the maintenance of economic unity, the protection of the environment, the promotion of interprovincial comrnerce, the protection of the comrnon market in respect of the mobility of goods, services, capital or labour, or the maintenance of national security ; or (e) the provincial law materially pre judices the economic, health or security interests of another province or the country as a whole, or impedes the implementation of national economic policies. (4) An Act of Parliament shall prevail over a provincial law, as provided for in subsection (3), only if it applies uniformly in all parts of the Republic. (5) An Act of Parliament and a provincial law shall be construed as being consistent with each other, unless, and only to the extent that, they are, expressly or by necessary implication, inconsistent with each other. (6) A provincial legislature may recomrnend to Parliament the passing of any law relating to any matter in respect of which such legislature is not competent to make laws or in respect of which an Act of Parliament prevails over a provincial law in terms of subsection (3). 127. Composition of provincial legislatures (I) A provincial legisla ture shall consist of not fewer than 30 and not more than 100 members elected in accordance with the system of proportional representation of voters provided for in Schedule 2 and the Electoral Act, 1993. (2) The number of seats in a provincial legisla ture shall, subject to subsection (I), be deterrnined in accordance with Schedule 2. (3) The members of a provincial legisla ture shall be elected from provincial lists of party candidates for the province in question. 128. Duration and dissolution of provincial legislatures (I) A provincial legislature, as constituted in terms of an election of such legislature under this Constitution, shall, subject to subsection (2), continue for five years as from the date of such election, at the expiry of which it shall be dissolved. (2) If during the period referred to in subsection (I) a provincial legislature is dissolved in terms of section 1 54 (I) or (3) (c) or 162, the provincial legisla ture as constituted then, shall continue for the period up to the day immediately preceding the comrnencement of polling for the election of the provincial legisla ture held in pursuance of such dissolution. (3) Notwithstanding any dissolution of a provincial legislature- (a) every person who at the date of the dissolution is a rnember of the provincial legisla ture shall remain a member thereof; (b) the provincial legislature shall remain competent to perform its functions; and https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (c) the Premier of the province shall be competent to summon the provinciallegislature by procJamation in the Provincial Gazette to an extraordinary sitting for the dispatch of urgent business, during the period for which the provinciallegislature continues in terms of subsection (2) after the dissolution. 129. Elections (1) If a provinciallegisla ture is dissolved in terms of section 128 (1), 154 (1) or (3) (c) or 162, the Premier of the province shall upon such dissolution, by proclamation in the Provincial Gazette call an election of such legisla ture, which election shall take place within 90 days after the dissolution of the legisla ture on a date or dates specified in the proclamation. (2) An election referred to in subsection (1), shall be conducted in accordance with the Electoral Act, 130. Sittings of provincial legislature (1) The Secretary of a provincial legisla ture shall convene such legislature within seven days after an election of such legislature. (2) The provinciallegisl ature shall sit during such periods and on such days and during such hours as it may detennine: Provided that the Premier of a province may at any time by proclamation in the Provincial Gazette summon the provinciallegisla ture to an extraordinary sitting for the dispatch of urgent business. 131. Speaker and Deputy Speaker of provincial legislature (I) At its first sitting after it has been convened under section 130 (I ), and after the election of the Premier of the province, a provinciallegisla ture with a judge of the Supreme Court designated by the Chief lustice acting as the chairperson, shall elect one of its members to be the Speaker, and shall thereafter elect another of its members to be the Deputy Speaker of such legislature. (2) The provisions of Schedule 5 and section 41 (3) to (10) shall apply mutatis mutandis in respect of the Speaker and the Deputy Speaker of a provinciallegislature. 132. Qualijication fo r member ship of provincial legislatures (1) No person shall be qualified to become or remain a member of a provinciallegisla ture unless he or she is qualified to become am ember ofthe National Assembly. (2) A member of a provincial legisla ture who is elected as the Premier or appointed as a member of the Executive Council of a province shall for the purposes of section 42 (1) (e) be deemed not to hold an office of profit under the Republic. (3) The provisions of section 40 (2), (3), (4) and (5) shall mutatis mutandis apply to a person nominated as a candida te for election to a provinciallegislature, and in any such application a reference in that section to a regional list shall be construed as a reference to a provinciallist as contemplated in Schedule 2. 133. Vacation of seats andfilling of vacancies (1) A member of a provinciallegisla ture shall vacate his or her seat if he or she- (a) ceases to be eligible to be a member ofthe provinciallegisla ture in terms of section 132; (b) ceases to be a member of the party which nominated hirn or her as a rnember of the provincial legislature; (c) resigns his or her seat by submitting his or her resignation in writing to the Secretary of the provincial legislature; (d) absents hirnself or herself voluntarily from sittings of the provincial legislature for 30 consecutive sitting days, without having obtained the leave of the provincial legisla ture in accordance with the mies and orders; or (e) becomes a member of the National Assembly or the Senate. (2) The provisions of section 44 (1) and (2) shall apply mutatis mutandis in respect of the filling of vacancies in a provinciallegislature, and in any such application a reference to-- (a) the National Assembly shall be construed as a reference to a provinciallegislature; and (b) a list of party candidates shall be construed as a reference to a list referred to in section 127 (3). (3) A nomination in terms of this section shall be submitted in writing to the Speaker of the provincial legisla ture in question. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb 134. Oath or aff irmation by members Every member of a provincial legislature, before taking his or her seat, shall make and subscribe an oath or solemn affirmation in the terms set out in Schedule 3 before a judge of the Supreme Court designated by the Chief lustice for this purpose, or, in the case of a member nominated under section 13 3, before the Speaker of the provincial legislature. 135. Powers, privileges and immunities and bene fits of members of provincial legislatures (I) A provincial legisl ature shall have full power to control, regulate and dispose of its internal affairs and shall have a11 such other powers, privileges and imrnunities as may, subject to this Constitution, be prescribed by a law of such legislature. (2) Subject to the rules and orders of a provincial legisla ture there shall be fre edom of spee ch and debate in or before such legisla ture and any comrnittee thereof, and such free dom shall not be impeached or questioned in any court. (3) A member of a provincial legisla ture shall not be liable to any civil or criminal proceedings, arrest, imprisonment or damages by reason of anything which he or she has said, produced or submitted in or before or to such legisla ture or any comrnittee thereof or by reason of anything which may have been revealed as a result of what he or she has said, produced or submitted in or before or to such legisla ture or any committee thereof. (4) There shall be paid out of and as a charge on the Provincial Revenue Fund of a province to a member of the legisla ture of that province such salary and a1lowances, and upon his or her retirement, or to his or her widow or widower upon his or her death, such pension and pension benefits, as may be prescribed by a law of the provincial legislature. 136. Penalty fo r sitting or voting when disqualijie d Any person who in terms of this Constitution is disqualified to sit as a member of a provincial legisla ture and who, while so disqualified and knowing that he or she is so disqualified, sits or votes as such a member, shall be liable to a penalty determined by the rules and orders for each day on which he or she so sits or votes, which may be recovered for credit of the Provincial Revenue Fund concerned by action in a court of law. 137. Rules and orders (I) A provincial legisla ture may make rules and orders in connection with the conduct of its business and proceedings. (2) The provisions of section 58 shall apply mutatis mutandis in respect of a provincial legislature. 138. Quorum The presence of at least one third or, when a vote is taken on a Bill, of at least one half of a11 the members of the provincial legisla ture other than the Speaker or other presiding member, shall be necessary to constitute a sitting of such legislature. 139. Requisite majorities Save where otherwise required in this Constitution, a11 questions before a provincial legisla ture shall be determined by a majority of votes cast. 140. Assent to Bills (1) A Bill duly passed by a provincial legisla ture in accordance with this Constitution shall be assented to by the Premier of the province subject to section 147 (1) (b). (2) A Bill referred to in subsection (I) to which the Premier has assented and a copy of which he or she has signed, shall upon its promulgation be a law of the provincial legislature in question. 141. Signature and enrolment of provincial laws (I) A law of a provincial legislature referred to in section 140 (2) shall be enrolled of record in the office of the Registrar of the Appellate Division of the Supreme Court in such official South Afri can languages as may be required in terms of section 3, and copies of the law so enrolled shall be conclusive evidence of the provisions of such law. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (2) In the case of a conflict between copies of a law enrolled in tenns of subsection (I), the copy signed by the Premier shall prevail. (3) The public shall have the right of access to copies of a law so enrolled, subject to such laws as may be passed by Parliament to protect the safety and durability of the said copies and with due regard to the convenience of the Registrar's staff. 142. Public access to provincial legislatures Siuings of a provincial legisl ature shall be held in public, and the public, inc1uding the media, shall have access to such sinings: Provided that reasonable rneasures may be taken to regulate such access, and to provide for the search of and, where appropriate, the refusal of entry or the removal of any person. 143. Administration ol provincial legislatures (I) For the purposes of seuing up a provisional administration of a provincial legislature, the Transitional Executive Council shall as soon as possible after the comrnencement of this Constitution appoint for each provincial legislature a provisional secretary, who shall hold office as Secretary until an appointment is made in tenns of subsection (2). (2) The Executive Council of a province shall after consultation with the Commission on Provincial Govemment appoint a Secretary and such other staff as may be necessary for the discharge of the work of such legislature. (3) Persons appointed under this section shall be remunerated out of and as a charge on the Provincial Revenue Fund of the province. PROVINCIAL EXECUTIVE AUTHORITY 144. Executive authority 01 provinces (I) The executive authority of a province shall vest in the Premier of the province, who shall exercise and perfonn his or her powers and functions subject to and in accordance with this Constitution. (2) A province shall have executive authority over all maUers in respect of which such province has exercised its legislative competence, matters assigned to it by or under section 235 or any law, and maUers delegated to it by or under any law. 145. Election 01 Premiers (I) (a) The provincial legisla ture of a province shall at its first siuing after it has been convened in tenns of section 130 (I), elect one of its members as the Premier of the province. (b) A provincial legislature shall thereafter, as often as it again becomes necessary to elect a Premier, elect one of its members as the Premier of the province. (c) The provisions of Schedule 5 shall apply mutatis mutandis in respect of the election of the Premier of a province. (2) A judge of the Supreme Court designated by the Chief Justice for this purpose, shall preside over an election referred to in subsection (I). (3) The election of a Premier in tenns of subsection (I) (b) shall take pi ace at a time and on a date fixed by the judge so designated: Provided that- (a) if such election of a Premier is occasioned by reason of a dissolution of the provincial legislature, it shall take place within 14 days after the election of the provincial legisla ture held in pursuance of such dissolution; or (b) if such election of a Premier is occasioned by reason of a vacancy in the office of Premier, it shall take place within 30 days after the vacancy arose. 146. Tenure 01 and removal lr am off ice 01 Premiers (I) The Premier of a province elected in tenns of section 145 (I) shall, subject to subsection (2) and section 154(2), hold office- (a) for the period referred to in section 128 (I); or (b) if the provincial legislature is dissolved during such period, for the period until such dissolution, and shall thereafter remain in office until a Premier has been elected in tenns of section 145 (I) (b) after the dissolution and has assumed office. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (2) The Premier of a province shall cease to hold office on a resolution adopted by the provincial legisl ature by a majority of at least two-thirds of all its members and impeaching the Premier on the ground of a serious violation of this Constitution or the other laws of the Republic or the province in question, or of misconduct or inability rendering hirn or her unfit to exercise and perform his or her powers and functions in accordance with section 147. 147. Responsibilities, powers and fu nctions of Premiers (1) The Premier of a province shall be responsible for the observance of the provisions of this Constitution and all other laws by the executive of the province, and shall be competent to exercise and perform the following powers and functions, namely- (a) to assent to, sign and promulgate Bills duly passed by the provincial legislature; (b) in the event of a procedural shortcoming in the legislative process, to refer a Bill passed by the provinciallegisla ture back for further consideration by such legisla ture; (c) to convene meetings of the Executive Council; (d) to appoint commissions of enquiry; (e) to make such appointments as may be necessary under powers conferred upon hirn or her by this Constitution or any other law; and (f) to proclaim referenda and plebiscites in terms ofthis Constitution or a provincial alw. (2) The Premier of a province shall exercise and perform all powers and functions assigned to hirn or her by this Constitution or any other law, except those specified in subseetion (I) or where otherwise expressly or by implication provided in this Constitution, in consultation with the Executive Council of the province: Provided that the Executive Council may delegate its consultation function in terms of this subseetion, with reference to any particular power or function of the Premier, to any member or members of the Executive Council. 148. Acting Premiers (I) The Premier of a province shall appoint one of the members of the Executive Council of the province to act as Premier during his or her absence or temporary incapacity. (2) Should it be necessary that an Acting Premier be appointed and the Premier is absent or unable to make such an appointment, or if the office of Premier is vacant, the other members of the Executive Council shall make such appointment. (3) An Acting Premier shall while acting as Premier have all the powers and functions vested in the office ofPremier. 149. Executive Councils (1) The Executive Council of a province shall consist of the Premier and not more than \0 members appointed by the Premier in accordance with this seetion. (2) A party holding at least 10 per cent of the seats in a provincial legisl ature and which has decided to participate in the Executive Council, shall be entitled to be allocated one or more of the Executive Council portfolios in proportion to the number of seats held by it in the provinciallegisl ature relative to the number of seats held by the other participating parties. (3) Executive Council portfolios shall for the purposes of subsection (2) be allocated mutatis mutandis in accordance with the formula set out in paragraphs (a) to (e) of section 88 (3), to the respective participating parties. (4) The Premier of a province shall after consultation with the leaders of the participating parties- (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 provinciallegisla ture who is a member of the party to which that portf olio was allocated under paragraph (a), as the member of the Executive Council responsible for that portf olio; (c) if it becomes necessary for the purposes of this Constitution or in the interest of good government, vary any determination under paragraph (a), subject to subseetion (3); (d) terminate any appointment under paragraph (b)- (i) if he or she is requested to do so by the leader of the party of which the relevantmember of the Executive Council is a member; or https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (ii) if it becomes necessary for the PUIposes of this Constitution or in the interest of good govemment; or (e) fill when necessary, subject to paragraph (b), a vacancy in the office of a member of the Executive Council. (5) Subsection (4) shall be implemented in the spirit underlying the concept of a govemment of national unity, and the Premier and the other functionaries concemed shall for the purposes of subsection (4) endeavour to achieve consensus at all times: Provided that if consensus cannot be achieved on- (a) the exercise of apower referred to in paragraph (a), (c) or (d) (ii) of that subsection, the Premier's decision shall prevail: (b) the exercise of a powre referred to in paragraph (b), (d) (i) or (e) of that subsection affecting a person who is not a member of the Premeir' s party, the decision of the leader of the party of which such person is a member shall prevail; and (c) the exercise of apower 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 shall prevail. (6) If any determination of portfolio allocations is varied under subsection (4) (c), the affected members of the Executive Council shall vacate their portfolios but shall be eligible, where applicable, for re­ appointrnent to other portfolios allocated to their respective parties in terms of the varied determination. (7) The Permier or a member of the Executive Council shall, before formally assuming office, make and subscribe an oath or selmn affirmation in the terms set out in Schedule 3 before a judge of the Supreme Court designated by the Chief Justice for this purpose. (8) No member of an Executive Council may take up any other paid employment, engage in activities inconsistent with his or her membership of the Executive Council, or expose hirnself or herself to any situation which carries with it the risk of a conflict between his or her responsibilities as a member of the Executive Council and his or her private interests. (9) No member of the Executive Council shall use his or her position as such, or directIy or indirectIy use information entrusted confidentially to him or her in such capacity, to enrich hirnself or herself or any other person. (10) There shall be paid out of and as a charge on the Provincial Revenue Fund of a province to the Premier or a member of an Executive Council of such province such salary and allowances, and upon his or her retirement, or to his or her widow or widower upon his or her death, such pension and pension benefits, as may be prescribed by a law of the provincial legislature. 150. Executive Council procedure (I) Meetings of the Executive Council shall be presided over by the Premier. (2) The Executive Council shall function in a manner which gives consideration to the consensus-seeking spirit underlying the concept of a govemment of national unity as weil as the need for effective govemment. 151. Tem porary assignment of powers andfunctions to Executive Council members Whenever a member of an Executive Council of a province is absent or for any reason unable to exercise and perform any of the powers and functions assigned to him or her, or whenever a member of an Executive Council has vacated his or her office and a successor has not yet been appointed, the Premier may appoint any other member of the Council to act in the said member' s stead, either generally or in the exercise or performance of any specific power or function. 152. Trans fer of powers and fu nctions fr om one member to another member (I) The Premier of a province may assign the administration of a law which is entrusted to any particular member of the Executive Council or which entrusts to any particular member of the Council any power of function, to any other member of the Council. (2) Any reference in such a law to a particular member of the Executive Council as the member to whom the administration of such a law is entrusted, shall upon the assignment under subsection (I) of the administration of such a law to another member of the Council, be construed as a reference the the latter. 153. Accountability of members of Executive Councils (I) A member of an Executive Council of a province shall be accountable individually both to the Premier and the provincial legislature of the province for the administration of the portfolio allocated to hirn or her, https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb and all members of an Executive Council shall correspondingly be accountable collectively for the performance of the functions of the provincial govemment and for its policies. (2) A member of an Executive Council shall administer his or her portfolio in accordance with the policy deterrnined by the Executive Council. (3) If a member of an Executive Council of a province fails to administer his or her portfolio in accordance with the policy of the Executive Council, the Premier of the province may require the member concemed to bring the administration of the portfolio into conforrnity with such policy. (4) If the member concemed fails to comply with a requirement of the Premier under subsection (3), the Premir may, 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 such member' s party, remove the member from office. 154. Votes of no confidence (1) If a provincial legislature passes a vote of no confidence in the executive Council, including the Premier, the Premier shall, unless he or she resigns, dissolve such legislature and call an election in accordance with section 129. (2) If a provinciallegislature passes a vote of no confidence in the Premier, but not in the other members of the Executive Council, the Premier shall resign. (3) If a provincial legislature passes a vote of no confidence in the Executive Council, axc1uding the Premier, the Premier may- (a) resign; (b) reconstitute the Executive Council in accordance with section 149 (4); or (c) dissolve such legislature and call an election in accordance with section 129. (4) Tbe Premier shall where required, or where he or she elects, to do so in terms of this section, dissolve the provincial legislature by procIamation in the Provincial Gazette within 14 days of the vote of no confidence. PROVINCIAL FINANCE AND FISCAL AFFAIRS 155. Provinces ' share of revenue collected nationa lly (I) A province shall be entitled to an equitable share of revenue collected nationally to enable it to provide services and exercise and perform its powers and functions. (2) Tbe equitable share of revenue referred to in subsection (1) shall consist of - (a) ape rcentage, as fixed by an Act of Parliament, of income tax on individuals which is collected [withlH !Be jlfe,iH ee] nationally; (b) a percentage, as fixed by an Act of Parliament, of value-added tax or other sales tax which is collected [wilhifl lhe jlffiv inee] nationally; (c) ape rcentage, as fixed by an Act of Parliament, of any national levy on the sale of fuel ; transfer duty, collected situated (d) any nationally, on the acquisition, sale or transfer of any property within the province concemed; and [e]� other conditional or unconditional allocations out of national revenue to a province. (2A) Sections 59(2) and 60 shall nit apply to an Act referred to in subsection (2), and such an Act shall be passed by the National Assembly and the Senate sitting separatel y. (3) Tbe percentages referred to in [stJll seelien (2)(8) 8HtI (Il)] paragraphs (a), (b) and (c) of subsection (2), and the conditions referred to in paragraph (e) ofthat subsection, shall be fixed reasonably in respect of the different provinces after taking into account the national interest and recommendations of the Financial and Fiscal Commission, and all transfers to the provinces shall be effected expeditiously and without any deduction therefrom. (4) Allocations referred to in subsection (2)(e)(e) shall be deterrnined in accordance with an Act of Parliament, with due regard to the national interest and after taking into account- (a) the provision that has to be made for interest and other payrnents in respect of national debt; and (b) the different fiscal capacities, including the revenues derived from sources referred to in subsection (2)(a) and (b) ,(b), (c) and (d), fiscal perform ances, efficiency of utilisation of revenue, needs and economic disparities within and between provinces, as weIl as the developmental needs, administrative responsibilities and other legitimate interests of the provinces, and any other objective criteria identified by the Financial and Fiscal Commission; and 58 7 https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (c) the legitimate needs and interests of the national govemment; and (d) the recommendations of the Financial and Fiscal Commission. 156. Levying o/ taxes by provinces (1) A [Ilrsyinee m8Y le,,')' l!IJ(es, sll reharges sr leYies slherthan sf 8 keine rree refe Is in seetisft 155(2)(8) sr W] provincial legislature shall be competent to raise taxes, levies and duties, other than income tax or value-added or other sales tax, and to impose surcharges on taxes, provided that- (a) it is authorised to do so by an Act of Parliament passed after recommendations of the Financial and Fiscal Commission on the draft text of any such Act have been submitted to and considered by Pariament; and (b) there is no discrimination against non-residents of that province who are South African citizens. (1A ) Sections 59(2) and 60 shall not apply to an Act referres to in subsection (I), and such an Act shall be passed by the National Assembly and the Senate sitting separatl y. (1 B) A provincial legislature shall notwithstanding sibsection (I) have exclusive competence within its province to impose taxes, levies and duties (excluding income tax or value-added or other sales tax) on­ (a) casinos (b) gambling, wagering and lotteries; and (c) betting. (2) A provincial legislature shall not be entitled to levy taxes detrimentally affecting national economic policies, inter-provincial commerce or the national mobility of goods, services, capital and labour. (3) A provincial legisla ture shall be competent to enact legislation authorising the imposition of user charges: Provided that- (a) [the criteria to be taken into account in raising such charges may be regulated by an Act of Parliament passed after recommendations of the Financial and Fiscal Commission relating to the draft text of any such Act have been submitted to and considered by Pariament] such legislation may only be enacted after consideration by the provincial legislature of any recommendations made by the Financial and Fiscal Commission concerning criteria according to which such charges should be detennined; (b) [they do not discriminate] there is no discrimination against non-residents of that province who are South African citizens. 157. Raising o/ loans by provinces (1) A province- (a) shall, subject to subsection (2), not be competent to raise loans for current expenditure; and (b) shall be competent to raise loans for capital expenditure, provided it does so within the framework of reasonable norms and conditions prescribed by an Act of Parliament passed after recommendations of the Financial and Fiscal Commission relating to the draft text of any such Act have been submitted to and considered by Parliament. (1A ) Sections 59(2) and 60 shall not apply to an Act referres to in subsection (1) (b), and such an Act shall be passed by the National Assembly and the Senate sitting separa tly. (2) Loans referred to in subsection (l )(a) may be raised for bridging finance during a fiscal year, subject to the condition thatthey shall be redeemed [in tIlat same finaneial )'ear] within 12 months and subject to such further, reasonable conditions as may be prescribed by an Act of Parliament passed after recommendations of the Financial and Fiscal Commission relatingto the draft text of any such Act have been submitted to and considered by Parliament. (3) A province may not guarantee a loan unless- (a) the Financial and Fiscal Commission has verified the need for a guarantee and recommended that it be given; and [(Il) the gi'ting sf the gll!If!IHtee has Ileen !IfIflrSVe6 Ily 8 ressilltisn sf Parliament.] 158. Revenue allocations by national government [Revenue] Financial allocations [ma!Ie] by the national government- (a) to a provincial or local government shall be made [through] in terms of an appropriation Act; and (b) to a local government shall ordinarily be made through the provincial government of the province in which the local government is situated. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb 159. Provincial Revenue Funds fIIisetI a provincial govemment. (2) No money may be withdrawn from a Provincial Revenue Fund otherwise than by virtue of an appropriation made in accordance with a law of provincial legislature concerned. PROVINCIAL CONSTITUTIONS 160. Adoption of provincial constitutions (1 ) The provincial legislature shall be entiteled to pass a constitution for its province by a resolution of a majority of at least two-thirds of all its members. (2) A provincial legisla ture may make such arr angements as it deerns appropriate in connection with its proceedings relating to the drafting and consideration of a provincial constitution. (3) A provincial constitution shall not be inconsistent with [w] a provision of this Constitution, including [!his Cha!lter wul] the Constitutional Principles set out in Schedule 4 [lIftl!] : Provided that a provincial constitution may !ru.provide for legislative and executive structures and procedures different from those provided for in this Constitution in respect of a province; and . [Eil) a !lfB,.'isisll Se !he Ilew eSllstimtisllai teJ(t.] (b) where applicable provide for the instiuton role authodty and status of a triinal monarch in the province and shaJl make such provision for the zulu Monarch in the case of the provi nce of KwaZuluINatal. (4) The text of a provincial constitution passed by a provincial legisla ture, or any provision thereof, shall be of no force and effect unless the Constitutional Court has certified that none of its provisions is inconsistent with a provision referred to in subsection (3)[W], subject to the proviso to that subsection i!h a !lfsyisisll Se !he Ile ..... eSllstimtisllai [IlßS ie!he Ilew eSllstitHtisllai teJ(1 is !hell alreatly !lasses, alss ... .. leJ(t ] , (5) A decision of the Constitutional Court in terms of subsection (4) certifying that the text of a provincial constitution is not inconsistent with the said provisions, shall be final and binding, and no court of law shall have jurisdiction to enquire into or pronounce upon the validity of such text or any provision thereof. 161. Development ofp rovincial constitutional dis pensation (1) The development of a system of provincial govemment shall receive the priority attention of the Constitutional Assembly, and in this regard it shall take into consideratbn any recommendations of the Commission on Provincial Government and any comments thereon by the respective provincial governments. (2) Any recommendations of the Commission to the Constitutional Assembly shall include draftpr ovisions for inclusion in the new constitutional text in so far as they relate to malters failing within the ambit of the Commission's ob ject in terms of section 164. (3) The Constitutional Assembly shall deal with such draft provisions in the same manner as it is required in terms of this Constitution to deal with other constitutional proposals, (4) Draft provisions recommended by the Commission which are not adopted by the Constitutional Assembly shall lapse, except if the Constitutional Assembly by resolution of a majority of the members present and voting refers the recommended provisions back to the Commission for further consideration. (5) Draft provisions referred back to the Commission may again be presented to the Constitutional Assembly, provided that if amended in one or more substantive respects, the provisions of this section regarding the acceptance, re jection or referral of the recommendations of the Commission shall apply mutatis mutandis. 162. Election of new provincial governments A provincial govemment may at any time after the commencement of a provincial constitution contemplated in section 160 or of the constitutional dispensation contempoated in section 161, petition the Constitutional Assembly to dissolve its provincial legislature and to call an election for the establishment of a new provincial legisla ture and executive authority in that province. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb which shall be paid all revenue [] collected by or accruing to the provincial govemment, and all financial allocation referred to in section 158 made by the national government to such a province of such (1) There is hereby establised in the administration of each province a Provincial Revenue Fund, into COMMISSION ON PROVINCIAL GOVERNMENT 163. Establishment of Commission on Provincial Government There is hereby established a Commission on Provincial Government consisting of not less than 10 and not more than 15 members appointed by the President subject to section 165. 164. Objects andfunctions of Commission (1) The object of the Commission is to facilitate the establishment of provincial government, and the Commission shall for the achievement of that object be competent- (a) to advise the Constitutional Assembly on the development of a constitutional dispensaton with regard to provincial systems of government; (b) to advise the national government or a provincial government on the establishment and consolidation of administrative institutions and structures in a province or on any matter arising out of the application of section 124; and (c) to make recommendations to the national government or a provincial government on the rationalisation of statutory enactrnents or public section resources directed at the introduction and maintenance of an eff ective system of provincial governmen. (2) Advice to the Constitutional Assembly in terms of subsection (1) (a), shall include recommendations in the form of draft constitutional provisions regarding- (a) the finalisation of the number and the boundaries of the provinces of the Republic; (b) the constitutional dispensations of such provinces, including the constitutional structures within such provinces as weil as the method of their election and their authority, functions and procedures; (c) measures, including transitional measures, that provide for the phasing in of new provincial constitutional dispensations; (d) the final delimitation of powers and functions between national and provincial institutions of government, with due regard to the criteria that are set out in subsection (3); (e) fiscal arrangements between the institutions of national government and those of the provincial governments; (f) the powers and functions of local governments; and (g) any matter which the Commission considers to be relevant or ancillary to its functions. (3) In carr ying out its functions the Commission shall, inter alia, take into consideration­ (a) the provisions of this Constitution; (b) the Constitutional Principles set out in Schedule 4; (c) historical boundaries, including those set out in Part 1 of Schedule 1, former provincial boundaries, magisterial district boundaries and infrastructure s; (d) administrative considerations, including the availability or non-availability of infrastructures and nodal points for service; (e) the need to rationalise existing structures; (f) cost-ef fectiveness of government, administration and the delivery of services; (g) the need to minimise inconvenience: (h) demographic considerations; (i) economic viability; (j) developmental potential; and (k) cultural and language realities. 165. Constitution of Commission (1) The members of the Commission shall be appointed by the President within 30 days of the cornmencement of this Constitution. (2) Unless the President otherwise determines, the members of the Commission shall be appointed in a full­ time capacity . (3) At least one member ofthe Commission shall be appointed from each province with the concurrence of the Premier of the province. (4) A member ofthe Commission shaIl perform his or her functions fairly, impartially and independently. (5) A member appointed in a full-time capacity shall to perform or comrnit hirnself or herself to perform remunerative work outside his or her functions as a member of the Commission. (6) A member of the Commission shall not hold office in any political party or political organisation. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb 166. Chairperson and Deputy Chairperson (1) The president shall designate one ofthe members of the Commission as the Chairperson and another as the Deputy Chairperson. (2) (a) If the Chairperson is absent or unable to perform his or her functions as chairperson, or when there is a vacancy in the office of Chairperson, the Deputy Chairperson shall act as Chairperson, and if both the Chairperson and the Deputy Chairperson are absent or unable to perform the functions of the Chairperson, the Commission shall elect another member to act as Chairperson. (b) Wbile acting as Chairperson the Deputy Chairperson or such member may exercise the powers and shall perform the functions of the Chairperson. 167. Vacation of offi ce andfilling of vacancies (I) A member of the Commission shall vacate bis or her office if he or she resigns or if he or she becomes disqualified in terms of section 165 to hold office or is removed from office under subsection (2). (2) A member of the Commission may be removed from office by the President only on the grounds of misbehaviour, incapacity or incompetence established by a judge of the Supreme court after an enquiry. (3) Ifa member ofthe Commission ceases to hold office, the President may, subject to section 165, appoint a person to fill the vacancy. 168. Meeting of Commission (I) The first meeting of the Commission shall be held within 30 days of its appointment at a time and place to be determined by the Chairperson, and subsequent meetings shall be held at a time and place determined by the Commission or, if authorised thereto by the Commission, by the Chairperson. (2) A quorum for a meeting of the Commission shall not be less than one half of all its members. (3) A decision of a majority of the rnembers of the Commission shall constitute a decision of the Commission and in the event of an equality of votes the Chairperson shall have a casting vote in addition to his or her deliberative vote. (4) All the decisions of the Commirtion shall be recorded. 169. Committees (1) The Commission may establish committees from among its members. (2) The Commission shall designate one of the members of a committee as chairperson thereof, and if any such chairperson is absent from a meeting of the committee the members present shall elect one from among their number to act as chairperson. (3) The Commission may, sub ject to such directions as it may issue from time to tirne­ (a) delegate any power granted to it by or under section 164 to such a committee; and (b) authorise such a committee to perform any function assigned to the Commission by section 164. (4) The Commission shall not be divested of a power so delegated and the performance of a fun cton so authorised, and may amend or withdraw any decision of a committee. 170. Co-option of persons to committees (1) A committee may co-opt any person to serve on it or to attend a particular meeting thereof in connection with a particular matter dealt with by the committee. (2) Such a person may take part in the proceedings of the Committee in connection with such matter or at the meeting in respe ct of wbich he or she has been co-opted, but shall not be entitled to vote. 171. Remuneration of members of Commission and other persons Members of the Commission and persons referred to in section 170 who are not in the employment of the state, shall be paid, from moneys appropriated by Parliament for the purpose, such remuneration and allowances as the Minister responsible for national financial affairs may determine. 172. Appointment of staJf The Commission may appoint such staff as it may deern necessary for the efficient performance of its functions and administration, and may, in consultation with the Public Service Commission, determine the remuneration and conditions of service of staff members who are not public servants seconded to the service of the Commission. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb 173. Regulations The President may make regulations- (a) prescribing procedures in connection with any function of the Commission or a committee thereof; (b) prohibiting conduct aimed at influencing or attempting to influence the Commission or any committee or member thereof and prescribing penalties for any contravention of such a prohibition; and (c) prescribing any other matter in connection with the achievement of the object of the Commission. CHAPTER 10 Local Government 174. Establishment and status of local government (1) Local government shall be established for the residents of areas demarcated by law of a competent authority. (2) A law referred to in subsection (1) may make provision for categories of metropolitan, urban and rural local governments with dif ferentiated powers, functions and structures according to considerations of demography, economy, physical and environmental conditions and other factors which justify or necessitate such categories. (3) A local government shall be autonomous and, within the limits prescribed by or under law, shall be entitled to regulate its affai rs. (4) Parliament or a provincial legisla ture shall not encroach on the powers, functions and structure of a local government to such an extent as to compromise the fundamental status, purpose and character of local govemment. (5) Proposed legislation which materially aff ects the status, powers or functions of local governm nts or the boundaries of their jurisdictional areas, shall not be introduced in Parliament or a provincial legislature unless it has been published for comment in the Gazette or the Provincial Gazette, as the case may be, and local govemments and interested persons, including organised local government, have been given a reasonable opportunity to make written representations in regard thereto. 175. Powers and junctions of local government (1) The powers, functions and structures of local government shall be deterrnined by law of a competent authority. (2) A local government shall be assigned such powers and functions as may be necessary to provide services for the maintenance and promotion of the well-being of a11 persons within its area of jurisdiction. (3) A local government shall, to the extent deterrnined in any applicable law, make provision for access by all persons residing within its area of jurisdiction to water, sanitation, transporta tion fac ilities, electricity, primary health services, education, housing and security within a safe and healthy environment, provided that such services and amenities can be rendered in a sustainable manner and are financially and physically practicable. (4) A local government shall have the power to make by-Iaws not inconsistent with this Constitution or an Act of Parliament or an applicable provincial law. (5) A local government shall have such executive powers as to a1low it to function eff ectively. (6) A local government may, in its discretion, by means of a resolution of its council provide for the assignment of specified functions to local bodies or submunicipal entities within its area of jurisdiction as prescribed and regulated by or under law where, in the opinion of the council, such assignment of functions will facilitate or enhance the provision or administration of services, the adherence to municipal bylaws or, more genera Ily, good governance in the public interest: Provided that such assignment of functions- (a) shaII not be inconsistent with an Act of Parliament or an applicable provincial law; and (b) shall not diminish the accountability of such local government. 176. Council resolutions Matters before the council of a local government pertaining to- (a) the budget of the local government, shall be decided by a resolution of the council adopted by a majority of at least two-thirds of all its members; and (b) town planning, shall be decided by ar esolution of the council adopted by at least a ma jority of a11 its members: Provided that a council may delegate the power to make decisions on matters pertaining to town https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb planning to the executive cOlumittee or to a committee appointed for this purpose: Provided further that section 177 shall apply mutatis mutandis to the appointment and functioning of a cOlumittee appointed for this purpose. 177. Executive committees A council of a local government shall elect, according to a system of proportional representation as may be prescribed by a law, from among its members, an executive committee to exercise such powers and perfonn such functions as may be detennined by such council: Provided that- (a) the council shall deterrnine the number of members of and the quorum for the executive committee; (b) the executive committee shall endeavour to exercise its powers and perfonn its functions on the basis of consensus among its members; and (c) if consensus on any matte r cannot be achieved, such matter may be decided by the committee by resolution of a ma jority of at least two-thirds of all its members, or the committee may, if a ma jority of the committee so decides, submit ar eport and reeommendation (if any) on the matter to the council for a decision. 178. Administration andfinance (I) A local government shall ensure that its administration is based on sound principles of publie administration, good govemment and public aecountability so as to ren der efficient services to the persons within its area of jurisdietion and effeetive administra tion of its affai rs. (2) A local govemment shall, subjeet to such eonditions as may be prescribed by law of a eompetent legislature after taking into eonsideration any recommendations of the Financial and Fiscal Commission, be competent to levy and recover such property rates, levies, fee s, taxes and tariffs as may be necessary to exercise its powers and perfonn its functions: Provided that within each local govemment such rates, levies, fees, taxes and tariffs shall be based on a unifonn structure for its area of jurisdiction. (3) A local govemment shall be entitled to an equitable allocation by the provincial govemment of funds, and the Financial and Fiscal Commission shall make recommendations regarding criteria for such allocations, taking into account the different categories of local government referred to in section 174(2). 179. Elections (I) A local govemment shall be elected democratically, and such election shall take place in terms of an applicable law and at intervals of not less than three and not more than five years: Provided that the first local govemment elections after the commencement of this Constitution shall take place on the same day. (2) The electoral system for a local govemment shall include both proportional and ward representation and shall be regulated by a law referred to in subsection (I). (3) Subject to section 6, every natural person shall be entitled to vote in an election of a loeal govemment ifhe or she- (a) is ordinarily resident within the area of jurisdiction of that local govemment or is under law liable far the payment of property rates, rent, service charges or levies to that local govemment; and (b) is registered as a voter on the voters' role of that loeal govemment. (4) A voter shall not have more than one vote per local govemment. (5) No person shall be qualified to become or remain a member of a local govemment if he or she­ (a) is not eligible to vote in tenns of subsection (3); (b) is a member of the National Assembly or the Senate; (c) is not qualified to become a member ofthe National Assembly; (d) is an employee of a local govemment (uniess, with due regard to the public interest, exemption of this disqualifiea tion is given by the Executive Couneil of the province in which the local govemment is situated and proof of such exemption accompanies the nomination of such person); or (e) is disqualified in terms of any other law. 180. Code oi conduct An enforceable code of conduct for members and officials of local govemments shall be provided for by law. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb CHAPTER 11 Traditional Authorities 181. Recognition of traditional authorities and indigenous law (1) A traditional authority which observes a system of indigenous law and is recognised by law immediately before the commencement of this Constitution, shall continue as such an authority and continue to exercise and perform the powers and functions vested in it in accordance with the applicable laws and customs, subject to any amendment or repeal of such laws and customs by a competent authority. (2) Indigenous law shall be subject to regulation by law. 182. Traditional authorities and loeal government The traditional leader of a community observing a system of indigenous law and residing on land within the area of jurisdiction of an elected local governrnent referred to in Chapter 10, shall ex officio be entitled to be a member of that local govemment, and shall be eligible to be elected to any office of such local govemment. 183. Provineial House of Traditional Leaders (1) (a) The legislature of each province in which there are traditional authorities and their communities, shall establish a House of Traditional Leaders consistin g of representatives elected or nominated by such authorities in the province. (b) Draft legislation providing, subject to this Chapter, for the establishment, the composition, the election or nomination of representati ves, and the powers and functions of a House contemplated in paragraph (a), and for procedures applicable to the exercise and performance of such powers and functions, and for any other matters incidental to the establishment and functioning of such a House, shall be introduced in a provincial legislature not later than six months after the election of the first Premier of such province in terms of this Constitution. (c) The traditional authorities resident in a province shall before the introduction of draft legislation referred to in paragraph (b), be consulted, in a manner deterrnined by resolution of the provincial legislature, to establish their views on the content of such legislation. (2) (a) A House referred to in subsection (1) (a), shall be entitled to advise and make proposals to the provincial legislature or govemment in respect of matters relating to traditional authorities, indigenous law or the traditions and customs of traditional communities within the province. (b) Any provincial Bill pertaining to traditional authorities, indigenous law or such traditions and customs, or any other matters having a bearing thereon, shall be referred by the Speaker of the provincial legislature to the House for its comments before the Bill is passed by such legislature. (c) The House shall, within 30 days as from the date of such referral, indicate by written notification to the provincial legislature its support for or opposition to the Bill, together with any comments it wishes to make. (d) If the House indicates in terms of paragraph (c) that it is opposed to the Bill, the provincial legislature shall not pass the Bill before a period of 30 days as from the date of receipt by the Speaker of such written notification has lapsed. (e) If the House fai ls to indicate within the period prescribed by paragraph (c) whether it supports or opposes the Bill, the provincial legislature may proceed with the Bill. 184. Council of Traditi onal Leaders (I) There is hereby established a Council of Traditional Leaders consisting of a chairperson and 19 representatives elected by traditional authorities in the Republic. (2) The Chairperson and members of the Council shall be elected by an electoral college constituted by the members of the Houses of Traditional Leaders referred to in section 183. (3) (a) Draft legislation providing, subject to this Chapter, for the composition, the election of representatives and the powers and functions of the Council established by subsection (1), and for procedures applicable to the exercise and performance of such powers and functions, and for any other matters incidental to the establishment and functioning of the Council, shall be introduced in Parliament not later than six months as from the comrnencement of this Constitution. 59 4 https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (b) Section 18 3 (1) (c) shall apply mutatis mutandis in respect of draft legislation referred to in paragraph (a) of this subsection, and in such application a reference therein to a provincial legislature shall be construed as a reference to Parliament. (4) The Council shall, in addition to any other powers and functions assigned to it by any other law, be competent- (a) to advise and make recommendations to the national government with regard to any matter pertaining to traditional authorities, indigenous law or the traditions and customs of traditional communities anywhere in the Republic, or any other matters having a hearing thereon; and (b) at the request of the President, to advise hirn or her on any matter of national interest. (5) (a) Any parliamentary Bill pertaining to traditional authorities, indigenous law or the traditions and customs of traditional communities or any other matters having a hearing thereon, shall, after having been passed by the House in which it was introduced but before it is passed by the other House, be referred by the Secretary to Parliament to the Council for its comments. (b) The Council shall, within 30 days as from the date of such referral, indicate by written notification to the Secretary to Parliament its support for or opposition to the Bill, together with any comments it wishes to make. (c) If the Council indicates in terms of paragraph (b) its opposition to the Bill, the other House shall not pass the Bill before a period of 30 days as from the date of receipt by the said Secretary of such written notification has lapsed. (d) If the Council fails to indicate within the period prescribed by paragraph (b) whether it supports or opposes the Bill, Parliament may proceed with the Bill. CHAPTER HA Volkstaat Council 18 4A. Provisions for establishment of a Volkstaat Council (1) The establisment of a Volkstaat Council is hereby authorised. (2) The Council shall consist of 20 members elected by memhers of Parliament who support the establismet of a Volkstaat fOT those who want it. (3) The Council shall conduct its airs aff according to mies made by the Council. 1848. Functions of Council (1) The Council shall serve as a constitutional mechanism to enable proponents of the idea of a Volkstaat to constitutionally pursue the establishment of such a Volkstaat. and shall for this purpose be competent­ and make available information with to (a) to gather, process regard possible boundaries. powers and funtions and legidlative, executive and other structures of such a Volkstaat, its suggested constitutional relationship with governrnent at national level, and any other matter directly relevant to the establisment of such a Volkstaat; (b) to make feasibiity and other relevant studies with regard to the matters referred to in paragraph (a); (c) "to submit representations and recommendations to the Constitutional Assembly and the Commission on Provincial Government with regard to the possible establishment of a Volkstaat and any matter in connection therewith; and (d) to perform such other functins as may be prescribed by an Act of Parliament. (2) The procedures to be followed by the Council in the perf ormance of its functions under subsection (1 ), shall be prescrihed by an Act of Parliament. (3) The procedures provided for in Ibis Constitution with regard to the finalisation of provincial boundaries, shall not be construed as precluding the establishment of such a Volkstaat, and in the event of the acceptance of the concept of a Volkstaat, alternative provision shall be made by Act of Parliament for the finalisation of the boundaries of any aff ected province or provinces. CHAPTER 12 Finance GENERAL FINANCIAL AFFAIRS 185. National Reven ue Fund (1) There is hereby established a National Revenue Fund, into which shall be paid all revenues, as may be defined by an Act of Parliament, raised or received by the national governrnent, and from which https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb appropriations shall be made by Parliament in accordance with this Constitution or any applicable Act of Parliament, and subject to the charges imposed thereby. (2) No money shall be withdrawn from the National Revenue Fund, except under appropriation made by an Act of Parliament in accordance with this Constitution: Provided that revenue to which a province is entitled in terms of section 155 (2) (a) and (b) shall form a direct charge against the National Revenue Fund to be credited to the respective Provincial Revenue Funds. 186. Annual budget The Minister responsible for national financial affairs shall in respect of every financial year cause to be laid before the National Assembly an annual budget reflecting the estimates of revenue and expenditure, which shall, inter a1ia, reflect capital and current expenditure of the government for that year. 187. Procurement administration (I) The procurement of goods and services for any level of government shall be regulated by an Act of Parliament and provincial laws, which shall make provision for the appointment of independent and impartial tender boards to deal with such procurements. (2) The tendering system referred to in subsection (I) shall be fair, public and competitive, and tender boards shall on request give reasons for their decisions to interested parties. (3) No organ of state and no member of any organ of state or any other person shall improperly interfere with the decisions and operations of the tender boards. (4) All decisions of any tender board shall be recorded. 188. Guarantees by national government The national government may not guarantee any provincial or local government loan, unless- (a) the guarantee complies with the norms and conditions for such a guarantee as set out in an Act of Parliament; and (b) the Financial and Fiscal Comrnission has made a recornmendation concerning compliance of the guarantee concerned with such norms and conditions. 189. Special pensions (I) Provision shall be made by an Act of Parliament for the payment of special pensions by the national government to-- (a) persons who have made sacrifices or who have served the public interest in the establishment of a democratic constitutional order, including members of any armed or military force not established by or under any law and which is under the authority and control of, or associated with and prornotes the objectives of, a political organisation; or (b) dependants of such persons. (2) The Act of Parliament referred to in subsection (I) shall prescribe the qualifications of a beneficia ry of a special pension referred to in subsection (I), the conditions for the granting thereof and the manner of the determination of the amount of such pension, taking into account a11 relevant factors, including, inter a1ia, any other remuneration or pension received by such beneficiary. 190. Income tax of elected representatives Without derogating from the Receiver of Revenue's powers and functions, the Receiver of Revenue shall annually assess the income tax returns of a11 elected representatives at a11 levels of government. AUDITOR-GENERAL 191. Establishment and appointment (I) There shall be an Auditor -General for the Republic. (2) The President shall whenever it becomes necessary appoint as Auditor-General a person- (a) nominated by a joint comrnittee of the Houses of Parliament, composed of one member of each party represented in Parliament and willing to participate in the comrnittee; and (b) approved by the National Assembly and the Senate by resolution adopted, without debate, by a majority of at least two-thirds of the members present and voting at a joint meeting: https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb Provided that if any nomination is not approved as required in paragraph (b), the joint committee shail nominate another person. (3) The Auditor-General shail be a South African citizen who is a fit and proper person to hold such office and who shail be appointed with due regard to bis or her specialised knowledge of or experience in auditing, state finances and public administration. (4) Unless the new constitutional text provides otherwise, the Auditor-General shall be appointed for a period of not Iess than five years and not more than ten years and shail not thereafter be eligible for re­ appointment. (5) If the Auditor-General is absent or unable to exercise and perform bis or her powers and functions, or if the office of Auditor-General is vacant, the highest ranking member of the Auditor -General's staff shall act as Auditor-General until the vacancy is filled, and shall for that purpose have all the powers and functions of the Auditor-General. (6) The remuneration and other conditions of service of the Auditor-General shall be as prescribed by or under an Act of Parliament, and such remuneration and the other conditions of service shall not be altered to his or her detriment during bis or her term of office. (7) The Auditor-General shall not perform remunerative work outside his or her official duties. (8) The Auditor-General shall not hold office in any political party or political organisation. (9) The Auditor-General may be removed from office by the President, but only on the grounds of misconduct, incapacity or incompetence determined by a joint committee of the Houses of Parliament composed as provided for in subsection (2) (a ), and upon receipt of ar equest for such removal made by Parliament in pursuance of a resolution to that effect adopted at a joint sitting of the National Assembly and the Senate. (10) An Auditor-General who is the subject of an investigation by ajoint committee in terms of subsection (9), may be suspended by the President pending adecision in such investigation. (11) The Auditor-General may at any time resign, subject to his or her conditions of service, by lodging bis or her resignation in writing with the President. 192. 1nde pendence and impartiality (1) The Auditor-General shall be independent and impartial and shall exercise and perform his or her powers and functions subject only to this Constitution and the law. (2) The Auditor-General and the persons appointed under section 194 (1) shall have such immunities and privileges as may be assigned to them by or under an Act of Parliament for the purpose of ensuring the independent and impartial exercise and perform ance of their powers and functions. (3) No organ of state and no member or employee of an organ of state nor any other person shall interf ere with the Auditor-General or a person appointed under section 194 (I) in the exercise or perf ormance of bis or her powers or functions. (4) All organs of state shall accord such assistance as may be reasonably required for the protection of the independence, impartiality, dignity and eff ectiveness of the Auditor-General in the exercise and perform ance of his or her powers and functions. 193. Powersandfonctions (1) The Auditor-General shail audit and report on all the accounts and financial statements of all the accounting officers at national and provinciallevel of government, other than that of the office of Auditor­ General, and of all other persons in the national and provincial public services entrusted with public assets, trust property and other assets. (2) The Auditor-General shail audit and report on all the accounts and financial statements of any local government, board, fund, institution, company, corporation or other organisation established or constituted by or under any law and of which the accounts and financial statements are required in terms of a law to be audited by the Auditor-General, and the accounts and financial statements of all persons in the employment of such a body who have been entrusted by it with its assets, or any other assets. (3) The Auditor-General shail also, at the request of the President or Parliament, conduct performance audits. (4) The Auditor-General may, whenever he or she considers it to be in the public interest, or upon receipt of a complaint, investigate, audit and report on the accounts and financial statements of any statutory body or any other institution in control of public funds. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (5) No further duties or functions may be imposed upon or assigned to the Auditor-General other than by means of an Act of Parliament. (6) Whenever the Auditor-General or a person appointed in terms of section 194 (I) exercises or performs his or her powers and functions in terms of this Constitution, he or she shall have access to a11 books, records and other documents and information relating to the accounts and financial statements referred to in this section. (7) The Auditor-General shall report on the accounts exarnined by hirn or her and submit such reports to the authorities designated by an Act of Parliament to receive them, and, unless otherwise provided by an Act of Parliament, such reports or ar eport by the Auditor-General on any other matter shall be submitted to Parliament within seven days after receipt thereof by such authority. (8) The Auditor-General shall make public any report referred to in subsection (7) after the expiry of a period of 14 days from the date on which such report was submitted to the authorities concemed. 194. Staff and ex penditure (I) The Auditor-General may appoint, in accordance with a law, such persons as may be necessary for the discha rge of the work of the office of the Auditor-General. (2) The Auditor-General may, subject to such conditions as may be prescribed by or under a law, delegate any of his or her powers to a person referred to in subsection (I) , or authorise such a person to perform any function of the Auditor-General. (3) Expenditure incurred during the exercise and performance of the powers and functions of the Auditor­ General in terms of this Constitution or under any other law shall be defrayed from money appropriated by Parliament for such purpose and from fees raised or money obtained in a manner authorised by an Act of Parliament. SOVTH AFRICAN RESERVE BANK 195. Central Bank The South African Reserve Ba nk, established and regulated by an Act of Parliament, shall be the central bank of the Republic. 196. Primary objectives (I) The primary objectives of the South African Reserve Bank shall be to protect the internal and external value of the currency in the interest of balanced and sustainable economic growth in the Republic. (2) The South African Reserve Bank shall, in the pursuit of its primary objectives referred to in subsection (I), exercise its powers and perform its functions independently, subject only to an Act of Parliament referred to in section 197: Provided that there shall be regular consultation between the South African Reserve Bank and the Minister responsible for national financial matters. 197. Powers andfunctions The powers and functions of the South African Reserve Bank shall be those customarily exercised and performed by central banks, which powers and functions shall be deterrnined by an Act of Parliament and shall be exercised or perforrned subject to such conditions as may be prescribed by or under such Act. FINANCIAL AND FISCAL COMMISSIO N 198. Establishment There is hereby established a Financial and Fiscal Commission. 199. Objects andfunctions (I) The objects and functions of the Commission shall be to apprise itself of a11 financial and fiscal information relevant to national, provincial and local government, administration and development and, on the basis of such information, to render advice and make recommendations to the relevant legislative authorities in terms of this Constitution regarding the financial and fiscal requirements of the national, provincial and local govemments, inc1uding- (a) financial and fiscal policies; (b) equitable financial and fiscal allocations to the national, provincial and local governments from revenue collected at national level; (c) taxes, levies, imposts and surcharges that a provincial govemment intends to levy; https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (d) the raising of loans by a provincial or local govemment and the financial norms applicable thereto; (e) criteria for the allocation of financial and fiscal resources; and (f) any other matter assigned to the Commission by this Constitution or any other law. (2) In performing its functions the Commission shall take into consideration, inter alia, the provisions of section 155 (4) (b) and any other provision of this Constitution. 200. Constitution, ex pertise and impartiality (I) The Commission shall consist of- (a) a chairperson and deputy chairperson, appointed by the President in consultation with the Cabinet; (b) a person designated by each of the various Executive Councils of the provinces, who shall be appointed by the President; and (c) seven members appointed by the President on the advice of the Cabinet, at least one of whom shall have expertise in local govemment finance. (2) The first appointment of members of the Commission shall be effected within 60 days from the date of commencement of this Constitution. (3) No person shall be qualified to be appointed to the Commission unless he or she­ (a) is a South African citizen; and (b) is a person who, by reason of his or her training and experience, has expertise in economies, public finance, public administration, taxation, management or accountancy. (4) (a) Unless the new constitutional text provides otherwise, a member of the Commission may be removed from office only by the President and only on account of misconduct, incapacity or incompetence. (b) The President shall within 14 days after the removal from office of a member of the Commission, notify Parliament and the provincial legisla tures by message of such removal and of the reasons therefor. (5) Vacancies in the Commission shall be filled in accordance with the relevant provisions of this seetion under which the former member concemed was appointed. (6) The chairperson and the deputy chairperson shall be appointed for a period of five years, and the other members of the Commission for ape riod of two years, but shall be eligible for re-appointment. (7) A member of the Commission shall perform his or her duties fairly, impartially and independently. (8) The chairperson and deputy chairperson shall not perform or commit himself or herself to perform remunerative work outside his or her official duties. (9) A member of the Commission shall not hold office in any political party or political organisation. (10) It shall be an offence to influence or attempt to influence a member of the Commission to act otherwise than in accordance with the provisions of subsection (7). (1 1) The chairperson and deputy chairperson- (a) shall be the only full-time members of the Commission; (b) shall be the chief executive officer and deputy chief executive officer, respectively, of the Commission. 201 . Meetings of Commission (1) (a) The first meeting of the Commission shall be held within 30 days of its appointment at a time and place to be determined by the chairperson, and subsequent meetings shall be held at a time and place determined by the Commission or, if authorised thereto by the Commission, by the chairperson. (b) If both the chairperson and deputy chairperson are absent from a meeting, the members present shall elect one from among their number to act as chairperson. (2) A quorum for a meeting of the Commission shall be not less than one half of all its members . (3) A decision of two-thirds of the members present shall constitute adecision of the Commission. (4) All the decisions of the Commission shall be recorded. 202. Committees (1) The Commission may establish committees from among its number. (2) Any such committee shall consist of such number of members as the Commission may determine. (3) The Commission shall designate one of the members of a committee as chairperson thereof, and if any such chairperson is absent from a meeting of the committee the members present shall elect one from among their number to act as chairperson. (4) (a) The Commission may, subject to such directions as it may issue from time to time­ (i) delegate any power conferred upon it by or under section 199 to such a committee; and https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (ii) grant authority that a function assigned to it by or under section 199 may be performed by such a committee. (b) The Commission shall not be divested of a power so delegated or the perf ormance of a function so authorised, and may amend or set aside any decision of a committee. 203. Co-option ojpersons by committees (I) A committee may co-opt any person to serve on such committee or to attend a particular meeting thereof in connection with a particular maner dealt with by the committee. (2) Such a person may take part in the proceedings of the committee in connection with the matter or at the meeting in respect of which he or she has been co-opted, but shall not be entitled to vote. 204. Remuneration and allowances of members and other persons Members of the Commission and persons referred to in section 203 who are not in the employment of the state, shall be paid, from money appropriated by Parliament for that purpose, such remunera tion and allowances as the Minister responsible for national financial affaits may determine. 205. Appointment of sta Jf (I) The Commission may appoint staff and accept secondment of staff as it may deern necessary in consultation with the Public Service Commission. (2) Expenditure incidental to the performance of the functions of the Commission in terms of this Constitution or under any other law shall be defrayed from money appropriated by Parliament. 206. Regulations The President may make regulations regarding- (a) procedures in connection with the performance of any function of the Commission; and (b) any other matter in connection with the achievement of the objects of the Commission. COMMISSION ON REMUNERATION OF REPRESENT A TIVES 207. Establishment (I) There shall be established by an Act of Parliament a Commission on Remuneration of Representatives. (2) The Commission shall make recommendations to Parliament, the provincial legislatures and local govemments regarding the nature, extent and conditions of the remuneration and allowances of the members of all elected legislative bodies of the national govemment and of provincial and local govemments, including members of the Provincial Houses of Traditional Leaders and the Council of Traditional Leaders. 208. Composition and functioning (I) The composition, structure, powers, functions and procedures of the Commission and related matters shall be provided for in the Act referred to in section 207 . (2) Reports by the Commission shall be tabled in Parliament: Provided that the Commission shall report to Parliament on its activities at least once every year. CHAPTER 13 Public Service Commission and Public Service PUBLIC SERVICE COMMISSION 209. Establishment (I) There shall be a Public Service Commission for the Republic, which shall have the powers and functions entrusted to it by this Constitution or by a law of a competent authority. (2) The Commission shall in respect of the exercise and performance of its powers and functions be accountable to Parliament. 210. Powers andfunctions (I) The Commission shall be competent- (a) to make recommendations, give directions and conduct enquiries with regard to- https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (i) the organisation and administration of departments and the public service; . (ii) the conditions of service of members of the public service and matters related thereto; (iii) personnel practices in the public service, appointments, promotions, transfers, discha rge and other career incidents of members of the public service and matters in connection with the employrnent of personneI; (iv) the promotion of efficiency and effectiveness in departments and the public service; and (v) a code of conduct applicable to members of the public service; (b) when so requested, to advise the President, a Minister or a member of the Executive Council of a province in regard to any matter relating to the public service or the employment, remuneration or other conditions of service of functionaries employed by any institution or body which receives funds wholly or partly appropriated by Parliament or a provinciallegislature; (c) to exercise such other powers and perform such other functions as may be entrusted to it by a law of a competent author ity; and (d) subject to any limitation imposed by law, to delegate any of its powers to a member of the Commission or an official in the public service or authorise any such member or official to perform any of its functions. (2) Until amended by law, the powers and functions of the Commission set out in subsection (1) shall be exercised and performed in accordance with the laws in force at the commencement oftbis Constitution. (3) A recommendation or direction of the Commission shall be implemented by the appropriate person or institution within six months unless- (a) such recommendation or direction involves expenditure from public funds and the approval of the treasury for such expenditure is not obta ined; or (b) the President rejects it and refers it back to the Commission before its implementation. (4) The Commission may appoint, in a manner prescribed by law, such persons as may be necessary for the discha rge of its work. (5) Expenditure incurred in connection with the exercise and the perf ormance of the powers and functions of the Commission in terms of this Constitution or any other law shall be defrayed from money appropriated by Parliament and from fees raised or money obtained in a manner authorised by an Act of Parliament. (6) On the recommendation of the Commission the President may assign by proclamation in the Gazette any power or function of the Commission to a provincial service commission. (7) The Commission shall annually submit ar eport on its activities to Parliament. 211. Composition (I) (a) The Commission shall consist of not fewer than three members and not more than five members appointed by the President, one of whom shall be designated as the Chairperson of the Commission by the President. (b) The Commission shall exercise its powers and perform its functions fair ly, impartially and independently. (c) The remuneration and other conditions of service of a member of the Commission shall be determined in accordance with an Act of Par liament, and such remuneration and the other conditions of service shall not be altered to his or her detriment during bis or her term of office. (d) A mem�r of the Commission shall not hold office in any political party or political organisation and shall be non-partisan in the perform ance of his or her functions. (e) A member of the Commission may be removed from office by the President on account of misconduct, or unfitness for his or her duties, or incapacity to carry them out efficiently, or if, for reasons other than unfitness or incapacity, his or her removal from office will promote efficiency, and particulars of the removal, including the reasons therefor, shall be submitted by the President to Parliament within 14 days after such removal. (2) A person shall be qualified to be appointed to the Commission if he or she­ (a) is a South African citizen; and (b) is a person who has sufficient knowledge of or experience in the administration, management or rendering of public services. (3) The composition, appointment, tenure, vacation of office, conditions of service and functioning of the Commission shall be as determined by Act of Parliament, and such Act shall ensure the independence and 60 1 https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb impartiality of the Commission and the efficient and eff ective exercise and performance of its powers and functions. THE PUBLIC SERVICE 212. Public Service (I) There shall be a public service for the Republic, structured in terms of a law to provide effective public administration. (2) Such public service shall- (a) be non-partisan, career-orientated and function according to fair and equitable principles; (b) promote an efficient public administration broadly representative ofthe South African community; (c) serve all members ofthe public in an unbiased and impartial manner; (d) be regulated by laws dealing specifically with such service, and in particular with its structure, functioning and terms and conditions of service; (e) loyally execute the policies of the govemment of the day in the performance of its administrative functions; and (f) be organised in departments and other organisational components, and the head of such department or organisational component shall be responsible for the efficient management and administration of bis or her department or organisational component. (3) Employment in the public service shall be accessible to all South African citizens who comply with the requirements determined or prescribed by or under any law for employment in such service. (4) In the making of any appointment or the filling of any post in the public service, the qualifications, level of training, merit, ef ficiency and suitability of the persons who qualify for the appointment, promotion or transfer concemed, and such conditions as may be determined or prescribed by or under any law, shall be taken into account. (5) Subsection (4) shall not preclude measures to promote the objectives set out in subsection (2). (6) Provision shall be made by law for a pension for a member of the public service by means of a pension fund or funds established by law, and members of the public service who are required by law to be members of a pension fund shall be entitled to fair representation on the body which manages the applicable fund. (7) (a) In the event of changes to the law goveming pension funds which prejudice a member of a fund, the real value of the accrued benefits of such member of a fund, and his or her beneficiary, as represented by the fund's actuarialliability towards the member or his or her beneficiary, shall be maintained. (b) The retirement age applicable to a public servant by law as at 1 October 19 93, shall not be changed without his or her consent. (8) For the purposes of this seetion the public service shall include the permanent force of the National Defence Force referred to in section 226 (I ). PROVINCIAL SERVICE COMMISSIONS 213. (1) A provincial legislature may provide by law for a provincial service commission and, subject to norms and standards applying nationally, such commission shall, in respect of public servants employed by the province, be competent- (a) to make recommendations, give directions and conduct inquiries with regard to-­ (i) the establishment and organisation of departments of the province; (ii) appointments, promotions, transfers, discharge and other career incidents of such public servants; and (iii) the promotion of efficiency and effectiveness in departments of the province; (b) when so requested, to advise the Premier or a member of the Executive Council of a province in regard to any matter relating to the public service or the employment, remuneration or other conditions of service of functionaries employed by any institution or body wbich receives funds wholly or partly appropriated by a provinciallegislature; (c) subject to any limitation imposed by a law, to delegate any of its powers to a member of such commission or official in the public service or authorise any such member or official to perform any of its function s; and (d) to exercise and perform such other powers and functions of the Public Service Commission assigned to it by the President with the approval of the Premier of the province. (2) The provisions of sections 210 (2), (3), (4), (5) and (7) and 21 1 pertaining to the Public Service Commission, shall mutatis mutandis apply to a provincial service commission, except that any reference to https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb an Act of Parliament, Parliament or the President shall be deemed to be a reference to a provincial law, a provinciallegisla ture or the Premier of a province, respectively. CHAPTER 14 Police and Defence SOUTH AFRICAN POLICE SERVICE 214. Establishment (I) There shall be established and regulated by an Act of Parliament a South African Police Service, which shall be structured at both national and provincial levels and shall function under the direction of the national government as weil as the various provincial governments. (2) The Act of Parliament referred to in subsection (I) shall- (a) subject to sections 216 , 217 and 218 , provide for the appointrnent of a Commissioner of the South African Police Service (hereinafter in this Chapter called the 'National Commissioner') and a Commissioner for each province (hereinafter in this Chapter called a 'Provincial Commissioner'); (b) provide for the establishment and maintenance of uniform standards of policing at all levels regarding- (i) the exercise of police powers; (ii) the recruitrnent, appointment, promotion and transfer of members of the Service; (iii) suspension, dismissal, disciplina ry and grievance procedures; (iv) the training, conduct and conditions of service of members of the Service; (v) the general management, controI, maintenance and provisioning ofthe Service; (vi) returns, registers, records, documents, forms and correspondence; and (vii) generally, all matters which are necessary or expedient for the achievement of the purposes of this Constitution. 215. Powers andfunctions The powers and functions of the Service shall be­ (a) the prevention of crime; (b) the investigation of any off ence or alleged off ence; (c) the maintenance of law and order; and (d) the preservation ofthe internal security of the Republic. 216. Minister and National Commissioner (I) The President shall, subject to this Constitution, charge a Minister with responsibility for the Service. (2) (a) The President shall, subject to section 236 (I) and (2), appoint the National Commissioner. (b) The National Commissioner shall exercise executive command of the Service, subject to section 219 (I) and the directions ofthe Minister referred to in subsection (I ). (3) The President may, if the National Commissioner has lost the confidence of the Cabinet, institute appropriate proceedings against the Commissioner in accordance with a law. 217. Powers of provinces (I) The Premier of a province shall charge a member of the Executive Council of the province with responsibility for the performance by the Service in or in regard to that province of the functions set out in section 219 (I) . (2) The member ofthe Executive Council referred to in subsection (1)- (a) shall approve or veto the appointrnent of the relevant Provincial Commissioner in terms of section 218 (I) (b); and (b) may, if the Provincial Commissioner has lost the confidence of the Executive Council, institute appropriate proceedings against the said Commissioner in accordance with a law. (3) A provinciallegis1a ture may pass laws not inconsistent with national legislation regarding the functions of the Service set out in section 219 (I) . (4) No provinciallaw may- (a) perrnit lower standards of perf ormance of the functions of the Service than those provided for by an Act of Parliament; or (b) detract from the rights which citizens have under an Act of Parliament. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb 218. Responsibilities of National Commissioner (1) Subject to section 214 and tbe directions of the Minister referred to in section 216 (1), tbe National Commissioner shall be responsible for- (a) tbe maintenance of an impartial, accountable, transparent and efficient police service; (b) the appointment ofprovincial commissioners, subject to section 217 (2) (a); (c) tbe preservation oftbe internal security in the Republic; (d) the investigation and prevention of organised crime or crime which requires national investigation and prevention or specialised skills: Provided that the Act referred to in section 214 (1) shall set out the circurnstances which shall be regarded as organised crime and tbe circumstances which require national investigation and prevention or specialised skills; (e) international police liaison; (f) tbe keeping and provision of crime intelligence data, criminal records and statistics; (g) tbe training of members of tbe Service, including any municipal or metropolitan police services to be established; (h) the recruitment, appointrnent, promotion and transfer of all members of the Service; (i) the provision of forensic laboratory services; (j) such functions relating to border control and tbe import and export of goods as may be assigned to tbe Service by law; (k) the establishment and maintenance of an ational public order policing unit to be deployed in support of and at tbe request of tbe Provincial Commissioner: Provided that tbe Act referred to in section 214 . (1) shall provide that tbe President, in consultation witb tbe Cabinet, may direct tbe National Commissioner to deploy tbe said unit in circumstances where tbe Provincial Commissioner is unable to maintain public order and tbe deployment of the said unit is necessary to restore public order; (I) national protection services; (m) tbe establishment of a special task force for high risk operati ons which require specialised skills; and (n) subject to section 219 , such other functions as- (i) are necessary to achieve the objectives referred to in section 217; and (ii) are appropriate for the National Commissioner to take responsibility for. (2) The National Commissioner may after consultation witb tbe Executive Council of tbe province concerned assign responsibility for any function set out in tbis section to a Provincial Commissioner: Provided that tbe National Commissioner shall ensure that sufficient resources are made available to tbe Provincial Commissioner for such purpose. 219. Provincial Commissioners (1) Subjeet to sections 214 and 218 and tbe directions of tbe relevant member of the Executive Council referred to in section 217 (I) , a Provincial Commissioner shall be responsible for- (a) tbe investigation and prevention of crime; (b) the development of community-policing services; (c) tbe maintenance ofpublic order; (d) the provision in general of all otber visible policing services, including­ (i) the establishment and maintenance of police stations ; (ii) crime reaction units; and (iii) patr olling services; (e) protection services in regard to provincial institutions and personnei; (f) transfers within tbe province of members of tbe Service perform ing functions in terms of tbis section; and (g) the promotion, up to the rank of lieutenant -colonel, of members of tbe Service performin g functions in terms of tbis section. (2) Subject to sections 214 and 218 and tbe directions of the National Commissioner, a Provincial Commissioner shall be responsible for- (a) the maintenance and discipline of tbe Service in the province concerned; (b) the recruitment of members of tbe Service responsible for tbe functions set out in subsection (1), and tbe promotion of any such members to the rank of colonel or above; (e) such otber functions as may be assigned to hirn or her by tbe National Commissioner under section 218 (2) ; and https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (d) subject to such procedures or mechanisms as may be established by the Board of Commissioners referred to in section 220(2), the transfer of members of the Service under his or her command to or from positions outside his or her jurisdiction. 220. Co-ordination and co-operation (1) A committee consisting of the Minister referred to in section 216 (1) and the respective members of the Executive Councils referred to in section 217 (1) shall be established to ensure the effective co-ordination of the Service and effective co-operation between the various Commissioners. (2) The Act referred to in section 214 (1) shall provide for the appointrnent of a Board of Commissioners, consisting of the National Commissioner and the Provincial Commissioners and presided over by the National Commissioner or his or her nominee, in order to promote co-operation and co-ordination in the Service. 221. Local policing (1) The Act referred to in section 214 (I) shall provide for the establishment of community-police forums in respect of police stations. (2) The functions of community-police forums referred to in subsection (I) may include- (a) the promotion of accountability of the Service to local communities and co-operation of communities with the Service; (b) the monitoring of the effectiveness and efficiency of the Service; (c) advising the Service regarding local policing priorities; (d) the evaluation of the provision of visible police services, including­ (i) the provision, siting and staf fmg of police stations; (ii) the reception and processing of complaints and charges; (iii) the provision of protective services al gatherings; (iv) the patrolling ofresidential and business areas ; and (v) the prosecution of offenders; and (e) requesting enquiries into policing matters in the locality concemed. (3) The Act referred to in section 214 (1) shall make provision for the establishment by any local govemment of a municipal or metropolitan police service: Provided that- (a) such a police service may only be established with the consent of the relevant member of the Executive Council of the province referred to in section 217 (1); (b) the powers of such a police service shall be limited to crime prevention and the enforcement of municipal and metropolitan by-Iaws; (c) the said member of the Executive Council of the province shall, subject to paragraph (b) and the provisions of the said Act, deterrnine the powers and functions of such a police service; and (d) the said Act shall provide that its provisions shall, as far as practicable, apply mutatis mutandis 10 any such police service. 222. Inde pendent complaints mechanism There shall be established and regulated by an Act of Parliament an independent mechanism under civilian control, with the object of ensuring that complaints in respect of off ences and misconduct allegedly committed by members of the Service are investigated in an effective and efficient manner. 223. Acts of members outside their territoria lju risdiction (I) No act of a member of the Service shall be invalid solely by reason of the fact that it was committed outside the province in which that member is stationed. (2) The National Commissioner shall by regulation deterrnine the procedures and the relevant powers of the members of the Service to enable them to perform their functions outside their area of provincial jurisdiction. NATIONAL DEFENCE FORCE 224. Establishment of National Defence Force (I) The National Defence Force is hereby established as the only defence force for the Republic. (2) The National Defence Force shall its at establishment consist of all members of- https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (a) the South African Defence Force; (b) any defence force of any area forming part ofthe national territory ; and (c) any armed force as defined in section 1 of the Transitional Executive Council Act, 1993 (Act 151 of 1993), and whose names, at the commencement of this Constitution, are inc1uded in a certified personnel register referred to in section 16 (3) or (9) of the said Ac!: Provided that this subsection shall not apply to members of any such defence or armed force if the political organisation under whose authority and control it stands or with which it is associated and whose objectives it promotes did not take part in the first election ofthe National Assembly and the provincial legislatures under this Constitution. (3) Save for the National Defence Force, no other armed force or military force or armed organisation or service may be established in or for the Republic other than- (a) as provided for in this Constitution; (b) a force established by or under an Act of Parliament for the protection of public property or the environment; or (c) a service established by or under law for the protection of persons or property . 225. Chie f of National Defence Force Subject to section 236 (I) and (2), the President shall appoint a Chief of the National Defence Force, who shall exercise military executive command of the National Defence Force, subject to the directions of the Minister responsible for defence and, during astate of national defence, of the President. 226. Members of National Defence Force (I) The National Defence Force shall comprise both a permanent force and apart -time reserve component. (2) The establishment, organisation, training, conditions of service and other matters conceming the permanent force shall be as provided for by an Act of Parliament. (3) The establishment, organisation, training, state of prepar edness, calling up, obligations and conditions of service of the part -time reserve component shall be as provided for by an Act of Parliament. (4) The National Defence Force shall be established in such a manner that it will provide a balanced, modern and technologically advanced military force, capable of executing its functions in terms of this Constitution. (5) All rnernbers of the National Defence Force shall be properly trained in order to comply with international standards of competency. (6) No member ofthe permanent force shall hold office in any political party or political organisation. (7) A member of the National Defence Force shall be obliged to comply with all lawful orders, but shall be entitled to refuse to execute any order if the execution of such order would constitute an offence or would breach international law on armed conflict binding on the Republic. (8) Provision shall be made by an Act of Parliament for the payment of adequate compensation to-- (a) a member of the National Defence Force who suffers loss due to physical or mental disability sustained in the execution of his or her duties as such a member; and (b) the immediate dependants of a member of the National Defence Force who suffer loss due to the death or physical or mental disability of such a member resulting from the execution of his or her duties as such a member. 227. Functions of National Defence Force (1) The Natiopal Defence Force may, sub ject to this Constitution, be employed- (a) for service in the defence of the Republic, for the protection of its sovereignty and territorial integrity; (b) for service in compliance with the international obligations of the Republic with regard to international bodies and other states; (c) for service in the preservation of life, health or property; (d) for service in the provision or maintenance of essential services; (e) for service in the upholding of law and order in the Republic in co-operation with the South African Police Service under circumstances set out in a law where the said Police Service is unable to maintain law and order on its own; and (f) for service in support of any department of state for the purpose of socio-economic uplifrment. (2) The National Defence Force shall- (a) exercise its powers and perform its functions solely in the national interest by- https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (i) upholding the Constitution; (ii) providing for the defence of the Republic; and (iii) ensuring the protection ofthe inhabitants of the Republic, in accordance with this Constitution and any law; (b) exercise its powers and perform its functions under the directions of the government of the Republic; (c) refrain from furthering or prejudicing party-political interests; (d) not breach international customary law binding on the Republic relating to aggression; (e) in arrn ed conflict comply with its obligations under international customary law and treaties binding on the Republic; and (f) be primarily defensive in the exercise or performance of its powers and functions. (3) The employment for service, training, organisation and deployment of the National Defence Force shall be effected in accordance with the requirements of subsection (2). 228. Accountability (1) The Minister responsible for defence shall be accountable to Parliament for the National Defence Force. (2) Parliarnent shall annually approve a budget for the defence of the Republic. (3)(a) A joint standing committee of Parliament on defence shall be established, consisting of members of a11 political parties holding more than 10 sealS in the National Assembly and willing to participate in the committee. (b) The total membership of the committee shall be as detennined by or under the rules and orders. (c) Such a party shall be entitled to designate a member or members on the committee in accordance with the principle of proportional representation and as detennined in accordance with the following formula: (i) A quota of seats per member of the committee shall be determined by dividing the total number of sealS in the National Assembly held jointly by a11 the parties referred to in paragraph (a) by the total number of members ofthe committee plus one. (ii) The result, disregarding third and subsequent decimals, if any, shall be the quota of seats per member. (iii) The number of members that a participating party shall be entitled to designate on the committee, shall be detennined by dividing the total number of seats held by such party in the National Assembly by the quota referred to in subparagraph (ii). (iv) The result shall, subject to subparagraph (v), indicate the number of members that such party is entitled to designate on the committee. (v) Where the application of the above formula yields a surplus not absorbed by the number of members aIIocated to a party, such surplus shall compete with other similar surpluses accruing to another party or parties, and any rnernber or rnembers which remain unallocated shall be a1located to the party or parties concerned in sequence ofthe highest surplus. (d) The committee shall be competent to investigate and make recommendations regarding the budget, functioning, organisation, aments, arrn policy, moraIe and state of preparedness of the National Defence Force and to perform such other functions relating to parliamentary supervision of the Force as may be prescribed by law. (4)(a) The President shall, when the National Defence Force is employed for service referred to in seetion 227 (I) (a), (b) or (e), forthwith inform Parliament ofthe reasons for such employment. (b) If, in the case of such an employment referred to in section 227 (I) (a) or (b), Parliament is not sitting, the President shall summon the joint standing committee referred to in subsection (3) to meet expeditiously, but not later than 14 days after the commencement of such employment, and shall inform the committee ofthe reasons for such employrnent. (5) Parliament rnay by resolution terminate any employment referred to in seetion 227 (I) (a), (b) or (e), but such tennination of employment shall not affect the validity of anything done in terms of such employment up to the date of such tennina tion, or any right, privilege, obligation or Iiability acquired, accrued or incurred as at the said date under and by virtue of such employment. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb CHAPTER 15 General and Transitional Provisions 229. Continuation of existing laws Subject to tbis Constitution, all laws which immediately before tbe commencement of tbis Constitution were in force in any area which forms part of tbe national territory, shall continue in force in such area, subject to any repeal or amendment of such laws by a competent authority. 230. Repeal of laws (I) The laws mentioned in Schedule 7 are hereby repealed to tbe extent set out in the third column of the said Schedule. (2) Notwithstanding the repeal of sections 13 and 101 (2) of tbe previous Constitution, any pension which, but for such repeal, would have been payable shall continue to be payable as if such repeal had not been effected. 231 . Continuation of international agreements and status of international law (I) All rights and obligations under international agreements which immediately before the commencement of this Constitution were vested in or binding on the Republic within tbe meaning of the previous Constitution, shaH be vested in or binding on tbe Republic under tbis Constitution, unless provided otherwise by an Act of Parliament. (2) Parliament shall, subject to tbis Constitution, be competent to agree to the ratification of or accession to an international agreement negotiated and signed in terms of section 82 (I) (i). (3) Where Parliament agrees to tbe ratification of or accession to an international agreement under subsection (2), such international agreement shall be binding on the Republic and shall form part of tbe law of tbe Republic, provided Parliament expressly so provides and such agreement is not inconsistent with tbis Constitution. (4) The mies of customary international law binding on the Republic, shall, unless inconsistent witb tbis Constitution or an Act of Parliament, form part of the law of the Republic. 232. Inter pretation (I) Unless it is inconsistent witb tbe context or clearly inappropriate, a reference in a law referred to in section 229- (a) to the Republic or to any territory which after tbe commencement of this Constitution forms part of tbe national territory- (i) as a constitutional institution, shall be construed as a reference to tbe Republic referred to in section I; or (ii) as a territorial area, shall be construed as a reference to that part of tbe national territory in which the law in question was in force immediately before such commencement, unless such law is applied by a law of a competent authority to the whole or any part of the national territory; (b) to a Parliament, House of a Parliament or legislative assembly or body of any territory which after the commencement of this Constitution forms part of tbe national territory, shall- (i) if the administration of such a law is a1located in terms of tbis Constitution to the national government, be constmed as a reference to Parliament referred to in section 36; or (ii) if tbe administration of such law is a1located or assigned in terms of tbis Constitution to a govemment of a province, be construed as a reference to the provinciallegisla ture of that province; (c) to aState President, Chief Minister, Administrator or otber chief executive, Cabinet, Ministers' Council or executive council of any territory which after tbe commencement of tbis Constitution forms part of tbe national territory, shall- (i) if tbe administration of such law is a1located in terms of tbis Constitution to tbe national govemment, be construed as a reference to the President acting in accordance witb tbis Constitution; or (ii) if tbe administration of such law is a1located or assigned in terms of this Constitution to a govemment of a province, be construed as a reference to tbe Premier of such province acting in terms of tbis Constitution; (d) to an official la nguage or to both official languages, shall be construed, with due regard to section 3, as a refer ence to any of the official Soutb African languages under this Constitution. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (2) (a) Any reference in this Constitution to any particular law shall be construed as a reference to that law as it exists from time to time after any amendment or replacement thereof by a competent authority. (b) An amendment, replacement or repeal of a law referred to in paragraph (a), shall for the purposes of seetion 62 not be considered to be an amendment of this Constitution, and any such amendment, replacement or repeal of a law shall for its validity be dependent on its consistency with this Constitution in terms of seetion 4 (I ). (3) No law shaII be constitutionally invalid solely by reason of the fact that the wording used is prima facie capable of an interpretation which is inconsistent with a provision of this Constitution, provided such a law is reasonably capable of a more restricted interpretation which is not inconsistent with any such provision, in which event such law shall be construed as having a meaning in accordance with the said more restricted interpretation. (4) In interpreting this Constitution a provision in any Schedule, incIuding the provision under the heading 'National Unity and Reconciliation', to this Constitution shall not by reason only of the fact that it is contained in a Schedule, have a lesser status than any other provision of this Constitution which is not contained in a Schedule, and such provision shall for a11 purposes be deemed to form part of the substance of this Constitution. (5) (a) Notwithstanding the provisions of the Independent Electoral Comrnission Act, 19 93 (Act 15 0 of 19 93), the President may at any time after the dissolution of the Independent Electoral Comrnission in terms of section 9 of that Act, by procIamation in the Gazette, reconvene the Comrnission for the purposes of a referendum or election referred to in section 124. (b) If any person who before its dissolution was a member of the Commission, cannot or is unwiIIing to serve as a member after it has been reconvened under paragraph (a) , Parliament may, by resolution adopted at a joint sitting of the National Assembly and the Senate by a majority of at least two-thirds of the total number of members of both Houses, appoint any suitably qualified person to replace any such member. 233. Defin itions (I) In this Constitution, unless the context otherwise indicates- 'Chief lustke' means the Chief lustice ofthe Supreme Court of South Africa referred to in seetion 97 (I); 'Commission on Provincial Govemment' means the Commission established by section 163; 'Financial and Fiscal Commission' means the Commission established by section 198; 'House', in relation to Parliament, means the National Assembly or the Senate; 'Independent Electoral Comrnission' means the Comrnission established by section 4 of the Independent Electoral Commission Act, 1993 (Act 150 of 1993); 'National Defence Force' means the Defence Force established by section 224 (I); 'National Revenue Fund' means the Revenue Fund established by seetion 185; 'new constitutional text' means the text of a new Constitution contemplated in Chapter 5; organ of state' incIudes any statutory body or functionary; 'previous Constitution' means the Republic of South Africa Constitution Act, 19 83 (Act 11 0 of 1983); 'Provincial Revenue Fund' means the Revenue Fund of a province established by section 15 9 (I ); 'Public Service Commi ssion' means the Commission established by section 209; 'Republic' means the Republic of South Africa referred to in seetion I; 'Transitional Executive Council' means the Council established by section 2 of the Transitional Executive Council Act, 1993 (Act 151 of 19 93). (2) A reference in this Constitution to rules and orders shall according to the context be construed as a reference to the rules and orders of the National Assembly or the Senate, or the joint rules and orders of the National Assembly and the Senate, or the rules and orders of the Constitutional Assembly, or the rules and orders of a provincial legislature. (3) Where in this Constitution any functionary is required to take a decision in consultation with another functionary, such decision shall require the concurrence of such other functionary: Provided that if such other functionary is a body of persons it shall express its concurrence in accordance with its own decision­ making procedures. (4) Where in this Constitution any functionary is required to take adecision after consultation with another functionary, such decision shall be taken in good faith after consulting and giving serious consideration to the views of such other functionary. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb 234. Transitional arrangements: Legislative authorities (I) A person who immediately before the commencement of this Constitution was a member of Parliament or of any other legislature (exc1uding a local government) which exercised legislative powers in respect of any area which forms part of the national territory, shall upon such commencement cease to be such a member, but shall for the purpose of any law relating to the payment of pension benefits to such members not be disqualified solely by reason of this section. (2) A person who irnmediately before the commencement of this Constitution was employed by Parliament, shall after such commencement continue in such employment, subject to and in accordance with the applicable laws regulating such employment. (3) The provisions of section 2 36 (4), (5) and (6) shall apply mutatis mutandis in respect of a person referred to in subsection (2). (4) A person who irnmediately before the commencement of this Constitution was employed by a legislature referred to in subsection (1) other than Parliament, shall be deemed to be employed by the administration in that part of the national territory in which such legislature exercised legislative powers, subject to and in accordance with the applicable laws regulating such employment, and sections 236 and 237 shall apply mutatis mutandis in respect of such person. (5) Any matter before Parliament or any such other legislature which immediately before the commencement of this Constitution was riot yet disposed of by Parliament or such legislature, as the case may be, shail lapse upon such commencement. (6) The mies and orders of Parliament in force immediately before the commencement of this Constitution, shall, to the extent that they can mutatis mutandis be applied in respect of the business and proceedings of Parliament under this Constitution, continue in force until amended or replaced in terms of this Constitution. 235. Transitional arrangements: Executive authorities (I) A person who immediately before the commencement of this Constitution was- (a) the State President or a Minister or Deputy Minister of the Republic within the meaning of the previous Constitution; (b) the Administrator or a member of the Executive Council of a province; or (c) the President, Chief Minister or other chief executive or a Minister, Deputy Minister or other political functionary in a govemment under any other constitution or constitutional arrangement which was in force in an area which forms part of the national territory, shall continue in office until the President has been elected in terms of seetion 77 (I) (a) and has assumed office: Provided that a person referred to in paragraph (a), (b) or (c) shall for the purposes of section 42 (I) (e) and while continuing in office, be deemed not to hold an office of profit under the Republic. (2) Any vacancy which may occur in an office referred to in subsection (I) (a), (b) or (c) shall, if necessary, be filled by a person designated by the persons continuing in office in terms of subsection (I) (a), acting in consultation with the Transitional Executive Council. (3) Executive authority which was vested in a person or persons referred to in subsection (I) (a), (b) or (c) in terms of a constitution or constitutional arrangement in force immediately before the commencement of this Constitution, shall during the period in which the said person or persons continue in office in terms of subsection (I), be exercised in accordance with such constitution or constitutional arrangement, as if it had not been repea1ed or superseded by this Constitution, and any such person or persons shall continue to be competent to administer any departrnent of state, administration, force or other institution which was entrusted to, and to exercise and perform any power or function which was vested in, him or her or them immediately before the said commencement: Provided that- (a) no such executive authority, power or function shall be exercised or performed if the Transitional Executive Council disapproves thereof; and (b) once the election results of the National Assembly have been certified by the Independent Electoral Commission in terms of the Independent Electoral Commission Act, 1993, the State President referred to in subsection (I) (a) shall exercise and perform his or her powers and functions in consultation with the leader of the party which has received the largest number of votes in the said election. (4) The Transitional Executive Council may by resolution of a majority of all its members at any time during the period in which the said State President continues in office in terms of subsection (I), require him or her, or any other appropriate authority, to take such steps in terms of any law as are necessary to https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb maintain law and order, including the declaration of astate of emergency or of an area to be an Uillest area in terms of an applicable law. (5) Upon the assumption of office by the President in terms of this Constitution- (a) the executive authority of the Republic as contemplated in section 75 shall vest in the President acting in accordance with this Constitution; and (b) the executive authority of a province as contem plated in section 144 shall, subject to subsections (8) and (9), vest in the Premier of that province acting in accordance with this Constitution, or while the Premier of a province has not yet assumed office, in the President acting in accordance with section 75 until the Premier assurnes office. (6) The power to exercise executive authority in terms of laws which, immediately prior to the commencement of this Constitution, were in force in any area which forms part of the national territory and which in terms of section 229 continue in force after such commencement, shall be a1located as folIows: (a) AlI laws with regard to matters which- (i) do not fall within the functional areas specified in Schedule 6; or (ii) do fall within such functional areas but are matters referred to in paragraphs (a) to (e) of section 126 (3) (which shall be deemed to include a11 policing matters until the laws in question have been assigned under subsection (8) and for the purposes of which subsection (8) shall apply mutatis mutandis), shall be administered by a competent authority within the jurisdiction of the national government: Provided that any policing function which but for subparagraph (ii) would have been performed subject to the directions of a rnember of the Executive Council of a province in terms of section 219 (I) shall be performed after consultation with the said rnember within that province. (b) A1l laws with regard to matters which fall within the functional areas specified in Schedule 6 and which are not matters referred to in paragraphs (a) to (e) of section 126 (3) shall- (i) if any such law was immediately before the commencement of this Constitution administered by or under the authority of a functionary referred to in subsection (I) (a) or (b), be administered by a competent authority within the jurisdiction of the national government until the administration of any such law is with regard to any particular province assigned under subsection (8) to a competent authority within the jurisdiction of the government of such province; or (ii) if any such law was immediately before the said comrnencement administered by or under the authority of a functionary referred to in subsection (I) (c), subject to subsections (8) and (9) be administered by a competent authority within the jurisdiction of the government of the province in which that law applies, to the extent that it so applies: Provided that this sub paragraph shall not apply to policing matters, which shall be dealt with as contemplated in paragraph (a). (c) In this subsection and subsection (8) 'competent authority' shall mean- (i) in relation to a law of which the administra tion is a1located to the national government, an authority designated by the President; and (ii) in relation to a law of which the administra tion is aIIocated to the governrnent of a province, an authority designated by the Premier of the province. (7) (a) The President may, after consultation with the Premier of a province, by proclamation in the Gazette take such measures, including legislative measures, as he or she considers necessary for the better achievement of this section. (b) A copy of a proclamation under paragraph (a), shall be submitted to Parliament within 14 days after the publication thereof. (c) If Parliament disapproves of any such proclamation or any provision thereof, such proclamation or provision shall thereafter cease to be of force and effect to the extent to which it is so disapproved, but without prejudice to the validity of anything done in terms of such proclamation up to the date upon which it so ceased to be of force and effect, or to any right, privilege, obligation or Iiability acquired, accrued or incurred as at the said date under and by virtue of such proclamation. (8) (a) The President may, and shall if so requested by the Premier of a province, and provided the province has the administrative capacity to exercise and perform the powers and functions in question, by proclamation in the Gazette assign, within the framework of section 126, the administration of a law referred to in subsection (6) (b) to a competent authority within the jurisdiction of the government of a province, either generally or to the extent specified in the proclamation. 61 1 https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (b) When the President so assigns the administration of a law, or at any time thereafter, and to the extent that he or she considers it necessary for the efficient carrying out of the assignment, he or she may- (i) amend or adapt such law in order to regulate its application or interpretation; (ii) where the assignment does not relate to the whole of such law, repeal and re-enact, whether with or without an amendment or adaptation contemplated in subparagraph (i), those of its provisions to which the assignment relates or to the extent that the assignment relates to them; and (iii) regulate any other matter necessary, in his or her opinion, as a result of the assignment, inc1uding matters relating to the transfer or secondment of persons (subject to sections 236 and 237) and relating to the transfer of assets, liabilities, rights and obligations, inc1uding funds, to or from the national or a provincial govemment or any department of state, administration, force or other institution. (c) In regard to any policing power the President may only make that assignment effective upon the rationalisation of the police service as contemplated in section 237 : Provided that such assignment to a province may be made where such rationalisation has been completed in such a province. (d) Any ref erence in a law to the authority administering such law, shall upon the assignment of such law in terms of paragraph (a) be deemed to be a reference mutatis mutandis to the appropriate authority of the province concemed. (9) (a) If for any reason a provincial govemment is unable to assurne responsibility within 14 days after the election of its Premier, for the administration of a law referred to in subsection (6) (b), the President shall by proc1amation in the Gazette assign the administration of such law to a special administrator or other appropriate authority within the jurisdiction of the national govemment, either generally or to the extent specified in the proc1amation, until that provincial govemment is able to assurne the said responsibility. (b) Subsection (8) (b) and (d) shall mutatis mutandis apply in respect of an assignment under paragraph (a) of this subsection. 236. Transitional arrangements: Publie administration (I) A public service, department of state (inc1uding a police force), administration, military force as defined in section 224 (2) (a) or (b) or other institution (exc1uding any local govemment) which immediately before the commencement of this Constitution performed govemmental functions under the control of an authority referred to in section 235 (I) (a), (b) or (c), shall, subject to subseetion (7), continue to function as such in accordance with the laws applicable to it until it is, as the case may be, abolished or incorporated or integrated into any appropriate institution or is rationalised as contemplated in any other Chapter, consolidated with any other institution or otherwise rationalised as contemplated in seetion 237, as the case may be: Provided that a military force referred to in this subsection shall not be employed for service referred to in section 227 (I) (a), (b) or (e) otherwise than by the President and shall only be used for such service by the authority referred to in section 225 in accordance with section 227 (2). (2) A person who immediately before the commencement of this Constitution was employed by an institution referred to in subsection (1) shall continue in such employrnent subject to and in accordance with this Constitution and other applicable laws regulating such employment. (3) Subject to subsections (I) and (2), all powers, directions, orders, instructions or delegations which were in force in respect of an institution which irnmediately before the commencement of this Constitution performed govemmental functions as contemplated in subsection (I) shall, after the said commence ment, continue in force for the purpose of the continued functioning within the contemplation of subsection (I) of any such institution, until cancelled or otherwise no longer in force in law. (4) Subject to this Constitution and subsection (5), the terms and conditions of employrnent applicable to a person employed by an institution referred to in subsection (1) irnmediately before the commencement of this Constitution, shall continue to apply to hirn or her until amended by or under any law, inc1uding any law enacted in order to establish uniforrnity of the terms and conditions of employment in accordance with those generally prevailing at such commencement. (5) Subject to any law relating to unfitness or incapacity of a person to carry out his or her duties efficiently, the pensionable salary or pensionable salary scale of a person referred to in subseetion (2) shall not be reduced below that applicable to such person irnmediately before the commencement of this Constitu tion. (6) Notwithstanding the provisions of this section, the conclusion or amendment of a contract, the appointtnent or promotion, or the award of a term or condition of service or other benefit, which occurred https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb or may occur between 27 April 1993 and 30 September 1994 in respect of any person referred to in subsection (2), or any class of such persons, may, at the instance of a Minister or a member of the Executive Council of a province, within one year of the commencement of this Constitution be reviewed by a commission appointed by the President and presided over by a judge, and if not proper or justifiable in the circumstances of the case, the commission may reverse or alter the contract, appointment, promotion or award. (7) (a) At the commencement of this Constitution the South African Police existing in terms of the Police Act, 1958 (Act 7 of 1958), and all other police forces established by law shall be deemed to constitute the South African Police Service referred to in section 214, and any reference to the South African Police or any such force in the said Act or law shall be deemed to be a reference to the said Service. 237. Rationalisation of public administration (1) (a) All institutions referred to in section 236 (1), excluding military forces referred to in section 224 (2), shall as soon as is possible after the commencement of this Constitution be rationalised with a view to establishing within the public service contemplated in section 212 (1)- (i) an eff ective administration at the national level of govemment to deal with matters within the jurisdiction of the national govemment referred to in section 235 (5) (a) ; and (ii) an eff ective administration for each province to deal with matters within the jurisdiction of each provincial govemment referred to in section 235 (5) (b). (b) All military forces referred to in section 224 (2) shall be rationalised for the purposes of the National Defence Force. (2) (a) The responsibility for the rationalisation of- (i) institutions referred to in section 236 (1), excluding military forces, shall primarily but not exclusively rest with the national govemment, which shall exercise such responsibility in co-operation with the provincial govemments and the Commission on Provincial Government, and with due regard to the advice of the Public Service Commission: Provided that in the case of po1icing services, the national govemment shall exercise such responsibility in co-operation with the committee referred to in section 220 (1) and the Board of Commissioners referred to in section 220 (2); and (ii) military forces shall rest with the national govemment. (b) Subject to section 235 (6), (7), (8) and (9), the responsibi1ity for the intemal rationalisation of an administration referred to in subsection (1) (a) (ii) shall primarily rest with the relevant provincial govemment, with due regard to the advice of the Public Service Commission and any relevant provincial service commission: Provided that the rationalisation of a11 police forces shall be dealt with in accordance with paragraph (a) (i). (3) (a) The President may, subject to subsection (2) (a), by proclamation in the Gazette take such steps as he or she considers necessary in order to achieve the aim mentioned in subsection (1). (b) Without derogating from the generality of paragraph (a), the steps referred to in that paragraph may include- (i) the amendment, repeal or replacement of any law regulating the establishment, functions and other matters relating to an institution referred to in section 236 (1), or of any law referred to in section 236 (2), or of any law which deals with any of the aforegoing matters in a consequential manner: Provided that if a 1aw referred to in section 236 (2) is repealed, provisoin shal1 be made for the app1ication of any law of general application regulating the employrnent of persons or any class of persons in the employment of the state, to the persons or class of persons aff ected by such repeal; and (ii) measures relating to the transfer or secondment of personnel, or the a1location of property, funds, rights and obligations, inc1uding administrative records, in order to establish the administrations referred to in subsection (2) and rationalise the South African Police Service and the National Defence Force. (c) A copy of a proc1amation under Paragraph (a) shall be submitted to Parliament within 14 days after the publication thereof. (d) If Par1iament disapproves of any such proclamation or any provision thereof, such proclamation or provision shall thereafter cease to be of force and effect to the extent to which it is so disapproved, but without prejudice to the validity of anything done in terms of such proclamation up to the date upon which it so ceased to be of force and effect, or to any right, privilege, obligation or Iiability acquired, accrued or incurred as at the said date under and by virtue of such proclamation. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (4) (a) The labour appeal court established by section 17A of the Labour Relations Act, 1956 (Act No. 28 of 1956), sitting as a special tribunal in terms of an Act to be passed by Parliament, shall be competent to determine any claim or dispute of right i nterms of a law regulating as at I November 1993 employment in an institution referred to in section 236 (I) and arising out of the implementation of this section and section (b) The Act of Parliament contemplated in paragraph (a) shall prescribe expeditious procedures for the adjudication of claims and disputes contemplated in this section, including the granting of interim and final relief. (c) Notwithstanding the provisions of any law the procedures contemplated in paragraph (b) shall be the only procedures to be followed in such court. (d) A decision of the court on any such claim or dispute shall be final and binding. (e) This subsection and the Act of Parliament contemplated in paragraph (a) shall lapse one year from the commencement of this Constitution, save that any matter properly before the court referred to in paragraph (a) on that date shall be heard and determined as if this subsection and the said Act hat not lapsed. 238. Transitional arrangements: Public service commissions (I) A public service commission established for a public service referred to in section 236 (I) shall, subject to subsections (3) and (4), after the commencement of this Constitution continue to function as such in accordance with the laws applicable to it. (2) (a) A person who immediately before the commencernent of this Constitution was the chairperson or member of a public service commission referred to in subsection (I) shall, subject to subsections (3) and (4) and section 237, after such commencement, continue in office in accordance with the laws regulating his or her appointment. (b) Section 236 (3), (4) and (5) shall apply mutatis mutandis in respect of a person referred to in paragraph (a) of this subsection. (3) The Commission for Administration established by the Commission for Administration Act, 1984 (Avt No. 65 of 1984), shall cease to exist upon the appointment of the members of the Public Service Commission referred to in section 209: Provided that a person who immediately before such appointment held office as the chairperson or a rnember of the Commission for Administration shall be entitIed to be appointed as a member of the Public Service Commission. (4) A public service commission, other than the Commission for Administration referred to in subsection (3), which continues to perform its functions in any part of the national territory, shall mutatis mutandis be subject to rationalisation under section 237 and shall cease to exist to the extent that it is superseded by the establishment of a provincial service commission contemplated in section 213 or otherwise rationalised or abolished under section 237. (5) If- (a) the chairperson or a member referred to in the proviso to subsection (3) elects not to be appointed to the Public Service Commission; or (b) the chairperson or a member of a public service commission referred to in subsection (4), is not upon the abolition of such public service commission appointed to any provincial service commission, the period of office for which such a chairperson or member has been appointed shall for the purpose of any applicable law regulating retirement benefits, be deemed to have been completed. (6) Any reference in any law to the Commission for Administration referred to in subsection (3), shall be deemed to be a reference to the Public Service Commission. 239. Transitional arrangements: Assets and liabilities (I) All assets, incliding funds and administrative records, which immediately before the commencernent of this Constitution vested in an authority referred to in section 235 (I) (a), (b) or (c), or in a govemrnent, administration or force under the control of such an authority, shall be allocated as folIows: (a) Where any asset is applied or intended to be applied for or in connection with a matter which­ (i) does not fall within a functional area specified in Schedule 6; or (ii) does fall within such a functional area but is a matter referred to in paragraphs (a) to (e) of section 126 (3) (which shall be deemed to include a police asset), such asset shall vest in the national govemrnent. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (b) Where any asset is applied or intended to be applied for or in connection with a matter which is not a matter referred to in paragraphs (a) to (e) of section 12 6 (3), such asset shall, subject to paragraph (c), vest in the relevant provincial government. (c) Where any asset referred to in paragraph (b) is applied or intended to be applied for or in connection with the administration of a particular law or the performance of a particular function in a particular area, such asset shaJI vest in the governrnent to which the administration of that law is assigned, or is assigned in that particular area, in terms of section 235 (6), (8) or (9), or to which the performance of that function is entrusted, or entrusted in the particular area, in terms of section 237. (d) Where any asset cannot in terms of the aforeg oing rules be cJassified with reference to a particular matter, law or function, or where there is disagreement between two or more governments, the advice of the dispute shall be resolved with due regard to such advice. (e) Parliament shall be competent to enact a law to facilitate the application of this section and to prescribe guidelines for the resolution of disputes arising from such application. (f) All assets under the control of a police force shall vest in the South African Police Service. (2) (a) A registrar of deeds shall upon the production of a cenificate by a competent authority that immovable propeny described in the cenificate is vested in a particular government in terms of this section, amke such entries or endorsements in or on any relevant register, title deed or other docurnent to register such irnmovable property in the name of such government. (b) No duty, fee or other charge shall be payable in respect of a registration in terms of paragraph (a). (3) (a) Subject to paragraph (b), all debts and liabilities- (i) directly linked to an asset vesting in terms of subsection (I) in a provincial government, shall be assurned by such provincial government; and (ii) other than those referred to in subparagraph (i) shall be assumed by the national government: Provided that the servicing of all state debts and liabilities not provided for in this Constitution shall be undenaken by the national governrnent until allocated to the relevant level of government. (b) Parliament shall be competent to pass a law regulating the re-allocation of debts and liabilities to the national government and the respective provincial governments, but no such law shall be passed unless a repon and recornmendations of the Financial and Fiscal Commission has been tabled in and considered by Parliament. (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) shaJI devolve upon the National Defence Force. (5) Anything done in terms of this section shall be subject to audit by the Auditor-General. 240. Transitional arrangements: State Revenue Fund (I) At the comrnencement of this Constitution the State Revenue Fund established in terms of section 81 of the previous Constitution shall continue to exist until an Act of Parliament comtemplated in section 18 5 (I) is adopted prescribing the administration of the National Revenue Fund. (2) While the State 'Revenue Fund continues to exist it shall for all purposes be deemed to be the National Revenue Fund. (3) The Accounts of the State Revenue Fund referred to in section 82 of the previsous Constitution shall be phased out and cJosed as soon as circurnstances permit. (4) In the 1994/1 995 financial year the head of the department of the Treasury, as defined in section I of the Exchequer Act, 1975 (Act No. 66 of 19 75), may, in consultation with the Minister responsible for national financial matters, from the Exchequer Account, on conditions aimed at ensuring financial control, grant advances to provincial governments as he or she deerns necessary for the purposes of establishing and funding of structures of government at provincial level as contemplated in this Constituiton until Parliament has appropriated money for such purposes. (5) Any Revenue Fund established before the comrnencernent of this Constitution by a law in force in an area which forms part of the National territory, excJuding the State Revenue Fund referred to in subsection (I), shall, subject to subsection (6) and any laws governing the application and withdrawal of moneys from such Revenue Fund, continue to exist until the money therein is transferred under this Chapter to the National Revenue Fund or to any relevant Provincial Revenue Fund, as the case may be, or otherwise dealt with by a competent author ity. (6) Moneys in a Revenue Fund referred to in subsection (5) may only be withdrawn in order to meet expenditure for services in the area in respect of which the Fund was established and in respect of which an https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb appropriation has been made for the current or in the imrnediately preceding financial year or for which there is other statutory authority: Provided that no withdrawal shall be made from such Revenue Fund other than with the concurrence of a person designated by the president for that purpose. 241. Transitional arrangements: Judiciary (I) Every court of law existing immediately before the comrnencement of this Constitution in an area which forms part of the national territory, shall be deemed to have been duly constituted in terms of this Constitution or the laws in force after such commencement, and shall continue to function as such in accordance with the laws applicable to it until changed y a competent authority. (2) The Chief lustice of South Africa, the judges-president and deputy judges-p resident of the various divisions of the Supreme court of South Africa, the judges of appeal of the Appellate Division of the said Supreme Court, and the other judges of the said Supreme Court, holding office immediately before the commencement of this Constitution, shall be deemed to have been duly appointed to the corresponding positions in terms of Chapter 7 and shall continue to hold office in accordance with the applicable laws. (3) All other judicial officers holding office immediately before the comrnencement of this Constitution in terms of a law, shall continue to hold such office in accordance with such law. (4) Every attomey-general holding office immediately before the commencement of this Constitution in terms of a law, shall continue to hold such office in accordance with such law. (5) Subject to this Constitution, all measures which immediately before the commencement of this Constitution were in operation and applied to judicial officers and attomeys-geheral, including measures regarding the remuneration, pension and pension benefits, leave gratuity and any other term and condition of service, shall continue in operation and to apply to the said judicial officers and attomeys-general, until amended or repealed by a competent authority: Provided that no such measure shall, except in accordance with an applicable law, be changed in a manner which affects such judicial officers and attorneys-general to their detriment. (6) The provisions of section 236 (5) and (6) shall apply mutatis mutandis in respect of persons referred to in subsections (3) and (4) ofthis section. (7) Persons referred to in subsections (2), (3) and (4) shall within 30 days of the e1ection of the President in terms of section 77 (I) (a) make and subscribe an oath or solemn affirmation in the terms set out in Schedule 3 before the Chief lustice or a judge of the Supreme Court designated by the Chief Justice for this purpose, or, in the case of a person continuing in office or appointed as the Chief Justice or the President of the Constitutional Court, before the President. (8) All proceedings which immediately before the commencement of this Constitution were pending before any court of law, including any tribunal or reviewing authority established by or under law, exercising jurisdiction in accordance with the law then in force, shall be dealt with as if this Constitution hat not been passed: Provided that if an appeal in such proceedings is noted or review proceedings with regard thereto are instituted after such commencement such proceedings shall be brought before the court having jurisdiction under this Constitution. (9) Any legal proceedings instituted before or after the commencement of this Constitution by or against a govemment, authority or functionary which ceased to exist at or after such commencement, may be continued by or against the relevant govemment, authority or functionary which superseded the said govemrnent, authority or functionary. (10) The laws and other measures which imrnediately before the commencement of this Constitution regulated the jurisdiction of courts of law, court procedures, the power and authority of judicial officers and all other mattters pertaining to the establishment and functioning of courts of law, shall continue in force subject to any amendment or repeal thereof by a competent authority. 242. Rationalisation 01 court structures (I) All jurisdictional areas and court structures appropriate thereto eXlstmg immediately before the commencement of this Constitution, shall as soon as possible after such commencement be rationalised in accordance with an Act of Parliament with a view to establishing the jurisdictional areas and court structures contemplated in Chapter 7. (2) The rationalisation of the jurisdictional areas and court structures referred to in subsection (I) shall be the responsibility of the national govemment after consultation with the Judicial Service Commission. (3) The rationalisation contemplated in subsection (I) includes- https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (a) the amendment, repeal or replacement of any law regulating the establishment, functions, jurisdiction and other malters relating to a court referred to in section 24 1 (1), or of any law referred to in section 24 1 (2), or of any law which deals with any of the aforegoing malters in a consequential manner: Provided that if a law referred to in section 24 1 (2) is repealed, provision shall be made for the application of any law of general application regulating the service of judicial officers or any dass of judicial officers, to the judicial officers or dass of judicial officers aff ected by such repeal; and (b) measures relating to the transfer or secondment of judicial officers, or the allocation of property, induding court and administrative records, in order to establish the said jurisdictional areas or court structures. 243. Transitional arrangements: Ombudsman (I) A person who immediately before the commencement of this Constitution was- (a) the Ombudsman in terms of the Ombudsman Act, 1979 (Act No. 11 8 of 1979), shall continue to hold office and to exercise and perform the powers and functions of the Ombudsman in accordance with the said Act until the Public Protector has been appointed under section 110 and has assumed office; (b) an assistant to the Ombudsman, shall continue as such until the Public Protector has been appointed and has assumed office, whereupon such person shall be deemed to have been appointed under section 113; or (c) an Ombudsman in terms of a law of an area which forms part of the national territory (other than the Ombudsman referred to in paragraph (a» , or in the emöloy of such an ombudsman, shall continue in such office or employment in accordance with the law which regulated such office or employment, until the office of such ombudsman is abolished or such ombudsman or person is appointed as, or to the office of, a provincial public protector contemplated in section 114. (2) Section 236 (4), (5) and (5) shall apply mutatis mutandis to a person referred to in subsection (1) (c). 244. Transitional arrangements: Auditor-General (I) A person who immediately before the commencement of this Constitution was- (a) the Auditor-Gener al in terms of the Auditor-General Act, 1989 (Act No. 52 of 1989), shall continue in office subject to section 191 and the laws applicable to such office; (b) employed in terms ofthe Audit Arrangements Act, 1992 (Act No. 122 of 1992), shall continue in such employment subject to and in accordance with this Constitution, the said Act and any other applicable law regulating such employment; and (c) the auditor-general of any area which forrns part of the national territory (other than the Auditor­ General referred to in paragraph (A» , shall continue in such office or employment in accordance with the laws regulating such office or employment, until such office of auditor-general is abolished by law: Provided that any such auditor-general shall be eligible for appointrnent under section 194: Provided further that should such a person not be appointed, he or she shall have the right to retire and if he or she so retires he or she' shall be entitled to such pension as he or she would have been entigles to under the pensions law applicable to hirn or her of he or she had been compelled to retire from the public service owing to the abolition of his or her post. (2) For the purpose of subsection (I) , the persons referred to in that subsection shall not be dealt with less favourably than an officer or employee in a public service. 245. Transitional arrangements: Local government (I) Until elections have been held in terms of the Local Government Tran sition Act, 1993, local government shall not be restructured otherwise than in accordance with that Act. (2) Restructuring of local government which takes place as a result of legislation enacted by a competent authority after the elections referred to in subsection (I) have been held, shall be effected in accordance with the principles embodies in Chapter 10 and the Constitution as a whole. (3) (a) For the purposes of the first election of members of a local govemment after the commencement of this Constitution, the area of jurisdiction of such local govemment shall be divided into wards in accordance with the Act referred to in subsection (1). (b) Forty per cent of the members of the local government shall be elected according to the system of proportional representation applicable to an election of the National Assembly and regulated specifically by or under the Act referred to in subsection (I) , and sixty per cent of the members shall be elected on the https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb basis that each such member shall represent a ward as contemplated in paragraph (b): Provided that, notwithstanding anything to the contrary contained in this Constitution, where the area of jurisdiction of the local government includes- (i) the area of jurisdiction of any institution or body as was referred to in section 84 (I) (f) of the Provincial Government Act, 1961 (Act No. 32 of 1961); and (ii) any other area not falling within the area of jurisdiction of the institution or body referred to in subparagraph (i), no area referred to in subparagraph (i) or (ii) shall be a1located less than half or the total number of wards of the local government concerned: Provided further that an area referred to in subparagraph (i) shall be deemed not to include any area for which a local government body referred to in paragraphs (a), (b) and (c) of the definition of "local government body" in section 1 (I) of the Act referred to in subsection (I) of this section (as that Act exists at the cornrnencement of this Constitution), has been established. 246. Transitional arrangements: Pensions of political offi ce-bearers The right of any person in terms of any law which at the cornrnencement of this Constitution provides for the payment of pensions from the exchequer or from any pension fund or arrangement to which the state contributes or has contributed, to or i nrespect of political office-bearers or former political office-bearers (including members and former members of Parliament and of any other legislative assembly which exercised legislative powers in respect of any area which forms part of the national territory) shall continue and shall not be diminished: Provided that those who have a1ready received benefits that were due to them shall not benefit again by reason of the provisions of this section. 247. Special provisions regarding existing educational institutions (1) The national government and the provincial governments as provided for in this Constitution shall not alter the rights, powers and functions of the governing bodies, management councils or similar authorities of departrnental, community-managed or state-aided primary or secondary schools under laws existing immediately before the cornrnencement of this Constitution unless an agreemet resultung from bona fide negotiation has been reached with such bodies and reasonable notice of any proposed alteration has been given. (2) The national government shall not alter the rights, powers and functions to the controlling bodies of universities and technikons under laws existing irnrnediately before the cornrnencement of this Constitution, unless agreement resulting from bona fide negotiation has been reached with such bodies, and reasonable notice of any proposed alteration has been given. (3) Should agreement not be reached in terms of subsection (I) or (2), the national government and the provincial governments shall, subject to the other provisions of this Constitution, not be precluded from altering the rights, powers and functions of the governing bodies, management councils or similar authorities of departmental, community-managed or state-aided primary or secondary schools, as weil as the controlling bodies of universities and technikons, provided that interested persons and bodies shall be entitled to challenge the validity of any such alteration in terms of this Constitution. (4) In order to ensure an acceptable quality of education, the responsible government shall provide funds to departmental, cornrnunity-managed or state-aided primary or secondary schools on an equitable basis. 248. National flag and anthem (1) The State President may at any time before the commencement of this Constitution or while continuing in office in terms of section 235 (1) (a), exercise, on the advice of the Transitional Executive Council, the powers conferred upon the President by section 2 (I) and (2), and if the State President in the exercise of such powers issues a proclamation referred to in that section, such proclamation shall for a11 purposes be deemed to form part of this Constitution. (2) This section shall come into operation on the date of promulgation of this Constitution. 249. First election of National Assembl y (I) Notwith the fact that Chapter 4 may not yet be in force, the State President may, by proclamation in the Gazette, call an election in terms of the Electoral Act 1993, for the election of members of the National Assembly and the provincial legislatures. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb amended by the Constitution of the Republic of South Africa Arnendment Act, 1994 and the Electoral Amendment Act, 1994 (3) This section shall come into operation on the date of promulgation of this Constituton. 250. Non-certijication of election by Inde pendent Electoral Commission (1) If in the application of section 18 of the Independent Electoral Commission Act, 1993, the Independent Electoral Commission declares that it is unable to certify that any election referred to in that section was substantially free and fair, the Comrnission shall declare that either- (a) it is able to deterrnine a result based on the votes which could be counted; or (b) it is unable to determine any result. (2) If the Independent Electoral Comrnission declares as contempolated in subsection (1) (a)- (a) a new election shall be held for the National Assembly and the provincial legislatures or a relevant provincial legislature, as the case may be, mutatis mutandis in accordance with this Constitution and the Electoral Act, 1993, as soon as practicable but in any event not later than 12 months after the date of the election in question: Provided that any reference to the Transitional Executive Council in the said Act shall be deemed to be a reference to Parliament; (b) Parliament and the provincial legislatures of a provincial legislature, as the case may be, shall be established on the basis of the result determined in terms of subsection (I) (a) : Provided that no provincial legislature shall be established unless the National Assembly is established; (c) no amendment by a Parliament established on the basis of a declaration in terms of subsection (I) (a), of this Constitution, the Independent Electoral Commission Act, 1993, the Electoral Act, 1993, the Independent Media Comrnission Act, 1993, or the Independent Broadcasting Authority Act, 1993, shall be permissible until the election contemplated nparagraph i (a) has been certified as substantially free and fair in terms ofthe Independent Electoral Commission Act, 1993; and (d) any provincial legislature established on the basis of a declaration in terms of subsection (I) (a), shall have no legislative competence save for the enactment of laws necessary for the appropriation of revenue or mones, or the imposition of taxation within the framework of section 126, until the election contemplated in paragraph (a) has been certified as substantially free and fair in terms of the Independent Electoral Commission Act, 1993. (3) le the Independent Electoral Commission declares as contemplated in subsection (I) (b)- (a) a new election shall be held for the National Assembly and the provincial legislatures, or a relevant provincial legislature, as the case may be, in accordance with this Constitution and the Electoral Act, 1993, as soon as practicable, but in any event not later than within 10 weeks after the date of the election in question: Provided that a new election for the National Assembly and the provinciallegislatures shall be held simultaneou sly; and (b) the constitutional arrangements under the Republic of South Africa Constitution Act, 1983 (Act. No. 110 of 1883), the Transitional Executive Council Act, 1993, the Independent Electoral Commission Act, 1993, the Electoral Act, 1993, the Independent Media Commission Act, 1993, and the Independent Broadcasting Authority Act, 1993, shall apply, until the election referred to in paragraph (a) has been held. (4) Notwithstanding the provisions of any other law, the Independent Electoral Commission shall continue to exist for the purposes set out in this section and the Commission shall exercise its function contemplated in section 18 of the Independent Electoral Commission Act, 1993, with reference to an election referred to in this section: Provided that section 232 (5) (b) shall apply mutatis mutandis in respect of the replacement of members of the Commission. 251. Short title and commencement (I) This Act shall be called the Constitution of the Republic of South Africa, 1993, and shall, sub ject to subsection (2), come into operation on 27 April 1994. (2) The State President may, in consultation with the Transitional Executive Council, by proclamation in the Gazette provide that a provision of this Constitution specified in the proclamation shall come into operation on a date prior to the date referred to in subsection (1). (3) Different dates may be fixed in terms of subsection (2) in resect of different provisions of this Constitution. (4) A reference in aprovision of this Constitution to the comrnencement of this Constitution shall, unlass the context otherwise indicates, be construed as a reference to the commencement of such provision. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (2) Such election shall be conducted in accordance with Schedule 2 and the Electoral Act, 1993, l!!i NATIONAL UNITY AND RECONCILIATION This Constitution provides a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irr espective of colour, race, class, belief or sex. The pursuit of natonal unity, the welI-being of a11 South Arican citizens and peace require reconciliation between the people of South Africa and the reconstruction of society. The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and dtrife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hstred, fear, guilt and revenge. These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation. In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past. To this end, Parliament under this Constitution shall adopt a law determining a firm cut-off date, which shall be a date after 8 October 19 90 and before 6 December 19 93, and providingfor the rnechanisrns, criteria and procedures, including tribunals, if any, through which such amnesty shall be dealt with at any time after the law has been passed. With this Constitution and these commitrnents we, the people of South Africa, open a new chapter in history of our country. Nkosi sikelel' iAfrika. God seen Suid-Afrika Morena boloka sechaba sa heso. May God bless our country Mudzimu fhatutshedza Afrika. Hosi katskisa Afrika SCHEDULE 2 System for Election of National Assembly and Provincial Legislatures Election of National Assembly 1. Parties registered in terms of the Electoral Act, 19 93, and contesting an election of the National Assembly, shall nominate candidates for such election on Iists of candidates prepared in accordance with this Schedule and the E1ectoral Act, 1993. 2. The 400 seats in the National Assembly referred to insection 40 (1) , shall be mIed as folIows: (a) 200 seats from regional Iists submitted by the respective parties, with a fixed number of seats reserved for each region as determined by the Commission for a particular election, taking into account available scientifically based data in respect of voters, representations by interested parties and the following proposed determination in respect of the various regions: Western Cape - 21 seats Eastern Cape - 6 seats Northern Cape - 4 seats KwaZuluINatal - 40 seats Orange Free State - 15 seats North-West - 17 seats Nonhem TransvaaI - 20 seats Eastem TransvaaI - 14 seats Pretoria- Witwatersrand- Vereeniging - 43 seats; and (b) 200 seats from national Iists submitted by the respective parties, or from regional Iists where national Iists were not submitted. 3. The Iists of candidates submitted by a party, shall in total contain the names of not more than 400 candidates, and each such list shall denote such names in such fixed order of preference as the party may determine. 4. A party's lists of candidates shall consist of­ (a) both a national list and a list for each region; or (b) a list for each region, with such number of names on each list as the party may determine subject to item 3. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb 5. The 200 seats referred to in item 2 (a) shall be allocated per region to the parties contesting an election, as folIows: (a) A quota of votes per seat shall be deterrnined in respect of each region by dividing the total number of votes cast in a region by the number of seats, plus one, reserved for such region under item 2 (a). (b) The result plus one, disregarding fractions, shall be the quota of votes per seat in respect of a particular region. (c) The number of seats to be awarded for the purposes of paragraph (e) in respect of such region to a party, shall, subject to paragraph (d), be deterrnined by dividing the total number of votes cast in favour of such party in a region by the quota of votes per seat indicated by paragraph (b) for that region. (d) Where the result of the calculation referred to in paragraph (c) yields a surplus not absorbed by the number of seats awarded to a party concemed, such surplus shall compete with other similar surpluses accruing to any other party or parties in respect of the relevant region, and any seat or seats in respect of that region not awarded in terms of paragraph (c), shall be awarded to the party or parties concemed in sequence of the highest surplus. (e) The aggregate of a party's awards in terms of paragraphs (c) and (d) in respect of a particular region shall indicate that party's provisional allocation of the seats reserved under item 2 (a) for that region. (f) The aggregate of a party's provisional allocations for the various regions in terms of paragraph (e), shall indicate its provisional allocation of the seats referred to in item 2 (a). (g) If no recalculation of provisional allocations is required in terms of item 7 in respect of the seats referred to in item 2 (a), the provisional allocation of such seats in terms of paragraphs (e) and (f) shall become the final allocation of such seats to the various parties, and if such a recalculation is required the provisional allocation of such seats, as adjusted in terms of item 7, shall become the fmal allocation of such seats to the various parties. 6. The 200 seats referred to in item 2 (b) shall be allocated to parties contesting an election, as folIows: (a) A quota of votes per seat shall be deterrnined by dividing the total number of votes cast nationally by 40 I, and the result plus one, disregarding fractions, shall be the quota of votes per seal. (b) The number of seats to be awarded to a party for the purposes of paragraph (d) shall, subject to paragraph (c), be deterrnined by dividing the total number of votes cast nationally in favour of such party by the quota of votes per seat deterrnined in terms of paragraph (a). (c) Where the result of the calculation in terms of paragraph (b) yields a surplus not absorbed by the number of seats awarded to a party concemed, such surplus shall compete with other similar surpluses accruing to any other party or parties, and any seat or seats not awarded in terms of paragraph (b), shall be awarded to the party or parties concemed in sequence ofthe highest surplus, up to a maximum of five seats so awarded: Provided that subsequent awards of seats still remaining unawarded shall be made in sequence to those parties having the highest average number of votes per seat already awarded in terms of paragraph (b) and this paragraph. (d) The aggregate of a party's awards in terms of paragraphs (b) and (c) shall be reduced by the number of seats provisionally allocated to it in terms of item 5 (f) and the result shall indicate that party's provisional allocation ofthe seatsreferred to in item 2 (b). (e) If no recalculation of provisional allocations is required in terms of item 7 in respect of the seats referred to in item 2 (b), the provisional allocation of such seats in terms of paragraph (d) shall become the final allocation of such seats to the various parties, and if such a recalculation is required, the provisional allocation of such seats, as adjusted in terms of item 7, shall become the final allocation of such seats to the various parties .. 7. (1) If a party has submitted a national or a regional list containing fewer narnes than the number of its provisional allocation of seats which would have been filled from such list in terms of item 8 or 9 had such provisional allocation been the final allocation, it shall forf eit a number of seats equal to the deficit. (2) In the event of any forfeiture of seats in terms of subitem (I) aff ecting the provisional allocation of seats in respect of any particular region in terms of item 5 (e), such allocation shall be recalculated as folIows: (a) The party forf eiting seats shall be disregarded in such recalculation, and its provisional allocation of seats in terms ofitem 5 (e) for the region in question, minus the number of seats forf eited by it in respect of its list for such region, shall become its final allocation in respect of the seats reserved for such region in terms of item 2 (a). 62 1 https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (b) An amended quota of votes per seat shall be detennined in respect of such region by dividing the total number of votes cast in the region, minus the number of votes cast in such region in favour of the party referred to in paragraph (a), by the number of seats, plus one, reserved for such region under item 2 (a), minus the number of seats finally allocated to the said party in terms of paragraph (a). (c) The result plus one, disregarding fractions, shall be the amended quota of votes per seat in respect of such region for purposes of the said recalculation. (d) The number of seats to be awarded for the purposes of paragraph (f) in respect of such region to a party participating in the recalculation, shall, subject to paragraph (e), be detennined by dividing the total number of votes cast in favour of such party in such region by the amended quota of votes per seat indicated by paragraph (c) for such region. (e) Where the result of the recalculation in terms of paragraph (d) yields a surplus not absorbed by the number of seats awarded to a party concemed, such surplus shall compete with other similar surpluses accruing to any other party or parties participating in the recalculation in respect of the said region, and any seat or seats in respect of such region not awarded in terms of paragraph (d), shall be awarded to the party or parties concemed in sequence of the highest surplus. (f) The aggregate of a party's awards in terms of paragraphs (d) and (e) in respect of such region shall, subject to subitem (4), indicate that party's final allocation of the seats reserved under item 2 (a) for that region. (3) In the event of any forfeiture of seats in terms of subitem (I) affecting the provisional allocation of seats in terms of item 6 (d), such allocation shall be recalculated as folIows: (a) The party forf eiting seats shall be disregarded in such recalculation, and its provisional allocation of seats in terms of item 6 (d), minus the number of such seats forf eited by it, shall become its final allocation of the seats referred to in item 2 (b). (b) An amended quota of votes per seat shall be detennined by dividing the total number of votes cast nationally, minus the number ofvotes cast nationally in favour of the party referred to in paragraph (a), by 401, minus the number of seats finally allocated to the said party in terms of paragraph (a). (c) The result plus one, disregarding fra ctions, shall be the amended quota of votes per seat for the purposes of the said recalculation. (d) The number of seats to be awarded for the purposes of paragraph (f) to a party participating in the recalculation shall, subject to paragraph (e), be detennined by dividing the total number of votes cast nationally in favour of such party by the amended quota ofvotes per seat indica ted by paragraph (c). (e) Where the result of the recalculation in terms of paragraph (d) yields a surplus not absorbed by the number of seats awarded to a party concemed, such surplus shall compete with other similar surpluses accruing to any other party or parties participating in the recalculation, and any seat or seats not awarded in terms of paragraph (d), shall be awarded to the party or parties concemed in sequence of the highest surplus, up to a maximum of five seats so awarded: Provided that subsequent awards of seats still remaining unawarded shall be made in sequence to those parties having the highest average number of votes per seat already awarded in terms of paragraph (d) and this paragraph. (f) The aggregate of such a party's awards in terms of paragraphs (d) and (e) shall be reduced by the number of seats finally allocated to it in terms of item 5 (g), and the result shall, subject to subitem (4), indicate that party's final allocation of the seats referred to in item 2 (b). (4) In the event of a party being allocated an additional number of seats in terms of this item, and its list in question then does not contain the names of a sufficient number of candidates as set out in subitem (I ), the procedure provided for in this item shall mutatis mutandis be repeated until all seats have been allocated. 8. (1) Where a party submitted both an ational list and regionallists, the seats finally allocated to it- (a) in terms of item 5 (g), shall be filled from its regional lists in accordance with its final allocation of seats in respect of the various regions; and (b) in terms of item 6 (e), shall be filled from its national list in accordance with its final allocation of seats in terms of that item. (2) A seat finally allocated to a party in respect of a region, shall, for the purposes of subitem (I) (a), be filled only from such party's list for that particular region. 9. (1) Where a party submitted regional lists only, the seats finally allocated to it- (a) in terms of item 5 (g), shall be filled from such lists in accordance with its final allocation of seats in respect of the various regions; and https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (b) in tenns of item 6 (e), shall be filled from the said Iists in the same proportions as the proportions in which the seats referred to in paragraph (a) are to be filled in respect of the various regions for which the party was finally a1located seats in tenns of item 5 (g): Provided that if a party was not a1located any seats in tenns of item 5 (g), the seats a1located to it in tenns of item 6 (e) shall be filled from its regional lists in proportion to the number of votes received by that party in each of the regions: Provided further that surplus fractions shall be disregarded save that any remaining seats shall be awarded to regions in sequence of the highest surplus fract ions. (2) A seat finally a1located to a party in respect of a region, shall, for the purposes of subitem (I) (a), be filled only from such party's list for that particular region. Election of provincial legislatures 10. The Commission shall detennine the number of seats in each provincial legislature, taking into account available scientifi cally based data in respect of voters, representations by interested parties and the following proposed detenninati on: Western Cape - 42 seats Eastern Cape - 52 seats Northern Cape - 30 seats KwaZululNatal - 80 seals Orange Free State - 30 seats N orth -West - 34 seats Northern Transvaal - 40 seats Eastern Transvaal - 30 seats Pretoria-Witwatersrand- Vereeniging - 86 seats Provided that the Commission may for the purposes of any provincial election after the first election under this Constitu tion vary any determination under this item. 11. Parties registered in tenns of the Electoral Act, 1993, and contesting an election of a provincial legislature, shall nominate candidates for election to such provinciallegislature on provincial Iists prepared in accordance with this Schedule and the Electoral Act, 1993. 12. Each party shall be entitled to submit only one list per province, which shall contain the names of not more than the number of seats determined under item 10 for the relevant provincial legislature and in such fixed order of preference as the party may determine. 13. The seats determined for a provincial legislature shall be a1located to parties contesting an election, as follows- (a) A quota of votes per seat shall be determined by dividing the total number of votes cast in the province concerned by the number of sealS, plus one, detennined under item 10 for such province and the result plus one, disregarding fractions, shall be the quota of votes per seat for such province. (b) The number of seats to be awarded to a party for the purposes of paragraph (d) shall, subject to paragraph (c), be determined by dividing the total number of votes cast in the province in favour of such party by the quota of votes per seat determined in tenns of paragraph (a). (c) Where the result of the calculation in tenns of paragraph (b) yields a surplus not absorbed by the number of seats awarded to a party concerned, such surplus shall compete with other similar surpluses accruing to any other party or parties in respect of the province concerned, and any seat or seals not awarded in tenns of paragraph (b), shall be awarded to the party or parties concerned in sequence of the highest surplus. (d) The aggregate of a party's awards in tenns of paragraphs (b) and (c), shall indicate that party's provisional a1location of seats in the provinciallegislature in question. (e) If no recalculation of provisional a1locations for a province concerned is required in tenns of item 14, the provisional a1location of seats in respect of that province in tenns of paragraph (d), shall become the final a1location of such seats to the various parties, and if such a recalculation is required the provisional a1location of such seats as ad justed in tenns of item 14 shall become the final a1location of such sealS to the various parties. 14. (I) If a party has submitted a provincial list containing fewer names than the number of seats provisionally a1located to it in tenns of item 13(d), it shall forfeit a number of seats equal to the deficit. (2) In the event of any forf eiture of seats in tenns of subitem (I), the a1location of seats in respect of the province concerned shall be recalculated as folIows: https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (a) The party forf eiting seats shall be disregarded in such recalculation, and its provisional allocation of seats in terms of item 13 (d), minus the number of seats forf eited by it in respect of its list for such province, shall become its final allocation of seats in the provinciallegislature concerned. (b) An amended quota of votes per seat shall be determined in respect of such province by dividing the total number of votes cast in the province, minus the number of votes cast in the province in favour of the party referred to in paragraph (a), by the number of seals, plus one, determined in terms of item 10 in respect of the province concerned, minus the number of seats finally allocated to the said party in terms of paragraph (a) . (c) The result plus one, disregarding fractions, shall be the amended quota of votes per seat in respect of such province for purposes of the said recalculation. (d) The number of seats to be awarded for the purposes of paragraph (f) in respect of such province to a party participat ing in the recalculation, shall, subject to paragraph (e), be determined by dividing the total number of votes cast in favour of such party in such province by the amended quota of votes per seat indicated by paragraph (c) for such province. (e) Where the result of the recalculation in terms of paragraph (d) yields a surplus not absorbed by the number of seats awarded to a party concerned, such surplus shall compete with other similar surpluses accruing to any other party or parties participating in the recalculation, and any seat or seats in respect of such province not awarded in terms of paragraph (d), shall be awarded to the party or parties concerned in sequence of the highest surplus. (f) The aggregate of such a party's awards in terms of paragraphs (d) and (e) in respect of such province shall, subject to subitem (3), indicate that party's final allocation of the seats determined under item 10 in respect of that province. (3) In the event of a party being allocated an additional number of seats in terms of this item, and its list in question then does not contain the names of a sufficient number of candidates as set out in subitem (I) , the process provided for in this item shall mutatis mutandis be repeated until all seats have been allocated. Declaration 0/ support by one party 0/ another party 15. (I) A party intending to contest the election of one or more or all the provinciallegislatures, but not the election of the National Assembly, may, within the time and in the manner prescribed by or under the Electoral Act, 1993, decIare that it supports another party which is contesting theelection of the National Assembly, and if it so decIares, all votes cast in its favour shall, for the purpose of the election of the National Assembly, be deemed to be votes cast in favour of such other party. (2) A party intending to contest the election of the National Assembly, but not the election of one or more or any of the provincial legislatures, may, within the time and in the manner prescribed by or under the Electoral Act, 1993, decIare that it supports another party which is contesting the election of a provincial legislature which the fust-mentioned party is not contesting, and if it so declares, all votes cast in its favour shall, for the purpose of the election of that particular provinciallegislature or legislatures, be deemed to be votes cast in favour of such other party. (3) A party intending to contest the election of one or more provincial legislatures, but not the election of all the provincial legislatures, may, within the time and in the manner prescribed by or under the Electoral Act, 1993, declare that it supports another party which is contesting the election of a provincial legislature or legislatures which the first -mentioned party is not contesting, and if it so declares, all votes cast in its favour shall, for the purpose of the election of the last -mentioned provincial legislature or legislatures, be deemed to be votes cast in favour of such other party. (4) For the purposes of subitems (2) and (3), a party may support different parties in the different provinciallegislatures. (5) This item shall apply only to an election of the National Assembly which is held simultaneously with the election of the provinciallegislatures. Designation of representatives 16. (I) After the counting of votes has been concIuded, the number of representatives of each party has been determined and the election has been certified by the Commission as having been free and fair or a declaration has been made by the Commission under section 250 (I) (a), the Commission shall, within two days after such certification or decIaration, designate from each list of candidates published in terms of section 23 of the Electoral Act, 1993, the representatives of each party in each legislature. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (2) Following the designation in tenns of subitem (I), if a candidate's name appears on more than one list for the National Assembly or on lists of both the National Assembly and a provincial legisla ture 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 certification or decIaration, indicate to the Commission from which list such candidate will be designated or in which legislature the candidate shall 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 all legislatures. Supplementation of lists of candidates 17. No lists of candidates of a party for any legisla ture shall be supplemented prior to the designation of representatives in tenns of item 16 , save where provided for by an Act of Parliament. 18. Lists of candidates may, after the designation of representatives in tenns of item 16 has been concluded, be supplemented by the addition of an equal number of names at the end of the applicable list, if- (a) a representative is elected as the President or to any other executive office as a result of which he or she resigns as a representative of a legislature; (b) a representative is elected as a member of the Senate; (c) a name is deleted from a list in tenns of item 16 (2) ; or (d) a vacancy has occurred and the appropriate list of candidates of the party concerned is depleted. 19. Lists of candidates of a party published in tenns of section 23 of the Electoral Act, 19 93, may be supplernented on one occasion only at any time during the first 12 months following the date on which the designation of representatives in tenns of item 16 has been concluded, in order to ml casual vacancies: Provided that any such supplementation shaIl be made at the end of the list. 20. The number of names on lists of candidates as supplemented in tenns of item 18 shall not exceed the difference between the number of seats in the National Assembly or a provincial legislature, as the case may be, and the number of representatives of a party in any such legislature. Review of lists of candidates by a party 21. A party may review its undepleted lists as supplemented in tenns of items 18, 19 and 20, within seven days after the expiry of the period referred to in item 19 , and annually thereafter, until the date on which a party has to submit lists of candidates for an ensuing election, in the following manner: (a) a11 vacancies may be supplemented; (b) no more than 25 per cent of candidates may be replaced; and (c) the fixed order of lists may be changed. Publication of supplem ented and reviewed lists of candidates 22. Candidates' lists supplernented in tenns of items 18 and 19 or reviewed in tenns of item 21 shall be published by the Secretary to Parliament and the Secretaries of the provincial legislatures within 10 days after the receipt of such lists from the parties concerned. Vacancies 23. (1) In the event of a vacancy occurring in the representa tion of a party in any legislature, such vacancy shall forthwith be mIed in accordance with section 44 or 13 3. (2) If a party represented in a legisla ture dissolves or ceases to exist and the members in question vacate their seats in consequence of section 43 (b) or 133 (I) (b), the seats in question shall be a1located to the remaining parties mutatis mutandis as if such seats were forfeited seats in tenns of item 7 or 14, as the case may be. Alteration of numbers and boundaries of provinces 24. If the numbers or boundaries of provinces are a1teredpursuant to section 124, the Commission shall review the detemtinations made in tenns of items 2 and 10 , and such revised detemtinations shall then be the basis of any elections for the National Assembly or the provincial legislatures held after any such alteration. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb De finitions 25. In this Schedule- 'Commission' means the Independent Electoral Commission, established by the Independent E1ectoral Commission Act, 1993 (Act 150 of 1993), or, in relation to any election held after the ftrst election under this Constitution, that Commission or any other body established or designated by an Act of Parliament; 'national list' means a list of candidates prepared by a party for an election of the National Assembly to reflect that party's order of preference of candidates in respect of the a1location of seats on a national basis; 'provincial list' means a list of candidates prepared by a party for an election of a provincial legislature; 'region' means the territorial area of a province; 'regional list' means a list of candidates in respect of a region prepared by a party for an election of the National Assembly to reflect that party's order of preference of candidates in respect of the allocation of seats in respect of such region. 'votes' means- (a) where it occurs in items 5, 6, 7 and 9, votes cast in the election for the National Assembly; (b) where it occurs in items 13 and 14, votes cast in the election for the provincial legisla ture of a province concerned; and (c) where it occurs in item 16, votes cast in the election for the National Assembly and the provincial legislatures. Application of Schedule with reference to seetion 124 26. The provisions of this Schedule shall be subject to any regulations made or directions given by the Commission in terms of section 124 (7) in so far as aff ected areas within the meaning of that section are concerned. SCHEDULE 4 Constitutional Principles I. The Constitution of South Africa shall provide for the establishment of one sovereign state, a common South African citizenship and a democratic system of government committed to achieving equality between men and women and people of a11 races. 11. Everyone shall enjoy a11 universally accepted fundamental rights, free doms and civil liberties, which shall be provided for and protected by entrenched and justiciable provisions in the Constitution, which shall be drafted after having given due consideration to inter a1ia the fundamental rights contained in Chapter 3 of this Constitution. 111. The Constitution shall prohibit racial, gender and all other forms of discrimination and shall promote racial and gender equality and national unity. IV. The Constitution shall be the supreme law of the land. It shall be binding on a11 organs of state at a11 levels of government. V. The legal system shall ensure the equality of a11 before the law and an equitable legal process. Equality before the law incIudes laws, programmes or activities that have as their object the amelioration of the conditions of the disadvantaged, incIuding those disadvantaged on the grounds of race, colour or gender. VI. There shall be a separation of powers between the legislature, executive and judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness. VII. The judiciary shall be appropriately qualifted, independent and impartial and shall have the power and jurisdiction to safeguard and enforce the Constitution and a11 fundamental rights. VIII. There shall be representative government embracing multi-party democracy, regular elections, universal adult suffrage, a common voters' roll, and, in general, proportional representation. IX. Provision shall be made for freedom of information so that there can be open and accountable administration at a11 levels of government. X. Formal legislative procedures shall be adhered to by legislative organs at a11 levels of government. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb XI. The diversity of language and culture shall be acknowledged and protected, and conditions for their promotion shall be encouraged. XII. Collective rights of self-detennination in fo nning, joining and maintaining organs of civil society, inc1uding linguistic, cultural and religious associations, shall, on the basis of non-discrimination and free association, be recognised and protected. XIII. L The institution, status and role of traditional leadership, according to indigenous law, shall be recognised and protected in the Constitution. Indigenous law, like comrnon law, shall be recognist'".d and applied by the courts, subject to the fundamental rights contained in the Constitution and to legislation dea1ing specifically therewith. 2 Provisions in a provincial constitution relating 10 the instihltion role authority and status of a traditional monarch shall be recogn ised and protected in the Constiturion XIV. Provision shall be made for participation of minority political parties in the legislative process in a manner consistent with democracy. XV. Amendments to the Constitution shall require special procedures involving special majorities. XVI. Govemment shall be structured at national, provincial andlocallevels. XVII. At each level of govemrnent there shall be democratic representati on. This principle shall not derogate from the provisions of Principle XIII. XVIII. I. The powers [lJeuftdllfies ]and functions of the national govemrnent and provincial govemrnents, and the boundaries of the provinces shall be defined in the Constitution. 2. The power an dfunktiions of the provinces defined in the Constitution, inc1uding the competenc of a provincial legislature to adopt a constitution for its province, shall not be substantially less than or substantially inferior to those provided for in this Constitution. 3. The boundaries of the province, shall be the same as those established in terms of this Constitution. 1, Amendrnents to the Constitution which alter the powers, boundaries, fun ctions or institutions of provinces shall in addition to any other procedures specified in the Constitution for constitutional am endments, require the approval of a special majority of the legislatures of the provinces, alternatively, if there is such a chamber, a two-thirds m�ority of a chamber of Parliament composed of provincial representa tives, and if the amendment concems specific provinces only, the approval of the legislatures of such provinces will also be needed. �. Provision shall be made for obtaining the views of a provinciallegisla ture conceming all constitutional amendments regarding its powers, boundaries and functions. XIX. The powers and functions at the national and provinciallevels of government shall inc1ude exc1usive and concurrent powers as weil as the power to perform functions for other levels of govemment on an agency or delegation basis. XX. Each level of govemment shall have appropriate and adequate legislative and executive powers and functions that will enable each level to function effec tively. The allocation of powers between different levels of government shall be made on a basis which is conducive to financial viability at each level of govemment and to eff ective public administration, and which recognises the need for and promotes national unity and legitimate provincial autonomy and acknowledges cultural diversity. XXI. The following criteria shall be applied in the allocation of powers to the national govemment and the provincial governments: I. The level at which decisions can be taken most effectively in respect of the quality and rendering of services, shall be the level responsible and accountable for the quality and the rendering of the services, and such level shall accordingly be empowered by the Constitution to do so. 2. Where it is necessary for the maintenance of essential national standards, for the establishment of minimum standards required for the rendering of services, the maintenance of economic unity, the maintenance of national security or the prevention of unreasonable action taken by one province which is prejudicial to the interests of another province or the country as a whole, the Constitution shall empower https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb the national governrnent to intervene through legislation or such other steps as rnay be defined in the Constitution. 3. Where there is necessity for South Africa to speak with one voice, or to act as a single entity- in particular in relation to other states- powers should be allocated to the national governrnent. 4. Where uniformity across the nation is required for a particular function, the legislative power over that function should be a1located predominantly, if not wholly, to the national govemment. 5. The determination of national economic policies, and the power to promote interprovincial commerce and to protect the common market in respect of the mobility of goods, services, capital and labour, should be a1located to the national government. 6. Provincial governments shall have powers, either exclusively or concurrently with the national govemment, inter a1ia- (a) for the purposes of provincial planning and development and the rendering of services; and (b) in respect of aspects of government dealing with specific socio-economic and cultural needs and the general well-being ofthe inhabitants of the province. 7. Where mutual co-operation is essential or desirable or where it is required to guarantee equality of opportunity or access to a government service, the powers should be a1located concurrently to the national government and the provincial govemments. 8. The Constitution shall specify how powers which are not specifically a1located in the Constitution to the national government or to a provincial government, shall be dealt with as necessary ancillary powers pertaining to the powers and functions a1located either to the national government or provincial governments. XXII. The national government shall not exercise its powers (exclusive or concurrent) so as to encroach upon the geographical, functional or institutional integrity of the provinces. XXIII. In the event of a dispute concerning the legislative powers a1located by the Constitution concurrently to the national govemment and provincial govemments which cannot be resolved by a court on a construction of the Constitution, precedence shall be given to the legislative powers of the national government. XXIV. A framework for local govemment powers, functions and structures shall be set out in the Constitution. The comprehensive powers, functions and other features of local government shall be set out in parliamentary statutes or in provincial legislation or in both. XXV. The national govemment and provincial govemments shall have fiscal powers and functions which will be defined in the Constitution. The framework for local government referred to in Principle XXIV shall make provision for appropriate fiscal powers and functions for different categories of local govemment. XXVI. Each level of govemment shall have a constitutional right to an equitable share of revenue collected nationally so as to ensure that provinces and local govemments are able to provide basic services and execute the functions allocated to them. XXVII. A Financial and Fiscal Commission, in which each province shall be represented, shall recommend equitable fiscal and financial a1locations to the provincial and local governments from revenue collected nationally, after taking into account the national interest, economic disparities between the provinces as weil as the population and developmental needs, administrative responsibilities and other legitimate interests of each of the provinces. XXVIII. Notwithstanding the provisions of Principle XII, the right of employers and employees to join and form employer organisations and trade unions and to engage in collective bargaining shall be recognised and protected. Provision shall be made that every person shall have the right to fair labour practices. XXIX. The independence and impartiality of a Public Service Commission, a Reserve Bank, an Auditor­ General and a Public Protector shall be provided for and safeguarded by the Constitution in the interests of https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb the maintenance of eff ective public finance and administration and a high standard of prof essional ethics in the public service. XXX. 1. There shall be an efficient, non-partisan, career-orientated public service broadly representative of the South African community, functioning on a basis of fairness and which shall serve all members or the public in an unbiased and impartial manner, and shall, in the exercise of its powers and in compliance with its duties, loyally execute the lawful policies of the govemment of the day in the performance of its administrative functions. The structures and functioning of the public service, as weil as the terms and conditions of service of its members, shall be regulated by law. 2. Every member of the public service shall be entitled to a fair pension. XXXI. Every member of the security forces (police, military and intelligence), and the security forces as a whole, shall be required to perform their functions and exercise their powers in the national interest and shall be prohibited from furthering or prejudicing party political interest. XXXII. The Constitution shall provide that until 30 April 1999 the national executive shall be composed and shall function substan tially in the manner provided for in Chapter 6 of this Constitution. XXXIII. The Constitution shall provide that, unless Parliament is dissolved on account of its passing a vote of no-confidence in the Cabinet, no national election shall be held before 30 April 1999. XXXIV. I. This Schedule and the recognition therein of the right of the South African people as awhole to shall not be construed as right, self-determination, prec\uding. within the fr amework of the said constitutional provision for a notion of the right to self-determination by any cmmunity sharing a common cultural an dlanguage heritage, whether in a territorial entity within the Republic or in any other recognised way. 2. The Constitution may give expression to any particular form of self-determination provided there is proven support within the community substantial concemed for such a form of self-determination. 3. if aterritorial entity referred to in paragraph I is established in terms of this Constitution before the new constitutional text is adopted. the new Constitution shall entrench the continuation of such territorial entity, inc\uding its structures, powers and functions. SCHEDULE 5 Procedure for Election of President 1. Nominations of candidates for election as Ptesident shall be called for by the Chief lustice or the other judge presiding at the meeting at which the Ptesident is to be elected. 2. Every nomination shall be submitted on the form prescribed by the Chief lustice and shall be signed by two members of Parliament and also by the person nominated, unless the person nominated has in writing signified his or her wiIlingness to accept the nomination. 3. The names of the persons duly nominated as provided for in item 2 shall be announced at the meeting at which the election is to take place by the person presiding thereat, and no debate shall be allowed at the election. 4. If in respect of any election only one nomination has been received, the person presiding at the meeting shall dec\are the candidate in question to be duly elected. 5. Where more than one candidate is nominated, a vote shall be taken by secret ballot, each person present and entitled to vote having one vote, and any candidate in whose favour the majority of all the votes cast is recorded, shall be dec\ared duly elected by the person presiding at the meeting. 6. (a) If no candidate obtains a majority of all the votes so cast, the candidate who has received the smallest number of votes shall be eliminated and a further ballot shall be taken in respect of the remaining candidates, this procedure being repeated as often as may be necessary until a candidate receives a majority of all the votes cast and is dec\ared duly elected. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (b) Whenever two or more candidates being the lowest on the poil have received the same number of votes, the meeting shall by separate vote, to be repeated as often as may be necessary, determine which of those candidates shall for the purpose of paragraph (a) be eliminated. 7. Whenever- (a) only two candidates have been nominated; or (b) after the elimination of one or more candidates in accordance with this Schedule, only two candidates remain, and there is an equality of votes between those two candidates, the person presiding at the meeting shall at the time the result of the election is announced, fix the time at and date on which a further meeting will be held, being a date not more than seven days thereafter. 8. At the further meeting referred to in item 7, the provisions of this Schedule shall apply as if such further meeting were the first meeting called for the purpose of the election in question. 9. (I) The Chief Justice shall make rules in regard to the procedure to be observed at a meeting at which the President is to be elected, and rules defming the duties of the presiding officer and of any person appointed to assist him and prescribing the manner in which the ballot at any such meeting shall be conducted. (2) Any such rules shall be made known in such manner as the Chief Justice may consider necessary. SCHEDULE 6 Legislative Competences of Provinces Agriculture Abattoirs Airports, other than international and national airports Animal control and diseases Casinos, racing, gambling and wagering Consurner Protection Cultural affairs Education at all levels, excluding university and technikon education Environment Hea1th services Housing Indigenous law and customary law Language policy and the regulation of the use of official languages within a province, subject to section 3 Local government, subject to the provisions of Chapter 10 Marcets and pounds Nature conservation, excluding national parks, national botanical gardens and marine resources Police, subject to the provisions of Chapter 14 Provincial public media Provincial sport and recreation Public transport Regional planning and development Road traffic regulation Roads Soil conservation Tourism Trade and industrial promotion Traditional authorities Urban and rural development Welfare services https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb SCHEDULE 7 Number and Title Extent of repeal year of law Representation between the Republic of South The whole Act 46 of 1959 Africa and Self-governing Territories Act, 1959 Act 32 of 1961 Provincial Government Act, 1961 The who1e Act 22 of 19 63 Provincial Counci1s and Executive Committees Act, The who1e Act 48 of 1963 Transkei Constitution Act, 1963 The whole Transkei Constitution Amendment Act, 19 67 The who1e Act 101 of 19 67 Act 36 of 1968 Transkei Constitution Amendment Act, 1968 The who1e Act 26 of 19 69 South Africa Act Amendment Act, 19 69 The whole Act 26 of 1970 National States Citizenship Act, 1970 The whole Act 21 of 1971 Self-governing Territories Constitution Act, 1971 The whole Act 31 of 1971 Transkei Constitution Amendment Act, 1971 The whole Act 61 of 1975 Transkei Constitution Amendment Act, 1975 The whole Act 3 of 1976 Transkei Constitution Amendment Act, 1976 The whole Act 65 of 1976 Financial Relations Act, 1976 The whole, except sections 27 , 28 Act 10 0 of 1976 Status of Transkei Act, 1976 The whole Constitution Amendment Act, 19 77 The whole Act 30 of 1977 Act 31 of 19 77 Financial Relations Amendment Act, 19 77 The whole Act 89 of 1977 Status of Bophuthatswana Act, 1977 The whole Act 8 of 1978 Bophuthatswana Border Extension Act, 1978 The whole Act 13 of 1978 National States Citizenship Amendment Act, 1978 The whole Act 36 of 1978 Alteration of Provincial Boundaries Act, 1978 The whole Act 10 7 of 1979 Status of Venda Act, 1979 The whole Act 2 of 1980 Borders of Particular States Extension Act, 1980 The whole Act 70 of 1980 Republic of South Africa Constitution Amendment The whole Act, 1980 Republic of South Africa Constitution Fifth The whole Act 101 of 1980 Amendment Act, 1980 Borders of Particular States Extension Amendment The whole Act 77 of 1981 Act, 1981 Act 101 of 1981 Republic of South Africa Constitution Second The whole Amendment Act, 1981 Financial Relations Amendment Act, 1981 The whole Act 10 2 of 1981 Act 11 0 of 1981 Status of Ciskei Act, 1981 The whole 63 1 https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb Act 34 of 1982 Financial Relations Amendment Act. 1982 The whole Act 25 of 1983 Borders of Particular States Extension Amendment The whole Act. 1983 Provincial Affairs Act. 1983 The whole. except section 5 Act 88 of 1983 Act 109 of 1983 Borders of Particular States Extension Second The whole Amendment Cat. 1983 Act 11 0 of 1983 Republic of South Africa Constitution Act. 1983 The whole Act 105 of 1984 Constitution Amendment Act. 1984 The whole. except sections 12. 13 and 14 Act 11 4 of 1984 Financial Relations Amendment Act. 1984 The whole Act 3 of 1985 Financial Relations Amendment Act. 1985 The whole Act 26 of 1985 Alteration of Provincial Boundaries Act. 1985 The whole Act 104 of 1985 Constitutional Affairs Amendment Act, 1985 The whole Act 69 of 1986 Provincial Govemment Act, 1986 The whole. except section 20 Act 80 of 1986 Joint Executive Authority for KwaZulu and Natal The whole Act. 1986 Act 11 2 of 1986 Borders of Particular States Extension Amendment The whole Act, 1986 Act 20 of 1987 Constitution Amendment Act. 1987 The whole Act 32 of 1987 Constitutional Laws Amendment Act. 1987 Sections 18 . 19 . 20. 31 and 32 Act 43 of 1988 Constitutional Laws Amendment Act. 1988 Sections 10, 11 . 12 and 13 Act 50 of 1988 Constitution Amendment Act, 1988 The whole Act 59 of 1988 Borders of Particular States Extension Act, 1988 The whole Act 85 of 19 88 National States Constitution Amendment Act. 1988 The whole Act 86 of 1988 Promotion of Constitutional Development Act. The whole Act 101 of 1988 Constitution Third Amendment Act. 1988 The whole Act 42 of 1989 Incorporation of Certain Land in the Republic of The whole South Africa Act. 1989 Act 71 of 1989 Constitution Fourth Amendment Act. 1989 The whole Act 61 of l990 Constitution Amendment Act. 1990 The whole Act 111 of 1990 National States Constitution Amendment Act. 1990 The whole Act 59 of 1991 Provincial Matters Amendment Act. 1991 The whole Act 62 of 1991 Financial Relations Amendment Act. 1991 The whole Act 74 of 1991 Joint Executive Authority for KwaZulu and Natal The whole Amendment Act. 1991 Act 146 of 1992 Constitution Second Amendment Act. 1992 The whole Act 149 of 1992 Constitution Amendment Act. 1992 The whole Act 82 of 1993 Constitution Amendment Act. 1993 The whole https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Verfassung in Recht und Übersee Unpaywall

Constitution of the Republic of South Africa

Verfassung in Recht und ÜberseeJan 1, 1994

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0506-7286
DOI
10.5771/0506-7286-1994-4-545
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Abstract

DOKUMENTATION * I CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA ACT To introduce a new Constitution for the Republic of South Africa and to provide for malters incidental thereto TABLE OF CONTENTS Sections CHAPTER I Constituent and Formal Provisions 1- 4 CHAPTER 2 Citizenship and Franchise 5-6 CHAPTER 3 Fundamental Rights 7 - 35 CHAPTER 4 Parliament 36 - 67 CHAPTER 5 The Adoption of the new Constitution 68 -7 4 CHAPTER 6 The National Executive 75 - 95 CHAPTER 7 The Judicial Authority and the Administration of Justice 96 - 109 CHAPTER 8 The Public Protector, Human Rights Commission, Commission on Gender Equality and Restitution of Land Rights 1l 0 - 123 CHAPTER 9 Provincial Govemment 124 - 173 CHAPTER 10 Local Govemment 174 - 180 CHAPTER II Traditional Authorities 181 - 184 CHAPTER II A Volkstaat Council 184A - 184B CHAPTER 12 Finance 185 - 208 CHAPTER 13 Public Service Commission and Public Service 209 - 213 CHAPTER 14 Police and Defence 214 - 228 CHAPTER 15 General and Transitional Provisions 229 - 25 1 SCHEDULE I _ 7 2 PREAMBLE In humble submission to Almighty God, We, the people of South Africa declare that- WHEREAS there is a need to create a new order in which all South Afri cans will be entitled to a common South African citizenship in a sovereign and democratic constitutional state in which there is equality between men and women and people of all races so that all citizens shall be able to enjoy and exercise their fundamental rights and freedoms; AND WHEREAS in order to secure the achievement of this goal, elected representatives of all the people of South Africa should be mandated to adopt a new Constitution in accordance with a solemn pact recorded as Constitutional Principles; Governrnent Gazette of the Republic of South Africa, Vol. 343, No. 15466, January 28, 1994, Act No. 200 of 1993 Die sich durch die ersten zwei Arnendments (Constitution of the Republic of South Africa Arnendment Act, Act No. 2 of 1994 vom 3. March 1994, Goverment Gazette, Vol 345, No. 15550 und Constitution of the Republic of South Africa Second Amendment Act, Act No. 3 of 1994, vom 26 April 1994, Goverment Gazette, Vol 346, No. 1568 1) ergebenden Änderungen wurden von den Verfassern in den Text eingearbeitet und sind wie folgt kenntlich: einfach unterstrichener Text zeigt Einfügungen durch das 1. Arnendment an; [-----------] durchgestrichener Text in eckigen Klammern kennzeichnet Streichung en im bestehenden Verfassungstext durch das 1. Arnendment; ======== doppellt unterstrichener Text zeigt Einfügungen durch das 2. Amendment an. Vom Abdruck der Schedules I (DefInitions of Provinces und Affected Areas) und 3 (Oaths of Office and Solemn Affirmations) wurde abgesehen. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb AND WHEREAS it is necessary for such purposes that provision should be made for the promotion of national unity and the restructuring and continued govemance of South Africa while an elected Constitutional Assembly draws up a final Constitution; NOW THEREFORE the following provisions are adopted as the Constitution of the Republic of South Africa: CHAPTER 1 Constituent and Formal Provisions 1. Republic of South Africa (I) The Republic of South Africa shall be one, sovereign state. (2) The national territory of the Republic shall comprise the areas defined in Part 1 of Schedule 1. 2. National symbols (1) The national flag of the Republic shall be the flag the design of which is detennined by the President by proc\amation in the Gazette. (2) The national anthem of the Republic shall be as detennined by the President by proc\amation in the Gazette. (3) The coat of arms of the Republic and the seal of the Republic under the previous Constitution shall be the national coat of arms of the Republic and the seal of the Republic under this Constitution. 3. Languages (I) Afrikaans, English, isiNdebele, Sesotho sa Leboa, Sesotho, siSwati, Xitsonga, Setswana, Tshivenda, isiXhosa and isiZulu shall be the official South African languages at national level, and conditions shall be created for their development and for the promotion of their equal use and enjoyment. (2) Rights relating to language and the status of languages existing at the commencement of this Constitution shall not be dirninished, and provision shall be made by an Act of Parliament for rights relating to language and the status of languages existing only at regional level, to be extended nationally in accordance with the principles set out in subsection (9). (3) Wherever practicable, a person shall have the right to use and to be addressed in his or her deaIings with any public administration at the national level of govemment in any official South African language of his or her choice. (4) Regional differentiation in relation to language policy and practice shall be pennissible. (5) A provincial legislature may, by a resolution adopted by a majority of at least two-thirds of all its members, dec\are any language referred to in subsection (1) to be an official language for the whole or any part of the province and for any or all powers and functions within the competence of that legislature, save that neither the rights relating to language nor the status of an official language as existing in any area or in relation to any function at the time of the commencement of this Constitution, shall be diminished. (6) Wherever practicable, a person shall have the right to use and to be addressed in his or her deaIings with any public administration at the provincial level of govemrnent in any one of the official languages of his or her choice as contemplated in subsection (5). (7) A member of Parliament may address Parliament in the official South African language of his or her choice. (8) Parliament and any provincial legislature may, subject to this section, make provision by legislation for the use of official languages for the purposes of the functioning of govemrnent, taking into account questions of usage, practicality and expense. (9) Legislation, as weil as official policy and practice, in relation to the use of languages at any level of govemment shall be subject to and based on the provisions of this section and the following principles: (a) The creation of conditions for the development and for the promotion of the equal use and enjoyment of all official South African languages; (b) the extension of those rights relating to language and the status of languages which at the commencement of this Constitution are restricted to certain regions; (c) the prevention of the use of any language for the purposes of exploitation, domination or division; (d) the promotion of multilingualism and the provision of translation facilities; (e) the fostering of respect for languages spoken in the Republic other than the official languages, and the encouragement of their use in appropriate circumstances; and https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (f) the non-diminution of rights relating to language and the status of languages existing at the commencement of this Constitution. (lO ) (a) Provision shall be made by an Act of Parliament for the establishment by the Senate of an independent Pan South African Language Board to promote respect for the principles referred to in subsection (9) and to further the development of the official South African languages. (b) The Pan South African Language Board shall be consulted, and be given the opportunity to make recommendations, in relation to any proposed legislation contemplated in this section. (c) The Pan South African Language Board shall be responsible for promoting respect for and the development of German, Greek, Gujerati, Hindi, Portuguese, Tamil, Telegu, Urdu and other languages used by communities in South Africa, as weil as Arabic, Hebrew and Sanskrit and other languages used for religious purposes. 4. Supremacy of the Constitution (l) This Constitution shall be the supreme law of the Republic and any law or act inconsistent with its provisions shall, unless otherwise provided expressly or by necessary implication in this Constitution, be of no force and effect to the extent of the inconsistency. (2) This Constitution shall bind all legislative, executive and judicial organs of state at all levels of govemment. CHAPTER 2 Citizenship and Franchise 5. Citizenship (l) There shall be a South African citizenship. (2) South African citizenship and the acquisition, loss and restoration of South African citizenship shall, subject to section 20 read with section 33 (l), be regulated by an Act of Parliament. (3) Every person who is a South African citizen shall, subject to this Constitution, be entitled to enjoy all rights, privileges and benefits of South African citizenship, and shall be subject to all duties, obligations and responsibilities of South African citizenship as are accorded or imposed upon him or her in terms of this Constitution or an Act of Parliament. 6. The franchise Every person who is (a) (i) a South African citizen; or (ii) not such a citizen but who in terms of an Act of Parliament has been accorded the right to exercise the franchise; (b) of or over the age of 18 years; and (c) not subject to any disqualifications as may be prescribed by law, shall be entitled to vote in elections of the National Assembly, a provincial legislature or a local govemment and in referenda or plebiscites contemplated in this Constitution, in accordance with and subject to the laws regulating such elections, referenda and plebiscites. CHAPTER 3 Fundamental Rights 7. Application (I) This Chapter shall bind all legislative and executive organs of state at all levels of govemment. (2) This Chapter shall apply to ali law in force and all administrative decisions taken and acts performed during the period of operation of this Constitution. (3) Juristic persons shall be entitled to the rights contained in this Chapter where, and to the extent that, the nature of the rights perrnits. (4) (a) When an infringement of or threat to any right entrenched in this Chapter is alleged, any person referred to in paragraph (b) shall be entitled to apply to a competent court of law for appropriate relief, which may include a declaration of rights. (b) The relief referred to in paragraph (a) may be sought by­ (i) a person acting in his or her own interest; (ii) an association acting in the interest of its members; https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (iii) a person acting on behalf of another person who is not in a position to seek such relief in his or her ownname; (iv) a person acting as a member of or in the interest of a group or class of persons; or (v) a person acting in the public interest. 8. Equality (I) Every person shall have the right to equality before the law and to equal protection of the law. (2) No person shall be unfairly discriminated against, directly or indirectly, and, without derogating !Tom the generality of this provision, on one or more of the following grounds in particular: race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability , religion, conscience, belief, culture or language. (3) (a) This section shall not preclude measures designed to achieve the adequate protection and advancement of persons or groups or categories of persons disadvantaged by unfair discrimina tion, in order to enable their fuH and equal enjoyment of a11 rights and freedoms. (b) Every person or community dispossessed of rights in land before the commencement of this Constitution under any law which would have been inconsistent with subsection (2) had that subsection been in operation at the time of the dispossession, shall be entitled to claim restitution of such rights subject to and in accordance with sections 121, 122 and 123. (4) Prima facie proof of discrimination on any of the grounds specified in subsection (2) shall be presumed to be sufficient proof of unfair discrimination as contemplated in that subsection, until the contrary is established. 9. Li fe Every person shall have the right to life. 10. Human dignity Every person shall have the right to respect for and protection of his or her dignity. 11. Freedom and security of the person (I) Every person shall have the right to fre edom and security of the person, which shall include the right not to be detained without trial. (2) No person shall be subject to torture of any kind, whether physical, mental or emotional, nor shall any person be subject to cruel, inhuman or degrading treatment or punishment. 12. Servitude andf orced labour No person shall be subject to servitude or forced labour. 13. Privacy Every person shall have the right to his or her personal privacy, which shall include the right not to be subject to searches of his or her person, horne or property, the seizure of private possessions or the violation of private communications. 14. Religion, belie f and opinion (I) Every person shall have the right to freedom of conscience, religion, thought, belief and opinion, which shall include academic !Teedom in institutions of higher leaming. (2) Without derogating from the generality of subsection (I), religious observances may be conducted at state or state-aided institutions under mIes established by an appropriate authority for that purpose, provided that such religious observances are conducted on an equitable basis and attendance at them is !Tee and voluntary. (3) Nothing in this Chapter shall preclude legislation recognising- (a) a system of personal and family law adhered to by persons professing a particular religion; and (b) the validity of marriages concluded under a system of religious law subject to specified procedures. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb 15. Freedom of expression (I) Every person shall have the right to free dom of sch pee and expression, which shall inc1ude freedom of the press and other media, and the freedom of artistic creativity and scientific research. (2) All media financed by or under the control of the state shall be regulated in a manner which ensures impartiality and the expression of a diversity of opinion. 16. Assembly, demonstration and petition Every person shall have the right to assemble and demonstrate with others peacefully and unarmed, and to present petitions. 17. Freedom of association Every person shall have the right to fre edom of association. 18. Freedom ofmovement Every person shall have the right to fre edom of movement anywhere within the national territory. 19. Residence Every person shall have the right freely to choose his or her place of residence anywhere in the national terri tory. 20. Citizens ' rights Every citizen shall have the right to enter, remain in and leave the Republic, and no citizen shall without justification be deprived of his or her citizenship. 21. Political rights (I) Every citizen shall have the right- (a) to form, to participate in the activities of and to recruit members for a political party; (b) to campaign for a political party or cause; and (c) freely to make political choices. (2) Every citizen shall have the right to vote, to do so in secret and to stand for election to public office. 22. Access to court Every person shall have the right to have justiciable disputes settled by a coun of law or, where appropriate, another independent and impartial forum. 23. Access to information Every person shall have the right of access to all information held by the state or any of its organs at any level of govemment in so far as such information is required for the exercise or protection of any of his or her rights. 24. Administrative justice Every person shall have the right to- (a) lawful administrative action where any of his or her rights or interests is affected or threatened; (b) procedurally fair administrative action where any of his or her rights or legitimate expectations is affected or threatened; (c) be furnished with reasons in writing for administra tive action which affects any of his or her rights or interests unless the reasons for such action have been made public; and (d) administrative action which is justifiable in relation to the reasons given for it where any of his or her rights is affected or threatened 25. Detained, arrested and accused persons (I) Every person who is detained, inc1uding every sentenced prisoner, shall have the right- (a) to be informed promptly in a language which he or she understands of the reason for his or her detention; https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (b) to be detained under conditions consonant with human dignity, which shall include at least the provision of adequate nutrition, reading mate rial and medical treatment at state expense; (c) to consult with a legal practitioner of his or her choice, to be informed of this right promptly and, where substantial injustice would otherwise result, to be provided with the services of a legal practitioner by the state; (d) to be given the opportunity to communicate with, and to be visited by, his or her spouse or partner, next-of-kin, religious counsellor and a medical practitioner of his or her choice; and (e) to challenge the lawfulness of his or her detention in person before a court of law and to be released if such detention is unlawful. (2) Every person arrested for the alleged cOlnmission of an offence shall, in addition to the rights which he or she has as a detained person, have the right- (a) promptly to be informed, in a language which he or she understands, that he or she has the right to remain silent and to be warned of the consequences of making any statement; (b) as soon as it is reasonably possible, but not later than 48 hours after the arrest or, if the said period of 48 hours expires outside ordinary court hours or on a day which is not a court day, the fIrst court day after such expiry, to be brought before an ordinary court of law and to be charged or to be informed of the reason for his or her further detention, failing which he or she shall be entitled to be released; (c) not to be compelled to make a confession or admission which could be used in evidence against him or her; and (d) to be released from detention with or without bail, unless the interests of justice require otherwise. (3) Every accused person shall have the right to a fair triaI, which shall include the right- (a) to a public trial before an ordinary court of law within a reasonable time after having been charged; (b) to be informed with suffIcient particularity of the charge; (c) to be presumed innocent and to remain silent during plea proceedings or trial and not to testify during triaI; (d) to adduce and challenge evidence, and not to be a compellable witness against himself or herself; (e) to be represented by a legal practitioner of his or her choice or, where substantial injustice would otherwise result, to be provided with legal representation at state expense, and to be informed of these rights; (f) not to be convicted of an offence in respect of any act or omission which was not an offence at the time it was comrnitted, and not to be sentenced to a more severe punishment than that which was applicable when the offence was comrnitted; (g) not to be tried again for any offence of which he or she has previously been convicted or acquitted; (h) to have recourse by way of appeal or review to a higher court than the court of fIrst instance; (i) to be tried in a language which he or she understands or, failing this, to have the proceedings interpreted to him or her; and (j) to be sentenced within a reasonable time after conviction. 26. Economic activity (I) Every person shall have the right free ly to engage in economic activity and to pursue a livelihood anywhere in the national territory. (2) Subsection (I) shall not preclude measures designed to promote the protection or the improvement of the quality of life, economic growth, human development, social justice, basic conditions of employment, fair labour practices or equal opportunity for all, provided such measures are justifIable in an open and democratic society based on free dom and equality. 27. Labour relations (I) Every person shall have the right to fair labour practices. (2) Workers shall have the right to form and join trade unions, and employers shall have the right to form and join employers' organisations. (3) Workers and employers shall have the right to organise and bargain collectively. (4) Workers shall have the right to strike for the purpose of collective bargaining. (5) Employers' recourse to the lock-out for the purpose of collective bargaining shall not be impaired, subject to section 33 (I). https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb 28. Property (I) Every person shall have the right to acquire and hold rights in property and, to the extent that the nature of the rights permits, to dispose of such rights. (2) No deprivation of any rights in property shall be permitted otherwise than in accordance with a law. (3) Where any rights in property are expropriated pursuant to a law referred to in subsection (2), such expropriation shall be permissible for public purposes only and shall be subject to the payment of agreed compensation or, failing agreement, to the payment of such compensation and within such period as may be determined by a court of law as just and equitable, taking into account all relevant factors, incJuding, in the case of the determination of compensation, the use to which the property is being put, the history of its acquisition, its market value, the value of the investments in it by those affected and the interests of those aff ected. 29. Environment Every person shall have the right to an environment which is not detrimental to his or her health or well­ being. 30. Children (I) Every child shall have the right- (a) to a name and nationality as from birth; (b) to parental care; (c) to security, basic nutrition and basic health and social services; (d) not to be subject to neglect or abuse; and (e) not to be subject to exploitative labour practices nor to be required or permitted to perform work which is hazardous or harmful to his or her education, health or well- being. (2) Every child who is in detention shall, in addition to the rights which he or she has in terms of section 25 , have the right to be detained under conditions and to be treated in a manner that takes account of his or her age. (3) For the purpose of this section a child shall mean a person under the age of 18 years and in all matters concerning such child his or her best interest shall be paramount. 31. Language and culture Every person shall have the right to use the language and to participate in the cultural life of his or her choice. 32. Education Every person shall have the right- (a) to basic education and to equal access to educational institutions; (b) to instruction in the language of his or her choice where this is reasonably practicable; and (c) to establish, where practicable, educational institutions based on a comrnon culture, language or religion, provided that there shall be no discrimination on the ground of race. 33. Limitation (I) The rights entrenched in this Chapter may be limited by law of general application, provided that such limitation- (a) shall be permissible only to the extent that it is­ (i) reasonable; and (ii) justifiable in an open and democratic society based on freedom and equality; and (b) shall not negate the essential content of the right in question, and provided further that any limitation to- (aa) a right entrenched in section 10, 11 , 12, 14 (I), 21, 25 or 30 (I) (d) or (e) or (2) ; or (bb) a right entrenched in section 15, 16, 17, 18 , 23 or 24, in so far as such right relates to free and fair political activity, shall, in addition to being reasonable as required in paragraph (a) (i) , also be necessary. (2) Save as provided for in subsection (I) or any other provision of this Constitution, no law, whether a rule of the comrnon law, customary law or legislation, shail limit any right entrenched in this Chapter. 55 1 https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (3) The entrenchment of the rights in tenns of this Chapter shall not be construed as denying the existence of any other rights or freedoms recognised or conferred by common law, customary law or legislation to the extent that they are not inconsistent with this Chapter. (4) This Chapter shall not preclude measures designed to prohibit unfair discrimination by bodies and persons other than those bound in tenns of section 7 (I). (5) (a) The provisions of a law in force at the commencement of this Constitution promoting fair employment practices, orderly and equitable collective bargaining and the regulation of industrial action shall remain of full force and effect until repealed or amended by the legislature. (b) If a proposed enactment amending or repeaIing a law referred to in paragraph (a) deals with a matter in respect of which the National Manpower Commission, referred to in section 2A of the Labour Relations Act, 1956 (Act 28 of 19 56), or any other similar body which may replace the Commission, is competent in tenns of a law then in force to consider and make recommendations, such proposed enactment shall not be introduced in Parliament unless the said Commission or such other body has been given an opportunity to consider the proposed enactment and to make recommendations with regard thereto. 34. State oj emergency and suspension (I) A state of emergency shall be proclaimed prospectively under an Act of Parliament, and shall be declared only where the security of the Republic is threatened by war, invasion, general insurrection or disorder or at a time of national disaster, and if the declaration of a state of emergency is necessary to restore peace or order. (2) The declaration of a state of emergency and any action taken, including any regulation enacted, in consequence thereof, shall be of force for ape riod of not more than 21 days, unless it is extended for a period of not longer than three months, or consecutive periods of not longer than three months at a time, by resolution of the National Assembly adopted by a majority of at least two-thirds of all its members. (3) Any superior court shall be competent to enquire into the validity of a declaration of a state of emer gency, any extension thereof, and any action taken, including any regulation enacted, under such declaration. (4) The rights entrenched in this Chapter may be suspended only in consequence of the declaration of a state of emergency, and only to the extent necessary to restore peace or order. (5) Neither any law which provides for the declaration of a state of emerge ncy, nor any action taken, including any regulation enacted, in consequence thereof, shall pennit or authorise- (a) the creation of retr ospective crimes; (b) the indemnification of the state or of persons acting under its authority for unlawful actions during the state of emergen cy; or (c) the suspension of this section, and sections 7, 8 (2), 9, 10 , ll (2), 12 , 14, 27 (I) and (2), 30 (I) (d) and (e) and (2) and 33 (I) and (2). (6) Where a person is detained under a state of emergency the detention shall be subject to the following conditions: (a) An adult family member or friend of the detainee shall be notified of the detention as soon as is reasonably possible; (b) the names of all detainees and a refere nce to the measures in tenns of which they are being detained shall be published in the Gazette within five days of their detention; (c) when rights entrenched in section ll or 25 have been suspended (i) the detention of a detainee shall, as soon as it is reasonably possible but not later than 10 days after his or her detention, be reviewed by a court of law, and the court shall order the release of the detainee if it is satisfied that the detention is not necessary to restore peace or order; (ii) a detainee shall at any stage after the expiry of a period of IO days after a review in tenns of subparagraph (i) be entitIed to apply to a court of law for a further review of his or her detention, and the court shall order the release of the detainee if it is satisfied that the detention is no longer necessary to restore peace or order; (d) the detainee shall be entitIed to appear before the court in person, to be represented by legal counsel, and to make representations against his or her continued detention; (e) the detainee shall be entitIed at all reasonable times to have access to a legal repr esentative of his or her choice; https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (f) the detainee shall be entitled at all times to have access to a medical practitioner of his or her choice; and (g) the state shall for the purpose of a review referred to in paragraph (c) (i) or (ii) submit written reasons to justify the detention or further detention of the detainee to the court, and shall fumish the detainee with such reasons not later than two days before the review. (7) If a court of law, having found the grounds for a detainee's detention unjustified, orders his or her release, such a person shall not be detained again on the same grounds unless the state shows good cause to a court of law prior to such re-detention. 35. Interpretation (I) In interpreting the provisions of this Chapter a court of law shall promote the values which underlie an open and democratic society based on free dom and equality and shall, where applicable, have regard to public international law applicable to the protection of the rights entrenched in this Chapter, and may have regard to comparable foreign case law. (2) No law which limits any of the rights entrenched in this Chapter, shall be constitutionally invalid solely by reason of the fact that the wording used prima facie exceeds the limits imposed in this Chapter, provided such a law is reasonably capable of a more restricted interpretation which does not exceed such limits, in which event such law shall be construed as having a meaning in accordance with the said more restricted interpretation. (3) In the interpretation of any law and the application and development of the common law and customary law, a court shall have due regard to the spirit, purport and objects of this Chapter. CHAPTER 4 Parliament 36. Constitution of Parliament Parliament shall consist of the National Assembly and the Senate. 37. Legislative authority of Republic The legislative authority of the Republic shall, subject to this Constitution, vest in Parliament, which shall have the power to make laws for the Republic in accordance with this Constitution. 38. Duration of Parliament (1) Parliament as constituted in terms of the first election under this Constitution shall, subject to subsection (2), continue for five years as from the date of the first sitting of the National Assembly under this Constitution. (2) If during the period referred to in subsection (I) Parliament is dissolved under section 73 (9) or 93 (1) or (3) (c), the Houses of Parliament as constituted then, shall continue for the period up to the day immediately preceding the commencement of polling for the election of the National Assembly held in pursuance of such dissolution. (3) Notwithstanding any dissolution of Parliament- (a) every person who at the date of the dissolution is a member of the National Assembly or the Senate shall remain a member thereof; (b) the National Assembly and the Senate shall remain competent to perform their functions; and (e) the President shall be competent to summon Parliament by proclamation in the Gazette to an e xtraordinary sitting for the despatch of urgent business, during the period for which the Houses of Parliament continue in terms of subsection (2) after the dissolution. (4) If Parliament is dissolved and a new Parliament is constituted as contemplated in section 39, this section shall apply mutatis mutandis in respect of such new Parliament save that the new Parliament shall continue for the unexpired part ofthe period referred to in subsection (I) . 39. Elections (I) Upon a dissolution of Parliament in terms of section 73 (9) or 93 (I) or (3) (c), the President shall by proclamation in the Gazette- (a) call an election of the National Assembly, which election shall take place within 90 days after the dissolution of Parliament on a date or dates specified in the proclamation; and https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (b) request parties represented in the provincial legisla tures to nominate persons as senators for the respective provinces in accordance with section 48 (I) (b). (2) An election referred to in subsection (I) (a) shall be held in accordance with the E1ectoral Act, 1993. THE NATIONAL ASSEMBLY 40. Composition 01 National Assembly (I) The National Assembly shall consist of 400 members elected in accordance with the system of proportional representation ofvoters as provided for in Schedule 2 and the Electoral Act, 1993. (2) A person nominated as a candidate for election to the National Assembly on a regional list contemplated in Schedule 2, shall, subject to subsection (3), at the time of the nomination be ordinarily resident in the province in respect of which that regional list applies. (3) Notwithstanding subsection (2), a regional list may contain the names of candidates who are not ordinarily resident in the province in respect of which that list applies , provided that no such list shall contain the names of more than one such candidate or more than 10 per cent of the total number of candidates the party concemed is entitled to nominate on that list, whichever is the greater number. (4) For the purposes of this section, a person shall be deemed to be ordinarily resident at the place where he or she normally Iives and to which he or she returns regularly after any period of temporary absence, incIuding the place where he or she was previously so ordinarily resident and to which he or she returns regularly after any period of absence. (5) If a regional list contemplated in subsection (2) contains more names of candidates not ordinarily resident in the province in respect of which that list applies than are pennissible under that subsection, the surplus of such names so contained shall be deleted mutatis mutandis in accordance with section 22 (8) of the Electoral Act, 1993. 41. Speaker and Deputy Speaker 01 National Assembly (1) At its fir st sirting after it has been convened under section 46 (2), and after the election of the President, the National Assembly, with the Chief lustice or a judge of the Supreme Court designated by hirn or her acting as the chairperson, shall elect one of its members to be the Speaker, and shall thereafter elect another of its members to be the Deputy Speaker. (2) The provisions of Schedule 5 shall apply mutatis mutandis to the election of the Speaker and the Deputy Speaker. (3) The Speaker shall be vested with a11 powers and functions assigned to him or her by this Constitution, an Act of Parliament and the rules and orders. (4) If the Speaker is absent or for any reason unable to exercise or perform the powers or functions vested in the office of Speaker, or when the office of Speaker is vacant, the Deputy Speaker shall act as Speaker during the Speaker's absence or inability or until a Speaker is elected. (5) If any of the circumstances described in subsection (4) applies with refere nce to both the Speaker and the Deputy Speaker, a member of the National Assembly designated in terms of the rules and orders shall act as Speaker while the said circumstances prevail. (6) The Deputy Speaker or the member designated under subsection (5), while acting as Speaker, may exercise the powers and shall perform the functions vested in the office of Speaker. (7) The Spe aker, the Deputy Speaker or any other member of the National Assembly designated for that purpose in terms ofthe rules and orders, shall preside over siUings ofthe National Assembly. (8) While presiding at a sitting of the National Assembly, the Speaker, Deputy Speaker or other member presiding shall not have a deliberative vote, but shall have and exercise a casting vote in the case of an equality of votes. (9) The Speaker or Deputy Speaker shall vacate his or her office if he or she ceases to be a member of the National Assembly, and may be removed from office by resolution of the National Assembly, and may resign by lodging his or her resignation in writing with the Secretary to Parliament. (10) If the office of Speaker or Deputy Speaker becomes vacant, the National Assembly, under the chairpersonship of the Chief lustice or a judge as provided in subsection (I) , shall elect a member to fitl the vacancy: Provided that the Speaker shall in such event preside at the election of the Deputy Speaker. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb 42. Qualification for membership of National Assembly (1) No person shall become or remain a member of the National Assembly unless he or she is a South Afrlcan citizen and is and remains qualified in terms of section 6 to vote in an election of the National Assembly, or if he or she- (a) at the time of the first election of the National Assembly held under this Constitution is serving a sentence of imprisonrnent of more than 12 months without the option of a fine; (b) at any time after the promulgation of this Constitution is convicted of an offence in the Republic, or outside the Republic if the conduct constituting such offence would have constituted an off ence in the Republic, and for which he or she has been sentenced to imprisonment of more than 12 months without the option of a fine, unless he or she has received a pardon; (c) is an unrehabilitated insolvent; (d) is of unsound mind and has been so declared by a competent court; or (e) holds any office of profit under the Republic: Provided that the following persons shall be deemed not to hold an office of profit under the Republic for the purpose of this paragraph, namely- (i) an Executive Deputy President, a Minister or a Deputy Minister; (ii) a person in receipt of a pension paid from public funds or from a pension fund aided by public funds; (iii) a justice of the peace or appraiser; or (iv) a member of any council, board, committee, commission or similar body established by or under law or a committee of the National Assembly who receives remuneration not in excess of an amount equal to his or her salary as a member of the National Assembly. (2) For the purposes of subsection (1) (b) no person shall be dee med as having been convicted of an offence until any appeal against the conviction or sentence has been determined, or, if no appeal against the conviction or sentence has been noted, the time for noting such an appeal has expired. 43. Vacation ofseats A member ofthe National Assembly shall vacate his or her seat if he or she- (a) ceases to be eligible to be a member ofthe National Assembly in terms of section 42; (b) ceases to be a member of the party which nominated hirn or her as a member of the National Assembly; (c) resigns his or her seat by submitting his or her resignation in writing to the Secretary to Parliament; (d) without having obtained leave in accordance with the rules and orders, absents himself or herself voluntarily from sittings of the National Assembly or any other parliamentary forum of which he or she is a member, for 15 consecutive days on which the National Assembly or any such forum sat; or (e) becomes a member of the Senate, a provincial legislature or a local govemment. 44. Filling of vacancies (1) If a member of the National Assembly vacates his or her seat, the vacancy shall be mied by a person nominated in terms of subsection (2) by the party which nominated the vacating member. (2) The party entitled in terms of subsection (1) to fill a vacancy shall nominate a person- (a) whose name appears on that list of candidates of that party, compiled in terms of Sche dule 2, from which the vacating member was nominated to the National Assembly; and (b) who according to the order of preference of the candidates on such list is the next qualifled and available person entitled in terms of Schedule 2 to represent that party in the National Assembly. (3) A nomination in terms of this section shall be submitted in writing to the Speaker. 45. Oath or affi rmation by members of National Assembly Every member of the National Assembly, before taking his or her seat, shall make and subscribe an oath or solemn affirm ation in the terms set out in Schedule 3 before the Chief Justice, or a judge of the Supreme Court designated by the Chief Justice for this purpose, or, in the case of a member nominated under section 44, before the Speaker. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb 46. Sittings of National Assembly (I) The National Assembly shall sit at the Houses of Parliament in Cape Town, unless the Speaker, in accordance with the mies and orders and in consultation with the President of the Senate, directs otherwise on the grounds of public interest, security or convenience. (2) The Chief Justice shall convene the National Assembly within 10 days after an election of the National Assembly. (3) The National Assembly shall sit during such periods and on such days and during such hours as it may determine: Provided that the President may at any time by proc1amation in the Gazette summon the National Assembly to an extraordinary sitting for the despatch of urgent business. 47. Quorum The presence of at least one third or, when a vote is taken on a Bill, of at least one half of all the rnembers of the National Assembly, other than the Speaker or other presiding member, shall be necessary to constitute a meeting of the National Assembly. THE SENATE 48. Composition of Senate (I) The Senate shall be composed of 10 senators for each province, nominated by the parties represented in a provincial legisla ture within 10 days of- (a) the first sitting of such legisla ture after an election of the legislature; or (b) an election of the National Assembly held in pursuance of a dissolution of Parliament. (2) Each party represented in a provincial legislature shall be entitled to nominate a senator or senators for the relevant province in accordance with the principle of proportional representation as detel1Ilined by the following formula: (a) The number of senators each party shall be entitled to nominate, shallsubject to paragraph (b) be detel1Ilined by multiplying the number of seats such party holds in the provincial legisla ture by 10 and dividing the result by the total number of seats in the legislature plus one. (b) If the application of paragraph (a) yields a surplus not absorbed by the number of senators allocated to that party, such surplus shall compete with sirnilar surpluses accming to any other party or parties, and any undistributed senatorial seat or seats shall be allocated to the party or parties concemed in sequence of the highest surplus. (3) A membe r of a provincial legisla ture or local govemment nominated as a senator in terms of tltis section, shall vacate his or her seat in the provincial legislature or local govemment upon his or her acceptance of such nomination. 49. President and Deputy President of Senate (I) At its first sitting after it has been convened under section 53 (2), and before proceeding to dispatch any other business, the Senate, with the Chief Justice or a judge of the Supreme Court designated by hirn or her acting as the chairperson, shall elect one of its members to be the President of the Senate, and shall thereafter elect another of its members to be the Deputy President of the Senate. (2) The provisions of Schedule 5 shall apply mutatis mutandis to the election of the President and the Deputy President of the Senate. (3) The President of the Senate shall be vested with all the powers and functions assigned to hirn or her by this Constitution, an Act of Parliament and the mies and orders. (4) If the President of the Senate is absent or for any reason unable to exercise and perform the powers and functions vested in the office of President of the Senate, or when the office of President of the Senate is vacant, the Deputy President of the Senate shall act as President of the Senate during the absence or inability of the President of the Senate or until a President of the Senate is elected. (5) If any of the circumstances described in subsection (4) applies with reference to both the President and the Deputy President of the Senate, a senator designated in terms of the mies and orders shall act as President of the Senate while the said circumstances prevail. (6) The Deputy President of the Senate or the senator designated under subsection (5), while acting as President of the Senate, may exercise the powers and shall perform the functions vested in the office of President of the Senate. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (7) The President or Deputy President of the Senate or any other senator designated for that purpose in tenns of the rules and orders shall preside over sittings of the Senate. (8) While presiding at a sitting of the Senate, the President or Deputy President of the Senate or other senator presiding shall not have a deliberative vote, but shall have and exercise a casting vote in the case of an equality of votes. (9) The President or Deputy President of the Senate shall vacate his or her office if he or she ceases to be a senator, and may be removed from office by resolution of the Senate, and may resign by lodging his or her resignation in writing with the Secretary to Parliament. (10 ) If the office of President or Deputy President of the Senate becomes vacant, the Senate, under the chairpersonship of the Chief lustice or a judge as provided in subsection (1) , shall elect a member to fill the vacancy: Provided that the President of the Senate shall in such event preside at the election of the Deputy President of the Senate. 50. Qua lification for membership of Senate No person shall be qualified to become or remain a senator unless he or she is or remains qualified to become a member of the National Assembly. 51. Vacation of seats by senators andfilling of vacancies (I) A senator shall vacate his or her seat if he or she- (a) ceases to qualify to be a senator in tenns of section 50; (b) ceases to be a member of the party which nominated hirn or her as a senator in tenns of section 48; (c) resigns his or her seat by submitting his or her resignation in writing to the Secretary to Parliament; (d) without having obtained leave in accordance with the rules and orders, absents hirnself or herself voluntarily from sittings of the Senate or any other parliamentary forum of which he or she is a member, for 15 consecutive days on which the Senate or any such forum sat; or (e) becomes a member of the National Assembly, a provincial legisla ture or a local govemment. (2) (a) If a senator vacates his or her seat, the vacancy shall be filled by a person nominated by the party which nominated the vacating senator and who is qualified and available to fill the vacancy. (b) A nomination in tenns of this subsection shall be submitted in writing to the President of the Senate. (3) If a provincial legislature is dissolved, the senators from the province in question shall vacate their seats in the Senate with effect from the date of the first sitting of such legisla ture after the election of such legisla ture held in pursuance of such dissolution, whereupon the vacancies shall be filled in tenns of section 48 (1) (a). 52. Oath or affi rmation by senators Every senator, before taking his or her seat, shall make and subscribe an oath or solemn affinnation in the tenns set out in Schedule 3 before the Chief lustice, or a judge of the Supreme Court designated by the Chief lustice for this purpose, or, in the case of a senator nominated under section 51 (2), before the President of the Senate. 53. Sittings of Senate (1) The Senate shall sit at the Houses of Parliament in Cape Town, unless the President of the Senate, in accordance with the mies and orders and in consultation with the Speaker, directs otherwise on the grounds of public interest, security or convenience. (2) The Chief lustice shall after an election of the National Assembly convene the Senate as soon as is practically possible, but not later than 30 days after such election. (3) The Senate shall sit during such periods and on such days and during such hours as it may detennine: Provided that the President may at any time by proclamation in the Gazette surnmon the Senate to an extraordinary sitting for the dispatch of urgent business. 54. Quorum The presence of at least one third or, when a vote is taken on a Bill, of at least one half of all the senators, other than the President of the Senate or other presiding senator, shall be necessary to constitute a meeting of the Senate. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb THE NATIONAL ASSEMBL Y AND THE SENATE 55. Powers, privileges and immunities of Parliament and benefits of members (I) Parliarnent shall have full power to control, regulate and dispose of its internal aff airs, and shall have all such other powers, privileges and immunities as may, subject to this Constitution, be precribed by an Act of Parliarnent. (2) Subject to the mies and orders there shall be freedom of speech and debate in or before Parliarnent and any committee thereof, and such free dom shall not be impeached or questioned in any court. (3) A member of Parliarnent shall not be liable to any civil or crirninal proceedings, arrest, imprisonment or darnages by reason of anything which he or she has said, produced or submitted in or before or to Parliarnent or any comrnittee thereof or by reason of anything which may have been revealed as a result of what he or she has said, produced or submitted in or before or to Parliament or any committee thereof. (4) There shall be paid out of and as a charge on the National Revenue Fund to a member of the National Assembly or the Senate such salary and allowances, and upon his or her retirement, or to his or her widow or widower upon his or her death, such pension and pension benefits as may be prescribed by an Act of Parliarnent. 56. Penalty for sitting or voting when disqualified by law Any person who in terms of this Constitution is disqualified to sit as a member of a House and who, while so disqualified and knowing that he or she is so disqualified, sits or votes as a member of a House in question, shall be liable to a penalty deterrnined by the mies and orders for each day on which he or she so sits or votes, which may be recovered for credit ofthe National Revenue Fund by action in a court of law. 57. Joint sittings of Houses (I) Whenever necessary the National Assembly and the Senate shall convene in a joint sitting, which shall be presided over by the Speaker, the President of the Senate or any other member of the National Assembly or the Senate as may be determined by the mies and orders. (2) While presiding at a joint sitting the Speaker, the President of the Senate or the other member presiding, shall not have a deliberative vote, but shall have and exercise a casting vote in the case of an equality of votes. (3) Without derogating from the power of Parliarnent to regulate its business and proceedings, the President of the Republic may, whenever he or she deerns it desirable, request by message to the Speaker and the President of the Senate that a joint sitting of the National Assembly and the Senate be convened. 58. Rules and orders (I) The National Assembly or the Senate may make mies and orders in connection with the conduct of its business and proceedings, and the National Assembly and the Senate may make joint mies and orders in connection with the conduct of their joint business and proceedings, inc1uding mies and orders regulating- (a) the establishment, constitution, powers and functions, procedures and duration of comrnittees of Parliarnent; (b) restrictions on access to such committees; (c) the competency of any such committee to perform or dispose of its business and proceedings at venues other than the Houses of Parliarnent; and (d) the designation of members of the National Assembly and the Senate as presiding officers to preside over sittings of the National Assembly or the Senate or joint sittings of the National Assembly and the Senate, as the case may be, as and when the Speaker or the President of the Senate so requires. (2) For the purposes of exercising its powers and perforrning its functions, any committee established under subsection (I) (a) shall have the power to summon persons to appear before it to give evidence on oath or affirmation and to produce any documents required by it, and to receive representations from interested persons. 59. Ordinary Bills (I) An ordinary Bill may be introduced in either the National Assembly or the Senate and shall for its passing by Parliament, subject to subsection (2), be required to be adopted by each House. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (2) An ordinary Bill passed by one House and re jected by the other shall be referred to a joint comrnittee consisting of members of both Houses and of all the parties represented in Parliament and willing to participate in the joint committee, to consider and report on any proposed amendments to the Bill, whereafter the Bill shall be referred to a joint sitting of both Houses, at which it may be passed with or without amendment by a majority of the total number of members of both Houses. (3) All Bills, except the new constitutional text and those referred to in sections 60 (1), 61 and 62, shall for the purposes of this Constitution be considered to be ordinary Bills. 60. Money Bills (I) Bills appropriating revenue or moneys or imposing taxation shall be introduced in the National Assembly only. (2) Bills appropriating revenue or moneys for services provided by the national government shall deal with such appropriation only. (3) The National Assembly shall not consider any Bill appropriating revenue or moneys unless such Bill was initiated by the Minister responsible for national financial matters, or by any other Minister acting with the concurrence of the said Minister. (4) The National Assembly shall not pass a Bill referred to in subsection (I) unless it has been considered and reported on by a joint comrnittee of both Houses and, in so far as it may be required in terms of this Constitution, by the Financial and Fiscal Comrnission. (5) A Bill shall not be deemed to appropriate revenue or moneys or to impose taxation by reason only of its containing provisions for the imposition or appropriation of fines or other pecuniary penalties. (6) The Senate may not amend any Bill in so far as it appropriates revenue or moneys or imposes taxation. (7) If the National Assembly passes a Bill irnposing taxation or dealing with the appropriation of revenue or moneys and the Senate rej ects it or proposes amendments to it or fails to pass it within 30 days after it has been passed by the National Assembly, the Bill shall be referred back to the National Assembly for reconsideration. (8) The National Assembly may pass a Bill referred to in subsection (7), with or without amendment, and ifpassed by the National Assembly such Bill shall be deemed to have been passed by Parliament. 61. Bills aff ecting certain provincial malters Bills aff ecting the boundaries or the exercise or performance of the powers and functions of the provinces shall be deemed not to be passed by Parliament unless passed separately by both Houses and, in the case of a Bill, other than a Bill referred to in section 62, affecting the boundaries or the exercise or performance of the powers or functions of a particular province or provinces only, unIess also approved by a majority of the senators of the province or provinces in question in the Senate. 62. Bills amending Constitution (I) Subject to subsection (2) and section 74, a Bill amending this Constitution shall, for its pass ing by Parliament, be required to be adopted at a joint sitting of the National Assembly and the Senate by a majority of at least two-thirds of the total number of members of both Houses. (2) No amendment of sections 126 and 144 shall be of any force and effect unless passed separately by both Houses by a majority of at least two-thirds of all the members in each House: Provided that the boundaries and legislative and executive competences of a province shall not be amended without the consent of arelevant provinciallegislature. 63. Requisite majorities Save where otherwise required in this Constitution, all questions before the National Assembly or the Senate or before the National Assembly and the Senate in a joint sitting, shall be deterrnined by a majority of votes cast. 64. Assent to Bills (I) A Bill duly passed by Parliament in accordance with this Constitution shall be assented to by the President subject to section 82 (I) (b). (2) A Bill referred to in subsection (I) to which the President has assented and a copy of which he or she has signed, shall upon its promulgation be an Act of Parliament. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb 65. Signature and enrolment 0/ Aets (1) An Act of Parliament referred to in section 64 (2) shall be enrolled of record in the office of the Registrar of the Appellate Division of the Supreme Court in such official South African languages as may be required in terms of section 3, and copies of the Act so enrolled shall be conclusive evidence of the provisions ofthe Ac!. (2) In the case of a conflict between copies of an Act enrolled in terms of subsection (1), the copy signed by the President shall prevail. (3) The public shall have the right of access to copies of an Act so enrolled, subject to such laws as may be passed by Parliament to protect the safety and durability of the said copies and with due regard to the convenience of the Registrar's staff. 66. Rights and duties 0/ President, Exeeutive Deputy Presidents, Ministers and Deputy Mini sters in Houses The President, an Executive Deputy President, a Minister and a Deputy Minister shall be entitled to si! and to speak in any House and at a joint sitting of the Houses, but may not vote in the House of which he or she is not a member. 67. Publie aeeess to Parliament Sittings of the National Assembly or the Senate andjoint"sittings of the National Assembly and the Senate shall be held in public, and the public, including the media, shall have access to such sittings: Provided that reasonable measures may be taken to regulate such access and to provide for the search and, where appropriate, the refusal of entry or the removal of any person. CHAPTER 5 The Adoption of the new Constitution 68. Constitution-making Body (1) The National Assembly and the Senate, sitting jointly for the purposes of this Chapter, chall be the Constitutional Assembly. (2) The Constitutional Assembly shall draft and adopt a new constitutional text in accordance with this Chapter. (3) (a) The first sitting of the Constitutional Assembly shall be convened by the President of the Senate not later than seven days as from the first sitting of the Senate under this Constitution. (b) Any subsequent sittings of the Constitutional Assembly shall be convened by the Chairperson of the Constitutional Assembly after consultation with the Speaker and the President of the Senate. (4) Subject to the rules and orders comtemplated in section 70 and save where c1early inappropriate, sections 55 and 56 and the provisions of this Constitution with regard to joint sittings of the National Assembly and the Senate shall apply mutatis mutandis in respect of the Constitutional Assembly. 69. Chairperson and Deputy Chairperson (1) At its first sitting and before proceeding to dispatch any other business, the Constitutional Assembly, with the President of the Senate presiding, shall elect one of the members of the Constitutional Assembly to be the Chairperson and another of its members to be the Deputy Chairperson of the Constitutional Assembly. (2) The provisions of Schedule 5 shall apply mutatis mutandis in respect of the election of the Chairperson and the Deputy Chairperson ofthe Constitutional Assembly. (3) The Chairperson shall be vested with all powers and functions assigned to hirn or her under this Constitution, an Act of Parliament and the rules and orders. (4) Section 49 (4) to (10) shall apply mutatis mutandis in respect of the Chairperson and Deputy Chairperson of the Constitutional Assembly, and in any such application refere nces in the said sections to the Senate and a senator shall be construed as ref erences to the Constitutional Assembly and a member of the Constitutional Assembly, respectively. 70. Rufes and orders (1) The Constitutional Assembly may make rules and orders in connection with the conduct of its business and proceedings. (2) The provisions of section 58 shall apply mutatis mutandis in respect of the Constitutional Assembly. 56 0 https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb 71. Constitutional Principles and certification (1) A new constitutional text shall- (a) comply with the Constitutional Principles containes in Schedule 4; and (b) be passed by the Constitutional Assembly in accordance with this Chapter. (2) The new constitutional text passed by the Constitutional Assembly, or any provision thereof, shall not be of any force and effect unless the Constitutional Court has certified that all the provisions of such text comply with the Constitutional Principles referred to in subsection (1) (a) . (3) A decision of the Constitutional Court in terms of subsection (2) certifying that the provisions of the new constitutional text comply with the Constitutional Principles, shall be final and binding, and not court of law shall have jurisdiction to enquire into or pronounce upon the validity of such text or any provision thereof. (4) During the course of the proceedings of the Constitutional Assembly any proposed draft of the constitutional text before the Constitutional Assembly, or any part or provision of such text, shall be referred to the Constitutional Court by the Chairperson of petitioned to do so by at least one tifth of all the members of the Constitutional Assembly, in order to obtain an opinion from the Court as to whether such proposed text, or part or provision thereof, would, if passed by the Constitutional Assembly, comply with the Constitutional Principles. 72. Appointment of commissions, committees and bodies (I) The Constitutional Assembly shall, in addition to appointing committees of its members, be competent to appoint any commission, technical committees and other advisory bodies to assist it in the performance of its functions. (2) The Constitutional Assembly shall, subject to subsection (3), appoint an independent panel of five South African citizens being recognised constitutional experts, not being members of Parliament or any other legislature and not holding office in any political party, to advise it, or the Chairperson, on matters pertaining to its functions, and to perform such other tasks as are provided for in this Constitution. (3) A majority of at least two-thirds of all the members of the Constitutional Assembly shall be required for the appointment of the panel of constitutional experts, and, in the event of such mahority not being achieved, a panel of constitutional experts complying with the requirements mentioned in subsection (2) and consisting of a nominee of each party which holds at least 40 seats in the Constitutional Assembly and wishes to make such a nomination, shall be appointed. 73. Adoption of new constitutional text (1) The Constitutional Assembly shall pass the new constitutional text within two years as from the date of the first sittig of the National Assembly under this Constitutionl (2) For the passing of the new constitutional text by the Constitutional Assembly, a mahority of at least two-thirds of all the members of the Constitutional Assembly shall be required: Provided that provision of such text relating to the boundaries, powers and functions of provinces shall not be considered passed by the Constitutional Assembly unless approved also by a majority of two-thirds of all the members of the Senate. (3) lf the Constitutional Assembly fai ls to pass a proposed draft of the new constitutional text in accordance with subsection (2), but such draft is supported by a mahority of all its members, such proposed draft shall be referred by the Chairperson to the panel of constitutional experts referred to in section 72 (2) for its advice, to be given within 30 days of such referral, on amendments to the proposed draft, within the framework of the Constitutional Principles, which might secure the support required in terms of subsection (2). (4) An amended draft text unanimously recommended by the panel of constitutional experts and submitted to the Constitutional Assembly within the said period of 30 days, shall be considered by the Constitutional Assembly, and if passed in accordance with subsection (2), it shall become the Constitution of the Republic of South Africa. (5) Should the panel of constitutional experts fail to submit within the said period of 30 days to the Constitutional Assembly an amended draft text which is unanimously recommended by the panel, or should such an amended draft text not be passed by theConstitutional Assembly in accordance with subsection (2), any proposed draft text before the Constitutional Assembly may be approved by it by resolution of a majority of its members for the purposes of subsection (6). https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (6) A text approved under subsection (5) shall, after it has been certified by the Constitutional Court in tenns of section 71 (2), be referred by the President for a decision by the electorate by way of a national referen dum. (7) The question put before the electorate in the referendum shall be the acceptance or re jection of the text approved under subsection (5). (8) The text presented to the elec torate in the referendum shall, if approved by a majority of at least 60 per cent of the votes cast in the referendum and subject of subsection (13), become the Constitution of the Republic of South Africa. (9) If the relevant text is not approved in the refere ndum in accordance with subsection (8), or if a new constitutional text is not passed in tenns of this Chapter within the period of two years referred to in subsection (I), the President shall dissolve Parliament by proclamation in the Gazette within 14 days after the referendum or the expiry of the said period, whereupon an election contemplated in section 39 (I) (a) shall be held. (10) The Constitutional Assembly as constituted after such an election, shall pass the new constitutional text within ape riod of one year as from the date of its first sitting after such election. (I I) For the passing of the new constitutional text referred to in subsection (10) by the Constitutional Assembly, a mahority of at least 60 per cent of all the members of the Constitutional Assembly shall be required: Provided that provisions of such text relating to the boundaries, powers and functions of provinces shall not be considered passed by the Constitutional Assembly unless approved also by a majority of at least 60 per cent of alI the members of the Senate. (12) The provisions of subsection (5) to (9) of this section and the other sections of this Chapter shall apply mutatis mutandis in respect of the Constitutional Assembly referred to in subsection (10) of this section. (13) A new constitutional text adopted in tenns of this Chapter shall be assented to by the President and shall upon its promulgation be the Constitution of the Republic of South Africa. 74. Amendments relating to this Chapter and Schedule 4 (I) No amendment or repeaI of- (a) this section or the Constitutional Principles set out in Schedule 4; or (b) any other provision of this Chapter in so far as it relates to- (i) the Constitutional Principles; or (ii) the requirement that the new constitutional text shall comply with the Constitutional Principles, or that such text shall be certified by the Constitutional Court as being in compliance therewith shall be permissible. (2) The other provisions of this Chapter may be amended by the Constitutional Assembly by resolution of a majority of at least two-thirds of all its members. CHAPTER 6 The National Executive 75. Executive authority of the Republic The executive authority of the Republic with regard to alI matters falling within the legislative competence of Parliament shall vest in the President, who shall exercise and perfonn his or her powers and functions subject to and in accordance with this Constitution. 76. Head of State The President shall be the Head of State. 77. Election of President (I) (a) The National Assembly shall at its first sitting after it has been convened in tenns of section 46 (2) elect one of its members as the President. (b) The National Assembly and the Senate shall thereafter, as often as it again becomes necessary to elect a President, elect at ajoint sitting one of the members of the National Assembly as the President. (2) (a) The Chief Justice, or ajudge of the Supreme Court designated by the Chief Justice for this purpose, shall preside over any sitting at which an election referred to in subsection (I) takes place. (b) An election referred to in subsection (I) shall be conducted in accordance with Schedule 5. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (3) The election of a President in terms of subsection (I) (b) shall take place at a time and on a date fixed by the Chief lustice: Provided that- (a) if such an election of a President is occasioned by reason of a dissolution of Parliament, it shall take place within 10 days after the Senate was convened after the election of the National Assembly held in pursuance of such dissolution; or (b) if such an election of a President is occasioned by reason of a vacancy in the office of President, it shall take place within 30 days after the vacancy arose. (4) On being elected, the President shall vacate bis or her seat in the National Assembly. (5) During the period in whieh the President continues in office in terms of section 80 (I) (b), he or she shall for the purposes of section 42 (l)(e) be deemed not to hold an office of profit under the Republic. 78. Oath or affi rmation The President -elect shalI, before formally assuming office, make and subscribe an oath or solemn affirmation in the terms set out in Schedule 3 before the Chief lustice or a judge of the Supreme Court designated by the Chief lustice for this purpose. 79. Remuneration of President There shall be paid to the President out of and as a charge on the National Revenue Fund and apart from any privilege which he or she may enjoy, such remuneration and allowances, and upon his or her retirement, or to his or her widow or widower on his or her death, such pension and pension benefits, as may be determined from time to time by resolution of Parliament. 80. Tenure of offi ce of President (I) The President elected in terms of section 77 (I) (a) shall, subject to sections 87 and 93 (2), hold offic e-- (a) for the period tenninating on a date five years as from the date of the first siuing of the National Assembly under this Constitution; or (b) if Parliament is dissolved during such period, for the period until a President has been elected in terms of section 77 (1) (b) after such dissolution and has assumed office. (2) A President elected in terms of section 77 (I) (b) shall, subject to subsection (I) (b) of this section and sections 87 and 93 (2), hold office for the unexpired part of the period referred to in subseetion (I) (a) of this section. 81. Responsibilities of President (1) The President shall be responsible for the observance of the provisions of this Constitution by the executive and shall as head of state defend and uphold the Constitution as the supreme law of the land. (2) The President shall with dignity provide executive leadership in the interest of national unity in accordance with this Constitution and the law of the Republic. (3) The President shall not hold any other public office and shall not perform remunerative work outside the duties of his or her office. 82. Powers andfunctions of President (1) The President shall be competent to exercise and perform the following powers and functions, namely- (a) to assent to, sign and promulgate Bills duly passed by Parliament; (b) in the event of a procedural shortcoming in the legislative process, to refer a Bill passed by Parliament back for further consideration by Parliament; (c) to convene meetings of the Cabinet; (d) to refer disputes of a constitutional nature between parties represented in Parliament or between organs of state at any level of govemment to the Constitutional Court or other appropriate institution, conunission or body for resolution; (e) to confer honours; (f) to appoint, accredit, receive and recognise ambassadors, plenipotentiaries, diplomatie representa tives and other diplomatie officers, consuls and consular officers; https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (g) to appoint commissions of enquiry; (h) to make such appointments as may be necessary under powers conferred upon hirn or her by this Constitution or any other law; (i) to negotiate and sign international agreemen ts ; (j) to procJaim referenda and plebiscites in terms of this Constitution or an Act of Parliament; and (k) to pardon or reprieve offenders, either uncondition ally or subject to such conditions as he or she may deern fit, and to remit any fines, penalties or forfeitures. (2) The President shall 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 and allocation of functions contemplated in section 84 (5) to an Executive Deputy President; (d) regarding appointtnents under subsection (I) (1); and (e) before exercising any of the competences referred to in subsection (I) (g) to (k). (3) The President shall exercise and perform all powers and functions assigned to hirn or her by this Constitution or any other law, except those specified in subsections (I) and (2) or where otherwise expressly or by implication provided in this Constitu tion, in consultation with the Cabinet: Provided that the Cabinet may delegate its consultation function in terms of this subsection, with reference to any particular power or function of the President, to any Minister or Ministers. (4) (a) The President shall be the Commander-i n-Chief of the National Defence Force. (b) The President may- (i) with the approval of Parliament, decJare a state of national defence; (ii) employ the National Defence Force in accordance with and subject to sections 227 and 228; and (iii) confer upon members of the National Defence Force permanent commissions and cancel such commissions. 83. Confirmation of executive acts of President (I) Decisions of the President taken in terms of sec tion 82 shall be expressed in writing under his or her signature. (2) Any instrument signed by the President in the exercise or performance of a power or function referred to in section 82 (3) shall be countersigned by a Minister. (3) The signature of the President on any instrument shall be confirmed by the seal of the Republic. 84. Executive Deputy Presidents (I) Every party holding at least 80 seats in the National Assembly shall be entitled to designate an Executive Deputy President from among the members of the National Assembly. (2) Should no party or only one party hold 80 or more seats in the National Assembly, the party holding the largest number of seats and the party holding the second largest number of seats shall each be entitled to designate one Executive Deputy President from among the members of the National Assembly. (3) On being designated as such, an Executive Deputy President may elect to vacate or not to vacate his or her seat in the National Assembly. (4) Section 81 shall apply mutatis mutandis to an Executive Deputy President. (5) An Executive Deputy President may exercise the powers and shall perform the functions vested in the office of Executive Deputy President by this Constitution or assigned to hirn or her by the President. (6) An Executive Deputy President shall, before formally assuming office, make and subscribe an oath or solemn affirmation in the terms set out in Schedule 3 before the Chief lustice or a judge of the Supreme Court designated by the Chief lustice for this purpose. 85. Tenure of offi ce of Executive Deputy Presidents andfilling of vacancies (I) An Executive Deputy President shall, subject to section 87, hold office- (a) for the period terminating on a date live years as from the date of the fu st sitting of the National Assembly under this Constitution, unless he or she is before the expiry of such period replaced as Executive Deputy President by the party which designated him or her; or (b) if Parliament is dissolved during such period, for the period until a President has been elected in terms of section 77 (I) (b) after such dissolution and has assumed office. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (2) If an Executive Deputy President vacates his or her office, section 84 (1) or (2) shall apply mutatis mutandis in respect of the filling of the vacancy. (3) An Executive Deputy President designated to fill a vacancy shall, subject to subsection (1) (b) of this section and section 87, hold office for the unexpired part of the period referred to in subsection (1) (a) of this section. 86. Acting President (I) The President shall appoint one of the Executive Deputy Presidents, or if no Executive Deputy President is available, aM inister, to act as President during bis or her absence or temporary incapacity. (2) In designating an Acting President under subsection (1), the President shall take into consideration the exigencies of govemment and the spirit underlying the concept of a govemment of national unity. (3) Should it be necessary that an Acting President be appointed and the President is absent or unable to make such an appointment, or if the office of President is vacant, the other members of the Cabinet shall make such appointment, taking into consideration the exigencies of govemment and the spirit underlying the concept of a govemment of national unity. (4) An Acting President shall while acting as President have all the powers and functions vested in the office of President. 87. Removalfrom offi ce of President or Executive Deputy President The President or an Executive Deputy President shall cease to hold office on a resolution adopted at a joint sitting of the National Assembly and the Senate by a majority of at least two-thirds of the total number of members of the Houses and impeaching the President or such Executive Deputy President on the ground of a serious violation of this Constitution or the other laws of the Republic, or of misconduct or inability rendering bim or her unfit to exercise and perform his or her powers and functions in accordance with section 81 or 84 (4), as the case may be. 88. Cabinet (1) The Cabinet shall consist of the President, the Executive Deputy Presidents and not more than 27 Mini sters appointed by the President in accordance with this section. (2) A party holding at least 20 seats in the National Assembly and which has decided to participate in the govemment of national unity, shall be entitled to be aIlocated one or more of the Cabinet portfolios 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. (3) Cabinet portfolios shall for the purposes of subsection (2) be aIlocated to the respective participating parties in accordance with the following formula: (a) A quota of seats per portfolio shall be determined by dividing the total number of seats in the National Assembly held jointly by the participating parties by the number of portfolios plus one. (b) The result, disregarding third and subsequent decimals, if any, shall be the quota of seats per portfolio. (c) The number of portfolios to be aIlocated to a participating party shall be determined by dividing the total number of seats held by such party in the National Assembly by the quota referred to in paragraph (b). (d) The result shalI, subject to paragraph (e), indicate the number of portf olios to be allocated to such party. (e) Where the application of the above formula yields a surplus not absorbed by the number of portfolios allocated to a party, such surplus shall compete with other similar surpluses accruing to another party or parties, and any portfolio or portfolios wbich remain unallocated shall be aIlocated to the party or parties concemed in sequence of the highest surplus. (4) The President shall after consultation with the Executive Deputy Presidents and the leaders of the participating parties- (a) determine the specific portf olios 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 Parliament who is a member of the party to which that portfolio was allocated under paragrap h (a), as the Minister responsible for that portfolio; (c) if it becomes necessary for the purposes of this Constitution or in the interest of good govemment, vary any determination under paragraph (a) subject to subsection (3); https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (d) tenninate any appointment under paragraph (b)- (i) if he or she 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 this Constitution or in the interest of good govemment; or (e) fill, when necessary, subject to paragraph (b), a vacancy in the office of Minister. (5) Subsection (4) shall be implemented in the spirit underlying the concept of a govemment of national unity, and the President and the other functionaries concemed shall in the implementation of that subsection endeavour to achieve consensus at a11 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 shall prevail; (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 such person is a member shall prevail; 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 shall prevail. (6) If any detennination of portfolio a1locations is varied under subsection (4) (c), the affected Ministers shall vacate their portfolios but shall be eligible, where applicable, for re-appointment to other portfolios a1located to their respective parties in tenns of the varied deter mination, (7) A Minister shall, before fonnally assuming office, make and subscribe an oath or solemn affInn ation in the tenns set out in Schedule 3 before the Chief Justice or a judge of the Supreme Court designated by the Chief Justice for this purpose, (8) No member of the Cabinet may take up any other paid employment, engage in activities inconsistent with his or her rnembership of the Cabinet, or expose hirnself or herself to any situation which canies with it the risk of a conflict between his or her responsibilities as a member of the Cabinet and his or her private interests. (9) No member of the Cabinet shall use his or her position as such, or directly or indirectly use infonnation entrusted confIdentially to hirn or her in such capacity , to enrich hirnself or herself or any other person. (10) There shall be paid out of and as a charge on the National Revenue Fund to an Executive Deputy President or a Minister such remuneration and a1lowances, and upon his or her retirement, or to his or her widow or widower upon his or her death, such pension and pension benefits, as rnay be prescribed by an Act of Parliament. 89. Cabinet procedure (I) Meetings of the Cabinet shall be presided over by the President, or, if the President so instructs, by an Executive Deputy President: Provided that the Executive Deputy Presidents shall preside over meetings of the Cabinet in turn unless the exigencies of govemment and the spirit underlying the concept of a govemment of national unity otherwise dictate. (2) The Cabinet shall function in a manner which gives consideration to the consensus-seeking spirit underlying the concept of a govemment of national unity as weIl as the need for eff ective govemment. (3) Where an Executive Deputy President presides over a meeting of the Cabinet otherwise than in the capacity of Acting President, a decision in the Cabinet on any matter shall be submitted to the President before its implementation and shall upon its ratifIcation by the President be deemed to be a decision taken in consultation with the Cabinet in accordance with section 82 (3). 90. Temporary assignment of Minister's powers andfunctions to another Minister Whenever a Minister is absent or for any reason unable to exercise and perfonn any of the powers and functions assigned to hirn or her, or whenever a Minister has vacated his or her office and a successor has not yet been appointed, the President may appoint any other Minister to act in the said Minister's stead, either generally or in the exercise or perfonnance of any specific power or function. 91. Trans fer of Minister's powers and functions to another Minister (I) The President may assign the administratio n of a law which is entrusted to any particular Minister or which entrusts to any particular Minister any power or function, to any other Minister. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (2) Any reference in such a law to a particular Minister as the Minister to whom the administration of such law is entrusted, shall upon the assignment under subsection (I) of its administration to another Minister, be construed as a refere nce to the latter. 92. Accountability 01 Ministers and Cabinet (I) A Minister shall be accountable individually both to the President and to Parliament for the administration of the portfolio entrusted to him or her, and all members of the Cabinet shall correspondingly be accountable collectively for the performance of the functions of the national government and for its policies. (2) A Minister shall administer his or her portfolio in accordance with the policy deterrnined by the Cabinet. (3) If a Minister fails to administer his or her portfolio in accordance with the policy of the Cabinet, the President may require the Minister concemed to bring the administration of the portfolio into conforrnity with such policy. (4) If the Minister concemed fails to comply with a requirement of the President under subsection (3), the President may, after consultation 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 such Minister's party, remove the Minister from office. 93. Votes ol no confide nce (1) If Parliament passes a vote of no confidence in the Cabinet, including the President, the President shall, unless he or she resigns, dissolve Parliament and call an election in accordance with section 39. (2) If Parliament passes a vote of no confidence in the President, but not in the other members of the Cabinet, the President shall resign. (3) If Parliament passes a vote of no confidence in the Cabinet, excluding the President, the President may- (a) resign; (b) reconstitute the Cabinet in accordance with section 88 (4); or (c) dissolve Parliament and call an election in accordance with section 39. (4) The President shall where required, or where he or she elects, to do so in terms of this section, dissolve Parliament by proclamation in the Gazette within 14 days of the relevant vote of no confidence. 94. Appointment 01 Deputy Ministers (I) The President may, after consultation with the Executive Deputy Presidents and the leaders of the parties serving in the Cabinet, establish deputy ministerial posts. (2) A party shall be entitled to be allocated one or more of the deputy ministerial posts in the same proportion and according to the same formula as that in which the portfolios in the Cabinet are allocated to it. (3) The provisions of section 88 (4) to (10) shall apply mutatis mutandis in respect of Deputy Ministers, and in such application a reference to- (a) a Minister or portfolio shall be construed as a reference to a Deputy Minister and a deputy ministerial post, respectively; and (b) subsection (3) of section 88 shall be construed as a reference to subsection (2) of this section. (4) If a person is appointed as the Deputy Minister of any portfolio entrusted to a Minister- (a) such Deputy Minister shall exercise and perform on behalf of the relevant Minister any of the powers and functions assigned to such Minister in terms of any law or otherwise which rnay, subject to the directions of the President, be assigned to hirn or her by such Minister; and (b) any reference in any law to such a Minister shall be construed as including a reference to the Deputy Minister acting in pursuance of an assignment under paragraph (a) by the Minister for whom he or she acts. (5) Whenever a Deputy Minister is absent or for any reason unable to exercise or perform any of the powers or functions of his or her 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. 56 7 https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb 95. Composition andfunctioning of Cabinet in event ofnon-participation by parties (I) If every party entitled to designate an Executive Deputy President, other than the President's party, fails to do so, the Executive Deputy President of the President's party shall exercise and perform the powers and functions of the Executive Deputy Presidents. (2) If any party entitled to Cabinet portfolios dec1ines to serve in the Cabinet, such party shall be disregarded in the determination of portfolio allocations in terms of section 88. (3) If all parties entitled to Cabinet portfol ios, other than the President's party, dec1ine to serve in the Cabinet, appointments to the Cabinet shall be made at the discretion of the President. CHAPTER 7 The Judicial Authority and the Administration of Justice 96. ludicial authority (1) The judicial author ity of the Republic shall vest in the courts established by this Constitution and any other law. (2) The judiciary shall be independent, impartial and subject only to this Constitution and the law . (3) No person and no organ of state shall interfere with judicial officers in the performance of their functions. 97. Appointment of Chief lustice and President of Constitutional Court (1) There shall be a Chief lustice of the Supreme Court of South Africa, who shall, subject to section 104, be appointed by the President in consultation with the Cabinet and after consultation with the ludicial Service Commission. (2)(a) There shall be a President of the Constitutional Court, who shall, subject to section 99, be appointed by the President in consultation with the Cabinet and after consultation with the Chief Justice. (b) Unless the new constitutional text provides otherwise, the President of the Constitutional Court shall hold office for a non-renewable period of seven years. 98. Constitutional Court and its jurisdiction (1) There shall be a Constitutional Court consisting of a President and 10 other judges appointed in terms of section 99. (2) The Constitutional Court shall have jurisdiction in the Republic as the court of final instance over all matters relating to the interpret ation, protection and enforcement of the provisions of this Constitution, including- (a) any alleged violation or threatened violation of any fundamental right entrenched in Chapter 3; (b) any dispute over the constitutionality of any executive or administrative act or conduct or threatened executive or administrative act or conduct of any organ of state; (c) any inquiry into the constitutionality of any law, inc1uding an Act of Parliament, irrespective of whether such law was passed or made before or after the commencement of this Constitution; (d) any dispute over the constitutionality of any Bill before Parliament or a provincial legislature, subject to subsection (9); (e) any dispute of a constitutional nature between organs of state at any level of government; (f) the determination of questions whether any matter falls within its jurisdiction; and (g) the determination of any other matters as may be entrusted to it by this Constitution or any other law. (3) The Constitutional Court shall be the only court having jurisdiction over a matter referred to in subsection (2), save where otherwise provided in section 10 1 (3) and (6). (4) Adecision of the Constitutional Court shall bind all persons and all legislative, executive and judicial organs of state. (5) In the event of the Constitutional Court finding that any law or any provision thereof is inconsistent with this Constitu tion, it shall dec1are such law or provision invalid to the extent of its inconsistency: Provided that the Constitutional Court may, in the interests of justice and good govemment, require Parliament or any other competent authority, within ape riod specified by the Court, to correct the defect in the law or provision, which shall then remain in force pending correction or the expiry of the period so specified. (6) Unless the Constitutional Court in the interests of justice and good government orders otherwise, and save to the extent that it so orders, the dec1aration of invalidity of a law or a provision thereof - https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (a) existing at the commencement of this Constitution, shall not invalidate anything done or permitted in terms thereof before the coming into effect of such decIaration of invalidity; or (b) passed after such commencement, shall invalidate everything done or permitted in terms thereof. (7) In the event of the Constitutional Court decIaring an executive or administrative act or conduct or threatened executive or administrative act or conduct of an organ of state to be unconstitutional, it may order the relevant organ of state to refrain from such act or conduct, or, subject to such conditions and within such time as may be specified by it, to correct such act or conduct in accordance with this Constitution. (8) The Constitutional Court may in respect of the proceedings before it make such order as to costs as it may deern just and equitable in the circumstances. (9) The Constitutional Court shall exerci se jurisdiction in any dispute referred to in subsection (2) (d) only at the request of the Speaker of the National Assembly, the President of the Senate or the Speak er of a provincial legislature, who shall make such a request to the Court upon receipt of a petition by at least one­ third of all the members of the National Assembly, the Senate or such provincial legislature, as the case may be, requiring him or her to do so. 99. Composition of Constitutional Court and appointment of judges of Constitutional Courts (1) Unless the new constitutional text provides otherwise, the judges of the Constitutional Court shall be appointed by the President for a non-renewable period of seven years. (2) No person shall be qualified to be appointed President or a judge of the Constitutional Court unless he or she- (a) is a South African citizen; and (b) is a fit and proper person to be a judge of the Constitutional Court; and (c) (i) is a judge of the Supreme Court or is qualified to be admitted as an advocate or attomey and has, for a cumulative period of at least 10 years after having so qualified, practised as an advocate or an attomey or lectured in law at a university; or (ii) is a person who, by reason of his or her training and experience, has expertise in the field of constitu tionaI law relevant to the application of this Constitution and the law of the Republic. (3) Four judges of the Constitutional Court shall be appointed from among the judges of the Supreme Court by the President in consultation with the Cabinet and with the Chief Justice. (4) Subject to subsection (5), six judges of the Constitu tional Court shall be appointed by the President in consultation with the Cabinet and after consultation with the President of the Constitutional Court: Provided that not more than two persons may be appointed from the category of persons referred to in subsection (2) (c) (ii). (5) (a) Subject to subsection (6), an appointrnent or appointments under section 97 (2) or subsection (4) or (7) of this section shaIl only be made from the recommendations of the Judicial Service Commission, and with due regard to its reasons for such recommendati ons, of not more than three nominees in excess of the number of persons required to be appointed: Provided that in respect of the first appointrnent after the commencement of this Constitution of the six judges referred to in subsection (4), the Judicial Service Commission shall submit a list of ten nominees. (b) If the appointing authorities decide not to accept any or some of such recommendations, the JudiciaI Service Commission shall be informed thereof and be fumished with the reasons therefor. (c) After having been informed in terms of paragraph (b), the Judicial Service Commission shall, in accordance with paragraph (a), submit further recommendations, whereafter the appointing authorities shall make the appointrnent or appointments from the recommendations as supplemented in terms of this paragraph. (d) In submitting its recommendations to the appointing authorities in terms of paragraphs (a) and (c) the Judicial Service Commission shall have regard to the need to constitute a court which is independent and competent and representative in respect of race and gender. (6) Subsection (5) shall not apply to the first appointrnent after the commencement of this Constitution of the President of the Constitutional Court under seetion 97 (2). (7) Vacancies in the Constitutional Court shall be filled- (a) in the case of a vacancy in the office of a judge appointed under subsection (3), in accordance with that subsection; and https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (b) in the case of a vacancy in the office of a judge appointed under subsection (4), in accordance with that subsection. JOD. Engaging the Constitutional Court (1) The conditions upon which the Constitutional Court may be seized of any matter within its jurisdiction, and all matters relating to the proceedings of and before the Court, shall be regulated by rules prescribed by the President of the Constitu tional Court in consultation with the Chief Justice, which rules shall be published in the Gazette. (2) The rules of the Constitutional Court may make provision for direct access to the Court where it is in the interest of justice to do so in respect of any matter over which it has jurisdiction. J01. Supreme Court (1) There shall be a Supreme Court of South Africa, which shall consist of an Appellate Division and such provincial and local divisions, and with such areas of jurisdiction, as may be prescribed by law. (2) Subject to this Constitution, the Supreme Court shall have the jurisdiction, incIuding the inherent jurisdiction, vested in the Supreme Court imrnediately before the comrnencement of this Constitution, and any further jurisdiction conferred upon it by this Constitution or by any law. (3) Subject to this Constitution, a provincial or local division of the Supreme Court shall, within its area of jurisdic tion, have jurisdiction in respect of the following additional matters, namely- (a) any alleged violation or threatened violation of any fundamental right entrenched in Chapter 3; (b) any dispute over the constitutionality of any executive or administrative act or conduct or threatened executive or administrative act or conduct of any organ of state; (c) any inquiry into the constitutionality of any law applicable within its area of jurisdiction, other than an Act of Parliament, irrespective of whether such law was passed or made before or after the comrnencement of this Constitution; (d) any dispute of a constitutional nature between local govemments or between a local and a provincial govemment; (e) any dispute over the constitutionality of a B ill before a provincial legislature, subject to section 98 (9); (0 the determination of questions whether any matter falls within its jurisdiction; and (g) the determination of any other matters as may be entrusted to it by an Act of Parliament. (4) For the purposes of exercising its jurisdiction under subsection (3), a provincial or local division of the Supreme Court shall have the powers of the Constitutional Court in terms of section 98 (5), (6), (7), (8) and (9) relating to the interpreta tion, protection and enforcement of this Constitution. (5) The Appellate Division shall have no jurisdiction to adjudicate any matter within the jurisdiction of the Constitutional Court. (6) If the parties to a matter falling outside the additional jurisdiction of a provincial or local division of the Supreme Court in terms of subsection (3), agree thereto, a provincial or local division shall, notwithstanding any provision to the contrary, have jurisdiction to determine such matter: Provided that a provincial or local division shall not acquire jurisdiction in terms of this subsection with regard to any matter referred to in section 102 (12). J02. Procedural matters (I) If, in any matter before a provincial or local division of the Supreme Court, there is an issue which may be decisive for the case, and which falls within the excIusive jurisdiction of the Constitutional Court in terms of section 98 (2) and (3), the provincial or local division concemed shall, if it considers it to be in the interest of justice to do so, refer such matter to the Constitutional Court for its decision: Provided that, if it is necessary for evidence to be heard for the purposes of deciding such issue, the provincial or local division concemed shall hear such evidence and make a finding thereon, before referring the matter to the Constitutional Court. (2) If, in any matter before a local or provincial division, there is any issue other than an issue referred to the Constitu tional Court in terms of subsection (I), the provincial or local division shall, if it refers the relevant issue to the Constitu tional Court, suspend the proceedings before it, pending the decision of the Constitutional Court. (3) If, in any matter before a provincial or local division, there are both constitutional and other issues, the provincial or local division concemed shall, if it does not refer an issue to the Constitutional Court, hear https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb the matter, make findings of fact which may be relevant to a constitutional issue within the excIusive jurisdiction of the Constitutional Court, and give adecision on such issues as are within its jurisdiction. (4) An appeal shali lie to the Appellate Division against adecision of a provincial or local division in terms of subsection (3). (5) If the Appellate Division is able to dispose of an appeal brought in terms of subsection (4), without dealing with any constitutional issue that has been raised, it shall do so. (6) If it is necessary for the purposes of disposing of the said appeal for the constitutional issue to be decided, the Appellate Division shall refer such issue to the Constitutional Court for its decision. (7) The Chief lustice and the President of the Constitutional Court shall jointly make rules to facilitate the procedure for dealing with appeals in which there are both constitutional and other issues, which may provide for the constitutional issues to be referred to the Constitutional Court before or after any such appeal has been heard by the Appellate Division. (8) If any division of the Supreme Court disposes of a matter in which a constitutional issue has n bee raised and such court is of the opinion that the constitutional issue is of such public importance that a ruling should be given thereon, it may, notwithstanding the fact that the matter has been disposed of, refer such issue to the Constitutional Court for a decision. (9) When a constitutional issue has been referred to the Constitutional Court by a division of the Supreme Court in terms of subsection (8), the Minister responsible for the administration of justice shall, at the request of the President of the Constitu tional Court, appoint counsel to argue such constitutional issue. (10) If the validity of a law is in dispute in any matter, and a relevant government is not a party to the proceedings, it shall be entitled to intervene as a party before the court in question, or shall be entitled to submit written argument to the said court. (11) Appeals to the Appellate Division and the Constitutional Court shall be regulated by law, incIuding the rules of such courts, which may provide that leave of the court from which the appeal is brought, or to which the appeal is noted, shall be required as a condition for such appeal. (12) Appeals arising from matters referred to in section 101 (3) and which relate to issues of constitutionality shali lie to the Constitutional Court. (13) If a dispute arises between organs of state (other than a dispute referred to in section 101 (3) (d)) regarding the question whether or not any executive or administrative act or conduct or any threatened executive or administrative act or conduct of one of those organs is consistent with this Constitu tion, the organ disputing the validity of the act or conduct may apply to a provincial or local division to refer the question of the validity of such act or conduct to the Constitutional Court for its decision. (14) If the provincial or local division concemed is of the opinion that the act or conduct or threatened act or conduct referred to in subsection (13) may be unconstitutional, it shall refer the matter to the Constitutional Court. (15) If evidence is necessary for the purpose of deciding a matt er referred to in subsections (13) and (14), the provincial or local division concemed shall hear such evidence and make a finding thereon, before referring such matter to the Constitutional Court. (16) A decision not to refer a matter to the Constitutional Court in terms of subsection (14), shall be appealable to the Constitutional Court. (17) If, in any matter before a provincial or local division, the only issue raised is a constitutional issue within the excIusive jurisdiction of the Constitutional Court in terms of section 98 (2) and (3), a refusal to refer such issue to the Constitutional Court shall be appealable to the Constitutional Court. 103. Other courts (I) The establishment, jurisdiction, composition and functioning of all other courts shall be as prescribed by or under a law. (2) If in any proceedings before a court referred to in subsection (1), it is alleged that any law or provision of such law is invalid on the ground of its inconsistency with a provision of this Constitution, the court shall, subject to the other provisions of this section, decide the matter on the assumption that the law or provision is valid. (3) If in any proceedings before a court referred to in subsection (1), the presiding officer is of the opinion that it is in the interest of justice to do so, he or she may postpone the proceedings to enable the party who has alleged that are levant law or provision is invalid, to apply to a provincial or local division of the Supreme Court for relief in terms of subsection (4). 57 1 https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (4) If the provincial or local division hearing an application referred to in subsection (3), is of the opinion that a decision regarding the validity of the law or provision is material to the adjudication of the matter before the court referred to in subsection (I), and that there is a reasonable prospect that the relevant law or provision will be held to be invalid, and that it is in the interest of justice to do so, the provincial or local division shall- (a) if the issue raised is within its jurisdiction, deal with such issue itself, and if it is in the excIusive jurisdiction of the Constitutional Court, refer it to the Constitutional Court for its decision after making a finding on any evidence which may be relevant to such issue; and (b) suspend the proceedings before the court referred to in subsection (1) pending the decision of the provincial or local division or the Constitutional Court, as the case may be. 104. Appointment, removalfrom of fice and remuneration ofjudges (1) Judges of the Supreme Court shall be fit and proper persons appointed by the President acting on the advice of the Judicial Service Commission. (2) Judges of the Constitutional Court and the Supreme Court shall receive such remuneration as may be prescribed by or under law, and their remuneration shall not be reduced during their continuation in office. (3) Any judge shalI, before commencing to perform the functions of his or her office, make and subscribe an oath or solemn affinn ation in the terms set out in Schedule 3 before any other judge. (4) A judge may only be removed from office by the President on the grounds of misbehaviour, incapacity or incompetence established by the Judicial Service Commission and upon receipt of an address from both the National Assembly and the Senate praying for such removal. (5) A judge who is the subject of an investigation by the Judicial Service Commission in terms of subsection (4) may be suspe nded by the President pending such investigation. 105. ludicial Service Commission (1) There shall be a Judicial Service Commission, which shall, subject to subsection (3), consist of­ (a) the Chief Justice, who shall preside at meetings of the Commission; (b) the President of the Constitutional Court; (c) one Judge President designated by the Judges President; (d) the Minister responsible for the administration of justice or his or her nominee; (e) two practising advocates designated by the advocates' profes sion; (f) two practising attomeys designated by the attomeys' profession; (g) one professor of law designated by the deans of all the law faculties at South African universities; (h) four senators designated en bloc by the Senate by resolution adopted by a majority of at least two-thirds of all its members; (i) four persons, two of whom shall be practising attomeys or advocates, who shall be designated by the President in consultation with the Cabinet; (j) on the occasion of the consideration of matters specifically relating to a provincial division of the Supreme Court, the Judge President of the relevant division and the Premier of the relevant province. (2) The functions of the Judicial Service Commission shall (a) to make recommendations regarding the appointment, removal from office, term of office and tenure of judges of the Supreme Court in terms of section 104; (b) to make recommendations regarding the removal from office of judges of the Constitutional Court in terms of section 104 (4) ; and (c) to advise the national and provincial govemments on all matters relating to the judiciary and the administration of justice. (3) When the Commission performs its functions in terms of subsection (2) (c), it shall sit without the four senators referred to in subsection (1) (h). (4) The Commission shall determine its own procedure, provided that the support of at least an ordinary majority of all its members shall be required for its decisions. (5) The Commission may appoint committees from among ist number and assign any of its powers and functions to such committee. 106. Seats of Constitutional Court and Appellate Division (I) The seat of the Constitutional Court shall be Johannesburg. (2) The seat ofthe Appellate Division ofthe Supreme Court shall be Bloemfontein. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb be- 107. Languages (1) A party to litigation, an accused person and a witness may, during the proceedings of a court, use the South African language of his or her choice, and may require such proceedings of a court in which he or she is involved to be interpreted in a language understood by hirn or her. (2) The record of the proceedings of a court shall, subject to section 3, be kept in any official language: Provided that the relevant rights relating to language and the status of languages in this regard existing at the commencement of this Constitution shall not be diminished. 108. Attorney-General (I) The authority to institute criminal prosecutions on behalf of the state shall vest in the attomey-g eneral of the Republic. (2) The area of jurisdiction, powers and functions of an attomey-general shall be as prescribed by or under law. (3) No person shall be appointed as an attomey-general unless he or she is appropriately qualified in tenns of a law regulating the appointment of attomeys-general in the Republic. 109. Magistrates Commission There shall be a Magistrates Commission established by law to ensure that the appointment, promotion, transfer or dismissal of, or disciplinary steps against magistrates, take place without favour or pre judice, and that the applicable laws and administra tive directives in this regard are applied uniformly and properly, and to ensure that no victimization or improper influencing of magistrates occurs. CHAPTER 8 The Public Protector, Human Rights Commission, Commission on Gender Issues and Restitution of Land Rights THE PUBLIC PROTECTOR 110. Establishment and appointment (I) There shall be a Public Protector for the Republic. (2) The President shall, whenever it becomes necessary,appoint as the Public Protector a person- (a) nominated by a joint committee of the Houses of Parliament composed of one member of each party represented in Parliament and willing to serve on the committee; and (b) approved by the National Assembly and the Senate by aresolution adopted by a majority of at least 75 per cent of the members present and voting at a joint meeting: Provided that if any nomination is not approved as required in paragraph (b), the joint committee shall nominate another person. (3) The first appointrnent of a person as the Public Protector after the commencement of this Constitution shall be made within 60 days of the fIrSt sitting of the Senate under this Constitution. (4) The Public Protector shall be a South African citizen who is a fit and proper person to hold such office, and who-- (a) is a Judge of the Supreme Court of South Africa; or (b) is qualified to be admitted as an advocate and has, for a cumulative period of at least \0 years after having so qualified- (i) practised as an advocate or an attorne y; or (ii) lectured in law at a university; or (c) has specialised knowledge of or experience for ape riod of at least 10 years in the administration of justice, public administration or public finance. (5) Unless the new constitutional text provides otherwise, the Public Protector shall hold office for a period of seven years. (6) The remuneration and other tenns and conditions of employment of the Public Protector shall be as prescribed by or under an Act of Parliament, and such remuneration shall not be reduced, nor shall such tenns and conditions be adversely altered, during his or her tenn of office. (7) The Public Protector shall not perfonn remunerative work outside his or her official duties. (8) The Public Protector may be removed from office by the President, but only on the grounds of misbehaviour, incapacity or incompetence, determined by a joint committee of the Houses of Parliament, https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb composed as provided in subsection (2) (a), and upon receipt of an address from both the National Assembly and the Senate requesting such removal. (9) A Public Protector who is the subject of an investigation by a joint committee in terms of subsection (8), may be suspended by the President pending a decision in such investigation. 111. lndependence and impartiality (I) The Public Protector shall be independent and impartialand shall exercise and perform his or her powers and functions subject only to this Constitution and the law. (2) The Public Protector and the persons appointed in terms of section 113 (I) shall have such immunities and privileges as may be assigned to them by or under an Act of Parliament for the purpose of ensuring the independent and impartial exercise and performance oftheir powers and functions. (3) No organ of state and no member or employee of an organ of state nor any other person shall interfere with the Public Protector or a person appointed under section 113 in the exercise and performance of his or her powers and functions. (4) All organs of state shall accord such assistance as may be reasonably required for the protection of tbe independence, impartiality, dignity and effecti veness of the Public Protector in the exercise and performance of his or her powers and functions. 112. Powers andjunctions (I) The Public Protector shalI, in addition to any powers and functions assigned to him or her by any law, be competent- (a) to investigate, on his or her own initiative or on receipt of a complaint, any alleged­ (i) mal administration in connection with the affairs of government at any level; (ii) abuse or unjustifiable exercise of power or unfair, capricious, discourteous or other improper conduct or undue delay by a person performing a public function; (iii) improper or dishonest act, or omission or corruption, with respect to public money; (iv) improper or unlawful enrichment, or receipt of any improper advantage, or promise of such enrichment or advantage, by a person as a result of an act or omission in the public administration or in connection with the affairs of government at any level or of a person performing a public function; or (v) act or omission by a person in the employ of government at any level, or a person performing a public function, which results in unlawful or improper prejudice to any other person; (b) to endeavour, in his or her sole discretion, to resolve any dispute or rectify any act or omission by­ (i) mediation, conciliation or negotiation; (ii) advising, where necessary, any complainant regarding appropriate remedies; or (iii) any other means that may be expedient in the circumstances; or (c) at any time prior to, during or after an investigation- (i) if he or she is of the opinion that the facts disclose the commission of an offence by any person, to bring the matter to the notice of the relevant authority charged with prosecutions; or (ii) if he or she deerns it advisable, to refer any matter which has a bearing on an investigation, to the appropriate public body or authority affected by it or to make an appropriate recommendation regarding the redress of the prejudice resulting therefrom or make any other appropriate recommendation he or she deerns expedient to the aff ected public body or authority. (2) Nothing in subsection (I) shall be construed as empowering the Public Protector to investigate the performance of judicial functions by any court of law. (3) The Public Protector shall conduct an investigation under subsection (I) with due regard to tbe circumstances of each case, and shall for the purposes of such investigation, in addition to such powers as may be prescribed by law, but subject to the provisions of this Constitution and the law of privilege, be competent to- (a) direct any person to appear before hirn or her to give evidence or to produce any docurnent in his or her possession or under his or her control which, in the opinion of the Public Protector, has a bearing on the matter being inquired into, and may examine such person for that purpose; and (b) enter, or authorise another person to enter, any building or premises and there to make such investigation or inquiry as he or she rnay deern necessary, and seize anything on those premises which in his or her opinion has a bearing on the purpose of the investigation. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (4) The Public Protector or any member of his or her staff shall be competent, but not compellable, to answer questions in any proceedings in or before a court of law or any body or institution established by or under any law, in connection with any information which in the course of his or her investigation has come to his or her knowledge. (5) Recourse to, or the exercise and performance of any powers and functions of, the Public Protector shall not oust the jurisdiction of a court of law to hear any matter or cause whatsoever. (6) The Public Protector shall report in writing on his or her activities to Parliament at least once every year. 113 . StaJf and expenditure (I) The Public Protector may appoint, on such terms and conditions of service as may be determined by or under a law, such persons as may be necessary for the discharge of the work of the office of the Public Protector. (2) The Public Protector may delegate any of his or her powers or functions to persons referred to in subsection (I) subject to such conditions as may be determined by or under a law. (3) Expenditure incidental to the exercise and performance of the powers and functions of the Public Protector in terms of this Constitution or under any other law shall be defrayed from money appropriated by Parliament. 11 4. Provincial public protectors (I) A provinciallegislature may, subject to subsections (2) and (3), by law provide for the establishment, appointrnent, powers and functions of a provincial public protector and for matters in connection therewith. (2) A provincial law referred to in subsection (I) shall not in any way derogate from the powers and functions of the Public Protector. (3) A provincial public protector shall be appointed by the Premier of a province in consultation with the Public Protector, provided that the appointrnent shall be confirrn ed by resolution of a majority of at least two-thirds of all the members of the provinciallegislature. (4) A provincial public protector shall exercise and perform his or her powers and functions in consultation with the Public Protector, who shall have concurrent jurisdiction in the provinces. HUMAN RIGHTS COMMISSION 11 5. Establishment and appointments (I) There shall be a Human Rights Comrnission, which shall consist of a chairperson and 10 members who are fit and proper persons, South African citizens and broadly representative of the South African comrnunity . (2) The members of the Commission shall be appointed as provided in subsection (3) and vacancies in the Commission shall be filled accordingly. (3) The President shall, whenever it becomes necessary, appoint as a member of the Commission a person- (a) nominated by a joint committee of the Houses of Parliament composed of one member of each party represented in Parliarnent and willing to participate in the committee; and (b) approved by the National Assembly and the Senate by a resolution adopted by a majority of at least 75 per cent of the members present and voting at a joint meeting: Provided that if any nomination is not approved as required in paragraph (b), the joint committee shall nominate another person. (4) The first members of the Commission after the comrnencement of this Constitution, shall be appointed within 60 days of the first sitting of the Senate under this Constitution. (5) A Chairperson and a Deputy Chairperson of the Commission shall as often as it becomes necessary be elected by the members of the Commission from among their number. 116 . Powers andfunctions (I) The Commission shall, in addition to any powers and functions assigned to it by law, be competent and be obliged to- (a) promote the observance of, respect for and the protection of fundamental rights; (b) develop an awareness of fundamental rights among all people of the Republic; https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (c) make recommendations to organs of state at all levels of government where it considers such action advisable for the adoption of progressive measures for the promotion of fundamental rights within the framework of the law and this Constitution, as weil as appropriate measures for the further observance of such rights; (d) undertake such studies for report on or relating to fundamental rights as it considers advisable in the performance of its functions; and (e) request any organ of state to supply it with information on any legislative or executive measures adopted by it relating to fundamental rights. (2) If the Commission is of the opinion that any proposed legislation might be contrary to Chapter 3 or to norms of international human rights law which form part of South African law or to other relevant norms of international law, it shall immediately report that fact to the relevant legislature. (3) The Commission shall be competent to investigate on its own initiative or on receipt of a complaint, any alleged violation of fundamental rights, and if, after due investigation, the Commission is of the opinion that there is substance in any complaint made to it, it shall, in so far as it is able to do so, assist the complainant and other persons adversely aff ected thereb y, to secure redr ess, and where it is necessary for that purpose to do so, it may arrange for or provide financial assistance to enable proceedings to be taken to a competent court for the necessary relief or may direct a complainant to an appropriate forum. 117. Stajf and expenditure (1) The Commission shall appoint a director, who shall be the chief executive officer of the Commission and who shaIl be empowered to appoint staff subject to the approval of the Commission and on such terms and conditions of service as may be determined by or under an Act of Parliament. (2) Expenditure incidental to the exercise and perform ance of the powers and functions of the Commission in terms of this Constitution or any other law shall be defrayed from money appropriated by Parliament. 118. Reports The Commission shall report to the President at least once every year on its activities, and the President shall cause such report to be tabled promptly in the National Assembly and the Senate. COMMISSION ON GENDER EQUALITY 119. Establishment (1) There shall be a Commission on Gender Equality, which shall consist of a chairperson and such number of rnembers as may be determined by an Act of Parliament. (2) The Commission shall consist of persons who are fit and proper for appointment, South African citizens and broadly representative of the South African community. (3) The object of the Commission shall be to promote gender equality and to advise and to make recommendations to Parliament or any other legislature with regard to any laws or proposed legislation which affects gender equality and the status of women. 120. Composition andfunctioning The Act of Parliament referred to in section 119 shall provide for the composition, powers, functions and functioning of the Commission on Gender Issues and for aIl other matters in connection therewith. RESTITUTION OF LAND RIGHTS 121. Claims (I) An Act of Parliament shall provide for malters relating to the restitution of land rights, as envisaged in this section and in sections 122 and 123. (2) A person or a community shall be entitled to claim restitution of a right in land from the state if- (a) such person or community was dispossessed of such right at any time after a date to be fixed by the Act referred to in subsection (I); and (b) such dispossession was effected under or for the purpose of furthering the object of a law which would have been inconsistent with the prohibition of racial discrimination contained in seetion 8 (2), had that section been in operation at the time of such dispossession. (3) The date fixed by virtue of subseetion (2) (a) shall not be a date earlier than 19 lune 1913. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (4) (a) The provISIons of this section shall not apply to any rights in land expropriated under the Expropriation Act, 1975 (Act 63 of 1975), or any other law incorporating by refere nce that Act, or the provisions of that Act with regard to compensation, if just and equitable compensation as contemplated in section 123 (4) was paid in respect of such expropriation. (b) In this section 'Expropriation Act, 1975' shall include any expropriation law repealed by that Ac!. (5) No claim under this section shall be lodged before the passing of the Act contemplated in subsection (1). (6) Any claims under subsection (2) shall be subject to such conditions, limitations and exclusions as may be prescribed by such Act, and shall not be justiciable by a court of law unless the claim has been dealt with in terms of section 122 by the Commission established by that section. 122. Commission (1) The Act contemplated in section 121 (1) shall establish a Commission on Restitution of Land Rights, which shall be competent to- (a) investigate the merits of any claims; (b) mediate and senle disputes arising from such claims; (c) draw up reports on unsenled claims for submission as evidence to a court of law and to present any other relevant evidence to the court; and (d) exercise and perform any such other powers and functions as may be provided for in the said Ac!. (2) The procedures to be followed for dealing with claims in terms of this section shall be as prescribed by or under the said Ac!. 123. Court orders (1) Where a claim contemplated in section 121 (2) is lodged with a court of law and the land in question is- (a) in the possession of the state and the state certifies that the restoration of the right in question is feas ible, the court may, subject to subsection (4), order the state to res tore the relevant right to the claimant; or (b) in the possession of a private owner and the state certifies that the acquisition of such land by the state is fea sible, the court may, subject to subsection (4), order the state to purchase or expropriate such land and restore the relevant right to the claiman!. (2) The court shall not issue an order under subsection (I) (b) unless it is just and equitable to do so, taking into account all relevant factors, including the history of the dispossession, the hardship caused, the use to which the property is being put, the history of its acquisition by the owner, the interests of the owner and others affected by any expropriation, and the interests of the dispossessed: Provided that any expropriation under subsection (1) (b) shall be sub ject to the payment of compensation calculated in the manner provided for in section 28 (3). (3) If the state certifies that any restoration in terms of subsection (I) (a) or any acquisition in terms of subsection (1) (b) is not fe asible, or if the claimant instead of the restoration of the right prefers alternative relief, the court may, subject to subsection (4), order the state, in lieu of the restoration of the said right­ (a) to grant the claimant an appropriate right in available alternative state-owned land designated by the state to the satisfaction of the court, provided that the state certifies that it is feas ible to designate alternative state-owned land; (b) to pay the claimant compensation; or (c) to grant the claimant any alternative relief. (4) (a) The compensation referred to in subsection (3) shall be deterrnined by the court as being just and equitable, taking into account the circumstances which prevailed at the time of the dispossession and all such other factors as may be prescribed by the Act referred to in section 121 (1) , including any compensation that was paid upon such dispossession. (b) If the court grants the claimant the relief contemplated in subsection (I) or (3), it shall take into account, and, where appropriate, make an order with regard to, any compensation that was paid to the claimant upon the dispossession of the right in question. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb CHAPTER 9 Provincial Goverment 124. Establishment ojprovinces (I) The following provinces are hereby established, which for the purposes of this Constitution, but subject to subsection (2), shall be recognised as the provinces of the Republic: (a) Eastern Cape; (b) Eastern Transvaal; (c) KwaZuluINatal; (d) Northem Cape; (e) Northern Transvaal; (t) North-West; (g) Orange Free State; (h) Pretor ia-Witwatersrand-Ver eeniging; and (i) Western Cape: Provided that Parliament shall at the request of a provincial legisla ture alter the name of a province in accordance with the request of such legislature. (2) The areas of the respective provinces shall be as defined in Part I of Schedule I: Provided that the establishment of the Northern Cape as a separate province, the establishment in the area of the Eastern Cape of one province, and the inclusion of the areas specified in paragraphs (a) to (t) and (i) to (n) of Part 2 of Schedule 1 within the provinces as defined in Part I of Schedule I, shall be sub ject to alteration in accordance with this section. (3) (a) A refere ndum may be held in terms ofthis section in each of the areas specified in paragraphs (a) to (n) of Part 2 of Schedule I (hereinafter referred to as an affected area) to detennine the views of the voters ordinarily resident in such area regarding an issue referred to in subsection (5) or (6). (b) A ref erendum referred to in paragraph (a) shall be held in an aff ected area within three months of the lodging with the Secretary to Parliament of a petition signed by persons entitled to vote and ordinarily resident in such area. (c) The number of signatures on such a petition shall be at least equal in number to such percentage of the votes recorded in terms of subsection (4) in respect of the aff ected area in question, as may be detennined by the Independent Electoral Commission. (d) The Independent Electoral Commission shall not be dissolved in terms of the Independent Electoral Commission Act, 1993 (Act 150 of 1993), after the flfS t election held under this Constitution until it has made a determination in terms of paragraph (c) in respect of a11 the aff ected areas. (e) Such a petition shall be lodged with the Secretary to Parliament within ape riod of six months of the commencement of this Constitution or a period referred to in subsection (10), whichever period expires fust. (4) In the flfS t election of the National Assembly and the provincial legislatures held under this Constitution, votes cast in each of the aff ected areas shall be counted separately and recorded for use for the purposes of this section. (5) Subject to subsection (7), the object of a ref erendum in respect of an area referred to in paragraph (e), (t), (g) or (h) ofPart 2 of Schedule I, shall be the determination ofthe views ofvoters ordinarily resident in such an area, concerning, as the case may be- (a) the continued inclusion of the area referred to in the said paragraph (e) in the provincial territory of the Eastern Cape, or its inclusion in the provincial territory of KwaZuluINatal ; (b) the continued inclusion of the area referred to in the said paragraph (t) in the provincial territory of Pretori a-Witwa tersran d-Vereeniging, or its inclusion in the provincial territory ofthe Eastern Transvaal ; (c) the continued existence of the area referred to in the said paragraph (g) as one province, or its division into two separate provinces on either side of the line fonning the eastern boundaries of the districts of Venterstad, Steynsburg, Hofmeyr, Tarka, Fort Beaufort, Albany and Bathurst; or (d) the continued existence of the area referred to in the said paragraph (h) as a separate province, or its discontinuance as a separate province, in which event those districts of the said area north of the Orange River shall be included in the provincial territory ofthe North-West, and those districts south ofthe Orange Rive r shall be included in the provincial territory of the Western Cape: Provided that in the case of a ref erendum regarding an issue referred to in- https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (i) paragraphs (a) and (b) of this subsection, a majority of votes cast shall be required to sanction the incIusion of the areas in question in the provincial territories of KwaZuluINatal or the Bastern TransvaaI, as the case may be; (ii) paragraph (c) of this subsection, a majority of at least 60 per cent of the votes cast in either of the two blocks mentioned in paragraph (g) of Part 2 of Schedule I shall be required to sanction the division of the said area into two separate provinces; and (iii) paragraph (d) of this subsection, a majority of at least 60 per cent of the votes cast shall be required to sanction the discontinuance of the Northern Cape as a separate province. (6) Subject to subsection (7), the object of a ref erendum inrespect of an area referred to in paragraph (a), (b), (c), (d), (i), (j), (k), (I), (m) or (n) of Part 2 of Schedule 1, shall be the determination of the views of the majority of the voters ordinarily resident in such an area, concerning- (a) in the case of the area referred to in the said paragraph (a), the continued incIusion of such area in the provincial territory of the Nortbern TransvaaI, or its incIusion in the provincial territory of the Bastern TransvaaI; (b) in the case of the area referred to in the said paragraph (b), the continued incIusion of such area in the provincial territory of the Northern Cape, or its incIusion in the provincial territory of the Western Cape; (c) in the case of the area referred to in the said paragraph (c), the continued incIusion of such area in the provincial territory of the Bastern Transvaal, or its incIusion in the provincial territory of the Nortbern TransvaaI; (d) in the case of the area referred to in the said paragraph (d), the continued incIusion of such area in the provincial territory of the Eastern Cape, or its incIusion in the provincial territory of KwaZuluINatal; (e) in the case of the area referred to in the said paragraph (i), the continued incIusion of such area in the provincial territory of the Bastern Transvaal, or its incIusion in the provincial territory of Pretoria­ Witw atersrand- Vereeniging ; (f) in the case of the area referred to in the said paragraph (j), the continued incIusion of such area in the provincial territory of the Orange Free State, or its incIusion in the provincial territory of Pretoria­ Witwatersrand- Vereeniging ; (g) in the case of the area referred to in the said paragraph (k), the continued incIusion of such area in the provincial territory of the Western Cape, or its incIusion in the provincial territory of the Northern Cape; (h) in the case of the area referred to in the said paragraph (I), the continued incIusion of such area in the provincial territory of K waZuluINatal, or its incIusion in the provincial territory of the Eastern Cape; (i) in the case of the area referred to in the said paragraph (m), the continued incIusion of such area in the provincial territory of the Northern Cape, or its incIusion in the provincial territory of the North-West; or (j) in the case of the area referred to in the said paragraph (n), the continued incIusion of such area in the provincial territory of the North-West, or its inclusion in the provincial territory of Pretori a-Witwatersrand­ Veree niging. (7) (a) The Independent Electoral Commission shall be competent to make regulations or give directions conceming the implementation of this section, incIuding- (i) the formulation of the question to be put before the electorate in any particular refer endum; (ii) the determination of the sequence of refere ndums with reference to a province in respect of which more than one petition contemplated in subsection (3) (e) or (10) is received; (iii) the drawing up and registering of party lists for an affected area; (iv) the identification of persons entitled to vote in a ref erendum or electio n held in terms of this section; (v) procedures relating to the drawing up of petitions for the purposes of this section; and (vi) any other matters which it considers necessary for such implementation. (b) This subsection shall come into operation on the date of promulgation of this Constitution. (8) A party or parties representing a majority of voters in an affected area may within a period of one month of the date of the first election under this Constitution of members of the provinciallegisla ture of the province within which such area falls in terms of Part I of Schedule I, petition the Independent Electoral Commission to publish a notice in terms of subsection (9). (9) If a petition is lodged with the Independent Electoral Commission in terms of subsection (8), requesting that an aff ected area be altered as contemplated in subsection (5) or (6), and the Independent Electoral Commission is satisfied that the petition has the support of a party or parties representing a majority of voters in that affected area, it shall fortbwith cause to be published in the Gazette, notice of the fact that it has received such a petition. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (10) Within live months of the date of publication of a notice referred to in subsection (9) a petition may be lodged with the Secretary to Parliament, calling for a ref erendum contemplated in subsection (3) to be held in the area in respect of which such notice was published. (11) If a petition for a ref erendum as provided for in subsection (10) is lodged with the Secretary to Parliament, the petition lodged with the Independent Electoral Commission under subsection (8) will iapse, and the result of the refere ndum in respect of such area will be decisive. (12 ) If a petition for a refer endum as provided for in subsection (10) is not lodged with the Secretary to Parliament within the period referred to in that subsection, the Independent Electoral Commission shall, upon the expiry of that prescribed period, forthwith cause to be published in the Gazette, notice of that fact, and the alteration contemplated in the notice published in terms of subsection (9) shall thereupon be implemented in accordance with subsection (13). (13) (a) For the purpose of irnplementing an alteration in terms of subsection (12 ), or an alteration pursuant to a referendum held in terms of subsection (3), the Independent Electoral Commission shall, if it considers it necessary to do so as a result of an alteration to be made, give directions concerning- (i) the establishment of a new provincial legislature or the reconstitution of an existing provincial legislature; (ii) the holding of an election of a new or reconstituted provincial legislature; (iii) the allocation of seats within such new or reconstituted provincial legislature; and (iv) the names of the persons who will bec ome or remain members of such provincial legislature. (b) The Independent Electoral Commission shall for the purposes of any directions under paragraph (a) have regard to- (i) representations made to it by political parties who will or may be affected by any such directions; (ii) party Iists compiled by parties for the purpose of the election of the provincial legisla tures which will be dissolved or reconstituted; (iii) party Iists compiled pursuant to any regulation made or directions given by it in terms of subsection (7); (iv) the provisions of Schedule 2 (without necessarily being bound thereby in regard to the sequence in which seats are to be awarded or forfeited); and (v) all other factors which in its opinion are relevant to such direct ions : Provided that if it is of the opinion that any particular alteration does not require an existing provincial legisla ture to be reconstituted, it may direct that notwithstanding such altera tion, such provincial legislature shall not be reconstituted. (c) If a Premier, member of the Executive Council of a province, senator or other officer has been elected, appointed or nominated in terms of this Constitution by the members of any provincial legislature affected by directions given by the Independent Electoral Commission in terms of paragraph(a), the Independent Electoral Commission may also give directions that new elections, appointments or nominations be made, in which event such elections, appointments or nominations shall be carried out in accordance with this Constitution, and within such times as the Independent Electoral Commission may prescribe. (14) The President shall by proclamation in the Gazette, to take effect on such date as may be detennined by the Independent Electoral Comrnission, amend subsection (1) and Schedule I to give effect to any alteration made in terms of this section. (15) Notwithstanding the provisions of section 62, Parliament may by a majority of votes in each House, effect consequential amendments to this Constitution arising out of any alterations to provinces or provincial boundaries, or directions given by the Independent Electoral Commission in terms of this section. PROVINCIAL LEGISLATIVE AUTHORITY 125. Provincial legislature (I) There shall be a legislature for each province. (2) The legislative authority of a province shall, subject to this Constitution, vest in the provincial legislature, which shall have the power to make laws for the province in accordance with this Constitution. (3) Laws made by a provincial legisla ture shall, subject to any exceptions as may be provided for by an Act of Parliament, be applicable only within the territory of the province. 58 0 https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb 126. Legislative competence of provinces (I) A provincial legislatuI'e shall �" �"QQ1 (l!! ��nt, subject to subsections (3) and (4), haye C8ftC I!freftt c8mfleteftce with Parliame ftt to make laws for the province with regard to all mauers which fall within the functional areas specified in Schedule 6. (2) The legislative competence referred to in subsection (I), shall indude the competence to make laws which are reasonably necessary for or incidentaJ to the eff ective exercise of such legislative competence. (2A) competent, subject to subsection (3) and (4), to make laws with regard to maUers Parliament shall be reffered to in subsection (I) and (2) (3) [Aft Act sfParliameHt v/hich deals with a matleffeferred Is ift slleseCl isft (I) 8r (2) shall flre"/ail 8'/er a flr8'1iftcial lavi iftC8ftsi steftt therewi!h, 8ftly 18 !he Il*leftl Ihat] A law passed by a provincial legislature in terms of this Constitution shall prevail over an Act of Parliament which deals with a matter reffered to in subsection (I) or (2) exept in so far-:-:- (a) [it] the Act of Parliament deals with a matter that cannot be regulated eff ectively by provincial legislation; (b) [it] the Act of Parliament deals with a matter that, to be performed effe ctively, requires to be regulated or co-ordinated by uniform norms or standards that apply generally throughout the Republic; (c) [itlthe Act of Parliament is necessary to set minimum standards across the nation for the rendering of public services; (d) [it] the Act of Parliament is necessary for [!he delermiftatisft sf ftatisftal ecSft8miC fl81icies,l the maintenance of economic unity, the protection of the environment, the promotion of interprovincial comrnerce, the protection of the comrnon market in respect of the mobility of goods, services, capital or labour, or the maintenance of national security ; or (e) the provincial law materially pre judices the economic, health or security interests of another province or the country as a whole, or impedes the implementation of national economic policies. (4) An Act of Parliament shall prevail over a provincial law, as provided for in subsection (3), only if it applies uniformly in all parts of the Republic. (5) An Act of Parliament and a provincial law shall be construed as being consistent with each other, unless, and only to the extent that, they are, expressly or by necessary implication, inconsistent with each other. (6) A provincial legislature may recomrnend to Parliament the passing of any law relating to any matter in respect of which such legislature is not competent to make laws or in respect of which an Act of Parliament prevails over a provincial law in terms of subsection (3). 127. Composition of provincial legislatures (I) A provincial legisla ture shall consist of not fewer than 30 and not more than 100 members elected in accordance with the system of proportional representation of voters provided for in Schedule 2 and the Electoral Act, 1993. (2) The number of seats in a provincial legisla ture shall, subject to subsection (I), be deterrnined in accordance with Schedule 2. (3) The members of a provincial legisla ture shall be elected from provincial lists of party candidates for the province in question. 128. Duration and dissolution of provincial legislatures (I) A provincial legislature, as constituted in terms of an election of such legislature under this Constitution, shall, subject to subsection (2), continue for five years as from the date of such election, at the expiry of which it shall be dissolved. (2) If during the period referred to in subsection (I) a provincial legislature is dissolved in terms of section 1 54 (I) or (3) (c) or 162, the provincial legisla ture as constituted then, shall continue for the period up to the day immediately preceding the comrnencement of polling for the election of the provincial legisla ture held in pursuance of such dissolution. (3) Notwithstanding any dissolution of a provincial legislature- (a) every person who at the date of the dissolution is a rnember of the provincial legisla ture shall remain a member thereof; (b) the provincial legislature shall remain competent to perform its functions; and https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (c) the Premier of the province shall be competent to summon the provinciallegislature by procJamation in the Provincial Gazette to an extraordinary sitting for the dispatch of urgent business, during the period for which the provinciallegislature continues in terms of subsection (2) after the dissolution. 129. Elections (1) If a provinciallegisla ture is dissolved in terms of section 128 (1), 154 (1) or (3) (c) or 162, the Premier of the province shall upon such dissolution, by proclamation in the Provincial Gazette call an election of such legisla ture, which election shall take place within 90 days after the dissolution of the legisla ture on a date or dates specified in the proclamation. (2) An election referred to in subsection (1), shall be conducted in accordance with the Electoral Act, 130. Sittings of provincial legislature (1) The Secretary of a provincial legisla ture shall convene such legislature within seven days after an election of such legislature. (2) The provinciallegisl ature shall sit during such periods and on such days and during such hours as it may detennine: Provided that the Premier of a province may at any time by proclamation in the Provincial Gazette summon the provinciallegisla ture to an extraordinary sitting for the dispatch of urgent business. 131. Speaker and Deputy Speaker of provincial legislature (I) At its first sitting after it has been convened under section 130 (I ), and after the election of the Premier of the province, a provinciallegisla ture with a judge of the Supreme Court designated by the Chief lustice acting as the chairperson, shall elect one of its members to be the Speaker, and shall thereafter elect another of its members to be the Deputy Speaker of such legislature. (2) The provisions of Schedule 5 and section 41 (3) to (10) shall apply mutatis mutandis in respect of the Speaker and the Deputy Speaker of a provinciallegislature. 132. Qualijication fo r member ship of provincial legislatures (1) No person shall be qualified to become or remain a member of a provinciallegisla ture unless he or she is qualified to become am ember ofthe National Assembly. (2) A member of a provincial legisla ture who is elected as the Premier or appointed as a member of the Executive Council of a province shall for the purposes of section 42 (1) (e) be deemed not to hold an office of profit under the Republic. (3) The provisions of section 40 (2), (3), (4) and (5) shall mutatis mutandis apply to a person nominated as a candida te for election to a provinciallegislature, and in any such application a reference in that section to a regional list shall be construed as a reference to a provinciallist as contemplated in Schedule 2. 133. Vacation of seats andfilling of vacancies (1) A member of a provinciallegisla ture shall vacate his or her seat if he or she- (a) ceases to be eligible to be a member ofthe provinciallegisla ture in terms of section 132; (b) ceases to be a member of the party which nominated hirn or her as a rnember of the provincial legislature; (c) resigns his or her seat by submitting his or her resignation in writing to the Secretary of the provincial legislature; (d) absents hirnself or herself voluntarily from sittings of the provincial legislature for 30 consecutive sitting days, without having obtained the leave of the provincial legisla ture in accordance with the mies and orders; or (e) becomes a member of the National Assembly or the Senate. (2) The provisions of section 44 (1) and (2) shall apply mutatis mutandis in respect of the filling of vacancies in a provinciallegislature, and in any such application a reference to-- (a) the National Assembly shall be construed as a reference to a provinciallegislature; and (b) a list of party candidates shall be construed as a reference to a list referred to in section 127 (3). (3) A nomination in terms of this section shall be submitted in writing to the Speaker of the provincial legisla ture in question. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb 134. Oath or aff irmation by members Every member of a provincial legislature, before taking his or her seat, shall make and subscribe an oath or solemn affirmation in the terms set out in Schedule 3 before a judge of the Supreme Court designated by the Chief lustice for this purpose, or, in the case of a member nominated under section 13 3, before the Speaker of the provincial legislature. 135. Powers, privileges and immunities and bene fits of members of provincial legislatures (I) A provincial legisl ature shall have full power to control, regulate and dispose of its internal affairs and shall have a11 such other powers, privileges and imrnunities as may, subject to this Constitution, be prescribed by a law of such legislature. (2) Subject to the rules and orders of a provincial legisla ture there shall be fre edom of spee ch and debate in or before such legisla ture and any comrnittee thereof, and such free dom shall not be impeached or questioned in any court. (3) A member of a provincial legisla ture shall not be liable to any civil or criminal proceedings, arrest, imprisonment or damages by reason of anything which he or she has said, produced or submitted in or before or to such legisla ture or any comrnittee thereof or by reason of anything which may have been revealed as a result of what he or she has said, produced or submitted in or before or to such legisla ture or any committee thereof. (4) There shall be paid out of and as a charge on the Provincial Revenue Fund of a province to a member of the legisla ture of that province such salary and a1lowances, and upon his or her retirement, or to his or her widow or widower upon his or her death, such pension and pension benefits, as may be prescribed by a law of the provincial legislature. 136. Penalty fo r sitting or voting when disqualijie d Any person who in terms of this Constitution is disqualified to sit as a member of a provincial legisla ture and who, while so disqualified and knowing that he or she is so disqualified, sits or votes as such a member, shall be liable to a penalty determined by the rules and orders for each day on which he or she so sits or votes, which may be recovered for credit of the Provincial Revenue Fund concerned by action in a court of law. 137. Rules and orders (I) A provincial legisla ture may make rules and orders in connection with the conduct of its business and proceedings. (2) The provisions of section 58 shall apply mutatis mutandis in respect of a provincial legislature. 138. Quorum The presence of at least one third or, when a vote is taken on a Bill, of at least one half of a11 the members of the provincial legisla ture other than the Speaker or other presiding member, shall be necessary to constitute a sitting of such legislature. 139. Requisite majorities Save where otherwise required in this Constitution, a11 questions before a provincial legisla ture shall be determined by a majority of votes cast. 140. Assent to Bills (1) A Bill duly passed by a provincial legisla ture in accordance with this Constitution shall be assented to by the Premier of the province subject to section 147 (1) (b). (2) A Bill referred to in subsection (I) to which the Premier has assented and a copy of which he or she has signed, shall upon its promulgation be a law of the provincial legislature in question. 141. Signature and enrolment of provincial laws (I) A law of a provincial legislature referred to in section 140 (2) shall be enrolled of record in the office of the Registrar of the Appellate Division of the Supreme Court in such official South Afri can languages as may be required in terms of section 3, and copies of the law so enrolled shall be conclusive evidence of the provisions of such law. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (2) In the case of a conflict between copies of a law enrolled in tenns of subsection (I), the copy signed by the Premier shall prevail. (3) The public shall have the right of access to copies of a law so enrolled, subject to such laws as may be passed by Parliament to protect the safety and durability of the said copies and with due regard to the convenience of the Registrar's staff. 142. Public access to provincial legislatures Siuings of a provincial legisl ature shall be held in public, and the public, inc1uding the media, shall have access to such sinings: Provided that reasonable rneasures may be taken to regulate such access, and to provide for the search of and, where appropriate, the refusal of entry or the removal of any person. 143. Administration ol provincial legislatures (I) For the purposes of seuing up a provisional administration of a provincial legislature, the Transitional Executive Council shall as soon as possible after the comrnencement of this Constitution appoint for each provincial legislature a provisional secretary, who shall hold office as Secretary until an appointment is made in tenns of subsection (2). (2) The Executive Council of a province shall after consultation with the Commission on Provincial Govemment appoint a Secretary and such other staff as may be necessary for the discharge of the work of such legislature. (3) Persons appointed under this section shall be remunerated out of and as a charge on the Provincial Revenue Fund of the province. PROVINCIAL EXECUTIVE AUTHORITY 144. Executive authority 01 provinces (I) The executive authority of a province shall vest in the Premier of the province, who shall exercise and perfonn his or her powers and functions subject to and in accordance with this Constitution. (2) A province shall have executive authority over all maUers in respect of which such province has exercised its legislative competence, matters assigned to it by or under section 235 or any law, and maUers delegated to it by or under any law. 145. Election 01 Premiers (I) (a) The provincial legisla ture of a province shall at its first siuing after it has been convened in tenns of section 130 (I), elect one of its members as the Premier of the province. (b) A provincial legislature shall thereafter, as often as it again becomes necessary to elect a Premier, elect one of its members as the Premier of the province. (c) The provisions of Schedule 5 shall apply mutatis mutandis in respect of the election of the Premier of a province. (2) A judge of the Supreme Court designated by the Chief Justice for this purpose, shall preside over an election referred to in subsection (I). (3) The election of a Premier in tenns of subsection (I) (b) shall take pi ace at a time and on a date fixed by the judge so designated: Provided that- (a) if such election of a Premier is occasioned by reason of a dissolution of the provincial legislature, it shall take place within 14 days after the election of the provincial legisla ture held in pursuance of such dissolution; or (b) if such election of a Premier is occasioned by reason of a vacancy in the office of Premier, it shall take place within 30 days after the vacancy arose. 146. Tenure 01 and removal lr am off ice 01 Premiers (I) The Premier of a province elected in tenns of section 145 (I) shall, subject to subsection (2) and section 154(2), hold office- (a) for the period referred to in section 128 (I); or (b) if the provincial legislature is dissolved during such period, for the period until such dissolution, and shall thereafter remain in office until a Premier has been elected in tenns of section 145 (I) (b) after the dissolution and has assumed office. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (2) The Premier of a province shall cease to hold office on a resolution adopted by the provincial legisl ature by a majority of at least two-thirds of all its members and impeaching the Premier on the ground of a serious violation of this Constitution or the other laws of the Republic or the province in question, or of misconduct or inability rendering hirn or her unfit to exercise and perform his or her powers and functions in accordance with section 147. 147. Responsibilities, powers and fu nctions of Premiers (1) The Premier of a province shall be responsible for the observance of the provisions of this Constitution and all other laws by the executive of the province, and shall be competent to exercise and perform the following powers and functions, namely- (a) to assent to, sign and promulgate Bills duly passed by the provincial legislature; (b) in the event of a procedural shortcoming in the legislative process, to refer a Bill passed by the provinciallegisla ture back for further consideration by such legisla ture; (c) to convene meetings of the Executive Council; (d) to appoint commissions of enquiry; (e) to make such appointments as may be necessary under powers conferred upon hirn or her by this Constitution or any other law; and (f) to proclaim referenda and plebiscites in terms ofthis Constitution or a provincial alw. (2) The Premier of a province shall exercise and perform all powers and functions assigned to hirn or her by this Constitution or any other law, except those specified in subseetion (I) or where otherwise expressly or by implication provided in this Constitution, in consultation with the Executive Council of the province: Provided that the Executive Council may delegate its consultation function in terms of this subseetion, with reference to any particular power or function of the Premier, to any member or members of the Executive Council. 148. Acting Premiers (I) The Premier of a province shall appoint one of the members of the Executive Council of the province to act as Premier during his or her absence or temporary incapacity. (2) Should it be necessary that an Acting Premier be appointed and the Premier is absent or unable to make such an appointment, or if the office of Premier is vacant, the other members of the Executive Council shall make such appointment. (3) An Acting Premier shall while acting as Premier have all the powers and functions vested in the office ofPremier. 149. Executive Councils (1) The Executive Council of a province shall consist of the Premier and not more than \0 members appointed by the Premier in accordance with this seetion. (2) A party holding at least 10 per cent of the seats in a provincial legisl ature and which has decided to participate in the Executive Council, shall be entitled to be allocated one or more of the Executive Council portfolios in proportion to the number of seats held by it in the provinciallegisl ature relative to the number of seats held by the other participating parties. (3) Executive Council portfolios shall for the purposes of subsection (2) be allocated mutatis mutandis in accordance with the formula set out in paragraphs (a) to (e) of section 88 (3), to the respective participating parties. (4) The Premier of a province shall after consultation with the leaders of the participating parties- (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 provinciallegisla ture who is a member of the party to which that portf olio was allocated under paragraph (a), as the member of the Executive Council responsible for that portf olio; (c) if it becomes necessary for the purposes of this Constitution or in the interest of good government, vary any determination under paragraph (a), subject to subseetion (3); (d) terminate any appointment under paragraph (b)- (i) if he or she is requested to do so by the leader of the party of which the relevantmember of the Executive Council is a member; or https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (ii) if it becomes necessary for the PUIposes of this Constitution or in the interest of good govemment; or (e) fill when necessary, subject to paragraph (b), a vacancy in the office of a member of the Executive Council. (5) Subsection (4) shall be implemented in the spirit underlying the concept of a govemment of national unity, and the Premier and the other functionaries concemed shall for the purposes of subsection (4) endeavour to achieve consensus at all times: Provided that if consensus cannot be achieved on- (a) the exercise of apower referred to in paragraph (a), (c) or (d) (ii) of that subsection, the Premier's decision shall prevail: (b) the exercise of a powre referred to in paragraph (b), (d) (i) or (e) of that subsection affecting a person who is not a member of the Premeir' s party, the decision of the leader of the party of which such person is a member shall prevail; and (c) the exercise of apower 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 shall prevail. (6) If any determination of portfolio allocations is varied under subsection (4) (c), the affected members of the Executive Council shall vacate their portfolios but shall be eligible, where applicable, for re­ appointrnent to other portfolios allocated to their respective parties in terms of the varied determination. (7) The Permier or a member of the Executive Council shall, before formally assuming office, make and subscribe an oath or selmn affirmation in the terms set out in Schedule 3 before a judge of the Supreme Court designated by the Chief Justice for this purpose. (8) No member of an Executive Council may take up any other paid employment, engage in activities inconsistent with his or her membership of the Executive Council, or expose hirnself or herself to any situation which carries with it the risk of a conflict between his or her responsibilities as a member of the Executive Council and his or her private interests. (9) No member of the Executive Council shall use his or her position as such, or directIy or indirectIy use information entrusted confidentially to him or her in such capacity, to enrich hirnself or herself or any other person. (10) There shall be paid out of and as a charge on the Provincial Revenue Fund of a province to the Premier or a member of an Executive Council of such province such salary and allowances, and upon his or her retirement, or to his or her widow or widower upon his or her death, such pension and pension benefits, as may be prescribed by a law of the provincial legislature. 150. Executive Council procedure (I) Meetings of the Executive Council shall be presided over by the Premier. (2) The Executive Council shall function in a manner which gives consideration to the consensus-seeking spirit underlying the concept of a govemment of national unity as weil as the need for effective govemment. 151. Tem porary assignment of powers andfunctions to Executive Council members Whenever a member of an Executive Council of a province is absent or for any reason unable to exercise and perform any of the powers and functions assigned to him or her, or whenever a member of an Executive Council has vacated his or her office and a successor has not yet been appointed, the Premier may appoint any other member of the Council to act in the said member' s stead, either generally or in the exercise or performance of any specific power or function. 152. Trans fer of powers and fu nctions fr om one member to another member (I) The Premier of a province may assign the administration of a law which is entrusted to any particular member of the Executive Council or which entrusts to any particular member of the Council any power of function, to any other member of the Council. (2) Any reference in such a law to a particular member of the Executive Council as the member to whom the administration of such a law is entrusted, shall upon the assignment under subsection (I) of the administration of such a law to another member of the Council, be construed as a reference the the latter. 153. Accountability of members of Executive Councils (I) A member of an Executive Council of a province shall be accountable individually both to the Premier and the provincial legislature of the province for the administration of the portfolio allocated to hirn or her, https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb and all members of an Executive Council shall correspondingly be accountable collectively for the performance of the functions of the provincial govemment and for its policies. (2) A member of an Executive Council shall administer his or her portfolio in accordance with the policy deterrnined by the Executive Council. (3) If a member of an Executive Council of a province fails to administer his or her portfolio in accordance with the policy of the Executive Council, the Premier of the province may require the member concemed to bring the administration of the portfolio into conforrnity with such policy. (4) If the member concemed fails to comply with a requirement of the Premier under subsection (3), the Premir may, 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 such member' s party, remove the member from office. 154. Votes of no confidence (1) If a provincial legislature passes a vote of no confidence in the executive Council, including the Premier, the Premier shall, unless he or she resigns, dissolve such legislature and call an election in accordance with section 129. (2) If a provinciallegislature passes a vote of no confidence in the Premier, but not in the other members of the Executive Council, the Premier shall resign. (3) If a provincial legislature passes a vote of no confidence in the Executive Council, axc1uding the Premier, the Premier may- (a) resign; (b) reconstitute the Executive Council in accordance with section 149 (4); or (c) dissolve such legislature and call an election in accordance with section 129. (4) Tbe Premier shall where required, or where he or she elects, to do so in terms of this section, dissolve the provincial legislature by procIamation in the Provincial Gazette within 14 days of the vote of no confidence. PROVINCIAL FINANCE AND FISCAL AFFAIRS 155. Provinces ' share of revenue collected nationa lly (I) A province shall be entitled to an equitable share of revenue collected nationally to enable it to provide services and exercise and perform its powers and functions. (2) Tbe equitable share of revenue referred to in subsection (1) shall consist of - (a) ape rcentage, as fixed by an Act of Parliament, of income tax on individuals which is collected [withlH !Be jlfe,iH ee] nationally; (b) a percentage, as fixed by an Act of Parliament, of value-added tax or other sales tax which is collected [wilhifl lhe jlffiv inee] nationally; (c) ape rcentage, as fixed by an Act of Parliament, of any national levy on the sale of fuel ; transfer duty, collected situated (d) any nationally, on the acquisition, sale or transfer of any property within the province concemed; and [e]� other conditional or unconditional allocations out of national revenue to a province. (2A) Sections 59(2) and 60 shall nit apply to an Act referred to in subsection (2), and such an Act shall be passed by the National Assembly and the Senate sitting separatel y. (3) Tbe percentages referred to in [stJll seelien (2)(8) 8HtI (Il)] paragraphs (a), (b) and (c) of subsection (2), and the conditions referred to in paragraph (e) ofthat subsection, shall be fixed reasonably in respect of the different provinces after taking into account the national interest and recommendations of the Financial and Fiscal Commission, and all transfers to the provinces shall be effected expeditiously and without any deduction therefrom. (4) Allocations referred to in subsection (2)(e)(e) shall be deterrnined in accordance with an Act of Parliament, with due regard to the national interest and after taking into account- (a) the provision that has to be made for interest and other payrnents in respect of national debt; and (b) the different fiscal capacities, including the revenues derived from sources referred to in subsection (2)(a) and (b) ,(b), (c) and (d), fiscal perform ances, efficiency of utilisation of revenue, needs and economic disparities within and between provinces, as weIl as the developmental needs, administrative responsibilities and other legitimate interests of the provinces, and any other objective criteria identified by the Financial and Fiscal Commission; and 58 7 https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (c) the legitimate needs and interests of the national govemment; and (d) the recommendations of the Financial and Fiscal Commission. 156. Levying o/ taxes by provinces (1) A [Ilrsyinee m8Y le,,')' l!IJ(es, sll reharges sr leYies slherthan sf 8 keine rree refe Is in seetisft 155(2)(8) sr W] provincial legislature shall be competent to raise taxes, levies and duties, other than income tax or value-added or other sales tax, and to impose surcharges on taxes, provided that- (a) it is authorised to do so by an Act of Parliament passed after recommendations of the Financial and Fiscal Commission on the draft text of any such Act have been submitted to and considered by Pariament; and (b) there is no discrimination against non-residents of that province who are South African citizens. (1A ) Sections 59(2) and 60 shall not apply to an Act referres to in subsection (I), and such an Act shall be passed by the National Assembly and the Senate sitting separatl y. (1 B) A provincial legislature shall notwithstanding sibsection (I) have exclusive competence within its province to impose taxes, levies and duties (excluding income tax or value-added or other sales tax) on­ (a) casinos (b) gambling, wagering and lotteries; and (c) betting. (2) A provincial legislature shall not be entitled to levy taxes detrimentally affecting national economic policies, inter-provincial commerce or the national mobility of goods, services, capital and labour. (3) A provincial legisla ture shall be competent to enact legislation authorising the imposition of user charges: Provided that- (a) [the criteria to be taken into account in raising such charges may be regulated by an Act of Parliament passed after recommendations of the Financial and Fiscal Commission relating to the draft text of any such Act have been submitted to and considered by Pariament] such legislation may only be enacted after consideration by the provincial legislature of any recommendations made by the Financial and Fiscal Commission concerning criteria according to which such charges should be detennined; (b) [they do not discriminate] there is no discrimination against non-residents of that province who are South African citizens. 157. Raising o/ loans by provinces (1) A province- (a) shall, subject to subsection (2), not be competent to raise loans for current expenditure; and (b) shall be competent to raise loans for capital expenditure, provided it does so within the framework of reasonable norms and conditions prescribed by an Act of Parliament passed after recommendations of the Financial and Fiscal Commission relating to the draft text of any such Act have been submitted to and considered by Parliament. (1A ) Sections 59(2) and 60 shall not apply to an Act referres to in subsection (1) (b), and such an Act shall be passed by the National Assembly and the Senate sitting separa tly. (2) Loans referred to in subsection (l )(a) may be raised for bridging finance during a fiscal year, subject to the condition thatthey shall be redeemed [in tIlat same finaneial )'ear] within 12 months and subject to such further, reasonable conditions as may be prescribed by an Act of Parliament passed after recommendations of the Financial and Fiscal Commission relatingto the draft text of any such Act have been submitted to and considered by Parliament. (3) A province may not guarantee a loan unless- (a) the Financial and Fiscal Commission has verified the need for a guarantee and recommended that it be given; and [(Il) the gi'ting sf the gll!If!IHtee has Ileen !IfIflrSVe6 Ily 8 ressilltisn sf Parliament.] 158. Revenue allocations by national government [Revenue] Financial allocations [ma!Ie] by the national government- (a) to a provincial or local government shall be made [through] in terms of an appropriation Act; and (b) to a local government shall ordinarily be made through the provincial government of the province in which the local government is situated. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb 159. Provincial Revenue Funds fIIisetI a provincial govemment. (2) No money may be withdrawn from a Provincial Revenue Fund otherwise than by virtue of an appropriation made in accordance with a law of provincial legislature concerned. PROVINCIAL CONSTITUTIONS 160. Adoption of provincial constitutions (1 ) The provincial legislature shall be entiteled to pass a constitution for its province by a resolution of a majority of at least two-thirds of all its members. (2) A provincial legisla ture may make such arr angements as it deerns appropriate in connection with its proceedings relating to the drafting and consideration of a provincial constitution. (3) A provincial constitution shall not be inconsistent with [w] a provision of this Constitution, including [!his Cha!lter wul] the Constitutional Principles set out in Schedule 4 [lIftl!] : Provided that a provincial constitution may !ru.provide for legislative and executive structures and procedures different from those provided for in this Constitution in respect of a province; and . [Eil) a !lfB,.'isisll Se !he Ilew eSllstimtisllai teJ(t.] (b) where applicable provide for the instiuton role authodty and status of a triinal monarch in the province and shaJl make such provision for the zulu Monarch in the case of the provi nce of KwaZuluINatal. (4) The text of a provincial constitution passed by a provincial legisla ture, or any provision thereof, shall be of no force and effect unless the Constitutional Court has certified that none of its provisions is inconsistent with a provision referred to in subsection (3)[W], subject to the proviso to that subsection i!h a !lfsyisisll Se !he Ile ..... eSllstimtisllai [IlßS ie!he Ilew eSllstitHtisllai teJ(1 is !hell alreatly !lasses, alss ... .. leJ(t ] , (5) A decision of the Constitutional Court in terms of subsection (4) certifying that the text of a provincial constitution is not inconsistent with the said provisions, shall be final and binding, and no court of law shall have jurisdiction to enquire into or pronounce upon the validity of such text or any provision thereof. 161. Development ofp rovincial constitutional dis pensation (1) The development of a system of provincial govemment shall receive the priority attention of the Constitutional Assembly, and in this regard it shall take into consideratbn any recommendations of the Commission on Provincial Government and any comments thereon by the respective provincial governments. (2) Any recommendations of the Commission to the Constitutional Assembly shall include draftpr ovisions for inclusion in the new constitutional text in so far as they relate to malters failing within the ambit of the Commission's ob ject in terms of section 164. (3) The Constitutional Assembly shall deal with such draft provisions in the same manner as it is required in terms of this Constitution to deal with other constitutional proposals, (4) Draft provisions recommended by the Commission which are not adopted by the Constitutional Assembly shall lapse, except if the Constitutional Assembly by resolution of a majority of the members present and voting refers the recommended provisions back to the Commission for further consideration. (5) Draft provisions referred back to the Commission may again be presented to the Constitutional Assembly, provided that if amended in one or more substantive respects, the provisions of this section regarding the acceptance, re jection or referral of the recommendations of the Commission shall apply mutatis mutandis. 162. Election of new provincial governments A provincial govemment may at any time after the commencement of a provincial constitution contemplated in section 160 or of the constitutional dispensation contempoated in section 161, petition the Constitutional Assembly to dissolve its provincial legislature and to call an election for the establishment of a new provincial legisla ture and executive authority in that province. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb which shall be paid all revenue [] collected by or accruing to the provincial govemment, and all financial allocation referred to in section 158 made by the national government to such a province of such (1) There is hereby establised in the administration of each province a Provincial Revenue Fund, into COMMISSION ON PROVINCIAL GOVERNMENT 163. Establishment of Commission on Provincial Government There is hereby established a Commission on Provincial Government consisting of not less than 10 and not more than 15 members appointed by the President subject to section 165. 164. Objects andfunctions of Commission (1) The object of the Commission is to facilitate the establishment of provincial government, and the Commission shall for the achievement of that object be competent- (a) to advise the Constitutional Assembly on the development of a constitutional dispensaton with regard to provincial systems of government; (b) to advise the national government or a provincial government on the establishment and consolidation of administrative institutions and structures in a province or on any matter arising out of the application of section 124; and (c) to make recommendations to the national government or a provincial government on the rationalisation of statutory enactrnents or public section resources directed at the introduction and maintenance of an eff ective system of provincial governmen. (2) Advice to the Constitutional Assembly in terms of subsection (1) (a), shall include recommendations in the form of draft constitutional provisions regarding- (a) the finalisation of the number and the boundaries of the provinces of the Republic; (b) the constitutional dispensations of such provinces, including the constitutional structures within such provinces as weil as the method of their election and their authority, functions and procedures; (c) measures, including transitional measures, that provide for the phasing in of new provincial constitutional dispensations; (d) the final delimitation of powers and functions between national and provincial institutions of government, with due regard to the criteria that are set out in subsection (3); (e) fiscal arrangements between the institutions of national government and those of the provincial governments; (f) the powers and functions of local governments; and (g) any matter which the Commission considers to be relevant or ancillary to its functions. (3) In carr ying out its functions the Commission shall, inter alia, take into consideration­ (a) the provisions of this Constitution; (b) the Constitutional Principles set out in Schedule 4; (c) historical boundaries, including those set out in Part 1 of Schedule 1, former provincial boundaries, magisterial district boundaries and infrastructure s; (d) administrative considerations, including the availability or non-availability of infrastructures and nodal points for service; (e) the need to rationalise existing structures; (f) cost-ef fectiveness of government, administration and the delivery of services; (g) the need to minimise inconvenience: (h) demographic considerations; (i) economic viability; (j) developmental potential; and (k) cultural and language realities. 165. Constitution of Commission (1) The members of the Commission shall be appointed by the President within 30 days of the cornmencement of this Constitution. (2) Unless the President otherwise determines, the members of the Commission shall be appointed in a full­ time capacity . (3) At least one member ofthe Commission shall be appointed from each province with the concurrence of the Premier of the province. (4) A member ofthe Commission shaIl perform his or her functions fairly, impartially and independently. (5) A member appointed in a full-time capacity shall to perform or comrnit hirnself or herself to perform remunerative work outside his or her functions as a member of the Commission. (6) A member of the Commission shall not hold office in any political party or political organisation. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb 166. Chairperson and Deputy Chairperson (1) The president shall designate one ofthe members of the Commission as the Chairperson and another as the Deputy Chairperson. (2) (a) If the Chairperson is absent or unable to perform his or her functions as chairperson, or when there is a vacancy in the office of Chairperson, the Deputy Chairperson shall act as Chairperson, and if both the Chairperson and the Deputy Chairperson are absent or unable to perform the functions of the Chairperson, the Commission shall elect another member to act as Chairperson. (b) Wbile acting as Chairperson the Deputy Chairperson or such member may exercise the powers and shall perform the functions of the Chairperson. 167. Vacation of offi ce andfilling of vacancies (I) A member of the Commission shall vacate bis or her office if he or she resigns or if he or she becomes disqualified in terms of section 165 to hold office or is removed from office under subsection (2). (2) A member of the Commission may be removed from office by the President only on the grounds of misbehaviour, incapacity or incompetence established by a judge of the Supreme court after an enquiry. (3) Ifa member ofthe Commission ceases to hold office, the President may, subject to section 165, appoint a person to fill the vacancy. 168. Meeting of Commission (I) The first meeting of the Commission shall be held within 30 days of its appointment at a time and place to be determined by the Chairperson, and subsequent meetings shall be held at a time and place determined by the Commission or, if authorised thereto by the Commission, by the Chairperson. (2) A quorum for a meeting of the Commission shall not be less than one half of all its members. (3) A decision of a majority of the rnembers of the Commission shall constitute a decision of the Commission and in the event of an equality of votes the Chairperson shall have a casting vote in addition to his or her deliberative vote. (4) All the decisions of the Commirtion shall be recorded. 169. Committees (1) The Commission may establish committees from among its members. (2) The Commission shall designate one of the members of a committee as chairperson thereof, and if any such chairperson is absent from a meeting of the committee the members present shall elect one from among their number to act as chairperson. (3) The Commission may, sub ject to such directions as it may issue from time to tirne­ (a) delegate any power granted to it by or under section 164 to such a committee; and (b) authorise such a committee to perform any function assigned to the Commission by section 164. (4) The Commission shall not be divested of a power so delegated and the performance of a fun cton so authorised, and may amend or withdraw any decision of a committee. 170. Co-option of persons to committees (1) A committee may co-opt any person to serve on it or to attend a particular meeting thereof in connection with a particular matter dealt with by the committee. (2) Such a person may take part in the proceedings of the Committee in connection with such matter or at the meeting in respe ct of wbich he or she has been co-opted, but shall not be entitled to vote. 171. Remuneration of members of Commission and other persons Members of the Commission and persons referred to in section 170 who are not in the employment of the state, shall be paid, from moneys appropriated by Parliament for the purpose, such remuneration and allowances as the Minister responsible for national financial affairs may determine. 172. Appointment of staJf The Commission may appoint such staff as it may deern necessary for the efficient performance of its functions and administration, and may, in consultation with the Public Service Commission, determine the remuneration and conditions of service of staff members who are not public servants seconded to the service of the Commission. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb 173. Regulations The President may make regulations- (a) prescribing procedures in connection with any function of the Commission or a committee thereof; (b) prohibiting conduct aimed at influencing or attempting to influence the Commission or any committee or member thereof and prescribing penalties for any contravention of such a prohibition; and (c) prescribing any other matter in connection with the achievement of the object of the Commission. CHAPTER 10 Local Government 174. Establishment and status of local government (1) Local government shall be established for the residents of areas demarcated by law of a competent authority. (2) A law referred to in subsection (1) may make provision for categories of metropolitan, urban and rural local governments with dif ferentiated powers, functions and structures according to considerations of demography, economy, physical and environmental conditions and other factors which justify or necessitate such categories. (3) A local government shall be autonomous and, within the limits prescribed by or under law, shall be entitled to regulate its affai rs. (4) Parliament or a provincial legisla ture shall not encroach on the powers, functions and structure of a local government to such an extent as to compromise the fundamental status, purpose and character of local govemment. (5) Proposed legislation which materially aff ects the status, powers or functions of local governm nts or the boundaries of their jurisdictional areas, shall not be introduced in Parliament or a provincial legislature unless it has been published for comment in the Gazette or the Provincial Gazette, as the case may be, and local govemments and interested persons, including organised local government, have been given a reasonable opportunity to make written representations in regard thereto. 175. Powers and junctions of local government (1) The powers, functions and structures of local government shall be deterrnined by law of a competent authority. (2) A local government shall be assigned such powers and functions as may be necessary to provide services for the maintenance and promotion of the well-being of a11 persons within its area of jurisdiction. (3) A local government shall, to the extent deterrnined in any applicable law, make provision for access by all persons residing within its area of jurisdiction to water, sanitation, transporta tion fac ilities, electricity, primary health services, education, housing and security within a safe and healthy environment, provided that such services and amenities can be rendered in a sustainable manner and are financially and physically practicable. (4) A local government shall have the power to make by-Iaws not inconsistent with this Constitution or an Act of Parliament or an applicable provincial law. (5) A local government shall have such executive powers as to a1low it to function eff ectively. (6) A local government may, in its discretion, by means of a resolution of its council provide for the assignment of specified functions to local bodies or submunicipal entities within its area of jurisdiction as prescribed and regulated by or under law where, in the opinion of the council, such assignment of functions will facilitate or enhance the provision or administration of services, the adherence to municipal bylaws or, more genera Ily, good governance in the public interest: Provided that such assignment of functions- (a) shaII not be inconsistent with an Act of Parliament or an applicable provincial law; and (b) shall not diminish the accountability of such local government. 176. Council resolutions Matters before the council of a local government pertaining to- (a) the budget of the local government, shall be decided by a resolution of the council adopted by a majority of at least two-thirds of all its members; and (b) town planning, shall be decided by ar esolution of the council adopted by at least a ma jority of a11 its members: Provided that a council may delegate the power to make decisions on matters pertaining to town https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb planning to the executive cOlumittee or to a committee appointed for this purpose: Provided further that section 177 shall apply mutatis mutandis to the appointment and functioning of a cOlumittee appointed for this purpose. 177. Executive committees A council of a local government shall elect, according to a system of proportional representation as may be prescribed by a law, from among its members, an executive committee to exercise such powers and perfonn such functions as may be detennined by such council: Provided that- (a) the council shall deterrnine the number of members of and the quorum for the executive committee; (b) the executive committee shall endeavour to exercise its powers and perfonn its functions on the basis of consensus among its members; and (c) if consensus on any matte r cannot be achieved, such matter may be decided by the committee by resolution of a ma jority of at least two-thirds of all its members, or the committee may, if a ma jority of the committee so decides, submit ar eport and reeommendation (if any) on the matter to the council for a decision. 178. Administration andfinance (I) A local government shall ensure that its administration is based on sound principles of publie administration, good govemment and public aecountability so as to ren der efficient services to the persons within its area of jurisdietion and effeetive administra tion of its affai rs. (2) A local govemment shall, subjeet to such eonditions as may be prescribed by law of a eompetent legislature after taking into eonsideration any recommendations of the Financial and Fiscal Commission, be competent to levy and recover such property rates, levies, fee s, taxes and tariffs as may be necessary to exercise its powers and perfonn its functions: Provided that within each local govemment such rates, levies, fees, taxes and tariffs shall be based on a unifonn structure for its area of jurisdiction. (3) A local govemment shall be entitled to an equitable allocation by the provincial govemment of funds, and the Financial and Fiscal Commission shall make recommendations regarding criteria for such allocations, taking into account the different categories of local government referred to in section 174(2). 179. Elections (I) A local govemment shall be elected democratically, and such election shall take place in terms of an applicable law and at intervals of not less than three and not more than five years: Provided that the first local govemment elections after the commencement of this Constitution shall take place on the same day. (2) The electoral system for a local govemment shall include both proportional and ward representation and shall be regulated by a law referred to in subsection (I). (3) Subject to section 6, every natural person shall be entitled to vote in an election of a loeal govemment ifhe or she- (a) is ordinarily resident within the area of jurisdiction of that local govemment or is under law liable far the payment of property rates, rent, service charges or levies to that local govemment; and (b) is registered as a voter on the voters' role of that loeal govemment. (4) A voter shall not have more than one vote per local govemment. (5) No person shall be qualified to become or remain a member of a local govemment if he or she­ (a) is not eligible to vote in tenns of subsection (3); (b) is a member of the National Assembly or the Senate; (c) is not qualified to become a member ofthe National Assembly; (d) is an employee of a local govemment (uniess, with due regard to the public interest, exemption of this disqualifiea tion is given by the Executive Couneil of the province in which the local govemment is situated and proof of such exemption accompanies the nomination of such person); or (e) is disqualified in terms of any other law. 180. Code oi conduct An enforceable code of conduct for members and officials of local govemments shall be provided for by law. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb CHAPTER 11 Traditional Authorities 181. Recognition of traditional authorities and indigenous law (1) A traditional authority which observes a system of indigenous law and is recognised by law immediately before the commencement of this Constitution, shall continue as such an authority and continue to exercise and perform the powers and functions vested in it in accordance with the applicable laws and customs, subject to any amendment or repeal of such laws and customs by a competent authority. (2) Indigenous law shall be subject to regulation by law. 182. Traditional authorities and loeal government The traditional leader of a community observing a system of indigenous law and residing on land within the area of jurisdiction of an elected local governrnent referred to in Chapter 10, shall ex officio be entitled to be a member of that local govemment, and shall be eligible to be elected to any office of such local govemment. 183. Provineial House of Traditional Leaders (1) (a) The legislature of each province in which there are traditional authorities and their communities, shall establish a House of Traditional Leaders consistin g of representatives elected or nominated by such authorities in the province. (b) Draft legislation providing, subject to this Chapter, for the establishment, the composition, the election or nomination of representati ves, and the powers and functions of a House contemplated in paragraph (a), and for procedures applicable to the exercise and performance of such powers and functions, and for any other matters incidental to the establishment and functioning of such a House, shall be introduced in a provincial legislature not later than six months after the election of the first Premier of such province in terms of this Constitution. (c) The traditional authorities resident in a province shall before the introduction of draft legislation referred to in paragraph (b), be consulted, in a manner deterrnined by resolution of the provincial legislature, to establish their views on the content of such legislation. (2) (a) A House referred to in subsection (1) (a), shall be entitled to advise and make proposals to the provincial legislature or govemment in respect of matters relating to traditional authorities, indigenous law or the traditions and customs of traditional communities within the province. (b) Any provincial Bill pertaining to traditional authorities, indigenous law or such traditions and customs, or any other matters having a bearing thereon, shall be referred by the Speaker of the provincial legislature to the House for its comments before the Bill is passed by such legislature. (c) The House shall, within 30 days as from the date of such referral, indicate by written notification to the provincial legislature its support for or opposition to the Bill, together with any comments it wishes to make. (d) If the House indicates in terms of paragraph (c) that it is opposed to the Bill, the provincial legislature shall not pass the Bill before a period of 30 days as from the date of receipt by the Speaker of such written notification has lapsed. (e) If the House fai ls to indicate within the period prescribed by paragraph (c) whether it supports or opposes the Bill, the provincial legislature may proceed with the Bill. 184. Council of Traditi onal Leaders (I) There is hereby established a Council of Traditional Leaders consisting of a chairperson and 19 representatives elected by traditional authorities in the Republic. (2) The Chairperson and members of the Council shall be elected by an electoral college constituted by the members of the Houses of Traditional Leaders referred to in section 183. (3) (a) Draft legislation providing, subject to this Chapter, for the composition, the election of representatives and the powers and functions of the Council established by subsection (1), and for procedures applicable to the exercise and performance of such powers and functions, and for any other matters incidental to the establishment and functioning of the Council, shall be introduced in Parliament not later than six months as from the comrnencement of this Constitution. 59 4 https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (b) Section 18 3 (1) (c) shall apply mutatis mutandis in respect of draft legislation referred to in paragraph (a) of this subsection, and in such application a reference therein to a provincial legislature shall be construed as a reference to Parliament. (4) The Council shall, in addition to any other powers and functions assigned to it by any other law, be competent- (a) to advise and make recommendations to the national government with regard to any matter pertaining to traditional authorities, indigenous law or the traditions and customs of traditional communities anywhere in the Republic, or any other matters having a hearing thereon; and (b) at the request of the President, to advise hirn or her on any matter of national interest. (5) (a) Any parliamentary Bill pertaining to traditional authorities, indigenous law or the traditions and customs of traditional communities or any other matters having a hearing thereon, shall, after having been passed by the House in which it was introduced but before it is passed by the other House, be referred by the Secretary to Parliament to the Council for its comments. (b) The Council shall, within 30 days as from the date of such referral, indicate by written notification to the Secretary to Parliament its support for or opposition to the Bill, together with any comments it wishes to make. (c) If the Council indicates in terms of paragraph (b) its opposition to the Bill, the other House shall not pass the Bill before a period of 30 days as from the date of receipt by the said Secretary of such written notification has lapsed. (d) If the Council fails to indicate within the period prescribed by paragraph (b) whether it supports or opposes the Bill, Parliament may proceed with the Bill. CHAPTER HA Volkstaat Council 18 4A. Provisions for establishment of a Volkstaat Council (1) The establisment of a Volkstaat Council is hereby authorised. (2) The Council shall consist of 20 members elected by memhers of Parliament who support the establismet of a Volkstaat fOT those who want it. (3) The Council shall conduct its airs aff according to mies made by the Council. 1848. Functions of Council (1) The Council shall serve as a constitutional mechanism to enable proponents of the idea of a Volkstaat to constitutionally pursue the establishment of such a Volkstaat. and shall for this purpose be competent­ and make available information with to (a) to gather, process regard possible boundaries. powers and funtions and legidlative, executive and other structures of such a Volkstaat, its suggested constitutional relationship with governrnent at national level, and any other matter directly relevant to the establisment of such a Volkstaat; (b) to make feasibiity and other relevant studies with regard to the matters referred to in paragraph (a); (c) "to submit representations and recommendations to the Constitutional Assembly and the Commission on Provincial Government with regard to the possible establishment of a Volkstaat and any matter in connection therewith; and (d) to perform such other functins as may be prescribed by an Act of Parliament. (2) The procedures to be followed by the Council in the perf ormance of its functions under subsection (1 ), shall be prescrihed by an Act of Parliament. (3) The procedures provided for in Ibis Constitution with regard to the finalisation of provincial boundaries, shall not be construed as precluding the establishment of such a Volkstaat, and in the event of the acceptance of the concept of a Volkstaat, alternative provision shall be made by Act of Parliament for the finalisation of the boundaries of any aff ected province or provinces. CHAPTER 12 Finance GENERAL FINANCIAL AFFAIRS 185. National Reven ue Fund (1) There is hereby established a National Revenue Fund, into which shall be paid all revenues, as may be defined by an Act of Parliament, raised or received by the national governrnent, and from which https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb appropriations shall be made by Parliament in accordance with this Constitution or any applicable Act of Parliament, and subject to the charges imposed thereby. (2) No money shall be withdrawn from the National Revenue Fund, except under appropriation made by an Act of Parliament in accordance with this Constitution: Provided that revenue to which a province is entitled in terms of section 155 (2) (a) and (b) shall form a direct charge against the National Revenue Fund to be credited to the respective Provincial Revenue Funds. 186. Annual budget The Minister responsible for national financial affairs shall in respect of every financial year cause to be laid before the National Assembly an annual budget reflecting the estimates of revenue and expenditure, which shall, inter a1ia, reflect capital and current expenditure of the government for that year. 187. Procurement administration (I) The procurement of goods and services for any level of government shall be regulated by an Act of Parliament and provincial laws, which shall make provision for the appointment of independent and impartial tender boards to deal with such procurements. (2) The tendering system referred to in subsection (I) shall be fair, public and competitive, and tender boards shall on request give reasons for their decisions to interested parties. (3) No organ of state and no member of any organ of state or any other person shall improperly interfere with the decisions and operations of the tender boards. (4) All decisions of any tender board shall be recorded. 188. Guarantees by national government The national government may not guarantee any provincial or local government loan, unless- (a) the guarantee complies with the norms and conditions for such a guarantee as set out in an Act of Parliament; and (b) the Financial and Fiscal Comrnission has made a recornmendation concerning compliance of the guarantee concerned with such norms and conditions. 189. Special pensions (I) Provision shall be made by an Act of Parliament for the payment of special pensions by the national government to-- (a) persons who have made sacrifices or who have served the public interest in the establishment of a democratic constitutional order, including members of any armed or military force not established by or under any law and which is under the authority and control of, or associated with and prornotes the objectives of, a political organisation; or (b) dependants of such persons. (2) The Act of Parliament referred to in subsection (I) shall prescribe the qualifications of a beneficia ry of a special pension referred to in subsection (I), the conditions for the granting thereof and the manner of the determination of the amount of such pension, taking into account a11 relevant factors, including, inter a1ia, any other remuneration or pension received by such beneficiary. 190. Income tax of elected representatives Without derogating from the Receiver of Revenue's powers and functions, the Receiver of Revenue shall annually assess the income tax returns of a11 elected representatives at a11 levels of government. AUDITOR-GENERAL 191. Establishment and appointment (I) There shall be an Auditor -General for the Republic. (2) The President shall whenever it becomes necessary appoint as Auditor-General a person- (a) nominated by a joint comrnittee of the Houses of Parliament, composed of one member of each party represented in Parliament and willing to participate in the comrnittee; and (b) approved by the National Assembly and the Senate by resolution adopted, without debate, by a majority of at least two-thirds of the members present and voting at a joint meeting: https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb Provided that if any nomination is not approved as required in paragraph (b), the joint committee shail nominate another person. (3) The Auditor-General shail be a South African citizen who is a fit and proper person to hold such office and who shail be appointed with due regard to bis or her specialised knowledge of or experience in auditing, state finances and public administration. (4) Unless the new constitutional text provides otherwise, the Auditor-General shall be appointed for a period of not Iess than five years and not more than ten years and shail not thereafter be eligible for re­ appointment. (5) If the Auditor-General is absent or unable to exercise and perform bis or her powers and functions, or if the office of Auditor-General is vacant, the highest ranking member of the Auditor -General's staff shall act as Auditor-General until the vacancy is filled, and shall for that purpose have all the powers and functions of the Auditor-General. (6) The remuneration and other conditions of service of the Auditor-General shall be as prescribed by or under an Act of Parliament, and such remuneration and the other conditions of service shall not be altered to his or her detriment during bis or her term of office. (7) The Auditor-General shall not perform remunerative work outside his or her official duties. (8) The Auditor-General shall not hold office in any political party or political organisation. (9) The Auditor-General may be removed from office by the President, but only on the grounds of misconduct, incapacity or incompetence determined by a joint committee of the Houses of Parliament composed as provided for in subsection (2) (a ), and upon receipt of ar equest for such removal made by Parliament in pursuance of a resolution to that effect adopted at a joint sitting of the National Assembly and the Senate. (10) An Auditor-General who is the subject of an investigation by ajoint committee in terms of subsection (9), may be suspended by the President pending adecision in such investigation. (11) The Auditor-General may at any time resign, subject to his or her conditions of service, by lodging bis or her resignation in writing with the President. 192. 1nde pendence and impartiality (1) The Auditor-General shall be independent and impartial and shall exercise and perform his or her powers and functions subject only to this Constitution and the law. (2) The Auditor-General and the persons appointed under section 194 (1) shall have such immunities and privileges as may be assigned to them by or under an Act of Parliament for the purpose of ensuring the independent and impartial exercise and perform ance of their powers and functions. (3) No organ of state and no member or employee of an organ of state nor any other person shall interf ere with the Auditor-General or a person appointed under section 194 (I) in the exercise or perf ormance of bis or her powers or functions. (4) All organs of state shall accord such assistance as may be reasonably required for the protection of the independence, impartiality, dignity and eff ectiveness of the Auditor-General in the exercise and perform ance of his or her powers and functions. 193. Powersandfonctions (1) The Auditor-General shail audit and report on all the accounts and financial statements of all the accounting officers at national and provinciallevel of government, other than that of the office of Auditor­ General, and of all other persons in the national and provincial public services entrusted with public assets, trust property and other assets. (2) The Auditor-General shail audit and report on all the accounts and financial statements of any local government, board, fund, institution, company, corporation or other organisation established or constituted by or under any law and of which the accounts and financial statements are required in terms of a law to be audited by the Auditor-General, and the accounts and financial statements of all persons in the employment of such a body who have been entrusted by it with its assets, or any other assets. (3) The Auditor-General shail also, at the request of the President or Parliament, conduct performance audits. (4) The Auditor-General may, whenever he or she considers it to be in the public interest, or upon receipt of a complaint, investigate, audit and report on the accounts and financial statements of any statutory body or any other institution in control of public funds. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (5) No further duties or functions may be imposed upon or assigned to the Auditor-General other than by means of an Act of Parliament. (6) Whenever the Auditor-General or a person appointed in terms of section 194 (I) exercises or performs his or her powers and functions in terms of this Constitution, he or she shall have access to a11 books, records and other documents and information relating to the accounts and financial statements referred to in this section. (7) The Auditor-General shall report on the accounts exarnined by hirn or her and submit such reports to the authorities designated by an Act of Parliament to receive them, and, unless otherwise provided by an Act of Parliament, such reports or ar eport by the Auditor-General on any other matter shall be submitted to Parliament within seven days after receipt thereof by such authority. (8) The Auditor-General shall make public any report referred to in subsection (7) after the expiry of a period of 14 days from the date on which such report was submitted to the authorities concemed. 194. Staff and ex penditure (I) The Auditor-General may appoint, in accordance with a law, such persons as may be necessary for the discha rge of the work of the office of the Auditor-General. (2) The Auditor-General may, subject to such conditions as may be prescribed by or under a law, delegate any of his or her powers to a person referred to in subsection (I) , or authorise such a person to perform any function of the Auditor-General. (3) Expenditure incurred during the exercise and performance of the powers and functions of the Auditor­ General in terms of this Constitution or under any other law shall be defrayed from money appropriated by Parliament for such purpose and from fees raised or money obtained in a manner authorised by an Act of Parliament. SOVTH AFRICAN RESERVE BANK 195. Central Bank The South African Reserve Ba nk, established and regulated by an Act of Parliament, shall be the central bank of the Republic. 196. Primary objectives (I) The primary objectives of the South African Reserve Bank shall be to protect the internal and external value of the currency in the interest of balanced and sustainable economic growth in the Republic. (2) The South African Reserve Bank shall, in the pursuit of its primary objectives referred to in subsection (I), exercise its powers and perform its functions independently, subject only to an Act of Parliament referred to in section 197: Provided that there shall be regular consultation between the South African Reserve Bank and the Minister responsible for national financial matters. 197. Powers andfunctions The powers and functions of the South African Reserve Bank shall be those customarily exercised and performed by central banks, which powers and functions shall be deterrnined by an Act of Parliament and shall be exercised or perforrned subject to such conditions as may be prescribed by or under such Act. FINANCIAL AND FISCAL COMMISSIO N 198. Establishment There is hereby established a Financial and Fiscal Commission. 199. Objects andfunctions (I) The objects and functions of the Commission shall be to apprise itself of a11 financial and fiscal information relevant to national, provincial and local government, administration and development and, on the basis of such information, to render advice and make recommendations to the relevant legislative authorities in terms of this Constitution regarding the financial and fiscal requirements of the national, provincial and local govemments, inc1uding- (a) financial and fiscal policies; (b) equitable financial and fiscal allocations to the national, provincial and local governments from revenue collected at national level; (c) taxes, levies, imposts and surcharges that a provincial govemment intends to levy; https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (d) the raising of loans by a provincial or local govemment and the financial norms applicable thereto; (e) criteria for the allocation of financial and fiscal resources; and (f) any other matter assigned to the Commission by this Constitution or any other law. (2) In performing its functions the Commission shall take into consideration, inter alia, the provisions of section 155 (4) (b) and any other provision of this Constitution. 200. Constitution, ex pertise and impartiality (I) The Commission shall consist of- (a) a chairperson and deputy chairperson, appointed by the President in consultation with the Cabinet; (b) a person designated by each of the various Executive Councils of the provinces, who shall be appointed by the President; and (c) seven members appointed by the President on the advice of the Cabinet, at least one of whom shall have expertise in local govemment finance. (2) The first appointment of members of the Commission shall be effected within 60 days from the date of commencement of this Constitution. (3) No person shall be qualified to be appointed to the Commission unless he or she­ (a) is a South African citizen; and (b) is a person who, by reason of his or her training and experience, has expertise in economies, public finance, public administration, taxation, management or accountancy. (4) (a) Unless the new constitutional text provides otherwise, a member of the Commission may be removed from office only by the President and only on account of misconduct, incapacity or incompetence. (b) The President shall within 14 days after the removal from office of a member of the Commission, notify Parliament and the provincial legisla tures by message of such removal and of the reasons therefor. (5) Vacancies in the Commission shall be filled in accordance with the relevant provisions of this seetion under which the former member concemed was appointed. (6) The chairperson and the deputy chairperson shall be appointed for a period of five years, and the other members of the Commission for ape riod of two years, but shall be eligible for re-appointment. (7) A member of the Commission shall perform his or her duties fairly, impartially and independently. (8) The chairperson and deputy chairperson shall not perform or commit himself or herself to perform remunerative work outside his or her official duties. (9) A member of the Commission shall not hold office in any political party or political organisation. (10) It shall be an offence to influence or attempt to influence a member of the Commission to act otherwise than in accordance with the provisions of subsection (7). (1 1) The chairperson and deputy chairperson- (a) shall be the only full-time members of the Commission; (b) shall be the chief executive officer and deputy chief executive officer, respectively, of the Commission. 201 . Meetings of Commission (1) (a) The first meeting of the Commission shall be held within 30 days of its appointment at a time and place to be determined by the chairperson, and subsequent meetings shall be held at a time and place determined by the Commission or, if authorised thereto by the Commission, by the chairperson. (b) If both the chairperson and deputy chairperson are absent from a meeting, the members present shall elect one from among their number to act as chairperson. (2) A quorum for a meeting of the Commission shall be not less than one half of all its members . (3) A decision of two-thirds of the members present shall constitute adecision of the Commission. (4) All the decisions of the Commission shall be recorded. 202. Committees (1) The Commission may establish committees from among its number. (2) Any such committee shall consist of such number of members as the Commission may determine. (3) The Commission shall designate one of the members of a committee as chairperson thereof, and if any such chairperson is absent from a meeting of the committee the members present shall elect one from among their number to act as chairperson. (4) (a) The Commission may, subject to such directions as it may issue from time to time­ (i) delegate any power conferred upon it by or under section 199 to such a committee; and https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (ii) grant authority that a function assigned to it by or under section 199 may be performed by such a committee. (b) The Commission shall not be divested of a power so delegated or the perf ormance of a function so authorised, and may amend or set aside any decision of a committee. 203. Co-option ojpersons by committees (I) A committee may co-opt any person to serve on such committee or to attend a particular meeting thereof in connection with a particular maner dealt with by the committee. (2) Such a person may take part in the proceedings of the committee in connection with the matter or at the meeting in respect of which he or she has been co-opted, but shall not be entitled to vote. 204. Remuneration and allowances of members and other persons Members of the Commission and persons referred to in section 203 who are not in the employment of the state, shall be paid, from money appropriated by Parliament for that purpose, such remunera tion and allowances as the Minister responsible for national financial affaits may determine. 205. Appointment of sta Jf (I) The Commission may appoint staff and accept secondment of staff as it may deern necessary in consultation with the Public Service Commission. (2) Expenditure incidental to the performance of the functions of the Commission in terms of this Constitution or under any other law shall be defrayed from money appropriated by Parliament. 206. Regulations The President may make regulations regarding- (a) procedures in connection with the performance of any function of the Commission; and (b) any other matter in connection with the achievement of the objects of the Commission. COMMISSION ON REMUNERATION OF REPRESENT A TIVES 207. Establishment (I) There shall be established by an Act of Parliament a Commission on Remuneration of Representatives. (2) The Commission shall make recommendations to Parliament, the provincial legislatures and local govemments regarding the nature, extent and conditions of the remuneration and allowances of the members of all elected legislative bodies of the national govemment and of provincial and local govemments, including members of the Provincial Houses of Traditional Leaders and the Council of Traditional Leaders. 208. Composition and functioning (I) The composition, structure, powers, functions and procedures of the Commission and related matters shall be provided for in the Act referred to in section 207 . (2) Reports by the Commission shall be tabled in Parliament: Provided that the Commission shall report to Parliament on its activities at least once every year. CHAPTER 13 Public Service Commission and Public Service PUBLIC SERVICE COMMISSION 209. Establishment (I) There shall be a Public Service Commission for the Republic, which shall have the powers and functions entrusted to it by this Constitution or by a law of a competent authority. (2) The Commission shall in respect of the exercise and performance of its powers and functions be accountable to Parliament. 210. Powers andfunctions (I) The Commission shall be competent- (a) to make recommendations, give directions and conduct enquiries with regard to- https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (i) the organisation and administration of departments and the public service; . (ii) the conditions of service of members of the public service and matters related thereto; (iii) personnel practices in the public service, appointments, promotions, transfers, discha rge and other career incidents of members of the public service and matters in connection with the employrnent of personneI; (iv) the promotion of efficiency and effectiveness in departments and the public service; and (v) a code of conduct applicable to members of the public service; (b) when so requested, to advise the President, a Minister or a member of the Executive Council of a province in regard to any matter relating to the public service or the employment, remuneration or other conditions of service of functionaries employed by any institution or body which receives funds wholly or partly appropriated by Parliament or a provinciallegislature; (c) to exercise such other powers and perform such other functions as may be entrusted to it by a law of a competent author ity; and (d) subject to any limitation imposed by law, to delegate any of its powers to a member of the Commission or an official in the public service or authorise any such member or official to perform any of its functions. (2) Until amended by law, the powers and functions of the Commission set out in subsection (1) shall be exercised and performed in accordance with the laws in force at the commencement oftbis Constitution. (3) A recommendation or direction of the Commission shall be implemented by the appropriate person or institution within six months unless- (a) such recommendation or direction involves expenditure from public funds and the approval of the treasury for such expenditure is not obta ined; or (b) the President rejects it and refers it back to the Commission before its implementation. (4) The Commission may appoint, in a manner prescribed by law, such persons as may be necessary for the discha rge of its work. (5) Expenditure incurred in connection with the exercise and the perf ormance of the powers and functions of the Commission in terms of this Constitution or any other law shall be defrayed from money appropriated by Parliament and from fees raised or money obtained in a manner authorised by an Act of Parliament. (6) On the recommendation of the Commission the President may assign by proclamation in the Gazette any power or function of the Commission to a provincial service commission. (7) The Commission shall annually submit ar eport on its activities to Parliament. 211. Composition (I) (a) The Commission shall consist of not fewer than three members and not more than five members appointed by the President, one of whom shall be designated as the Chairperson of the Commission by the President. (b) The Commission shall exercise its powers and perform its functions fair ly, impartially and independently. (c) The remuneration and other conditions of service of a member of the Commission shall be determined in accordance with an Act of Par liament, and such remuneration and the other conditions of service shall not be altered to his or her detriment during bis or her term of office. (d) A mem�r of the Commission shall not hold office in any political party or political organisation and shall be non-partisan in the perform ance of his or her functions. (e) A member of the Commission may be removed from office by the President on account of misconduct, or unfitness for his or her duties, or incapacity to carry them out efficiently, or if, for reasons other than unfitness or incapacity, his or her removal from office will promote efficiency, and particulars of the removal, including the reasons therefor, shall be submitted by the President to Parliament within 14 days after such removal. (2) A person shall be qualified to be appointed to the Commission if he or she­ (a) is a South African citizen; and (b) is a person who has sufficient knowledge of or experience in the administration, management or rendering of public services. (3) The composition, appointment, tenure, vacation of office, conditions of service and functioning of the Commission shall be as determined by Act of Parliament, and such Act shall ensure the independence and 60 1 https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb impartiality of the Commission and the efficient and eff ective exercise and performance of its powers and functions. THE PUBLIC SERVICE 212. Public Service (I) There shall be a public service for the Republic, structured in terms of a law to provide effective public administration. (2) Such public service shall- (a) be non-partisan, career-orientated and function according to fair and equitable principles; (b) promote an efficient public administration broadly representative ofthe South African community; (c) serve all members ofthe public in an unbiased and impartial manner; (d) be regulated by laws dealing specifically with such service, and in particular with its structure, functioning and terms and conditions of service; (e) loyally execute the policies of the govemment of the day in the performance of its administrative functions; and (f) be organised in departments and other organisational components, and the head of such department or organisational component shall be responsible for the efficient management and administration of bis or her department or organisational component. (3) Employment in the public service shall be accessible to all South African citizens who comply with the requirements determined or prescribed by or under any law for employment in such service. (4) In the making of any appointment or the filling of any post in the public service, the qualifications, level of training, merit, ef ficiency and suitability of the persons who qualify for the appointment, promotion or transfer concemed, and such conditions as may be determined or prescribed by or under any law, shall be taken into account. (5) Subsection (4) shall not preclude measures to promote the objectives set out in subsection (2). (6) Provision shall be made by law for a pension for a member of the public service by means of a pension fund or funds established by law, and members of the public service who are required by law to be members of a pension fund shall be entitled to fair representation on the body which manages the applicable fund. (7) (a) In the event of changes to the law goveming pension funds which prejudice a member of a fund, the real value of the accrued benefits of such member of a fund, and his or her beneficiary, as represented by the fund's actuarialliability towards the member or his or her beneficiary, shall be maintained. (b) The retirement age applicable to a public servant by law as at 1 October 19 93, shall not be changed without his or her consent. (8) For the purposes of this seetion the public service shall include the permanent force of the National Defence Force referred to in section 226 (I ). PROVINCIAL SERVICE COMMISSIONS 213. (1) A provincial legislature may provide by law for a provincial service commission and, subject to norms and standards applying nationally, such commission shall, in respect of public servants employed by the province, be competent- (a) to make recommendations, give directions and conduct inquiries with regard to-­ (i) the establishment and organisation of departments of the province; (ii) appointments, promotions, transfers, discharge and other career incidents of such public servants; and (iii) the promotion of efficiency and effectiveness in departments of the province; (b) when so requested, to advise the Premier or a member of the Executive Council of a province in regard to any matter relating to the public service or the employment, remuneration or other conditions of service of functionaries employed by any institution or body wbich receives funds wholly or partly appropriated by a provinciallegislature; (c) subject to any limitation imposed by a law, to delegate any of its powers to a member of such commission or official in the public service or authorise any such member or official to perform any of its function s; and (d) to exercise and perform such other powers and functions of the Public Service Commission assigned to it by the President with the approval of the Premier of the province. (2) The provisions of sections 210 (2), (3), (4), (5) and (7) and 21 1 pertaining to the Public Service Commission, shall mutatis mutandis apply to a provincial service commission, except that any reference to https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb an Act of Parliament, Parliament or the President shall be deemed to be a reference to a provincial law, a provinciallegisla ture or the Premier of a province, respectively. CHAPTER 14 Police and Defence SOUTH AFRICAN POLICE SERVICE 214. Establishment (I) There shall be established and regulated by an Act of Parliament a South African Police Service, which shall be structured at both national and provincial levels and shall function under the direction of the national government as weil as the various provincial governments. (2) The Act of Parliament referred to in subsection (I) shall- (a) subject to sections 216 , 217 and 218 , provide for the appointrnent of a Commissioner of the South African Police Service (hereinafter in this Chapter called the 'National Commissioner') and a Commissioner for each province (hereinafter in this Chapter called a 'Provincial Commissioner'); (b) provide for the establishment and maintenance of uniform standards of policing at all levels regarding- (i) the exercise of police powers; (ii) the recruitrnent, appointment, promotion and transfer of members of the Service; (iii) suspension, dismissal, disciplina ry and grievance procedures; (iv) the training, conduct and conditions of service of members of the Service; (v) the general management, controI, maintenance and provisioning ofthe Service; (vi) returns, registers, records, documents, forms and correspondence; and (vii) generally, all matters which are necessary or expedient for the achievement of the purposes of this Constitution. 215. Powers andfunctions The powers and functions of the Service shall be­ (a) the prevention of crime; (b) the investigation of any off ence or alleged off ence; (c) the maintenance of law and order; and (d) the preservation ofthe internal security of the Republic. 216. Minister and National Commissioner (I) The President shall, subject to this Constitution, charge a Minister with responsibility for the Service. (2) (a) The President shall, subject to section 236 (I) and (2), appoint the National Commissioner. (b) The National Commissioner shall exercise executive command of the Service, subject to section 219 (I) and the directions ofthe Minister referred to in subsection (I ). (3) The President may, if the National Commissioner has lost the confidence of the Cabinet, institute appropriate proceedings against the Commissioner in accordance with a law. 217. Powers of provinces (I) The Premier of a province shall charge a member of the Executive Council of the province with responsibility for the performance by the Service in or in regard to that province of the functions set out in section 219 (I) . (2) The member ofthe Executive Council referred to in subsection (1)- (a) shall approve or veto the appointrnent of the relevant Provincial Commissioner in terms of section 218 (I) (b); and (b) may, if the Provincial Commissioner has lost the confidence of the Executive Council, institute appropriate proceedings against the said Commissioner in accordance with a law. (3) A provinciallegis1a ture may pass laws not inconsistent with national legislation regarding the functions of the Service set out in section 219 (I) . (4) No provinciallaw may- (a) perrnit lower standards of perf ormance of the functions of the Service than those provided for by an Act of Parliament; or (b) detract from the rights which citizens have under an Act of Parliament. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb 218. Responsibilities of National Commissioner (1) Subject to section 214 and tbe directions of the Minister referred to in section 216 (1), tbe National Commissioner shall be responsible for- (a) tbe maintenance of an impartial, accountable, transparent and efficient police service; (b) the appointment ofprovincial commissioners, subject to section 217 (2) (a); (c) tbe preservation oftbe internal security in the Republic; (d) the investigation and prevention of organised crime or crime which requires national investigation and prevention or specialised skills: Provided that the Act referred to in section 214 (1) shall set out the circurnstances which shall be regarded as organised crime and tbe circumstances which require national investigation and prevention or specialised skills; (e) international police liaison; (f) tbe keeping and provision of crime intelligence data, criminal records and statistics; (g) tbe training of members of tbe Service, including any municipal or metropolitan police services to be established; (h) the recruitment, appointrnent, promotion and transfer of all members of the Service; (i) the provision of forensic laboratory services; (j) such functions relating to border control and tbe import and export of goods as may be assigned to tbe Service by law; (k) the establishment and maintenance of an ational public order policing unit to be deployed in support of and at tbe request of tbe Provincial Commissioner: Provided that tbe Act referred to in section 214 . (1) shall provide that tbe President, in consultation witb tbe Cabinet, may direct tbe National Commissioner to deploy tbe said unit in circumstances where tbe Provincial Commissioner is unable to maintain public order and tbe deployment of the said unit is necessary to restore public order; (I) national protection services; (m) tbe establishment of a special task force for high risk operati ons which require specialised skills; and (n) subject to section 219 , such other functions as- (i) are necessary to achieve the objectives referred to in section 217; and (ii) are appropriate for the National Commissioner to take responsibility for. (2) The National Commissioner may after consultation witb tbe Executive Council of tbe province concerned assign responsibility for any function set out in tbis section to a Provincial Commissioner: Provided that tbe National Commissioner shall ensure that sufficient resources are made available to tbe Provincial Commissioner for such purpose. 219. Provincial Commissioners (1) Subjeet to sections 214 and 218 and tbe directions of tbe relevant member of the Executive Council referred to in section 217 (I) , a Provincial Commissioner shall be responsible for- (a) tbe investigation and prevention of crime; (b) the development of community-policing services; (c) tbe maintenance ofpublic order; (d) the provision in general of all otber visible policing services, including­ (i) the establishment and maintenance of police stations ; (ii) crime reaction units; and (iii) patr olling services; (e) protection services in regard to provincial institutions and personnei; (f) transfers within tbe province of members of tbe Service perform ing functions in terms of tbis section; and (g) the promotion, up to the rank of lieutenant -colonel, of members of tbe Service performin g functions in terms of tbis section. (2) Subject to sections 214 and 218 and tbe directions of the National Commissioner, a Provincial Commissioner shall be responsible for- (a) the maintenance and discipline of tbe Service in the province concerned; (b) the recruitment of members of tbe Service responsible for tbe functions set out in subsection (1), and tbe promotion of any such members to the rank of colonel or above; (e) such otber functions as may be assigned to hirn or her by tbe National Commissioner under section 218 (2) ; and https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (d) subject to such procedures or mechanisms as may be established by the Board of Commissioners referred to in section 220(2), the transfer of members of the Service under his or her command to or from positions outside his or her jurisdiction. 220. Co-ordination and co-operation (1) A committee consisting of the Minister referred to in section 216 (1) and the respective members of the Executive Councils referred to in section 217 (1) shall be established to ensure the effective co-ordination of the Service and effective co-operation between the various Commissioners. (2) The Act referred to in section 214 (1) shall provide for the appointrnent of a Board of Commissioners, consisting of the National Commissioner and the Provincial Commissioners and presided over by the National Commissioner or his or her nominee, in order to promote co-operation and co-ordination in the Service. 221. Local policing (1) The Act referred to in section 214 (I) shall provide for the establishment of community-police forums in respect of police stations. (2) The functions of community-police forums referred to in subsection (I) may include- (a) the promotion of accountability of the Service to local communities and co-operation of communities with the Service; (b) the monitoring of the effectiveness and efficiency of the Service; (c) advising the Service regarding local policing priorities; (d) the evaluation of the provision of visible police services, including­ (i) the provision, siting and staf fmg of police stations; (ii) the reception and processing of complaints and charges; (iii) the provision of protective services al gatherings; (iv) the patrolling ofresidential and business areas ; and (v) the prosecution of offenders; and (e) requesting enquiries into policing matters in the locality concemed. (3) The Act referred to in section 214 (1) shall make provision for the establishment by any local govemment of a municipal or metropolitan police service: Provided that- (a) such a police service may only be established with the consent of the relevant member of the Executive Council of the province referred to in section 217 (1); (b) the powers of such a police service shall be limited to crime prevention and the enforcement of municipal and metropolitan by-Iaws; (c) the said member of the Executive Council of the province shall, subject to paragraph (b) and the provisions of the said Act, deterrnine the powers and functions of such a police service; and (d) the said Act shall provide that its provisions shall, as far as practicable, apply mutatis mutandis 10 any such police service. 222. Inde pendent complaints mechanism There shall be established and regulated by an Act of Parliament an independent mechanism under civilian control, with the object of ensuring that complaints in respect of off ences and misconduct allegedly committed by members of the Service are investigated in an effective and efficient manner. 223. Acts of members outside their territoria lju risdiction (I) No act of a member of the Service shall be invalid solely by reason of the fact that it was committed outside the province in which that member is stationed. (2) The National Commissioner shall by regulation deterrnine the procedures and the relevant powers of the members of the Service to enable them to perform their functions outside their area of provincial jurisdiction. NATIONAL DEFENCE FORCE 224. Establishment of National Defence Force (I) The National Defence Force is hereby established as the only defence force for the Republic. (2) The National Defence Force shall its at establishment consist of all members of- https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (a) the South African Defence Force; (b) any defence force of any area forming part ofthe national territory ; and (c) any armed force as defined in section 1 of the Transitional Executive Council Act, 1993 (Act 151 of 1993), and whose names, at the commencement of this Constitution, are inc1uded in a certified personnel register referred to in section 16 (3) or (9) of the said Ac!: Provided that this subsection shall not apply to members of any such defence or armed force if the political organisation under whose authority and control it stands or with which it is associated and whose objectives it promotes did not take part in the first election ofthe National Assembly and the provincial legislatures under this Constitution. (3) Save for the National Defence Force, no other armed force or military force or armed organisation or service may be established in or for the Republic other than- (a) as provided for in this Constitution; (b) a force established by or under an Act of Parliament for the protection of public property or the environment; or (c) a service established by or under law for the protection of persons or property . 225. Chie f of National Defence Force Subject to section 236 (I) and (2), the President shall appoint a Chief of the National Defence Force, who shall exercise military executive command of the National Defence Force, subject to the directions of the Minister responsible for defence and, during astate of national defence, of the President. 226. Members of National Defence Force (I) The National Defence Force shall comprise both a permanent force and apart -time reserve component. (2) The establishment, organisation, training, conditions of service and other matters conceming the permanent force shall be as provided for by an Act of Parliament. (3) The establishment, organisation, training, state of prepar edness, calling up, obligations and conditions of service of the part -time reserve component shall be as provided for by an Act of Parliament. (4) The National Defence Force shall be established in such a manner that it will provide a balanced, modern and technologically advanced military force, capable of executing its functions in terms of this Constitution. (5) All rnernbers of the National Defence Force shall be properly trained in order to comply with international standards of competency. (6) No member ofthe permanent force shall hold office in any political party or political organisation. (7) A member of the National Defence Force shall be obliged to comply with all lawful orders, but shall be entitled to refuse to execute any order if the execution of such order would constitute an offence or would breach international law on armed conflict binding on the Republic. (8) Provision shall be made by an Act of Parliament for the payment of adequate compensation to-- (a) a member of the National Defence Force who suffers loss due to physical or mental disability sustained in the execution of his or her duties as such a member; and (b) the immediate dependants of a member of the National Defence Force who suffer loss due to the death or physical or mental disability of such a member resulting from the execution of his or her duties as such a member. 227. Functions of National Defence Force (1) The Natiopal Defence Force may, sub ject to this Constitution, be employed- (a) for service in the defence of the Republic, for the protection of its sovereignty and territorial integrity; (b) for service in compliance with the international obligations of the Republic with regard to international bodies and other states; (c) for service in the preservation of life, health or property; (d) for service in the provision or maintenance of essential services; (e) for service in the upholding of law and order in the Republic in co-operation with the South African Police Service under circumstances set out in a law where the said Police Service is unable to maintain law and order on its own; and (f) for service in support of any department of state for the purpose of socio-economic uplifrment. (2) The National Defence Force shall- (a) exercise its powers and perform its functions solely in the national interest by- https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (i) upholding the Constitution; (ii) providing for the defence of the Republic; and (iii) ensuring the protection ofthe inhabitants of the Republic, in accordance with this Constitution and any law; (b) exercise its powers and perform its functions under the directions of the government of the Republic; (c) refrain from furthering or prejudicing party-political interests; (d) not breach international customary law binding on the Republic relating to aggression; (e) in arrn ed conflict comply with its obligations under international customary law and treaties binding on the Republic; and (f) be primarily defensive in the exercise or performance of its powers and functions. (3) The employment for service, training, organisation and deployment of the National Defence Force shall be effected in accordance with the requirements of subsection (2). 228. Accountability (1) The Minister responsible for defence shall be accountable to Parliament for the National Defence Force. (2) Parliarnent shall annually approve a budget for the defence of the Republic. (3)(a) A joint standing committee of Parliament on defence shall be established, consisting of members of a11 political parties holding more than 10 sealS in the National Assembly and willing to participate in the committee. (b) The total membership of the committee shall be as detennined by or under the rules and orders. (c) Such a party shall be entitled to designate a member or members on the committee in accordance with the principle of proportional representation and as detennined in accordance with the following formula: (i) A quota of seats per member of the committee shall be determined by dividing the total number of sealS in the National Assembly held jointly by a11 the parties referred to in paragraph (a) by the total number of members ofthe committee plus one. (ii) The result, disregarding third and subsequent decimals, if any, shall be the quota of seats per member. (iii) The number of members that a participating party shall be entitled to designate on the committee, shall be detennined by dividing the total number of seats held by such party in the National Assembly by the quota referred to in subparagraph (ii). (iv) The result shall, subject to subparagraph (v), indicate the number of members that such party is entitled to designate on the committee. (v) Where the application of the above formula yields a surplus not absorbed by the number of members aIIocated to a party, such surplus shall compete with other similar surpluses accruing to another party or parties, and any rnernber or rnembers which remain unallocated shall be a1located to the party or parties concerned in sequence ofthe highest surplus. (d) The committee shall be competent to investigate and make recommendations regarding the budget, functioning, organisation, aments, arrn policy, moraIe and state of preparedness of the National Defence Force and to perform such other functions relating to parliamentary supervision of the Force as may be prescribed by law. (4)(a) The President shall, when the National Defence Force is employed for service referred to in seetion 227 (I) (a), (b) or (e), forthwith inform Parliament ofthe reasons for such employment. (b) If, in the case of such an employment referred to in section 227 (I) (a) or (b), Parliament is not sitting, the President shall summon the joint standing committee referred to in subsection (3) to meet expeditiously, but not later than 14 days after the commencement of such employment, and shall inform the committee ofthe reasons for such employrnent. (5) Parliament rnay by resolution terminate any employment referred to in seetion 227 (I) (a), (b) or (e), but such tennination of employment shall not affect the validity of anything done in terms of such employment up to the date of such tennina tion, or any right, privilege, obligation or Iiability acquired, accrued or incurred as at the said date under and by virtue of such employment. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb CHAPTER 15 General and Transitional Provisions 229. Continuation of existing laws Subject to tbis Constitution, all laws which immediately before tbe commencement of tbis Constitution were in force in any area which forms part of tbe national territory, shall continue in force in such area, subject to any repeal or amendment of such laws by a competent authority. 230. Repeal of laws (I) The laws mentioned in Schedule 7 are hereby repealed to tbe extent set out in the third column of the said Schedule. (2) Notwithstanding the repeal of sections 13 and 101 (2) of tbe previous Constitution, any pension which, but for such repeal, would have been payable shall continue to be payable as if such repeal had not been effected. 231 . Continuation of international agreements and status of international law (I) All rights and obligations under international agreements which immediately before the commencement of this Constitution were vested in or binding on the Republic within tbe meaning of the previous Constitution, shaH be vested in or binding on tbe Republic under tbis Constitution, unless provided otherwise by an Act of Parliament. (2) Parliament shall, subject to tbis Constitution, be competent to agree to the ratification of or accession to an international agreement negotiated and signed in terms of section 82 (I) (i). (3) Where Parliament agrees to tbe ratification of or accession to an international agreement under subsection (2), such international agreement shall be binding on the Republic and shall form part of tbe law of tbe Republic, provided Parliament expressly so provides and such agreement is not inconsistent with tbis Constitution. (4) The mies of customary international law binding on the Republic, shall, unless inconsistent witb tbis Constitution or an Act of Parliament, form part of the law of the Republic. 232. Inter pretation (I) Unless it is inconsistent witb tbe context or clearly inappropriate, a reference in a law referred to in section 229- (a) to the Republic or to any territory which after tbe commencement of this Constitution forms part of tbe national territory- (i) as a constitutional institution, shall be construed as a reference to tbe Republic referred to in section I; or (ii) as a territorial area, shall be construed as a reference to that part of tbe national territory in which the law in question was in force immediately before such commencement, unless such law is applied by a law of a competent authority to the whole or any part of the national territory; (b) to a Parliament, House of a Parliament or legislative assembly or body of any territory which after the commencement of this Constitution forms part of tbe national territory, shall- (i) if the administration of such a law is a1located in terms of tbis Constitution to the national government, be constmed as a reference to Parliament referred to in section 36; or (ii) if tbe administration of such law is a1located or assigned in terms of tbis Constitution to a govemment of a province, be construed as a reference to the provinciallegisla ture of that province; (c) to aState President, Chief Minister, Administrator or otber chief executive, Cabinet, Ministers' Council or executive council of any territory which after tbe commencement of tbis Constitution forms part of tbe national territory, shall- (i) if tbe administration of such law is a1located in terms of tbis Constitution to tbe national govemment, be construed as a reference to the President acting in accordance witb tbis Constitution; or (ii) if tbe administration of such law is a1located or assigned in terms of this Constitution to a govemment of a province, be construed as a reference to tbe Premier of such province acting in terms of tbis Constitution; (d) to an official la nguage or to both official languages, shall be construed, with due regard to section 3, as a refer ence to any of the official Soutb African languages under this Constitution. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb (2) (a) Any reference in this Constitution to any particular law shall be construed as a reference to that law as it exists from time to time after any amendment or replacement thereof by a competent authority. (b) An amendment, replacement or repeal of a law referred to in paragraph (a), shall for the purposes of seetion 62 not be considered to be an amendment of this Constitution, and any such amendment, replacement or repeal of a law shall for its validity be dependent on its consistency with this Constitution in terms of seetion 4 (I ). (3) No law shaII be constitutionally invalid solely by reason of the fact that the wording used is prima facie capable of an interpretation which is inconsistent with a provision of this Constitution, provided such a law is reasonably capable of a more restricted interpretation which is not inconsistent with any such provision, in which event such law shall be construed as having a meaning in accordance with the said more restricted interpretation. (4) In interpreting this Constitution a provision in any Schedule, incIuding the provision under the heading 'National Unity and Reconciliation', to this Constitution shall not by reason only of the fact that it is contained in a Schedule, have a lesser status than any other provision of this Constitution which is not contained in a Schedule, and such provision shall for a11 purposes be deemed to form part of the substance of this Constitution. (5) (a) Notwithstanding the provisions of the Independent Electoral Comrnission Act, 19 93 (Act 15 0 of 19 93), the President may at any time after the dissolution of the Independent Electoral Comrnission in terms of section 9 of that Act, by procIamation in the Gazette, reconvene the Comrnission for the purposes of a referendum or election referred to in section 124. (b) If any person who before its dissolution was a member of the Commission, cannot or is unwiIIing to serve as a member after it has been reconvened under paragraph (a) , Parliament may, by resolution adopted at a joint sitting of the National Assembly and the Senate by a majority of at least two-thirds of the total number of members of both Houses, appoint any suitably qualified person to replace any such member. 233. Defin itions (I) In this Constitution, unless the context otherwise indicates- 'Chief lustke' means the Chief lustice ofthe Supreme Court of South Africa referred to in seetion 97 (I); 'Commission on Provincial Govemment' means the Commission established by section 163; 'Financial and Fiscal Commission' means the Commission established by section 198; 'House', in relation to Parliament, means the National Assembly or the Senate; 'Independent Electoral Comrnission' means the Comrnission established by section 4 of the Independent Electoral Commission Act, 1993 (Act 150 of 1993); 'National Defence Force' means the Defence Force established by section 224 (I); 'National Revenue Fund' means the Revenue Fund established by seetion 185; 'new constitutional text' means the text of a new Constitution contemplated in Chapter 5; organ of state' incIudes any statutory body or functionary; 'previous Constitution' means the Republic of South Africa Constitution Act, 19 83 (Act 11 0 of 1983); 'Provincial Revenue Fund' means the Revenue Fund of a province established by section 15 9 (I ); 'Public Service Commi ssion' means the Commission established by section 209; 'Republic' means the Republic of South Africa referred to in seetion I; 'Transitional Executive Council' means the Council established by section 2 of the Transitional Executive Council Act, 1993 (Act 151 of 19 93). (2) A reference in this Constitution to rules and orders shall according to the context be construed as a reference to the rules and orders of the National Assembly or the Senate, or the joint rules and orders of the National Assembly and the Senate, or the rules and orders of the Constitutional Assembly, or the rules and orders of a provincial legislature. (3) Where in this Constitution any functionary is required to take a decision in consultation with another functionary, such decision shall require the concurrence of such other functionary: Provided that if such other functionary is a body of persons it shall express its concurrence in accordance with its own decision­ making procedures. (4) Where in this Constitution any functionary is required to take adecision after consultation with another functionary, such decision shall be taken in good faith after consulting and giving serious consideration to the views of such other functionary. https://doi.org/10.5771/0506-7286-1994-4-545, am 07.10.2021, 21:43:20 Open Access - - http://www.nomos-elibrary.de/agb 234. Transitional arrangements: Legislative authorities (I) A person who immediately before the commencement of this Constitution was a member of Parliament or of any other legislature (exc1uding a local government) which exercised legislative powers in respect of any area which forms part of the national territory, shall upon such commencement cease to be such a member, but shall for the purpose of any law relating to the payment of pension benefits to such members not be disqualified solely by reason of this section. (2) A person who irnmediately before the commencement of this Constitution was employed by Parliament, shall after such commencement continue in such employment, subject to and in accordance with the applicable laws regulating such employment. (3) The provisions of section 2 36 (4), (5) and (6) shall apply mutatis mutandis in respect of a person referred to in subsection (2). (4) A person who irnmediately before the commencement of this Constitution was employed by a legislature referred to in subsection (1) other than Parliament, shall be deemed to be employed by the administration in that part of the national territory in which such legislature exercised legislative powers, subject to and in accordance with the applicable laws regulating such employment, and sections 236 and 237 shall apply mutatis mutandis in respect of such person. (5) Any matter before Parliament or any such other legislature which immediately before the commencement of this Constitution was riot yet disposed of by Parliament or such legislature, as the case may be, shail lapse upon such commencement. (6) The mies and orders of Parliament in force immediately before the commencement of this Constitution, shall, to the extent that they can mutatis mutandis be applied in respect of the business and proceedings of Parliament under this Constitution, continue in force until amended or replaced in terms of this Constitution. 235. Transitional arrangements: Executive authorities (I) A person who immediately before the commencement of this Constitution was- (a) the State President or a Minister or Deputy Minister of the Republic within the