CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, ACT 200 OF 1993

[ASSENTED TO 25 JANUARY 1994] . . . .[DATE OF COMMENCEMENT: 27 APRIL 1994]

(Unless otherwise indicated: see s. 251 (2))

(Afrikaans text signed by the State President)

ACT

To introduce a new Constitution for the Republic of South Africa

and to provide for matters incidental thereto.

TABLE OF CONTENTS

Sections

CHAPTER 1 Constituent and Formal Provisions. . . . . . . . . . . . . .1-4

CHAPTER 2 Citizenship and Franchise. . . . . . . . . . . . . . . . . .5-6

CHAPTER 3 Fundamental Rights . . . . . . . . . . . . . . . . . . . . .7-35

CHAPTER 4 Parliament . . . . . . . . . . . . . . . . . . . . . . . . .36-67

- The National Assembly. . . . . . . . . . . . . . . . . . .40-47

- The Senate . . . . . . . . . . . . . . . . . . . . . . . .48-54

- The National Assembly and the Senate . . . . . . . . . . .55-67

CHAPTER 5 The Adoption of the new Constitution . . . . . . . . . . . .68-74

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

- The Public Protector . . . . . . . . . . . . . . . . . .110-114

- Human Rights Commission. . . . . . . . . . . . . . . . .115-118

- Commission on Gender Equality. . . . . . . . . . . . . .119-120

- Restitution of Land Rights . . . . . . . . . . . . . . .121-123

CHAPTER 9 Provincial Government. . . . . . . . . . . . . . . . . . . . .124

- Provincial Legislative Authority . . . . . . . . . . . .125-143

- Provincial Executive Authority . . . . . . . . . . . . .144-154

- Provincial Finance and Fiscal Affairs. . . . . . . . . .155-159

- Provincial Constitutions . . . . . . . . . . . . . . . .160-162

- Commission on Provincial Government. . . . . . . . . . .163-173

CHAPTER 10 Local Government. . . . . . . . . . . . . . . . . . .174-180

CHAPTER 11 Traditional Authorities . . . . . . . . . . . . . . .181-184

CHAPTER 12 Finance

- General Financial Affairs. . . . . . . . . . . . . . . .185-190

- Auditor-General. . . . . . . . . . . . . . . . . . . . .191-194

- South African Reserve Bank . . . . . . . . . . . . . . .195-197

- Financial and Fiscal Commission. . . . . . . . . . . . .198-206

- Commission on Remuneration of Representatives. . . . . .207-208

CHAPTER 13 Public Service Commission and Public Service

- Public Service Commission. . . . . . . . . . . . . . . .209-211

- The Public Service . . . . . . . . . . . . . . . . . . . . .212

- Provincial Service Commissions . . . . . . . . . . . . . . .213

CHAPTER 14 Police and Defence

- South African Police Service . . . . . . . . . . . . . .214-223

- National Defence Force . . . . . . . . . . . . . . . . .224-228

CHAPTER 15 General and Transitional Provisions . . . . . . . . .229-251

SCHEDULE 1 Part 1: Definitions of Provinces

Part 2: Contentious Areas

SCHEDULE 2 System for Election of National Assembly and Provincial

Legislatures

SCHEDULE 3 Oaths and Affirmations of Office

SCHEDULE 4 Constitutional Principles

SCHEDULE 5 Procedure for Election of President

SCHEDULE 6 Legislative Competences of Provinces

SCHEDULE 7 Repeal of Laws

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 Africans 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;

AND WHEREAS it is necessary for such purposes that provision

should be made for the promotion of national unity and the

restructuring and continued governance 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 (ss. 1-4)

1 Republic of South Africa

(1) 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 determined by the President by proclamation in

the Gazette.

(2) The national anthem of the Republic shall be as

determined by the President by proclamation 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

(1) 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

diminished, 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 dealings with any public

administration at the national level of government in any

official South African language of his or her choice.

(4) Regional differentiation in relation to language policy

and practice shall be permissible.

(5) A provincial legislature may, by a resolution adopted by

a majority of at least two-thirds of all its members, declare 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 Constitu

tion, shall be diminished.

(6) Wherever practicable, a person shall have the right to

use and to be addressed in his or her dealings with any public

administration at the provincial level of government 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

government, taking into account questions of usage, practicality

and expense.

(9) Legislation, as well as official policy and practice, in

relation to the use of languages at any level of government 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;

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 encour

agement of their use in appropriate circumstances; and

(f) the non-diminution of rights relating to language

and the status of languages existing at the commencement of this

Constitution.

(10) (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.

ble 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 well as Arabic,

Hebrew and Sanskrit and other languages used for religious

purposes.

4 Supremacy of the Constitution

(1) 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 government.

CHAPTER 2

CITIZENSHIP AND FRANCHISE (ss. 5-6)

5 Citizenship

(1) 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 (1), 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

prescribed by law,

shall be entitled to vote in elections of the National Assembly, a

provincial legislature or a local government 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 (ss. 7-35)

7 Application

(1) This Chapter shall bind all legislative and executive

organs of state at all levels of government.

(2) This Chapter shall apply to all 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 permits.

(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;

(iii) a person acting on behalf of another

person who is not in a position to seek such relief in his or her

own name;

(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

(1) 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 from 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 full and equal enjoyment of all

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 Life

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

(1) Every person shall have the right to freedom 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 and forced 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, home or property, the seizure of

private possessions or the violation of private communications.

14 Religion, belief and opinion

(1) Every person shall have the right to freedom of

conscience, religion, thought, belief and opinion, which shall

include academic freedom in institutions of higher learning.

(2) Without derogating from the generality of subsection (1),

religious observances may be conducted at state or state- aided

institutions under rules established by an appropriate authority

for that purpose, provided that such religious observances are

conducted on an equitable basis and attendance at them is free 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.

15 Freedom of expression

(1) Every person shall have the right to freedom of speech and

expression, which shall include 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 freedom of association.

18 Freedom of movement

Every person shall have the right to freedom 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 territory.

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

(1) 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

(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 court 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 government

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;

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

(1) Every person who is detained, including 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;

(b) to be detained under conditions consonant with human

dignity, which shall include at least the provision of adequate

nutrition, reading material and medical treatment at state expense;

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 commission 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;

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 trial,

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;

plea proceedings or trial and not to testify during trial;

(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

committed, and not to be sentenced to a more severe punishment than

that which was applicable when the offence was committed;

(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

(1) Every person shall have the right freely to engage in

economic activity and to pursue a livelihood anywhere in the

national territory.

(2) Subsection (1) 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 freedom and equality.

27 Labour relations

(1) 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

(1).

28 Property

(1) 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, including, 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 affected.

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

(1) Every child shall have the right-

(a) to a name and nationality as from birth;

(b) to parental care;

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

institutions based on a common culture, language or religion,

provided that there shall be no discrimination on the ground of

race.

33 Limitation

(1) 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

(1), 21, 25 or 30 (1) (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 (1) or any other

provision of this Constitution, no law, whether a rule of the

common law, customary law or legislation, shall limit any right

entrenched in this Chapter.

(3) The entrenchment of the rights in terms 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 terms of section 7 (1).

(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 repealing 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 1956), or any other

similar body which may replace the Commission, is competent in

terms 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 of emergency and suspension

(1) 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 a period 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 emergency, 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 emergency, nor any action taken, including any regulation

enacted, in consequence thereof, shall permit or authorise-

(a) the creation of retrospective crimes;

(b) the indemnification of the state or of persons

acting under its authority for unlawful actions during the state of

emergency; or

(2), 9, 10, 11 (2), 12, 14, 27 (1) and (2), 30 (1) (d) and (e) and

(2) and 33 (1) 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 reference to the

measures in terms of which they are being detained shall be

published in the Gazette within five days of their detention;

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 10 days after a review in terms of subparagraph (i)

be entitled 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 entitled 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 entitled at all reasonable

times to have access to a legal representative of his or her

choice;

(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 furnish 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

(1) In interpreting the provisions of this Chapter a court of

law shall promote the values which underlie an open and democratic

society based on freedom 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 (ss. 36-67)

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 (1)

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

Parliament by proclamation in the Gazette to an extraordinary

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 of the period

referred to in subsection (1).

39 Elections

(1) Upon a dissolution of Parliament in terms of section 73

(9) or 93 (1) 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

(b) request parties represented in the provincial

legislatures to nominate persons as senators for the respective

provinces in accordance with section 48 (1) (b).

(2) An election referred to in subsection (1) (a) shall be

held in accordance with the Electoral Act, 1993.

The National Assembly (ss. 40-47)

40 Composition of National Assembly

(1) The National Assembly shall consist of 400 members elected

in accordance with the system of proportional representation of

voters 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 concerned 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

lives and to which he or she returns regularly after any period of

temporary absence, including 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 permissible 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 of National Assembly

(1) At its first sitting after it has been convened under

section 46 (2), and after the election of the President, the

National Assembly, with the Chief Justice or a judge of the Supreme

Court designated by him 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 all 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 reference 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 Speaker, the Deputy Speaker or any other member of the

National Assembly designated for that purpose in terms of the rules

and orders, shall preside over sittings of the 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 Justice or a judge as provided in subsection (1), shall elect

a member to fill the vacancy: Provided that the Speaker shall in

such event preside at the election of the Deputy Speaker.

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 African 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

imprisonment 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 offence 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;

(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

deemed 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 of seats

A member of the National Assembly shall vacate his or her seat

if he or she-

(a) ceases to be eligible to be a member of the National

Assembly in terms of section 42;

(b) ceases to be a member of the party which nominated

him or her as a member of the National Assembly;

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 government.

44 Filling of vacancies

(1) If a member of the National Assembly vacates his or her

seat, the vacancy shall be filled 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 Schedule 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 qualified 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 affirmation 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 affirmation 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.

46 Sittings of National Assembly

(1) The National Assembly shall sit at the Houses of

Parliament in Cape Town, unless the Speaker, in accordance with the

rules 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 proclamation 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 members 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 (ss. 48-54)

48 Composition of Senate

(1) The Senate shall be composed of 10 senators for each

province, nominated by the parties represented in a provincial

legislature within 10 days of-

(a) the first sitting of such legislature 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 determined by the following formula:

(a) The number of senators each party shall be entitled

to nominate, shallsubject to paragraph (b) be determined by

multiplying the number of seats such party holds in the provincial

legislature 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 similar surpluses accruing to any

other party or parties, and any undistributed senatorial seat or

seats shall be allocated to the party or parties concerned in

sequence of the highest surplus.

(3) A member of a provincial legislature or local government

nominated as a senator in terms of this section, shall vacate his

or her seat in the provincial legislature or local government upon

his or her acceptance of such nomination.

49 President and Deputy President of Senate

(1) 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 him 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 him or her by this Constitution,

an Act of Parliament and the rules 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 rules

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.

(7) The President or Deputy President of the Senate or any

other senator designated for that purpose in terms 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 Justice 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 Qualification 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 and filling of vacancies

(1) A senator shall vacate his or her seat if he or she-

(a) ceases to qualify to be a senator in terms of

section 50;

(b) ceases to be a member of the party which nominated

him or her as a senator in terms of section 48;

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 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 legislature or a local government.

(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 terms 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

legislature after the election of such legislature held in

pursuance of such dissolution, whereupon the vacancies shall be

filled in terms of section 48 (1) (a).

52 Oath or affirmation by senators

Every senator, before taking his or her seat, shall make and

subscribe an oath or solemn affirmation 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 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

rules and orders and in consultation with the Speaker, directs

otherwise on the grounds of public interest, security or

convenience.

(2) The Chief Justice 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 determine: Provided that the

President may at any time by proclamation in the Gazette summon 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.

The National Assembly and the Senate (ss. 55-67)

55 Powers, privileges and immunities of Parliament and benefits

of members

(1) Parliament shall have full power to control, regulate and

dispose of its internal affairs, and shall have all such other

powers, privileges and immunities as may, subject to this

Constitution, be prescribed by an Act of Parliament.

(2) Subject to the rules and orders there shall be freedom of

speech and debate in or before Parliament and any committee

thereof, and such freedom shall not be impeached or questioned in

any court.

(3) A member of Parliament 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 Parliament or any committee 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 Parliament.

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

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 National

Revenue Fund by action in a court of law.

57 Joint sittings of Houses

(1) 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 rules

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 Parliament to

regulate its business and proceedings, the President of the

Republic may, whenever he or she deems 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

(1) The National Assembly or the Senate may make rules and

orders in connection with the conduct of its business and

proceedings, and the National Assembly and the Senate may make

joint rules and orders in connection with the conduct of their

joint business and proceedings, including rules and orders

regulating-

(a) the establishment, constitution, powers and

functions, procedures and duration of committees of Parliament;

(b) restrictions on access to such committees;

dispose of its business and proceedings at venues other than the

Houses of Parliament; 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 performing

its functions, any committee established under subsection (1) (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

(1) 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.

(2) An ordinary Bill passed by one House and rejected by the

other shall be referred to a joint committee 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

(1) 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 (1) unless it has been considered and reported on by a

joint committee of both Houses and, in so far as it may be required

in terms of this Constitution, by the Financial and Fiscal

Commission.

(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 imposing taxation

or dealing with the appropriation of revenue or moneys and the

Senate rejects 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 if passed by the

National Assembly such Bill shall be deemed to have been passed by

Parliament.

61 Bills affecting certain provincial matters

Bills affecting 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, unless also approved by a majority of the senators of the

province or provinces in question in the Senate.

62 Bills amending Constitution

(1) Subject to subsection (2) and section 74, a Bill amending

this Constitution shall, for its passing 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 a relevant

provincial legislature.

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

determined by a majority of votes cast.

64 Assent to Bills

(1) A Bill duly passed by Parliament in accordance with this

Constitution shall be assented to by the President subject to

section 82 (1) (b).

(2) A Bill referred to in subsection (1) 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.

65 Signature and enrolment of Acts

(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 of the Act.

(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 of President, Executive Deputy Presidents,

Ministers and Deputy Ministers in Houses

The President, an Executive Deputy President, a Minister and

a Deputy Minister shall be entitled to sit 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 Public access to Parliament

Sittings of the National Assembly or the Senate and joint

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 (ss. 68-74)

68 Constitution-making Body

(1) The National Assembly and the Senate, sitting jointly for

the purposes of this Chapter, shall 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 Constitu

tion.

(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 contemplated in section 70

and save where clearly 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 of the Constitutional Assembly.

(3) The Chairperson shall be vested with all powers and

functions assigned to him 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 references in

the said sections to the Senate and a senator shall be construed as

references to the Constitutional Assembly and a member of the

Constitutional Assembly, respectively.

70 Rules 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.

71 Constitutional Principles and certification

(1) A new constitutional text shall-

(a) comply with the Constitutional Principles contained

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 no 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 if

petitioned to do so by at least one fifth 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

(1) The Constitutional Assembly shall, in addition to

appointing committees of its members, be competent to appoint any

commissions, 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

majority 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 constitu

tional text within two years as from the date of the first sitting

of the National Assembly under this Constitution.

(2) For the passing of the new constitutional text by the

Constitutional Assembly, a majority of at least two-thirds 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

two-thirds of all the members of the Senate.

(3) If the Constitutional Assembly fails to pass a proposed

draft of the new constitutional text in accordance with subsection

(2), but such draft is supported by a majority 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 the

Constitutional 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).

(6) A text approved under subsection (5) shall, after it has

been certified by the Constitutional Court in terms of section 71

(2), be referred by the President for a decision by the electorate

by way of a national referendum.

(7) The question put before the electorate in the referendum

shall be the acceptance or rejection of the text approved under

subsection (5).

(8) The text presented to the electorate in the referendum

shall, if approved by a majority of at least 60 per cent of the

votes cast in the referendum and subject to subsection (13), become

the Constitution of the Republic of South Africa.

(9) If the relevant text is not approved in the referendum in

accordance with subsection (8), or if a new constitutional text is

not passed in terms of this Chapter within the period of two years

referred to in subsection (1), 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 (1) (a) shall be held.

(10) The Constitutional Assembly as constituted after such an

election, shall pass the new constitutional text within a period of

one year as from the date of its first sitting after such election.

(11) For the passing of the new constitutional text referred

to in subsection (10) by the Constitutional Assembly, a majority 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 all the

members of the Senate.

(12) The provisions of subsections (3) 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 terms 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

(1) No amendment or repeal 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 (ss. 75-95)

75 Executive authority of the Republic

The executive authority of the Republic with regard to all

matters falling within the legislative competence of Parliament

shall vest in the President, who shall exercise and perform 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

(1) (a) The National Assembly shall at its first sitting after

it has been convened in terms 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

a joint sitting one of the members of the National Assembly as the

President.

(2) (a) The Chief Justice, or a judge 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 (1)

takes place.

(b) An election referred to in subsection (1) shall be

conducted in accordance with Schedule 5.

(3) The election of a President in terms of subsection (1) (b)

shall take place at a time and on a date fixed by the Chief

Justice: 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 his or her

seat in the National Assembly.

(5) During the period in which the President continues in

office in terms of section 80 (1) (b), he or she shall for the

purposes of section 42 (1)(e) be deemed not to hold an office of

profit under the Republic.

78 Oath or affirmation

The President-elect shall, before formally assuming office,

make and subscribe an oath or solemn affirmation 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.

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 office of President

(1) The President elected in terms of section 77 (1) (a)

shall, subject to sections 87 and 93 (2), hold office-

(a) for the period terminating on a date five years as

from the date of the first sitting 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 (1) (b) shall,

subject to subsection (1) (b) of this section and sections 87 and

93 (2), hold office for the unexpired part of the period referred

to in subsection (1) (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 and functions 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;

(d) to refer disputes of a constitutional nature between

parties represented in Parliament or between organs of state at any

level of government to the Constitutional Court or other

appropriate institution, commission or body for resolution;

(e) to confer honours;

(f) to appoint, accredit, receive and recognise

ambassadors, plenipotentiaries, diplomatic representatives and

other diplomatic officers, consuls and consular officers;

(g) to appoint commissions of enquiry;

(h) to make such appointments as may be necessary under

powers conferred upon him or her by this Constitution or any other

law;

(i) to negotiate and sign international agreements;

(j) to proclaim 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 deem 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;

contemplated in section 84 (5) to an Executive Deputy President;

(d) regarding appointments under subsection (1) (f); and

(e) before exercising any of the competences referred to

in subsection (1) (g) to (k).

(3) The President shall exercise and perform all powers and

functions assigned to him or her by this Constitution or any other

law, except those specified in subsections (1) 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-in-Chief of the

National Defence Force.

(b) The President may-

(i) with the approval of Parliament, declare 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

(1) Decisions of the President taken in terms of section 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

(1) 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 him 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 Justice or a

judge of the Supreme Court designated by the Chief Justice for this

purpose.

85 Tenure of office of Executive Deputy Presidents and filling of

vacancies

(1) An Executive Deputy President shall, subject to section

87, hold office-

(a) for the period terminating on a date five years as

from the date of the first 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 (1) (b) after such dissolution and has assumed office.

(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

(1) The President shall appoint one of the Executive Deputy

Presidents, or if no Executive Deputy President is available, a

Minister, to act as President during his or her absence or

temporary incapacity.

(2) In designating an Acting President under subsection (1),

the President shall take into consideration the exigencies of

government and the spirit underlying the concept of a government 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 government and the spirit

underlying the concept of a government 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 Removal from office 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 him

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 Ministers 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 government of national

unity, shall be entitled to be allocated 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 allocated 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.

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 shall, subject to paragraph (e), indicate

the number of portfolios 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 which remain unallocated shall be allocated to the party

or parties concerned 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 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 Parliament who is a member of the party to which that portfolio

was allocated under paragraph (a), as the Minister responsible for

that portfolio;

Constitution or in the interest of good government, vary any

determination under paragraph (a) subject to subsection (3);

(d) terminate any appointment under paragraph (b)-

(i) if he or she is requested to do so by the

leader of the party of which the Minister in question is a member;

(ii) if it becomes necessary for the purposes of

this Constitution or in the interest of good government; 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 government of national unity, and the

President and the other functionaries concerned shall in the

implementation of that subsection endeavour to achieve consensus at

all times: Provided that if consensus cannot be achieved on-

(a) the exercise of a power referred to in paragraph

(a), (c) or (d) (ii) of that subsection, the President's decision

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

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 determination of portfolio allocations 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 allocated to their respective

parties in terms of the varied determination.

(7) A Minister shall, before formally assuming office, make

and subscribe an oath or solemn affirmation 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.

(8) No member of the Cabinet may take up any other paid

employment, engage in activities inconsistent with his or her

membership of the Cabinet, or expose himself or herself to any

situation which carries 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 information entrusted

confidentially to him or her in such capacity, to enrich himself 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 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 Parliament.

89 Cabinet procedure

(1) 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 government and the spirit underlying the concept of

a government 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 government of national unity as well as the need for

effective government.

(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 and functions to

another Minister

Whenever a Minister 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 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 performance of any specific

power or function.

91 Transfer of Minister's powers and functions to another

Minister

(1) The President may assign the administration 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.

(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 (1) of its

administration to another Minister, be construed as a reference to

the latter.

92 Accountability of Ministers and Cabinet

(1) 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 determined 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 concerned to bring the administration of the

portfolio into conformity with such policy.

(4) If the Minister concerned 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 of no confidence

(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

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 of Deputy Ministers

(1) 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

may, subject to the directions of the President, be assigned to him

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.

95 Composition and functioning of Cabinet in event of non-par-

ticipation by parties

(1) 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 declines 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 portfolios, other than

the President's party, decline 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 (ss.

96-109)

96 Judicial authority

(1) The judicial authority 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 Justice and President of Constitutional

Court

(1) There shall be a Chief Justice 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 Judicial 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 interpretation, 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;

including 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 101 (3) and (6).

(4) A decision 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 declare such law or provision invalid to the extent

of its inconsistency: Provided that the Constitutional Court may,

in the interests of justice and good government, require Parliament

or any other competent authority, within a period 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 declaration of invalidity of a law or

a provision thereof-

(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 declaration 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 declaring 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 deem just and

equitable in the circumstances.

(9) The Constitutional Court shall exercise 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 Speaker 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 Court

(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

to be admitted as an advocate or attorney and has, for a cumulative

period of at least 10 years after having so qualified, practised as

an advocate or an attorney 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

tional 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 appointment or

appointments under section 97 (2) or subsection (4) or (7) of this

section shall only be made from the recommendations of the Judicial

Service Commission, and with due regard to its reasons for such

recommendations, of not more than three nominees in excess of the

number of persons required to be appointed: Provided that in

respect of the first appointment 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 Judicial Service Commission shall

be informed thereof and be furnished with the reasons therefor.

Judicial Service Commission shall, in accordance with paragraph

(a), submit further recommendations, whereafter the appointing

authorities shall make the appointment 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 appointment

after the commencement of this Constitution of the President of the

Constitutional Court under section 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

(b) in the case of a vacancy in the office of a judge

appointed under subsection (4), in accordance with that subsection.

100 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.

101 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, including the inherent jurisdiction, vested in

the Supreme Court immediately before the commencement 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;

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 commencement of this Constitution;

(d) any dispute of a constitutional nature between local

governments or between a local and a provincial government;

(e) any dispute over the constitutionality of a Bill

before a provincial legislature, subject to section 98 (9);

(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 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).

102 Procedural matters

(1) 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 exclusive jurisdiction of the

Constitutional Court in terms of section 98 (2) and (3), the

provincial or local division concerned 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 concerned 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 (1), 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 concerned shall, if it does not refer an issue to

the Constitutional Court, hear the matter, make findings of fact

which may be relevant to a constitutional issue within the

exclusive jurisdiction of the Constitutional Court, and give a

decision on such issues as are within its jurisdiction.

(4) An appeal shall lie to the Appellate Division against a

decision 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 Justice 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 been 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, including 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 shall 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 concerned 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

matter referred to in subsections (13) and (14), the provincial or

local division concerned 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

exclusive 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

(1) 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 a relevant law

or provision is invalid, to apply to a provincial or local division

of the Supreme Court for relief in terms of subsection (4).

(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 (1), 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 exclusive 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, removal from office and remuneration of judges

(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 shall, before commencing to perform the

functions of his or her office, make and subscribe an oath or

solemn affirmation 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

suspended by the President pending such investigation.

105 Judicial 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;

President;

(d) the Minister responsible for the administration of

justice or his or her nominee;

(e) two practising advocates designated by the

advocates' profession;

(f) two practising attorneys designated by the

attorneys' 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

attorneys 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 be-

(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

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 its

number and assign any of its powers and functions to such

committee.

106 Seats of Constitutional Court and Appellate Division

(1) The seat of the Constitutional Court shall be Johannes

burg.

(2) The seat of the Appellate Division of the Supreme Court

shall be Bloemfontein.

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 him 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 Attorneys-General

(1) The authority to institute criminal prosecutions on behalf

of the state shall vest in the attorneys-general of the Republic.

(2) The area of jurisdiction, powers and functions of an

attorney-general shall be as prescribed by or under law.

(3) No person shall be appointed as an attorney-general unless

he or she is appropriately qualified in terms of a law regulating

the appointment of attorneys-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 prejudice, 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 (ss. 110-114)

110 Establishment and appointment

(1) 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

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.

(3) The first appointment 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 10 years after having so

qualified-

(i) practised as an advocate or an attorney; or

(ii) lectured in law at a university; or

period 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 terms 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 terms and conditions be adversely altered,

during his or her term of office.

(7) The Public Protector shall not perform 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, 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 Independence and impartiality

(1) The Public Protector 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 Public Protector and the persons appointed in terms of

section 113 (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 performance

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 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 the independence,

impartiality, dignity and effectiveness of the Public Protector in

the exercise and performance of his or her powers and functions.

112 Powers and functions

(1) The Public Protector shall, 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) maladministration 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

tion-

(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 deems 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

deems expedient to the affected public body or authority.

(2) Nothing in subsection (1) 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 (1) with due regard to the 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 him or her to

give evidence or to produce any document 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 may deem necessary, and seize anything on

those premises which in his or her opinion has a bearing on the

purpose of the investigation.

(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 Staff and expenditure

(1) 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 (1) 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.

114 Provincial public protectors

(1) A provincial legislature may, subject to subsections (2)

and (3), by law provide for the establishment, appointment, powers

and functions of a provincial public protector and for matters in

connection therewith.

(2) A provincial law referred to in subsection (1) 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 appointment shall be confirmed by resolution of

a majority of at least two-thirds of all the members of the

provincial legislature.

(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 (ss. 115-118)

115 Establishment and appointments

(1) There shall be a Human Rights Commission, 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 community.

(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

Parliament 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 commencement

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 and functions

(1) 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;

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 well 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 affected

thereby, to secure redress, 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 Staff and expenditure

(1) The Commission shall appoint a director, who shall be the

chief executive officer of the Commission and who shall 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 performance 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 (ss. 119-120)

119 Establishment

(1) There shall be a Commission on Gender Equality, which

shall consist of a chairperson and such number of members 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 and functioning

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 all other matters in connection

therewith.

Restitution of Land Rights (ss. 121-123)

121 Claims

(1) An Act of Parliament shall provide for matters 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 (1); 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 section 8 (2), had that section been in operation at

the time of such dispossession.

(3) The date fixed by virtue of subsection (2) (a) shall not

be a date earlier than 19 June 1913.

(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 reference 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 Act.

(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.

112 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 settle disputes arising from such

claims;

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 Act.

(2) The procedures to be followed for dealing with claims in

terms of this section shall be as prescribed by or under the said

Act.

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

feasible, the court may, subject to subsection (4), order the state

to restore 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

feasible, the court may, subject to subsection (4), order the state

to purchase or expropriate such land and restore the relevant right

to the claimant.

(2) The court shall not issue an order under subsection (1)

(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 subject 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 (1) (a) or any acquisition in terms of subsection (1)

(b) is not feasible, 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 feasible to designate alternative state-owned land;

(b) to pay the claimant compensation; or

(4) (a) The compensation referred to in subsection (3) shall

be determined 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 (1) 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.

CHAPTER 9

PROVINCIAL GOVERNMENT (s 124)

124 Establishment of provinces

(1) 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;

(d) Northern Cape;

(e) Northern Transvaal;

(f) North-West;

(g) Orange Free State;

(h) Pretoria-Witwatersrand-Vereeniging; and

(i) Western Cape:

Provided that Parliament shall at the request of a provincial

legislature 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 1 of Schedule 1: 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 (f) and (i) to (n) of Part 2 of

Schedule 1 within the provinces as defined in Part 1 of Schedule 1,

shall be subject to alteration in accordance with this section.

(3) (a) A referendum may be held in terms of this section in

each of the areas specified in paragraphs (a) to (n) of Part 2 of

Schedule 1 (hereinafter referred to as an affected area) to

determine the views of the voters ordinarily resident in such area

regarding an issue referred to in subsection (5) or (6).

(b) A referendum referred to in paragraph (a) shall be held in

an affected 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.

least equal in number to such percentage of the votes recorded in

terms of subsection (4) in respect of the affected area in

question, as may be determined 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 first election held under this

Constitution until it has made a determination in terms of

paragraph (c) in respect of all the affected areas.

(e) Such a petition shall be lodged with the Secretary to

Parliament within a period of six months of the commencement of

this Constitution or a period referred to in subsection (10),

whichever period expires first.

(4) In the first election of the National Assembly and the

provincial legislatures held under this Constitution, votes cast in

each of the affected areas shall be counted separately and recorded

for use for the purposes of this section.

(5) Subject to subsection (7), the object of a referendum in

respect of an area referred to in paragraph (e), (f), (g) or (h) of

Part 2 of Schedule 1, shall be the determination of the views of

voters 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 Natal;

(b) the continued inclusion of the area referred to in

the said paragraph (f) in the provincial territory of Preto

ria-Witwatersrand-Vereeniging, or its inclusion in the provincial

territory of the Eastern Transvaal;

the said paragraph (g) as one province, or its division into two

separate provinces on either side of the line forming 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 discontinu

ance 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 of the North-West, and those districts south

of the Orange River shall be included in the provincial territory

of the Western Cape:

Provided that in the case of a referendum regarding an issue

referred to in-

(i) paragraphs (a) and (b) of this subsection, a

majority of votes cast shall be required to sanction the inclusion

of the areas in question in the provincial territories of Natal or

the Eastern Transvaal, 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 1 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 referendum in

respect of an area referred to in paragraph (a), (b), (c), (d),

(i), (j), (k), (l), (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 inclusion of such area in the

provincial territory of the Northern Transvaal, or its inclusion in

the provincial territory of the Eastern Transvaal;

(b) in the case of the area referred to in the said

paragraph (b), the continued inclusion of such area in the

provincial territory of the Northern Cape, or its inclusion in the

provincial territory of the Western Cape;

paragraph (c), the continued inclusion of such area in the

provincial territory of the Eastern Transvaal, or its inclusion in

the provincial territory of the Northern Transvaal;

(d) in the case of the area referred to in the said

paragraph (d), the continued inclusion of such area in the

provincial territory of the Eastern Cape, or its inclusion in the

provincial territory of Natal;

(e) in the case of the area referred to in the said

paragraph (i), the continued inclusion of such area in the

provincial territory of the Eastern Transvaal, or its inclusion in

the provincial territory of Pretoria-Witwatersrand-Vereeniging;

(f) in the case of the area referred to in the said

paragraph (j), the continued inclusion of such area in the

provincial territory of the Orange Free State, or its inclusion in

the provincial territory of Pretoria-Witwatersrand-Vereeniging;

(g) in the case of the area referred to in the said

paragraph (k), the continued inclusion of such area in the

provincial territory of the Western Cape, or its inclusion in the

provincial territory of the Northern Cape;

(h) in the case of the area referred to in the said

paragraph (l), the continued inclusion of such area in the

provincial territory of Natal, or its inclusion in the provincial

territory of the Eastern Cape;

(i) in the case of the area referred to in the said

paragraph (m), the continued inclusion of such area in the

provincial territory of the Northern Cape, or its inclusion 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 inclusion of such area in the

provincial territory of the North-West, or its inclusion in the

provincial territory of Pretoria-Witwatersrand-Vereeniging.

(7) (a) The Independent Electoral Commission shall be

competent to make regulations or give directions concerning the

implementation of this section, including-

(i) the formulation of the question to be put before the

electorate in any particular referendum;

(ii) the determination of the sequence of referendums

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

referendum or election 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 provincial

legislature of the province within which such area falls in terms

of Part 1 of Schedule 1, 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 affected

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 forthwith cause to be published in

the Gazette, notice of the fact that it has received such a

petition.

(10) Within five 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 referendum contemplated in

subsection (3) to be held in the area in respect of which such

notice was published.

(11) If a petition for a referendum 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 lapse, and the result of the referendum in

respect of such area will be decisive.

(12) If a petition for a referendum 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 implementing 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 become 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 lists compiled by parties for the purpose of

the election of the provincial legislatures which will be dissolved

or reconstituted;

(iii) party lists 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 directions:

Provided that if it is of the opinion that any particular

alteration does not require an existing provincial legislature to

be reconstituted, it may direct that notwithstanding such

alteration, such provincial legislature shall not be reconstituted.

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 determined by the Independent

Electoral Commission, amend subsection (1) and Schedule 1 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 (ss. 125-143)

125 Provincial legislature

(1) 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 legislature shall, subject to

any exceptions as may be provided for by an Act of Parliament, be

applicable only within the territory of the province.

126 Legislative competence of provinces

(1) A provincial legislature shall, subject to subsections (3)

and (4), have concurrent competence with Parliament to make laws

for the province with regard to all matters which fall within the

functional areas specified in Schedule 6.

(2) The legislative competence referred to in subsection (1),

shall include the competence to make laws which are reasonably

necessary for or incidental to the effective exercise of such

legislative competence.

(3) An Act of Parliament which deals with a matter referred to

in subsection (1) or (2) shall prevail over a provincial law

inconsistent therewith, only to the extent that-

(a) it deals with a matter that cannot be regulated

effectively by provincial legislation;

(b) it deals with a matter that, to be performed

effectively, requires to be regulated or co-ordinated by uniform

norms or standards that apply generally throughout the Republic;

nation for the rendering of public services;

(d) it is necessary for the determination of national

economic policies, the maintenance of economic unity, the

protection of the environment, the promotion of inter-provincial

commerce, the protection of the common market in respect of the

mobility of goods, services, capital or labour, or the maintenance

of national security; or

(e) the provincial law materially prejudices the

economic, health or security interests of another province or the

country as a whole.

(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 recommend 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

(1) A provincial legislature 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 legislature shall,

subject to subsection (1), be determined in accordance with

Schedule 2.

(3) The members of a provincial legislature shall be elected

from provincial lists of party candidates for the province in

question.

128 Duration and dissolution of provincial legislatures

(1) 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 (1) a

provincial legislature is dissolved in terms of section 154 (1) or

(3) (c) or 162, the provincial legislature as constituted then,

shall continue for the period up to the day immediately preceding

the commencement of polling for the election of the provincial

legislature 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 member of the provincial legislature shall remain a member

thereof;

(b) the provincial legislature shall remain competent to

perform its functions; and

summon the provincial legislature by proclamation in the Provincial

Gazette to an extraordinary sitting for the dispatch of urgent

business,

during the period for which the provincial legislature continues in

terms of subsection (2) after the dissolution.

129 Elections

(1) If a provincial legislature 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 legislature, which

election shall take place within 90 days after the dissolution of

the legislature 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, 1993.

130 Sittings of provincial legislature

(1) The Secretary of a provincial legislature shall convene

such legislature within seven days after an election of such

legislature.

(2) The provincial legislature shall sit during such periods

and on such days and during such hours as it may determine:

Provided that the Premier of a province may at any time by

proclamation in the Provincial Gazette summon the provincial

legislature to an extraordinary sitting for the dispatch of urgent

business.

131 Speaker and Deputy Speaker of provincial legislature

(1) At its first sitting after it has been convened under

section 130 (1), and after the election of the Premier of the

province, a provincial legislature with a judge of the Supreme

Court designated by the Chief Justice 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 provincial legislature.

132 Qualification for membership of provincial legislatures

(1) No person shall be qualified to become or remain a member

of a provincial legislature unless he or she is qualified to become

a member of the National Assembly.

(2) A member of a provincial legislature 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 candidate for

election to a provincial legislature, and in any such application

a reference in that section to a regional list shall be construed

as a reference to a provincial list as contemplated in Schedule 2.

133 Vacation of seats and filling of vacancies

(1) A member of a provincial legislature shall vacate his or

her seat if he or she-

(a) ceases to be eligible to be a member of the

provincial legislature in terms of section 132;

(b) ceases to be a member of the party which nominated

him or her as a member of the provincial legislature;

resignation in writing to the Secretary of the provincial

legislature;

(d) absents himself or herself voluntarily from sittings

of the provincial legislature for 30 consecutive sitting days,

without having obtained the leave of the provincial legislature in

accordance with the rules 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

provincial legislature, and in any such application a reference to-

(a) the National Assembly shall be construed as a

reference to a provincial legislature; 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 legislature in

question.

134 Oath or affirmation 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 Justice for this purpose, or, in the case

of a member nominated under section 133, before the Speaker of the

provincial legislature.

135 Powers, privileges and immunities of provincial legislatures

and benefits of members

(1) A provincial legislature shall have full power to control,

regulate and dispose of its internal affairs and shall have all

such other powers, privileges and immunities as may, subject to

this Constitution, be prescribed by a law of such legislature.

(2) Subject to the rules and orders of a provincial

legislature there shall be freedom of speech and debate in or

before such legislature and any committee thereof, and such freedom

shall not be impeached or questioned in any court.

(3) A member of a provincial legislature 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 legislature or any committee

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 legislature 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

legislature of that 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.

136 Penalty for sitting or voting when disqualified

Any person who in terms of this Constitution is disqualified

to sit as a member of a provincial legislature 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

(1) A provincial legislature 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 all the members of the provincial

legislature 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, all

questions before a provincial legislature shall be determined by a

majority of votes cast.

140 Assent to Bills

(1) A Bill duly passed by a provincial legislature 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 (1) 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

(1) 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 African 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.

(2) In the case of a conflict between copies of a law enrolled

in terms of subsection (1), 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

Sittings of a provincial legislature 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 of and, where

appropriate, the refusal of entry or the removal of any person.

143 Administration of provincial legislatures

(1) For the purposes of setting up a provisional administra

tion of a provincial legislature, the Transitional Executive

Council shall as soon as possible after the commencement of this

Constitution appoint for each provincial legislature a provisional

secretary, who shall hold office as Secretary until an appointment

is made in terms of subsection (2).

(2) The Executive Council of a province shall after

consultation with the Commission on Provincial Government 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 (ss. 144-154)

144 Executive authority of provinces

(1) The executive authority of a province shall vest in the

Premier of the province, who shall exercise and perform his or her

powers and functions subject to and in accordance with this

Constitution.

(2) A province shall have executive authority over all matters

in respect of which such province has exercised its legislative

competence, matters assigned to it by or under section 235 or any

law, and matters delegated to it by or under any law.

145 Election of Premiers

(1) (a) The provincial legislature of a province shall at its

first sitting after it has been convened in terms of section 130

(1), 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.

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 (1).

(3) The election of a Premier in terms of subsection (1) (b)

shall take place 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

legislature 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 of and removal from office of Premiers

(1) The Premier of a province elected in terms of section 145

(1) shall, subject to subsection (2) and section 154(2), hold

office-

(a) for the period referred to in section 128 (1); 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 terms of section 145 (1) (b) after the dissolution and

has assumed office.

(2) The Premier of a province shall cease to hold office on a

resolution adopted by the provincial legislature 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 him or her unfit to exercise and

perform his or her powers and functions in accordance with section

147.

147 Responsibilities, powers and functions 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 provincial

legislature back for further consideration by such legislature;

(d) to appoint commissions of enquiry;

(e) to make such appointments as may be necessary under

powers conferred upon him or her by this Constitution or any other

law; and

(f) to proclaim referenda and plebiscites in terms of

this Constitution or a provincial law.

(2) The Premier of a province shall exercise and perform all

powers and functions assigned to him or her by this Constitution or

any other law, except those specified in subsection (1) or where

otherwise expressly or by implication provided in this Constitu

tion, in consultation with the Executive Council of the province:

Provided that the Executive Council may delegate its consultation

function in terms of this subsection, with reference to any

particular power or function of the Premier, to any member or

members of the Executive Council.

148 Acting Premiers

(1) 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 of Premier.

149 Executive Councils

(1) The Executive Council of a province shall consist of the

Premier and not more than 10 members appointed by the Premier in

accordance with this section.

(2) A party holding at least 10 per cent of the seats in a

provincial legislature and which has decided to participate in the

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 provincial legislature 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 provincial legislature who is a member of the party to which

that portfolio was allocated under paragraph (a), as the member of

the Executive Council responsible for that portfolio;

Constitution or in the interest of good government, vary any

determination under paragraph (a), subject to subsection (3);

(d) terminate any appointment under paragraph (b)-

(i) if he or she is requested to do so by the

leader of the party of which the relevant member of the Executive

Council is a member; or

(ii) if it becomes necessary for the purposes of

this Constitution or in the interest of good government; 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 government of national unity, and the

Premier and the other functionaries concerned 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 a power referred to in paragraph

(a), (c) or (d) (ii) of that subsection, the Premier'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 Premier's party, the decision of the leader of

the party of which such person is a member shall prevail; and

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-appointment to other portfolios allocated to

their respective parties in terms of the varied determination.

(7) The Premier or a member of the Executive Council shall,

before formally assuming office, 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 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 himself 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 directly or indirectly use information

entrusted confidentially to him or her in such capacity, to enrich

himself 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

(1) 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 government of national unity as well as the need for

effective government.

151 Temporary assignment of powers and functions 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 Transfer of powers and functions from one member to another

member

(1) 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 or 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 (1)

of the administration of such a law to another member of the

Council, be construed as a reference to the latter.

153 Accountability of members of Executive Councils

(1) 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 him or her, and all members of an Executive Council

shall correspondingly be accountable collectively for the

performance of the functions of the provincial government and for

its policies.

(2) A member of an Executive Council shall administer his or

her portfolio in accordance with the policy determined 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 concerned to bring the administration of the portfolio into

conformity with such policy.

(4) If the member concerned fails to comply with a requirement

of the Premier under subsection (3), the Premier 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 provincial legislature 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, excluding the Premier, the Premier may-

(a) resign;

(b) reconstitute the Executive Council in accordance

with section 149 (4); or

accordance with section 129.

(4) The Premier shall where required, or where he or she

elects, to do so in terms of this section, dissolve the provincial

legislature by proclamation in the Provincial Gazette within 14

days of the vote of no confidence.

Provincial Finance and FiscaL Affairs (ss. 155-159)

155 Provinces' share of revenue collected nationally

(1) A province shall be entitled to an equitable share of

revenue collected nationally to enable it to provide services and

to exercise and perform its powers and functions.

(2) The equitable share of revenue referred to in subsection

(1) shall consist of-

(a) a percentage, as fixed by an Act of Parliament, of

income tax on individuals which is collected within the province;

(b) a percentage, as fixed by an Act of Parliament, of

value-added tax or other sales tax which is collected within the

province; and

of national revenue to a province.

(3) The percentages referred to in subsection (2) (a) and (b)

shall be fixed reasonably after taking into account the national

interest and recommendations of the Financial and Fiscal

Commission.

(4) Allocations referred to in subsection (2) (c) shall be

determined 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 payments in respect of the national debt; and

(b) the different fiscal capacities, including the

revenues derived from sources referred to in subsection (2) (a) and

(b), fiscal performances, efficiency of utilisation of revenue,

needs and economic disparities within and between provinces, as

well 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

government; and

(d) the recommendations of the Financial and Fiscal

Commission.

156 Levying of taxes by provinces

(1) A province may levy taxes, surcharges or levies other than

of a kind referred to in section 155 (2) (a) or (b), 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 Parliament; and

(b) there is no discrimination against non-residents of

that province who are South African citizens.

(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 legislature 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 Parliament; and

(b) they do not discriminate against non-residents of

that province who are South African citizens.

157 Raising of 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 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.

(2) Loans referred to in subsection (1) (a) may be raised for

bridging finance during a fiscal year, subject to the condition

that they shall be redeemed in that same fiscal year and subject to

such further conditions as may be 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.

(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

(b) the giving of the guarantee has been approved by a

resolution of Parliament.

158 Revenue allocations by national government

Revenue allocations made by the national government-

(a) to a provincial or local government shall be made

through 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.

159 Provincial Revenue Funds

(1) There is hereby established in the administration of each

province a Provincial Revenue Fund, into which shall be paid all

revenue raised by or accruing to the provincial government.

(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 the provincial legislature concerned.

Provincial Constitutions (ss. 160-162)

160 Adoption of provincial constitutions

(1) The provincial legislature shall be entitled 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 legislature may make such arrangements as it

deems 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-

(a) a provision of this Constitution, including this

Chapter and the Constitutional Principles set out in Schedule 4;

and

(b) a provision of the new constitutional text.

(4) The text of a provincial constitution passed by a

provincial legislature, 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) (a), and if the new constitutional text is then

already passed, also with a provision of the new constitutional

text.

(5) A decision of the Constitutional Court in terms of

subsection (4) certifying that the text of a provincial constitu

tion 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 of provincial constitutional dispensation

(1) The development of a system of provincial government shall

receive the priority attention of the Constitutional Assembly, and

in this regard it shall take into consideration 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 Constitu

tional Assembly shall include draft provisions for inclusion in the

new constitutional text in so far as they relate to matters falling

within the ambit of the Commission's object 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, rejection or referral of the

recommendations of the Commission shall apply mutatis mutandis.

162 Election of new provincial governments

A provincial government may at any time after the commencement

of a provincial constitution contemplated in section 160 or of the

constitutional dispensation contemplated in section 161, petition

the Constitutional Assembly to dissolve its provincial legislature

and to call an election for the establishment of a new provincial

legislature and executive authority in that province.

Commission on Provincial Government (ss. 163-173)

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 Object and functions 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 dispensation 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

or a provincial government on the rationalisation of statutory

enactments or public sector resources directed at the introduction

and maintenance of an effective system of provincial government.

(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

well as the method of their election and their authority, functions

and procedures;

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 carrying 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;

Part 1 of Schedule 1, former provincial boundaries, magisterial

district boundaries and infrastructures;

(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-effectiveness 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 commencement 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 of the Commission shall be appointed

from each province with the concurrence of the Premier of the

province.

(4) A member of the Commission shall perform his or her

functions fairly, impartially and independently.

(5) A member appointed in a full-time capacity shall not

perform or commit himself 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.

166 Chairperson and Deputy Chairperson

(1) The President shall designate one of the members of the

Commission as the Chairperson and another as the Deputy Chairper

son.

(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) While acting as Chairperson the Deputy Chairperson or such

member may exercise the powers and shall perform the functions of

the Chairperson.

167 Vacation of office and filling of vacancies

(1) A member of the Commission shall vacate his 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) If a member of the Commission ceases to hold office, the

President may, subject to section 165, appoint a person to fill the

vacancy.

168 Meetings of Commission

(1) 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 members 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 Commission 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, subject to such directions as it may

issue from time to time-

(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 function 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

respect of which 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 remunera

tion and allowances as the Minister responsible for national

financial affairs may determine.

172 Appointment of staff

The Commission may appoint such staff as it may deem 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.

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

achievement of the object of the Commission.

CHAPTER 10

LOCAL GOVERNMENT (ss. 174-180)

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

differentiated 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 affairs.

(4) Parliament or a provincial legislature 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 government.

(5) Proposed legislation which materially affects the status,

powers or functions of local governments 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 governments and interested persons, including organised local

government, have been given a reasonable opportunity to make

written representations in regard thereto.

175 Powers and functions of local government

(1) The powers, functions and structures of local government

shall be determined 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 all persons within

its area of jurisdiction.

(3) A local government shall, to the extent determined in any

applicable law, make provision for access by all persons residing

within its area of jurisdiction to water, sanitation, transporta

tion facilities, 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-laws

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

allow it to function effectively.

(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 generally, good

governance in the public interest: Provided that such assignment of

functions-

(a) shall 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 a resolution of

the council adopted by at least a majority of all its members:

Provided that a council may delegate the power to make decisions on

matters pertaining to town planning to the executive committee or

to a committee appointed for this purpose: Provided further that

section 177 shall apply mutatis mutandis to the appointment and

functioning of a committee 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 perform such functions as may be determined by such

council: Provided that-

(a) the council shall determine the number of members of

and the quorum for the executive committee;

(b) the executive committee shall endeavour to exercise

its powers and perform its functions on the basis of consensus

among its members; and

matter may be decided by the committee by resolution of a majority

of at least two-thirds of all its members, or the committee may, if

a majority of the committee so decides, submit a report and

recommendation (if any) on the matter to the council for a

decision.

178 Administration and finance

(1) A local government shall ensure that its administration is

based on sound principles of public administration, good government

and public accountability so as to render efficient services to the

persons within its area of jurisdiction and effective administra

tion of its affairs.

(2) A local government shall, subject to such conditions as

may be prescribed by law of a competent legislature after taking

into consideration any recommendations of the Financial and Fiscal

Commission, be competent to levy and recover such property rates,

levies, fees, taxes and tariffs as may be necessary to exercise its

powers and perform its functions: Provided that within each local

government such rates, levies, fees, taxes and tariffs shall be

based on a uniform structure for its area of jurisdiction.

(3) A local government shall be entitled to an equitable

allocation by the provincial government 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

(1) A local government 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 government elections after the

commencement of this Constitution shall take place on the same day.

(2) The electoral system for a local government shall include

both proportional and ward representation and shall be regulated by

a law referred to in subsection (1).

(3) Subject to section 6, every natural person shall be

entitled to vote in an election of a local government if he or she-

(a) is ordinarily resident within the area of

jurisdiction of that local government or is under law liable for

the payment of property rates, rent, service charges or levies to

that local government; and

(b) is registered as a voter on the voters' role of that

local government.

(4) A voter shall not have more than one vote per local

government.

(5) No person shall be qualified to become or remain a member

of a local government if he or she-

(a) is not eligible to vote in terms of subsection (3);

(b) is a member of the National Assembly or the Senate;

Assembly;

(d) is an employee of a local government (unless, with

due regard to the public interest, exemption of this disqualifica

tion is given by the Executive Council of the province in which the

local government 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 of conduct

An enforceable code of conduct for members and officials of

local governments shall be provided for by law.

CHAPTER 11

TRADITIONAL AUTHORITIES (ss. 181-184)

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 local 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 government referred to in Chapter 10, shall ex

officio be entitled to be a member of that local government, and

shall be eligible to be elected to any office of such local

government.

183 Provincial 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 consisting 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

representatives, 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.

before the introduction of draft legislation referred to in

paragraph (b), be consulted, in a manner determined 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 government 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.

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 fails 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 Traditional Leaders

(1) 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 commencement of

this Constitution.

(b) Section 183 (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 bearing thereon; and

(b) at the request of the President, to advise him 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 bearing

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.

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 12

FINANCE

General Financial Affairs (ss. 185-195)

185 National Revenue 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 government, and from

which 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 alia, reflect capital

and current expenditure of the government for that year.

187 Procurement administration

(1) 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 (1) 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 Commission has made a

recommendation concerning compliance of the guarantee concerned

with such norms and conditions.

189 Special pensions

(1) 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 promotes the

objectives of, a political organisation; or

(b) dependants of such persons.

(2) The Act of Parliament referred to in subsection (1) shall

prescribe the qualifications of a beneficiary of a special pension

referred to in subsection (1), the conditions for the granting

thereof and the manner of the determination of the amount of such

pension, taking into account all relevant factors, including, inter

alia, 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 all elected representatives at all levels of

government.

Auditor-General (ss. 191-194)

191 Establishment and appointment

(1) 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 committee of the Houses of

Parliament, composed of one member of each party represented in

Parliament and willing to participate in the committee; 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:

Provided that if any nomination is not approved as required in

paragraph (b), the joint committee shall nominate another person.

(3) The Auditor-General shall be a South African citizen who

is a fit and proper person to hold such office and who shall be

appointed with due regard to his 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 less than

five years and not more than ten years and shall not thereafter be

eligible for re-appointment.

(5) If the Auditor-General is absent or unable to exercise and

perform his 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 his 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 a request 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 a joint committee in terms of subsection (9), may be suspended

by the President pending a decision in such investigation.

(11) The Auditor-General may at any time resign, subject to

his or her conditions of service, by lodging his or her resignation

in writing with the President.

192 Independence 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 performance

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 interfere with the Auditor-General

or a person appointed under section 194 (1) in the exercise or

performance of his 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 effectiveness of the Auditor-General in

the exercise and performance of his or her powers and functions.

193 Powers and functions

(1) The Auditor-General shall audit and report on all the

accounts and financial statements of all the accounting officers at

national and provincial level 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 shall 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 shall 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.

(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 (1) exercises or performs his or her powers

and functions in terms of this Constitution, he or she shall have

access to all 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 examined

by him 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 a report 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

concerned.

194 Staff and expenditure

(1) The Auditor-General may appoint, in accordance with a law,

such persons as may be necessary for the discharge 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 (1), 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.

South African Reserve Bank (ss. 195-197)

195 Central Bank

The South African Reserve Bank, established and regulated by

an Act of Parliament, shall be the central bank of the Republic.

196 Primary objectives

(1) 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 (1), 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 and functions

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 determined by an Act of

Parliament and shall be exercised or performed subject to such

conditions as may be prescribed by or under such Act.

Financial and Fiscal Commission (ss. 198-206)

198 Establishment

There is hereby established a Financial and Fiscal Commission.

199 Objects and functions

(1) The objects and functions of the Commission shall be to

apprise itself of all 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 governments,

including-

(a) financial and fiscal policies;

(b) equitable financial and fiscal allocations to the

national, provincial and local governments from revenue collected

at national level;

provincial government intends to levy;

(d) the raising of loans by a provincial or local

government 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, expertise and impartiality

(1) 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

advice of the Cabinet, at least one of whom shall have expertise in

local government 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 economics, 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 legislatures 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 section under which the former

member concerned 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 a period 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).

(11) 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 a decision 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

(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 performance of a function so authorised, and may

amend or set aside any decision of a committee.

203 Co-option of persons by committees

(1) A committee may co-opt any person to serve on such

committee 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 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 affairs may determine.

205 Appointment of staff

(1) The Commission may appoint staff and accept secondment of

staff as it may deem 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 Representatives (ss. 207-208)

207 Establishment

(1) 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 governments regarding the

nature, extent and conditions of the remuneration and allowances of

the members of all elected legislative bodies of the national

government and of provincial and local governments, including

members of the Provincial Houses of Traditional Leaders and the

Council of Traditional Leaders.

208 Composition and functioning

(1) 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 (ss. 209-211)

209 Establishment

(1) 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 and functions

(1) The Commission shall be competent-

(a) to make recommendations, give directions and conduct

enquiries with regard to-

(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, discharge and other career

incidents of members of the public service and matters in

connection with the employment of personnel;

(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 provincial

legislature;

functions as may be entrusted to it by a law of a competent

authority; 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

of this 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 obtained; 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 discharge of its work.

(5) Expenditure incurred in connection with the exercise and

the performance 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 a report on its

activities to Parliament.

211 Composition

(1) (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 fairly, impartially and independently.

member of the Commission shall be determined in accordance with an

Act of Parliament, and such remuneration and the other conditions

of service shall not be altered to his or her detriment during his

or her term of office.

(d) A member of the Commission shall not hold office in any

political party or political organisation and shall be non-partisan

in the performance 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 impartiality of the Commission and the efficient

and effective exercise and performance of its powers and functions.

The Public Service (s 212)

212. (1) 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 of the South African community;

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 government 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 his 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, efficiency and suitability of the persons who qualify for

the appointment, promotion or transfer concerned, 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 governing 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 actuarial liability

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 1993, shall not be changed without his or her

consent.

(8) For the purposes of this section the public service shall

include the permanent force of the National Defence Force referred

to in section 226 (1).

Provincial Service Commissions (s 213)

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 which receives funds wholly or partly

appropriated by a provincial legislature;

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 functions; 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 211 pertaining to the Public Service Commission, shall mutatis

mutandis apply to a provincial service commission, except that any

reference to an Act of Parliament, Parliament or the President

shall be deemed to be a reference to a provincial law, a provincial

legislature or the Premier of a province, respectively.

CHAPTER 14

POLICE AND DEFENCE

South African Police Service (ss. 214-223)

214 Establishment

(1) 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 well as

the various provincial governments.

(2) The Act of Parliament referred to in subsection (1) shall-

(a) subject to sections 216, 217 and 218, provide for

the appointment 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 recruitment, appointment, promotion and

transfer of members of the Service;

(iii) suspension, dismissal, disciplinary and

grievance procedures;

(iv) the training, conduct and conditions of service

of members of the Service;

(v) the general management, control, maintenance

and provisioning of the 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 and functions

The powers and functions of the Service shall be-

(a) the prevention of crime;

(b) the investigation of any offence or alleged offence;

(d) the preservation of the internal security of the

Republic.

216 Minister and National Commissioner

(1) The President shall, subject to this Constitution, charge

a Minister with responsibility for the Service.

(2) (a) The President shall, subject to section 236 (1) and

(2), appoint the National Commissioner.

(b) The National Commissioner shall exercise executive command

of the Service, subject to section 219 (1) and the directions of

the Minister referred to in subsection (1).

(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

(1) 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 (1).

(2) The member of the Executive Council referred to in

subsection (1)-

(a) shall approve or veto the appointment of the

relevant Provincial Commissioner in terms of section 218 (1) (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 provincial legislature may pass laws not inconsistent

with national legislation regarding the functions of the Service

set out in section 219 (1).

(4) No provincial law may-

(a) permit lower standards of performance 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.

218 Responsibilities of National Commissioner

(1) Subject to section 214 and the directions of the Minister

referred to in section 216 (1), the National Commissioner shall be

responsible for-

(a) the maintenance of an impartial, accountable,

transparent and efficient police service;

(b) the appointment of provincial commissioners, subject

to section 217 (2) (a);

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 circumstances which shall be regarded as

organised crime and the circumstances which require national

investigation and prevention or specialised skills;

(e) international police liaison;

(f) the keeping and provision of crime intelligence

data, criminal records and statistics;

(g) the training of members of the Service, including

any municipal or metropolitan police services to be established;

(h) the recruitment, appointment, promotion and transfer

of all members of the Service;

(i) the provision of forensic laboratory services;

(j) such functions relating to border control and the

import and export of goods as may be assigned to the Service by

law;

(k) the establishment and maintenance of a national

public order policing unit to be deployed in support of and at the

request of the Provincial Commissioner: Provided that the Act

referred to in section 214 (1) shall provide that the President, in

consultation with the Cabinet, may direct the National Commissioner

to deploy the said unit in circumstances where the Provincial

Commissioner is unable to maintain public order and the deployment

of the said unit is necessary to restore public order;

(l) national protection services;

(m) the establishment of a special task force for high

risk operations 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 with the

Executive Council of the province concerned assign responsibility

for any function set out in this section to a Provincial

Commissioner: Provided that the National Commissioner shall ensure

that sufficient resources are made available to the Provincial

Commissioner for such purpose.

219 Provincial Commissioners

(1) Subject to sections 214 and 218 and the directions of the

relevant member of the Executive Council referred to in section 217

(1), a Provincial Commissioner shall be responsible for-

(a) the investigation and prevention of crime;

(b) the development of community-policing services;

(d) the provision in general of all other visible

policing services, including-

(i) the establishment and maintenance of police

stations;

(ii) crime reaction units; and

(iii) patrolling services;

(e) protection services in regard to provincial

institutions and personnel;

(f) transfers within the province of members of the

Service performing functions in terms of this section; and

(g) the promotion, up to the rank of lieutenant-colonel,

of members of the Service performing functions in terms of this

section.

(2) Subject to sections 214 and 218 and the directions of the

National Commissioner, a Provincial Commissioner shall be

responsible for-

(a) the maintenance and discipline of the Service in the

province concerned;

(b) the recruitment of members of the Service

responsible for the functions set out in subsection (1), and the

promotion of any such members to the rank of colonel or above;

her by the National Commissioner under section 218 (2); and

(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 appointment 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 (1) 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 (1) 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;

priorities;

(d) the evaluation of the provision of visible police

services, including-

(i) the provision, siting and staffing of police

stations;

(ii) the reception and processing of complaints and

charges;

(iii) the provision of protective services at

gatherings;

(iv) the patrolling of residential and business

areas; and

(v) the prosecution of offenders; and

(e) requesting enquiries into policing matters in the

locality concerned.

(3) The Act referred to in section 214 (1) shall make

provision for the establishment by any local government 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-laws;

province shall, subject to paragraph (b) and the provisions of the

said Act, determine 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 to any such

police service.

222 Independent 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 offences and

misconduct allegedly committed by members of the Service are

investigated in an effective and efficient manner.

223 Acts of members outside their territorial jurisdiction

(1) 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 determine

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 (ss. 224-228)

224 Establishment of National Defence Force

(1) The National Defence Force is hereby established as the

only defence force for the Republic.

(2) The National Defence Force shall at its establishment

consist of all members of-

(a) the South African Defence Force;

(b) any defence force of any area forming part of the

national territory; and

Transitional Executive Council Act, 1993 (Act 151 of 1993),

and whose names, at the commencement of this Constitution, are

included in a certified personnel register referred to in section

16 (3) or (9) of the said Act: 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 of the 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

protection of persons or property.

225 Chief of National Defence Force

Subject to section 236 (1) 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 a state of national defence, of the President.

226 Members of National Defence Force

(1) The National Defence Force shall comprise both a permanent

force and a part-time reserve component.

(2) The establishment, organisation, training, conditions of

service and other matters concerning the permanent force shall be

as provided for by an Act of Parliament.

(3) The establishment, organisation, training, state of

preparedness, 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 members of the National Defence Force shall be

properly trained in order to comply with international standards of

competency.

(6) No member of the 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 National Defence Force may, subject 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;

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 upliftment.

(2) The National Defence Force shall-

(a) exercise its powers and perform its functions solely

in the national interest by-

(i) upholding the Constitution;

(ii) providing for the defence of the Republic; and

(iii) ensuring the protection of the 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;

litical interests;

(d) not breach international customary law binding on

the Republic relating to aggression;

(e) in armed 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) Parliament 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 all political

parties holding more than 10 seats in the National Assembly and

willing to participate in the committee.

(b) The total membership of the committee shall be as

determined by or under the rules and orders.

members on the committee in accordance with the principle of

proportional representation and as determined 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 seats in the National

Assembly held jointly by all the parties referred to in paragraph

(a) by the total number of members of the 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

determined 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 allocated to a party,

such surplus shall compete with other similar surpluses accruing to

another party or parties, and any member or members which remain

unallocated shall be allocated to the party or parties concerned in

sequence of the highest surplus.

(d) The committee shall be competent to investigate and make

recommendations regarding the budget, functioning, organisation,

armaments, policy, morale 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 section 227 (1) (a), (b) or

(e), forthwith inform Parliament of the reasons for such

employment.

(b) If, in the case of such an employment referred to in

section 227 (1) (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 of the reasons for such employment.

(5) Parliament may by resolution terminate any employment

referred to in section 227 (1) (a), (b) or (e), but such

termination of employment shall not affect the validity of anything

done in terms of such employment up to the date of such termina

tion, or any right, privilege, obligation or liability acquired,

accrued or incurred as at the said date under and by virtue of such

employment.

CHAPTER 15

GENERAL AND TRANSITIONAL PROVISIONS (ss. 229-251)

229 Continuation of existing laws

Subject to this Constitution, all laws which immediately

before the commencement of this Constitution were in force in any

area which forms part of the 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

(1) The laws mentioned in Schedule 7 are hereby repealed to

the extent set out in the third column of the said Schedule.

(2) Notwithstanding the repeal of sections 13 and 101 (2) of

the 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

(1) All rights and obligations under international agreements

which immediately before the commencement of this Constitution were

vested in or binding on the Republic within the meaning of the

previous Constitution, shall be vested in or binding on the

Republic under this Constitution, unless provided otherwise by an

Act of Parliament.

(2) Parliament shall, subject to this Constitution, be

competent to agree to the ratification of or accession to an

international agreement negotiated and signed in terms of section

82 (1) (i).

(3) Where Parliament agrees to the 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 the law of the Republic, provided Parliament expressly

so provides and such agreement is not inconsistent with this

Constitution.

(4) The rules of customary international law binding on the

Republic, shall, unless inconsistent with this Constitution or an

Act of Parliament, form part of the law of the Republic.

232 Interpretation

(1) Unless it is inconsistent with the context or clearly

inappropriate, a reference in a law referred to in section 229-

(a) to the Republic or to any territory which after the

commencement of this Constitution forms part of the national

territory-

(i) as a constitutional institution, shall be

construed as a reference to the Republic referred to in section 1;

(ii) as a territorial area, shall be construed as a

reference to that part of the 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 the national

territory, shall-

(i) if the administration of such a law is

allocated in terms of this Constitution to the national government,

be construed as a reference to Parliament referred to in section

36; or

(ii) if the administration of such law is allocated

or assigned in terms of this Constitution to a government of a

province, be construed as a reference to the provincial legislature

of that province;

or other chief executive, Cabinet, Ministers' Council or executive

council of any territory which after the commencement of this

Constitution forms part of the national territory, shall-

(i) if the administration of such law is allocated

in terms of this Constitution to the national government, be

construed as a reference to the President acting in accordance with

this Constitution; or

(ii) if the administration of such law is allocated

or assigned in terms of this Constitution to a government of a

province, be construed as a reference to the Premier of such

province acting in terms of this Constitution;

(d) to an official language or to both official

languages, shall be construed, with due regard to section 3, as a

reference to any of the official South African languages under this

Constitution.

(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 section 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

section 4 (1).

(3) No law shall 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, including 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 all purposes

be deemed to form part of the substance of this Constitution.

(5) (a) Notwithstanding the provisions of the Independent

Electoral Commission Act, 1993 (Act 150 of 1993), the President may

at any time after the dissolution of the Independent Electoral

Commission in terms of section 9 of that Act, by proclamation in

the Gazette, reconvene the Commission 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 unwilling 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 Definitions

(1) In this Constitution, unless the context otherwise

indicates-

`Chief Justice' means the Chief Justice of the Supreme Court

of South Africa referred to in section 97 (1);

`Commission on Provincial Government' 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 Commission' means the Commission

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 (1);

`National Revenue Fund' means the Revenue Fund established by

section 185;

`new constitutional text' means the text of a new Constitution

contemplated in Chapter 5;

`organ of state' includes any statutory body or functionary;

`previous Constitution' means the Republic of South Africa

Constitution Act, 1983 (Act 110 of 1983);

`Provincial Revenue Fund' means the Revenue Fund of a province

established by section 159 (1);

`Public Service Commission' means the Commission established

by section 209;

`Republic' means the Republic of South Africa referred to in

section 1;

`Transitional Executive Council' means the Council established

by section 2 of the Transitional Executive Council Act, 1993 (Act

151 of 1993).

(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 a decision 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.

234 Transitional arrangements: Legislative authorities

(1) A person who immediately before the commencement of this

Constitution was a member of Parliament or of any other legislature

(excluding 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 immediately 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 236 (4), (5) and (6) shall apply

mutatis mutandis in respect of a person referred to in subsection

(2).

(4) A person who immediately 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

not yet disposed of by Parliament or such legislature, as the case

may be, shall lapse upon such commencement.

(6) The rules 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

(1) 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

executive or a Minister, Deputy Minister or other political

functionary in a government 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 section 77 (1) (a) and has assumed office: Provided that

a person referred to in paragraph (a), (b) or (c) shall for the

purposes of section 42 (1) (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 (1) (a), (b) or (c) shall, if necessary, be filled by a

person designated by the persons continuing in office in terms of

subsection (1) (a), acting in consultation with the Transitional

Executive Council.

(3) Executive authority which was vested in a person or

persons referred to in subsection (1) (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 (1), be exercised in accordance with such

constitution or constitutional arrangement, as if it had not been

repealed or superseded by this Constitution, and any such person or

persons shall continue to be competent to administer any department

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 (1) (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

(1), require him or her, or any other appropriate authority, to

take such steps in terms of any law as are necessary to maintain

law and order, including the declaration of a state of emergency or

of an area to be an unrest 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 assumes 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 allocated as follows:

(a) All 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 all 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 member of the Executive Council of

a province in terms of section 219 (1) shall be performed after

consultation with the said member within that province.

(b) All 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 (1) (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

commencement administered by or under the authority of a

functionary referred to in subsection (1) (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 subparagraph shall not apply to policing matters, which shall

be dealt with as contemplated in paragraph (a).

authority' shall mean-

(i) in relation to a law of which the administra

tion is allocated to the national government, an authority

designated by the President; and

(ii) in relation to a law of which the administra

tion is allocated to the government 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.

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 liability 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.

(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, including

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, including funds, to or from

the national or a provincial government or any department of state,

administration, force or other institution.

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 reference 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 concerned.

(9) (a) If for any reason a provincial government is unable to

assume 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 proclamation in the Gazette assign

the administration of such law to a special administrator or other

appropriate authority within the jurisdiction of the national

government, either generally or to the extent specified in the

proclamation, until that provincial government is able to assume

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: Public administration

(1) A public service, department of state (including a police

force), administration, military force as defined in section 224

(2) (a) or (b) or other institution (excluding any local

government) which immediately before the commencement of this

Constitution performed governmental functions under the control of

an authority referred to in section 235 (1) (a), (b) or (c), shall,

subject to subsection (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 section 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 (1) (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 employment subject to and in

accordance with this Constitution and other applicable laws

regulating such employment.

(3) Subject to subsections (1) and (2), all powers,

directions, orders, instructions or delegations which were in force

in respect of an institution which immediately before the

commencement of this Constitution performed governmental functions

as contemplated in subsection (1) shall, after the said commence

ment, continue in force for the purpose of the continued

functioning within the contemplation of subsection (1) 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 employment applicable to a person employed by an

institution referred to in subsection (1) immediately before the

commencement of this Constitution, shall continue to apply to him

or her until amended by or under any law, including any law enacted

in order to establish uniformity 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 subsection (2) shall not be reduced below that applicable to

such person immediately before the commencement of this Constitu

tion.

(6) Notwithstanding the provisions of this section, the

conclusion or amendment of a contract, the appointment or

promotion, or the award of a term or condition of service or other

benefit, which occurred 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.

(b) Any reference in any law to the South African Police or

any other police force (excluding a municipal police service)

shall, unless the context indicates otherwise, be construed as a

reference to the said South African Police Service.

(8) (a) The National Defence Force referred to in section 224

shall, subject to this Constitution and any Act of Parliament,

mutatis mutandis be governed by the Defence Act, 1957 (Act 44 of

1957).

(b) Any reference in any law to a defence force referred to in

section 224 (2) (a) or (b), shall be deemed to be a reference to

the National Defence Force.

exceeds the personnel strength determined in respect of the force

design and structure for the Force, any member of the Force who,

due to integration, consolidation and rationalisation of the

National Defence Force is not accommodated in such force design and

structure, shall be dealt with in accordance with a law.

(d) The continuance of membership of members of the National

Defence Force referred to in section 224 (2) (c) shall be subject

to such members entering into an agreement for temporary or

permanent appointment with the National Defence Force within a

reasonable time: Provided that such agreements shall be in

accordance with normal employment policies and terms and conditions

of 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 effective administration at the national level of

government to deal with matters within the jurisdiction of the

national government referred to in section 235 (5) (a); and

(ii) an effective administration for each province to

deal with matters within the jurisdiction of each provincial

government 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 government, which shall exercise such responsi

bility in co-operation with the provincial governments and the

Commission on Provincial Government, and with due regard to the

advice of the Public Service Commission: Provided that in the case

of policing services, the national government 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

government.

(b) Subject to section 235 (6), (7), (8) and (9), the

responsibility for the internal rationalisation of an administra

tion referred to in subsection (1) (a) (ii) shall primarily rest

with the relevant provincial government, with due regard to the

advice of the Public Service Commission and any relevant provincial

service commission: Provided that the rationalisation of all 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 law referred to in section 236 (2) is repealed, provision

shall be made for the application of any law of general application

regulating the employment of persons or any class of persons in the

employment of the state, to the persons or class of persons

affected by such repeal; and

(ii) measures relating to the transfer or secondment of

personnel, or the allocation of property, funds, rights and

obligations, including 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.

submitted to Parliament within 14 days after the publication

thereof.

(d) 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 liability acquired, accrued or incurred as at the

said date under and by virtue of such proclamation.

(4) (a) The labour appeal court established by section 17A of

the Labour Relations Act, 1956 (Act 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 in

terms of a law regulating as at 1 November 1993 employment in an

institution referred to in section 236 (1) and arising out of the

implementation of this section and section 236.

(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.

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 had not lapsed.

238 Transitional arrangements: Public service commissions

(1) A public service commission established for a public

service referred to in section 236 (1) shall, subject to

subsections (3) and (4), after the commencement of this Constitu

tion continue to function as such in accordance with the laws

applicable to it.

(2) (a) A person who immediately before the commencement of

this Constitution was the chairperson or member of a public service

commission referred to in subsection (1) 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 (Act 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 member of the Commission for Administration shall

be entitled 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 Administra

tion referred to in subsection (3), shall be deemed to be a

reference to the Public Service Commission.

239 Transitional arrangements: Assets and liabilities

(1) All assets, including funds and administrative records,

which immediately before the commencement of this Constitution

vested in an authority referred to in section 235 (1) (a), (b) or

(c), or in a government, administration or force under the control

of such an authority, shall be allocated as follows:

(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 government.

(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 126 (3), such asset shall,

subject to paragraph (c), vest in the relevant provincial

government.

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 shall vest in

the government 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 aforegoing

rules be classified with reference to a particular matter, law or

function, or where there is disagreement between two or more

governments, the advice of the Commission on Provincial Government

shall be obtained, and any 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

certificate by a competent authority that immovable property

described in the certificate is vested in a particular government

in terms of this section, make such entries or endorsements in or

on any relevant register, title deed or other document to register

such immovable 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 (1) in a provincial government, shall be assumed 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 undertaken by the

national government 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 report and recommendations 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) shall 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

(1) At the commencement of this Constitution the State Revenue

Fund established in terms of section 81 of the previous Constitu

tion shall continue to exist until an Act of Parliament contem

plated in section 185(1) 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 previous Constitution shall be phased out and

closed as soon as circumstances permit.

(4) In the 1994/1995 financial year the head of the department

of the Treasury, as defined in section 1 of the Exchequer Act, 1975

(Act 66 of 1975), 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 deems necessary for

the purposes of establishing and funding of structures of

government at provincial level as contemplated in this Constitution

until Parliament has appropriated money for such purposes.

(5) Any Revenue Fund established before the commencement of

this Constitution by a law in force in an area which forms part of

the national territory, excluding the State Revenue Fund referred

to in subsection (1), 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 authority.

(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 appropriation has been made for the current or in the

immediately 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

(1) Every court of law existing immediately before the

commencement 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 by a

competent authority.

(2) The Chief Justice of South Africa, the judges-president

and deputy judges-president 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 commencement of this Constitution in terms of a law,

shall continue to hold such office in accordance with such law.

(4) Every attorney-general holding office immediately before

the commence-ment 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 attorneys-general,

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 attorneys-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) of this section.

(7) Persons referred to in subsections (2), (3) and (4) shall

within 30 days of the election of the President in terms of section

77 (1) (a) make and subscribe an oath or solemn affirmation 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 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 had 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 government,

authority or functionary which ceased to exist at or after such

commencement, may be continued by or against the relevant

government, authority or functionary which superseded the said

government, authority or functionary.

(10) The laws and other measures which immediately 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 matters 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 of court structures

(1) All jurisdictional areas and court structures appropriate

thereto existing 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 (1) shall be the responsibil

ity of the national government after consultation with the Judicial

Service Commission.

(3) The rationalisation contemplated in subsection (1)

includes-

(a) the amendment, repeal or replacement of any law

regulating the establishment, functions, jurisdiction and other

matters relating to a court referred to in section 241 (1), or of

any law referred to in section 241 (2), or of any law which deals

with any of the aforegoing matters in a consequential manner:

Provided that if a law referred to in section 241 (2) is repealed,

provision shall be made for the application of any law of general

application regulating the service of judicial officers or any

class of judicial officers, to the judicial officers or class of

judicial officers affected by such repeal; and

(b) measures relating to the transfer or secondment of

judicial officers, or the allocation of property, including court

and administrative records, in order to establish the said

jurisdictional areas or court structures.

243 Transitional arrangements: Ombudsman

(1) A person who immediately before the commencement of this

Constitution was-

(a) the Ombudsman in terms of the Ombudsman Act, 1979

(Act 118 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

forms part of the national territory (other than the Ombudsman

referred to in paragraph (a)), or in the employ 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 (6) shall apply mutatis mutandis

to a person referred to in subsection (1) (c).

244 Transitional arrangements: Auditor-General

(1) A person who immediately before the commencement of this

Constitution was-

(a) the Auditor-General in terms of the Auditor-General

Act, 1989 (Act 52 of 1989), shall continue in office subject to

section 191 and the laws applicable to such office;

(b) employed in terms of the Audit Arrangements Act,

1992 (Act 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

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 appointment

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 entitled to under the pensions law applicable

to him or her if 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 (1), 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

(1) Until elections have been held in terms of the Local

Government Transition 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 (1) have been held, shall be

effected in accordance with the principles embodied in Chapter 10

and the Constitution as a whole.

(3) (a) For the purposes of the first election of members of

a local government after the commencement of this Constitution, the

area of jurisdiction of such local government 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 (1), and sixty per cent of the members shall be elected

on the 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 (1) (f) of the Provincial

Government Act, 1961 (Act 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 allocated

less than half of the total number of wards of the local government

concerned: Provided further that an area referred to in subpara

graph (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 (1) of the Act

referred to in subsection (1) of this section (as that Act exists

at the commencement of this Constitution), has been established.

246 Transitional arrangements: Pensions of political of-

fice-bearers

The right of any person in terms of any law which at the

commencement 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 in respect

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 already 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 departmental, community-managed or

state-aided primary or secondary schools under laws existing

immediately before the commencement of this Constitution unless an

agreement resulting 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 of the controlling bodies of universities and

technikons under laws existing immediately before the commencement

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 (1)

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 well 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 Constituton.

(4) In order to ensure an acceptable quality of education, the

responsiblegovernment shall provide funds to departmental,

community-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 commence

ment 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 (1) 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 all 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 Assembly

(1) Notwithstanding 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 the members of the National Assembly.

(2) Such election shall be conducted in accordance with

Schedule 2 and the Electoral Act, 1993.

(3) This section shall come into operation on the date of

promulgation of this Constitution.

250 Non-certification of election by Independent 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

Commission shall declare that either-

(a) it is able to determine a result based on the votes

which could be counted; or

(b) it is unable to determine any result.

(2) If the Independent Electoral Commission declares as

contemplated 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 or a

provincial legislature, as the case may be, shall be established on

the basis of the result determined in terms of subsection (1) (a):

Provided that no provincial legislature shall be established unless

the National Assembly is established;

basis of a declaration in terms of subsection (1) (a), of this

Constitution, the Independent Electoral Commission Act, 1993, the

Electoral Act, 1993, the Independent Media Commission Act, 1993, or

the Independent Broadcasting Authority Act, 1993, shall be

permissible until the election contemplated in paragraph (a) has

been certified as substantially free and fair in terms of the

Independent Electoral Commission Act, 1993; and

(d) any provincial legislature established on the basis

of a declaration in terms of subsection (1) (a), shall have no

legislative competence save for the enactment of laws necessary for

the appropriation of revenue or moneys, 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) If the Independent Electoral Commission declares as

contemplated in subsection (1) (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 provincial legislatures shall be held

simultaneously; and

(b) the constitutional arrangements under the Republic

of South Africa Constitution Act, 1983 (Act 110 of 1983), 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

(1) This Act shall be called the Constitution of the Republic

of South Africa, 1993, and shall, subject 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

respect of different provisions of this Constitution.

(4) A reference in a provision of this Constitution to the

commencement of this Constitution shall, unless the context

otherwise indicates, be construed as a reference to the commence

ment of such provision.

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, irrespective

of colour, race, class, belief or sex.

The pursuit of national unity, the well-being of all South

African 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

strife of the past, which generated gross violations of human

rights, the transgression of humanitarian principles in violent

conflicts and a legacy of hatred, 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 1990 and before 6 December

1993, and providing for the mechanisms, 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 commitments we, the people of

South Africa, open a new chapter in the 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 katekisa Afrika

Schedule 1

PART 1

DEFINITIONS OF PROVINCES

THE PROVINCE OF NATAL

Districts created in terms of the Magistrates' Courts Act,

1944 (Act 32 of 1944)

Alfred Kranskop Nqutu*

Babanango Lions River Paulpietersburg

Bergville Lower Tugela Piet Retief (2)

Camperdown Lower Umfolozi Pietermaritzburg

Chatsworth Mapumulo* Pinetown

Dannhauser Mhlabatini* Polela

Dundee Mooi River Port Shepstone

Durban Mount Currie (1) Richmond

Eshowe Msinga* Ubombo

Estcourt Mtonjaneni Umbumbulu*

Glencoe Mtunzini Umlazi*

Hlabisa Ndwedwe* Umvoti

Impendle New Hanover Umzinto

Inanda Newcastle Underberg

Ingwavuma* Ngotshe Utrecht

Ixopo Nkandhla* Vryheid

Klip River Nongoma* Weenen

(1) Excluding land mentioned in Proclamations R141 of 30

September 1983 and 43 of 26 April 1985 and the farms Drumleary 130

and Stanford 127.

(2) Only the Simdlangentsha and Pongola areas, described as:

PONGOLA

From the north-western beacon of Portion 45 (Diagram A

4265/55) of the farm Pongola 61 HU on the boundary between the

Republic of South Africa and Swaziland; thence east along the said

boundary between the Republic of South Africa and Swaziland to the

north-eastern corner of the farm Devils Dive 79 HU, thence

generally south along the said boundary to the south-eastern corner

of the farm Lebombo's Poort 92 HU, thence generally west along the

middle of the Pongola River, to the south-eastern corner of the

farm Zwartkloof 60 HU; thence generally north along the boundaries

of the following so as to exclude them out of this area: the said

farm Zwartkloof 60 HU, Kranskloof 59 HU and Portion 45 (Diagram A

4275/55) of the farm Pongola 61 HU to the north-eastern beacon of

the last-named Portion 45, the place of beginning.

SIMDLANGENTSHA

From the north-western beacon of Portion 10 (Diagram A

1373/39) of the farm Voorslag 24 HU, in a south-eastern direction

along the north-eastern boundary of the said Voorslag 24 HU to the

north-western beacon of the farm Beginsel 56 HU; thence eastwards

along the northern boundaries of the following properties: the said

farm Beginsel 56 HU, Kranskloof 59 HU and Portion 45 (Diagram A

4265/55) of the farm Pongola 61 HU, to the north-eastern beacon of

the latter portion; thence in a general southern direction along

the boundaries of the following properties so as to include them in

this area: the said Portion 45 HU, the farm Kranskloof 59 HU and

Zwartkloof 60 HU to the south-eastern beacon of the latter farm in

the middle of the Pongola River; thence in a general western

direction along the middle of the said Pongola River to the

northernmost beacon of the farm Gunsteling 45 HU; thence in a

general north-eastern direction along the boundaries of the

following properties so as to include them in this area: the said

farm Gunsteling 45 HU, Prudentie 46 HU, Oranjedal 38 HU, Tobolsk 28

HU, Belgrade 27 HU and Portion 10 (Diagram A 1373/39) of the farm

Voorslag 24 HU to the north-western beacon of the latter farm, the

place of beginning.

* Kwazulu districts, as they were on 1 February 1977.

THE PROVINCE OF NORTHERN CAPE

Districts created in terms of the Magistrates' Courts Act,

1944 (Act 32 of 1944)

Barkly West Hartswater Philipstown

Britstown Hay Postmasburg

Calvinia Herbert Prieska

Carnarvon Hopetown Richmond

Colesberg Kenhardt Sutherland

De Aar Kimberley Victoria West

Fraserburg Kuruman (1) Warrenton

Gordonia Namaqualand Williston

Hanover Noupoort

(1) Excluding the areas as described in Proclamation 103 of

31 October 1991.

THE PROVINCE OF NORTHERN TRANSVAAL

(a) Districts created in terms of the Magistrates'

Courts Act, 1944 (Act 32 of 1944)

Dzanani* Phalaborwa Thabazimbi (3)

Ellisras Pietersburg Vuvani*

Letaba 1 Potgietersrust Warmbaths (4)

Letaba 2 Sibasa* Waterberg

Messina (1) Soutpansberg 1 (2)

Mutale* Soutpansberg 2

(1) Including the areas as described in Proclamations 187 of

24 September 1982, R51 of 27 March 1986 and 178 of 28 October 1988

(2) Including the areas as described in Proclamation R51 of

27 March 1986

(3) Excluding the areas as described in Proclamation R222 of

28 November 1986

(4) Excluding the areas as described in Proclamation R98 of

30 June 1989

* Venda districts, as they were on 13 September 1979

(b) The area for which the Gazankulu Legislative

Assembly has been instituted in terms of section 1 of the

Self-governing Territories Constitution Act, 1971 (Act 21 of 1971)

has been instituted in terms of section 1 of the Self-governing

Territories Constitution Act, 1971 (Act 21 of 1971), excluding the

area consisting of the following properties-

(i) Remainder of the farm Elandsfontein 435 KT, in

extent 5678,5521 hectares, according to Diagram A2306/1927; and

(ii) Portion 1, in extent 1457,4567 hectares, of the

farm Dientjie 453 KT, according to Diagram A1939/1964.

THE PROVINCE OF NORTH-WEST

Districts created in terms of the Magistrates' Courts Act,

1944 (Act 32 of 1944)

Bloemhof Lehurutshe* Pretoria (7)

Bafokeng* Lichtenburg (4) Rustenburg 1 (8)

Brits (1) Madikwe* Rustenburg 2 (9)

Christiana Mafeking (5) Schweizer-Reneke

Coligny Mankwe* Swartruggens (10)

Delareyville (2) Marico 1 (6) Taung*

Ditsobotla* Marico 2 Tlhaping-Tlharo*

Ganyesa* Molopo Ventersdorp

Klerksdorp Moretele* Vryburg (11)

Koster Odi* Warmbaths (12)

Kuruman (3) Potchefstroom Wolmaransstad

(1) Including-

(a) areas as described in Part 1 of the Schedule to the

Bophuthatswana Border Extension Act, 1978 (Act 8 of 1978);

(b) the areas as described in Proclamations R222 of 28

November 1986 and R98 of 30 June 1989

(2) Including the areas as described in Proclamation R98 of

30 June 1989

(3) Only-

(a) land as described in Part 4 of the Schedule to the

Bophuthatswana Border Extension Act, 1978 (Act 8 of 1978);

(b) the areas as described in Proclamation 103 of 31

October 1991

(4) Including the areas as described in Proclamation R98 of

30 June 1989

(5) Including-

(a) land as described in the Schedule to the Bophu-

thatswana Border Extension Act, 1978 (Act 8 of 1978);

(b) the areas as described in Proclamations 70 of 1

April 1990 and 103 of 31 October 1991

(6) Including the areas as described in Proclamations R222 of

28 November 1986; 43 of 18 March 1988; R220 of 30 December 1988;

R98 of 30 June 1989; 70 of 1 April 1990; and 103 of 31 October 1991

(7) Only those areas as described in Proclamations R137 of 25

September 1987 and R98 of 30 June 1989

(8) Including-

(a) land as described in Part 3 of the Schedule to the

Bophuthatswana Border Extension Act, 1978 (Act 8 of 1978);

(b) the areas as described in Proclamation 4 of 3

February 1989

(9) Including the areas as described in Proclamations 103 of

31 October 1991; 70 of 1 April 1990 and R98 of 30 June 1989

(10) Including the areas as described in Proclamation 103 of

31 October 1991

(11) Including-

(a) land as described in Part 5 of the Schedule to the

Bophuthatswana Border Extension Act, 1978 (Act 8 of 1978);

(b) the areas as described in Proclamations 103 of 31

October 1991; 70 of 1 April 1990; R98 of 30 June 1989; R23 of 28

February 1986; and R259 of 31 December 1981

(12) Only those areas as described in Proclamation R. 98 of 30

June 1989

* Districts of Bophuthatswana, as they were on 6 December

1977 as well as the areas as described in Proclamation R222 of 28

November 1986.

THE PROVINCE OF EASTERN CAPE

Districts created in terms of the Magistrates' Courts Act,

1944 (Act 32 of 1944)

BLOCK `A'

Aberdeen Graaff-Reinet Pearston

Adelaide Hankey Port Elizabeth

Albany Hofmeyr Somerset East

Alexandria Humansdorp Steynsburg

Bathurst Jansenville Steytlerville

Bedford Joubertina Tarka

Cradock Kirkwood Uitenhage

Fort Beaufort (1) Middelburg Venterstad

Willowmore

BLOCK `B'

Albert Komgha Qumbu#

Aliwal North Lady Grey St Marks#

Barkly East Libode# Sterkstroom

Bizana# Lusikisiki# Stockenstrm (6)

Butterworth# Maclear Stutterheim (7)

Cathcart (2) Matatiele# Tabankulu#

Elliot Mdantsane* Tsolo#

Elliotdale# Middledrift* Tsomo#

Engcobo# Molteno Umtata#

Flagstaff# Mount Fletcher# Umzimkulu#

Glen Grey# Mount Ayliff# Victoria East*

Herschel# Mount Frere# Willowvale#

Hewu* Mqanduli# Wodehouse

Idutywa# Ngqeleni# Xalanga#

Indwe Nqamakwe# Zwelitsha*

Keiskammahoek* East London (4)

Kentani# Peddie*

King William's Town (3) Port St Johns#

Queenstown (5)

(1) Including the areas as described in Proclamation 75 of 30

April 1987

(2) Including the areas as described in Proclamation 187 of

3 November 1989

(3) Including the areas as described in Proclamations 101 of

26 June 1987; 127 of 12 August 1988 and 187 of 3 November 1989, as

corrected by Correction Notice 380 of 23 February 1990

(4) Including the areas as described in Proclamations 15 of

3 March 1989 and 187 of 3 November 1989

(5) Including the areas as described in Proclamations R211 of

29 October 1982 and 101 of 26 June 1987

(6) Including the areas as described in Proclamation 187 of

3 November 1989

(7) Including the areas as described in Proclamations 75 of

30 April 1987; R139 of 25 September 1987; and 15 of 3 March 1989

* Districts of the Ciskei, as they were on 4 December

1981

# Districts of the Transkei, as they were on 26 October

1976, including the land mentioned in Proclamations R141 of 30

September 1983 and 43 of 26 April 1985 and the farms Drumleary 130

and Stanford 127

THE PROVINCE OF EASTERN TRANSVAAL

(a) Districts created in terms of the Magistrates'

Courts Act, 1944 (Act 32 of 1944)

Amersfoort Highveld Ridge Pilgrim's Rest 1

Balfour Kriel Pilgrim's Rest 2

Barberton Lydenburg Piet Retief (2)

Belfast Mathanjana (1) Standerton

Bethal Middelburg Volksrust

Carolina Moutse 1 Wakkerstroom

Delmas Moutse 2 Waterval-Boven

Ermelo Moutse 3 Witbank

Groblersdal Nelspruit White River

(1) As described in Part 2 of the Schedule to the Bophu-

thatswana Border Extension Act, 1978 (Act 8 of 1978);

(2) Excluding the Simdlangentsha and Pongola areas, described

as:

PONGOLA

From the north-western beacon of Portion 45 (Diagram A

4265/55) of the farm Pongola 61 HU on the boundary between the

Republic of South Africa and Swaziland; thence east along the said

boundary between the Republic of South Africa and Swaziland to the

north-eastern corner of the farm Devils Dive 79 HU; thence

generally south along the said boundary to the south-eastern corner

of the farm Lebombo's Poort 92 HU; thence generally west along the