South Africa 1996 (rev. 2012)

1. Republic of South Africa

2. Supremacy of Constitution

3. Citizenship

1. There is a common South African citizenship.
2. All citizens are-
   1. equally entitled to the rights, privileges and benefits of citizenship; and
   2. equally subject to the duties and responsibilities of citizenship.
3. Requirements for naturalization, Conditions for revoking citizenship, Requirements for birthright citizenship
   National legislation must provide for the acquisition, loss and restoration of citizenship.

4. National anthem

5. National flag

6. Languages

1. The official languages of the Republic are Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu.
2. Protection of language use
   Recognising the historically diminished use and status of the indigenous languages of our people, the state must take practical and positive measures to elevate the status and advance the use of these languages.

3

1. Official or national languages
   The national government and provincial governments may use any particular official languages for the purposes of government, taking into account usage, practicality, expense, regional circumstances and the balance of the needs and preferences of the population as a whole or in the province concerned; but the national government and each provincial government must use at least two official languages.
2. Official or national languages
   Municipalities must take into account the language usage and preferences of their residents.
3. Official or national languages
   The national government and provincial governments, by legislative and other measures, must regulate and monitor their use of official languages. Without detracting from the provisions of subsection (2), all official languages must enjoy parity of esteem and must be treated equitably.
4. Protection of language use
   A Pan South African Language Board established by national legislation must-
   1. promote, and create conditions for, the development and use of-
      1. all official languages;
      2. the Khoi, Nama and San languages; and
      3. sign language; and
   2. promote and ensure respect for-
      1. all languages commonly used by communities in South Africa, including German, Greek, Gujarati, Hindi, Portuguese, Tamil, Telegu and Urdu; and
      2. Arabic, Hebrew, Sanskrit and other languages used for religious purposes in South Africa.

7. Rights

1. Human dignity
   This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.
2. The state must respect, protect, promote and fulfil the rights in the Bill of Rights.
3. The rights in the Bill of Rights are subject to the limitations contained or referred to in section 36, or elsewhere in the Bill.

8. Application

1. The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.
2. A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.
3. When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court-
   1. in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and
   2. may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36 (1).
4. A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person.

9. Equality

1. General guarantee of equality
   Everyone is equal before the law and has the right to equal protection and benefit of the law.
2. General guarantee of equality
   Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
3. Equality regardless of gender, Equality regardless of parentage, Equality regardless of skin color, Equality regardless of creed or belief, Equality regardless of language, Equality regardless of race, Equality regardless of sexual orientation, Equality regardless of religion, Equality for persons with disabilities, Equality regardless of age, Equality regardless of social status
   The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
4. No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
5. Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

10. Human dignity

11. Life

12. Freedom and security of the person

1. Everyone has the right to freedom and security of the person, which includes the right-
   1. Protection from unjustified restraint
      not to be deprived of freedom arbitrarily or without just cause;
   2. Protection from unjustified restraint
      not to be detained without trial;
   3. to be free from all forms of violence from either public or private sources;
   4. Prohibition of torture
      not to be tortured in any way; and
   5. Prohibition of cruel treatment
      not to be treated or punished in a cruel, inhuman or degrading way.
2. Everyone has the right to bodily and psychological integrity, which includes the right-
   1. Right to found a family
      to make decisions concerning reproduction;
   2. to security in and control over their body; and
   3. Reference to science
      not to be subjected to medical or scientific experiments without their informed consent.

13. Slavery, servitude and forced labour

14. Privacy

15. Freedom of religion, belief and opinion

1. Freedom of religion, Freedom of opinion/thought/conscience
   Everyone has the right to freedom of conscience, religion, thought, belief and opinion.
2. Religious observances may be conducted at state or state-aided institutions, provided that-
   1. those observances follow rules made by the appropriate public authorities;
   2. they are conducted on an equitable basis; and
   3. attendance at them is free and voluntary.

16. Freedom of expression

1. Freedom of expression
   Everyone has the right to freedom of expression, which includes-
   1. Freedom of press
      freedom of the press and other media;
   2. freedom to receive or impart information or ideas;
   3. Reference to art
      freedom of artistic creativity; and
   4. Right to academic freedom, Reference to science
      academic freedom and freedom of scientific research.
2. Freedom of expression
   The right in subsection (1) does not extend to-
   1. propaganda for war;
   2. incitement of imminent violence; or
   3. advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

17. Assembly, demonstration picket and petition

18. Freedom of association

19. Political rights

1. Every citizen is free to make political choices, which includes the right-
   1. Right to form political parties
      to form a political party;
   2. to participate in the activities of, or recruit members for, a political party; and
   3. to campaign for a political party or cause.
2. Every citizen has the right to free, fair and regular elections for any legislative body established in terms of the Constitution.
3. Every adult citizen has the right-
   1. Secret ballot, Claim of universal suffrage
      to vote in elections for any legislative body established in terms of the Constitution, and to do so in secret; and
   2. to stand for public office and, if elected, to hold office.

20. Citizenship

21. Freedom of movement and residence

1. Everyone has the right to freedom of movement.
2. Everyone has the right to leave the Republic.
3. Every citizen has the right to enter, to remain in and to reside anywhere in, the Republic.
4. Every citizen has the right to a passport.

22. Freedom of trade, occupation and profession

23. Labour relations

1. Everyone has the right to fair labour practices.
2. Every worker has the right-
   1. Right to join trade unions
      to form and join a trade union;
   2. to participate in the activities and programmes of a trade union; and
   3. Right to strike
      to strike.
3. Every employer has the right-
   1. to form and join an employers’ organisation; and
   2. to participate in the activities and programmes of an employers’ organisation.
4. Every trade union and every employers’ organisation has the right-
   1. to determine its own administration, programmes and activities;
   2. to organise; and
   3. to form and join a federation.
5. Every trade union, employers’ organisation and employer has the right to engage in collective bargaining. National legislation may be enacted to regulate collective bargaining. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36 (1).
6. National legislation may recognise union security arrangements contained in collective agreements. To the extent that the legislation may limit a right in this Chapter the limitation must comply with section 36 (1).

24. Environment

25. Property

1. Right to own property
   No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.
2. Protection from expropriation
   Property may be expropriated only in terms of law of general application-
   1. for a public purpose or in the public interest; and
   2. subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.
3. Protection from expropriation
   The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including-
   1. the current use of the property;
   2. the history of the acquisition and use of the property;
   3. the market value of the property;
   4. the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and
   5. the purpose of the expropriation.
4. Protection from expropriation
   For the purposes of this section-
   1. the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources; and
   2. property is not limited to land.
5. The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.
6. A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.
7. A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.
8. No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36 (1).
9. Parliament must enact the legislation referred to in subsection (6).

26. Housing

1. Everyone has the right to have access to adequate housing.
2. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.
3. No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

27. Health care, food, water and social security

1. Everyone has the right to have access to-
   1. Right to health care
      health care services, including reproductive health care;
   2. Right to water
      sufficient food and water; and
   3. social security, including, if they are unable to support themselves and their dependents, appropriate social assistance.
2. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.
3. Right to health care
   No one may be refused emergency medical treatment.

28. Children

1. Rights of children
   Every child has the right-
   1. to a name and a nationality from birth;
   2. Rights or duties of parents
      to family care or parental care, or to appropriate alternative care when removed from the family environment;
   3. to basic nutrition, shelter, basic health care services and social services;
   4. to be protected from maltreatment, neglect, abuse or degradation;
   5. Limits on employment of children
      to be protected from exploitative labour practices;
   6. Limits on employment of children
      not to be required or permitted to perform work or provide services that-
      1. are inappropriate for a person of that child’s age; or
      2. place at risk the child’s well-being, education, physical or mental health or spiritual, moral or social development;
   7. Privileges for juveniles in criminal process
      not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only for the shortest appropriate period of time, and has the right to be-
      1. kept separately from detained persons over the age of 18 years; and
      2. treated in a manner, and kept in conditions, that take account of the child’s age;
   8. to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result; and
   9. not to be used directly in armed conflict, and to be protected in times of armed conflict.
2. A child’s best interests are of paramount importance in every matter concerning the child.
3. In this section ‘child’ means a person under the age of 18 years.

29. Education

1. Everyone has the right-
   1. to a basic education, including adult basic education; and
   2. Access to higher education
      to further education, which the state, through reasonable measures, must make progressively available and accessible.
2. Free education
   Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account-
   1. equity;
   2. practicability; and
   3. the need to redress the results of past racially discriminatory laws and practices.
3. Everyone has the right to establish and maintain, at their own expense, independent educational institutions that-
   1. do not discriminate on the basis of race;
   2. are registered with the state; and
   3. maintain standards that are not inferior to standards at comparable public educational institutions.
4. Subsection (3) does not preclude state subsidies for independent educational institutions.

30. Language and culture

31. Cultural, religious and linguistic communities

1. Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community-
   1. to enjoy their culture, practise their religion and use their language; and
   2. to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.
2. The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.

32. Access to information

1. Everyone has the right of access to-
   1. Right to information
      any information held by the state; and
   2. any information that is held by another person and that is required for the exercise or protection of any rights.
2. Right to information
   National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.

33. Just administrative action

1. Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.
2. Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.
3. National legislation must be enacted to give effect to these rights, and must-
   1. provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal;
   2. impose a duty on the state to give effect to the rights in subsections (1) and (2); and
   3. promote an efficient administration.

34. Access to courts

35. Arrested, detained and accused persons

1. Everyone who is arrested for allegedly committing an offence has the right-
   1. Protection from self-incrimination
      to remain silent;
   2. to be informed promptly-
      1. of the right to remain silent; and
      2. of the consequences of not remaining silent;
   3. not to be compelled to make any confession or admission that could be used in evidence against that person;
   4. Protection from unjustified restraint
      to be brought before a court as soon as reasonably possible, but not later than-
      1. 48 hours after the arrest; or
      2. the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day;
   5. Protection from unjustified restraint
      at the first court appearance after being arrested, to be charged or to be informed of the reason for the detention to continue, or to be released; and
   6. to be released from detention if the interests of justice permit, subject to reasonable conditions.
2. Everyone who is detained, including every sentenced prisoner, has the right-
   1. to be informed promptly of the reason for being detained;
   2. Right to counsel
      to choose, and to consult with, a legal practitioner, and to be informed of this right promptly;
   3. Right to counsel
      to have a legal practitioner assigned to the detained person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
   4. Protection from unjustified restraint
      to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released;
   5. Human dignity
      to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment; and
   6. to communicate with, and be visited by, that person’s-
      1. spouse or partner;
      2. next of kin;
      3. chosen religious counsellor; and
      4. chosen medical practitioner.
3. Right to fair trial
   Every accused person has a right to a fair trial, which includes the right-
   1. to be informed of the charge with sufficient detail to answer it;
   2. to have adequate time and facilities to prepare a defence;
   3. Right to public trial
      to a public trial before an ordinary court;
   4. Right to speedy trial
      to have their trial begin and conclude without unreasonable delay;
   5. to be present when being tried;
   6. Right to counsel
      to choose, and be represented by, a legal practitioner, and to be informed of this right promptly;
   7. Right to counsel
      to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
   8. Protection from self-incrimination, Presumption of innocence in trials
      to be presumed innocent, to remain silent, and not to testify during the proceedings;
   9. Right to examine evidence/witnesses
      to adduce and challenge evidence;
   10. Protection from self-incrimination
       not to be compelled to give self-incriminating evidence;
   11. Trial in native language of accused
       to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings interpreted in that language;
   12. Protection from ex post facto laws
       not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted;
   13. Prohibition of double jeopardy
       not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted;
   14. to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and
   15. Right to appeal judicial decisions
       of appeal to, or review by, a higher court.
4. Whenever this section requires information to be given to a person, that information must be given in a language that the person understands.
5. Regulation of evidence collection
   Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.

36. Limitation of rights

1. Human dignity
   The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including-
   1. the nature of the right;
   2. the importance of the purpose of the limitation;
   3. the nature and extent of the limitation;
   4. the relation between the limitation and its purpose; and
   5. less restrictive means to achieve the purpose.
2. Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

37. States of emergency

1. A state of emergency may be declared only in terms of an Act of Parliament, and only when-
   1. the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and
   2. the declaration is necessary to restore peace and order.
2. A declaration of a state of emergency, and any legislation enacted or other action taken in consequence of that declaration, may be effective only-
   1. prospectively; and
   2. for no more than 21 days from the date of the declaration, unless the National Assembly resolves to extend the declaration. The Assembly may extend a declaration of a state of emergency for no more than three months at a time. The first extension of the state of emergency must be by a resolution adopted with a supporting vote of a majority of the members of the Assembly. Any subsequent extension must be by a resolution adopted with a supporting vote of at least 60 per cent of the members of the Assembly. A resolution in terms of this paragraph may be adopted only following a public debate in the Assembly.
3. Any competent court may decide on the validity of-
   1. a declaration of a state of emergency;
   2. any extension of a declaration of a state of emergency; or
   3. any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency.
4. Any legislation enacted in consequence of a declaration of a state of emergency may derogate from the Bill of Rights only to the extent that-
   1. the derogation is strictly required by the emergency; and
   2. the legislation-
      1. is consistent with the Republic’s obligations under international law applicable to states of emergency;
      2. conforms to subsection (5); and
      3. is published in the national Government Gazette as soon as reasonably possible after being enacted.
5. No Act of Parliament that authorises a declaration of a state of emergency, and no legislation enacted or other action taken in consequence of a declaration, may permit or authorise-
   1. indemnifying the state, or any person, in respect of any unlawful act;
   2. any derogation from this section; or
   3. any derogation from a section mentioned in column 1 of the Table of Non-Derogable Rights, to the extent indicated opposite that section in column 3 of the Table.

   Table of Non-Derogable Rights

   General guarantee of equality

   Row 1

   Column 1. Section number

   9

   Column 2. Section title

   Equality

   Column 3. Extent to which the right is non-derogable

   With respect to unfair discrimination solely on the grounds of race, colour, ethnic or social origin, sex, religion or language

   Human dignity

   Row 2

   Column 1. Section number

   10

   Column 2. Section title

   Human dignity

   Column 3. Extent to which the right is non-derogable

   Entirely

   Right to life

   Row 3

   Column 1. Section number

   11

   Column 2. Section title

   Life

   Column 3. Extent to which the right is non-derogable

   Entirely

   Row 4

   Column 1. Section number

   12

   Column 2. Section title

   Freedom and security of the person

   Column 3. Extent to which the right is non-derogable

   With respect to subsections (1) (d) and (e) and 2 (c)

   Prohibition of slavery

   Row 5

   Column 1. Section number

   13

   Column 2. Section title

   Slavery, servitude and forced labour

   Column 3. Extent to which the right is non-derogable

   With respect to slavery and servitude

   Rights of children, Limits on employment of children

   Row 6

   Column 1. Section number

   28

   Column 2. Section title

   Children

   Column 3. Extent to which the right is non-derogable

   With respect to:

   • subsection (1) (d) and (e);

     the rights in subparagraphs (i) and (ii) of subsection (1) (g); and

     subsection (1) (i) in respect of children of 15 years and younger

   Regulation of evidence collection, Right to examine evidence/witnesses, Trial in native language of accused, Prohibition of double jeopardy, Right to appeal judicial decisions, Right to public trial, Right to counsel, Presumption of innocence in trials, Protection from ex post facto laws, Protection from unjustified restraint, Protection from self-incrimination

   Row 7

   Column 1. Section number

   35

   Column 2. Section title

   Arrested, detained and accused persons

   Column 3. Extent to which the right is non-derogable

   With respect to:

   • subsections (1) (a), (b) and (c) and (2) (d);

     the rights in paragraphs (a) to (o) of subsection (3), excluding paragraph (d);

     subsection (4); and

     subsection (5) with respect to the exclusion of evidence if the admission of that evidence would render the trial unfair

6. Whenever anyone is detained without trial in consequence of a derogation of rights resulting from a declaration of a state of emergency, the following conditions must be observed:
   1. An adult family member or friend of the detainee must be contacted as soon as reasonably possible, and informed that the person has been detained.
   2. Prison registry
      A notice must be published in the national Government Gazette within five days of the person being detained, stating the detainee’s name and place of detention and referring to the emergency measure in terms of which that person has been detained.
   3. The detainee must be allowed to choose, and be visited at any reasonable time by, a medical practitioner.
   4. The detainee must be allowed to choose, and be visited at any reasonable time by, a legal representative.
   5. A court must review the detention as soon as reasonably possible, but no later than 10 days after the date the person was detained, and the court must release the detainee unless it is necessary to continue the detention to restore peace and order.
   6. A detainee who is not released in terms of a review under paragraph (e), or who is not released in terms of a review under this paragraph, may apply to a court for a further review of the detention at any time after 10 days have passed since the previous review, and the court must release the detainee unless it is still necessary to continue the detention to restore peace and order.
   7. Right to counsel
      The detainee must be allowed to appear in person before any court considering the detention, to be represented by a legal practitioner at those hearings, and to make representations against continued detention.
   8. The state must present written reasons to the court to justify the continued detention of the detainee, and must give a copy of those reasons to the detainee at least two days before the court reviews the detention.
7. If a court releases a detainee, that person may not be detained again on the same grounds unless the state first shows a court good cause for re-detaining that person.
8. Subsections (6) and (7) do not apply to persons who are not South African citizens and who are detained in consequence of an international armed conflict. Instead, the state must comply with the standards binding on the Republic under international humanitarian law in respect of the detention of such persons.

38. Enforcement of rights

39. Interpretation of Bill of Rights

1. When interpreting the Bill of Rights, a court, tribunal or forum-
   1. Human dignity
      must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;
   2. International law
      must consider international law; and
   3. may consider foreign law.
2. When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.
3. The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.

40. Government of the Republic

1. In the Republic, government is constituted as national, provincial and local spheres of government which are distinctive, interdependent and interrelated.
2. All spheres of government must observe and adhere to the principles in this Chapter and must conduct their activities within the parameters that the Chapter provides.

41. Principles of co-operative government and intergovernmental relations

1. All spheres of government and all organs of state within each sphere must-
   1. preserve the peace, national unity and the indivisibility of the Republic;
   2. secure the well-being of the people of the Republic;
   3. provide effective, transparent, accountable and coherent government for the Republic as a whole;
   4. Duty to obey the constitution
      be loyal to the Constitution, the Republic and its people;
   5. respect the constitutional status, institutions, powers and functions of government in the other spheres;
   6. not assume any power or function except those conferred on them in terms of the Constitution;
   7. exercise their powers and perform their functions in a manner that does not encroach on the geographical, functional or institutional integrity of government in another sphere; and
   8. co-operate with one another in mutual trust and good faith by-
      1. fostering friendly relations;
      2. assisting and supporting one another;
      3. informing one another of, and consulting one another on, matters of common interest;
      4. co-ordinating their actions and legislation with one another;
      5. adhering to agreed procedures; and
      6. avoiding legal proceedings against one another.
2. An Act of Parliament must-
   1. establish or provide for structures and institutions to promote and facilitate intergovernmental relations; and
   2. provide for appropriate mechanisms and procedures to facilitate settlement of intergovernmental disputes.
3. An organ of state involved in an intergovernmental dispute must make every reasonable effort to settle the dispute by means of mechanisms and procedures provided for that purpose, and must exhaust all other remedies before it approaches a court to resolve the dispute.
4. If a court is not satisfied that the requirements of subsection (3) have been met, it may refer a dispute back to the organs of state involved.

42. Composition of Parliament

1. Structure of legislative chamber(s)
   Parliament consists of-
   1. the National Assembly; and
   2. the National Council of Provinces.
2. The National Assembly and the National Council of Provinces participate in the legislative process in the manner set out in the Constitution.
3. Head of state selection, Legislative oversight of the executive, Head of government selection
   The National Assembly is elected to represent the people and to ensure government by the people under the Constitution. It does this by choosing the President, by providing a national forum for public consideration of issues, by passing legislation and by scrutinizing and overseeing executive action.
4. The National Council of Provinces represents the provinces to ensure that provincial interests are taken into account in the national sphere of government. It does this mainly by participating in the national legislative process and by providing a national forum for public consideration of issues affecting the provinces.
5. Extraordinary legislative sessions
   The President may summon Parliament to an extraordinary sitting at any time conduct special business.
6. The seat of Parliament is Cape Town, but an Act of Parliament enacted in accordance with section 76 (1) and (5) may determine that the seat of Parliament is elsewhere.

43. Legislative authority of the Republic

44. National legislative authority

1. The national legislative authority as vested in Parliament-
   1. confers on the National Assembly the power-
      1. Constitution amendment procedure
         to amend the Constitution;
      2. First chamber reserved policy areas
         to pass legislation with regard to any matter, including a matter within a functional area listed in Schedule 4, but excluding, subject to subsection (2), a matter within a functional area listed in Schedule 5; and
      3. to assign any of its legislative powers, except the power to amend the Constitution, to any legislative body in another sphere of government; and
   2. confers on the National Council of Provinces the power-
      1. Constitution amendment procedure
         to participate in amending the Constitution in accordance with section 74;
      2. Second chamber reserved policy areas
         to pass, in accordance with section 76, legislation with regard to any matter within a functional area listed in Schedule 4 and any other matter required by the Constitution to be passed in accordance with section 76; and
      3. to consider, in accordance with section 75, any other legislation passed by the National Assembly.
2. First chamber reserved policy areas, Second chamber reserved policy areas
   Parliament may intervene, by passing legislation in accordance with section 76 (1), with regard to a matter falling within a functional area listed in Schedule 5, when it is necessary-
   1. to maintain national security;
   2. to maintain economic unity;
   3. to maintain essential national standards;
   4. to establish minimum standards required for the rendering of services; or
   5. to prevent unreasonable action taken by a province which is prejudicial to the interests of another province or to the country as a whole.
3. Second chamber reserved policy areas, First chamber reserved policy areas
   Legislation with regard to a matter that is reasonably necessary for, or incidental to, the effective exercise of a power concerning any matter listed in Schedule 4 is, for all purposes, legislation with regard to a matter listed in Schedule 4.
4. Duty to obey the constitution
   When exercising its legislative authority; Parliament is bound only by the Constitution, and must act in accordance with, and within the limits of, the Constitution.

45. Joint rules and orders and joint committees

1. The National Assembly and the National Council of Provinces must establish a joint rules committee to make rules and orders concerning the joint business of the Assembly and Council, including rules and orders-
   1. to determine procedures to facilitate the legislative process, including setting a time limit for completing any step in the process;
   2. to establish joint committees composed of representatives from both the Assembly and the Council to consider and report on Bills envisaged in sections 74 and 75 that are referred to such a committee;
   3. to establish a joint committee to review the Constitution at least annually; and
   4. to regulate the business of-
      1. the joint rules committee;
      2. the Mediation Committee;
      3. the constitutional review committee; and
      4. any joint committees established in terms of paragraph (b).
2. Immunity of legislators
   Cabinet members, members of the National Assembly and delegates to the National Council of Provinces have the same privileges and immunities before a joint committee of the Assembly and the Council as they have before the Assembly or the Council.

Part A. The National Assembly

Part B. National Council of Provinces

Part C. National Legislative Process

83. The President

84. Powers and functions of President

1. Head of government powers, Head of state powers
   The President has the powers entrusted by the Constitution and legislation, including those necessary to perform the functions of Head of State and head of the national executive.
2. Head of government powers, Head of state powers
   The President is responsible for-
   1. assenting to and signing Bills;
   2. Constitutionality of legislation
      referring a Bill back to the National Assembly for reconsideration of the Bill’s constitutionality;
   3. Constitutionality of legislation
      referring a Bill to the Constitutional Court for a decision on the Bill’s constitutionality;
   4. Extraordinary legislative sessions
      summoning the National Assembly, the National Council of Provinces or Parliament to an extraordinary sitting to conduct special business;
   5. making any appointments that the Constitution or legislation requires the President to make, other than as head of the national executive;
   6. appointing commissions of inquiry;
   7. Referenda
      calling a national referendum in terms of an Act of Parliament;
   8. receiving and recognising foreign diplomatic and consular representatives;
   9. appointing ambassadors, plenipotentiaries, and diplomatic and consular representatives;
   10. Power to pardon
       pardoning or reprieving offenders and remitting any fines, penalties or forfeitures; and
   11. conferring honours.

85. Executive authority of the Republic

1. Name/structure of executive(s)
   The executive authority of the Republic is vested in the President.
2. Establishment of cabinet/ministers, Powers of cabinet, Head of state powers, Head of government powers
   The President exercises the executive authority, together with the other members of the Cabinet, by-
   1. implementing national legislation except where the Constitution or an Act of Parliament provides otherwise;
   2. developing and implementing national policy;
   3. co-ordinating the functions of state departments and administrations;
   4. Initiation of general legislation
      preparing and initiating legislation; and
   5. performing any other executive function provided for in the Constitution or in national legislation.

86. Election of President

1. Eligibility for head of government, Head of government selection, Eligibility for head of state, Head of state selection
   At its first sitting after its election, and whenever necessary to fill a vacancy, the National Assembly must elect a woman or a man from among its members to be the President.
2. The Chief Justice must preside over the election of the President, or designate another judge to do so. The procedure set out in Part A of Schedule 3 applies to the election of the President.
3. Head of government replacement, Head of state replacement
   An election to fill a vacancy in the office of President must be held at a time and on a date determined by the Chief Justice, but not more than 30 days after the vacancy occurs.

87. Assumption of office by President

88. Term of office of President

1. Head of government term length, Head of state term length
   The President’s term of office begins on assuming office and ends upon a vacancy occurring or when the person next elected President assumes office.
2. Head of government term limits, Head of state term limits
   No person may hold office as President for more than two terms, but when a person is elected to fill a vacancy in the office of President, the period between that election and the next election of a President is not regarded as a term.

89. Removal of President

1. The National Assembly, by a resolution adopted with a supporting vote of at least two thirds of its members, may remove the President from office only on the-
   1. a serious violation of the Constitution or the law;
   2. serious misconduct; or
   3. inability to perform the functions of office.
2. Anyone who has been removed from the office of President in terms of subsection (1) (a) or (b) may not receive any benefits of that office, and may not serve in any public office.

90. Acting President

1. When the President is absent from the Republic or otherwise unable to fulfil the duties of President, or during a vacancy in the office of President, an office-bearer in the order below acts as President:
   1. The Deputy President.
   2. A Minister designated by the President.
   3. A Minister designated by the other members of the Cabinet.
   4. The Speaker, until the National Assembly designates one of its other members.
2. An Acting President has the responsibilities, powers and functions of the President.
3. Oaths to abide by constitution
   Before assuming the responsibilities, powers and functions of the President, the Acting President must swear or affirm faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2.
4. A person who as Acting President has sworn or affirmed faithfulness to the Republic need not repeat the swearing or affirming procedure for any subsequent term as acting President during the period ending when the person next elected President assumes office.

91. Cabinet

1. Establishment of cabinet/ministers
   The Cabinet consists of the President, as head of the Cabinet, a Deputy President and Ministers.
2. Deputy executive, Cabinet selection, Cabinet removal
   The President appoints the Deputy President and Ministers, assigns their powers and functions, and may dismiss them.
3. Eligibility for cabinet
   The President-
   1. Deputy executive
      must select the Deputy President from among the members of the National Assembly;
   2. Cabinet selection
      may select any number of Ministers from among the members of the National Assembly; and
   3. Cabinet selection
      may select no more than two Ministers from outside the Assembly.
4. The President must appoint a member of the Cabinet to be the leader of government business in the National Assembly.
5. Deputy executive
   The Deputy President must assist the President in the execution of the functions of government.

92. Accountability and responsibilities

1. Deputy executive
   The Deputy President and Ministers are responsible for the powers and functions of the executive assigned to them by the President.
2. Cabinet removal
   Members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions.
3. Members of the Cabinet must-
   1. Duty to obey the constitution
      act in accordance with the Constitution; and
   2. Legislative oversight of the executive
      provide Parliament with full and regular reports concerning matters under their control.

93. Deputy Ministers

1. The President may appoint-
   1. any number of Deputy Ministers from among the members of the National Assembly; and
   2. no more than two Deputy Ministers from outside the Assembly, to assist the members of the Cabinet, and may dismiss them.
2. Deputy Ministers appointed in terms of subsection (1) (b) are accountable to Parliament for the exercise of their powers and the performance of their functions.

94. Continuation of Cabinet offer elections

95. Oath or affirmation

96. Conduct of Cabinet members and Deputy Ministers

1. Members of the Cabinet and Deputy Ministers must act in accordance with a code of ethics prescribed by national legislation.
2. Members of the Cabinet and Deputy Ministers may not-
   1. undertake any other paid work;
   2. act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or
   3. use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person.

97. Transfer of functions

98. Temporary assignment of functions

99. Assignment of functions

100. National intervention in provincial administration

1. Head of government powers, Head of state powers, Powers of cabinet
   When a province cannot or does not fulfil an executive obligation in terms of the Constitution or legislation, the national executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation, including-
   1. issuing a directive to the provincial executive, describing the extent of the failure to fulfil its obligations and stating any steps required to meet its obligations; and
   2. assuming responsibility for the relevant obligation in that province to the extent necessary to-
      1. maintain essential national standards or meet established minimum standards for the rendering of a service;
      2. maintain economic unity;
      3. maintain national security; or
      4. prevent that province from taking unreasonable action that is prejudicial to the interests of another province or to the country as a whole.
2. If the national executive intervenes in a province in terms of subsection (1) (b)-
   1. it must submit a written notice of the intervention to the National Council of Provinces within 14 days after the intervention began;
   2. the intervention must end if the Council disapproves the intervention within 180 days after the intervention began or by the end of that period has not approved the intervention; and
   3. the Council must, while the intervention continues, review the intervention regularly and may make any appropriate recommendations to the national executive.
3. National legislation may regulate the process established by this section.

101. Executive decisions

1. A decision by the President must be in writing if it-
   1. is taken in terms of legislation; or
   2. has legal consequences.
2. A written decision by the President must be countersigned by another Cabinet member if that decision concerns a function assigned to that other Cabinet member.
3. Proclamations, regulations and other instruments of subordinate legislation must be accessible to the public.
4. National legislation may specify the manner in which, and the extent to which, instruments mentioned in subsection (3) must be-
   1. tabled in Parliament; and
   2. approved by Parliament.

102. Motions of no confidence

1. Cabinet removal
   If the National Assembly, by a vote supported by a majority of its members, passes a motion of no confidence in the Cabinet excluding the President, the President must reconstitute the Cabinet.
2. Head of state removal, Cabinet removal, Head of government removal
   If the National Assembly, by a vote supported by a majority of its members, passes a motion of no confidence in the President, the President and the other members of the Cabinet and any Deputy Ministers must resign.

103. Provinces

1. Size of second chamber, Subsidiary unit government
   The Republic has the following provinces:
   1. Eastern Cape;
   2. Free State;
   3. Gauteng;
   4. KwaZulu-Natal;
   5. Limpopo;
   6. Mpumalanga;
   7. Northern Cape;
   8. North West;
   9. Western Cape.
2. The geographical areas of the respective provinces comprise the sum of the indicated geographical areas reflected in the various maps referred to in the Notice listed in Schedule 1A.

Part A. Provincial Legislatures

Part B. Provincial Executives

Part C. Provincial Constitutions

Part D. Conflicting Laws

151. Status of municipalities

1. The local sphere of government consists of municipalities, which must be established for the whole of the territory of the Republic.
2. The executive and legislative authority of a municipality is vested in its Municipal Council.
3. A municipality has the right to govern, on its own initiative, the local government affairs of its community, subject to national and provincial legislation, as provided for in the Constitution.
4. The national or a provincial government may not compromise or impede a municipality’s ability or right to exercise its powers or perform its functions.

152. Objects of local government

1. The objects of local government are-
   1. to provide democratic and accountable government for local communities;
   2. to ensure the provision of services to communities in a sustainable manner;
   3. to promote social and economic development;
   4. Protection of environment
      to promote a safe and healthy environment; and
   5. to encourage the involvement of communities and community organisations in the matters of local government.
2. A municipality must strive, within its financial and administrative capacity, to achieve the objects set out in subsection (1).

153. Developmental duties of municipalities

154. Municipalities in co-operative government

1. The national government and provincial governments, by legislative and other measures, must support and strengthen the capacity of municipalities to manage their own affairs, to exercise their powers and to perform their functions.
2. Draft national or provincial legislation that affects the status, institutions, powers or functions of local government must be published for public comment before it is introduced in Parliament or a provincial legislature, in a manner that allows organised local government, municipalities and other interested persons an opportunity to make representations with regard to the draft legislation.

155. Establishment of municipalities

1. Municipal government
   There are the following categories of municipality:
   1. Category A: A municipality that has exclusive municipal executive and legislative authority in its area.
   2. Category B: A municipality that shares municipal executive and legislative authority in its area with a category C municipality within whose area it falls.
   3. Category C: A municipality that has municipal executive and legislative authority in an area that includes more than one municipality.
2. National legislation must define the different types of municipality that may be established within each category.
3. National legislation must-
   1. establish the criteria for determining when an area should have a single category A municipality or when it should have municipalities of both category B and category C;
   2. establish criteria and procedures for the determination of municipal boundaries by an independent authority; and
   3. subject to section 229, make provision for an appropriate division of powers and functions between municipalities when an area has municipalities of both category B and category C. A division of powers and functions between a category B municipality and a category C municipality may differ from the division of powers and functions between another category B municipality and that category C municipality.
4. The legislation referred to in subsection (3) must take into account the need to provide municipal services in an equitable and sustainable manner.
5. Provincial legislation must determine the different types of municipality to be established in the province.
6. Each provincial government must establish municipalities in its province in a manner consistent with the legislation enacted in terms of subsections (2) and (3) and, by legislative or other measures, must-
   1. provide for the monitoring and support of local government in the province; and
   2. promote the development of local government capacity to enable municipalities to perform their functions and manage their own affairs.
7. The national government, subject to section 44, and the provincial governments have the legislative and executive authority to see to the effective performance by municipalities of their functions in respect of matters listed in Schedules 4 and 5, by regulating the exercise by municipalities of their executive authority referred to in section 156 (1).

156. Powers and functions of municipalities

1. A municipality has executive authority in respect of, and has the right to administer-
   1. the local government matters listed in Part B of Schedule 4 and Part B of Schedule 5; and
   2. any other matter assigned to it by national or provincial legislation.
2. A municipality may make and administer by-laws for the effective administration of the matters which it has the right to administer.
3. National vs subnational laws
   Subject to section 151 (4), a by-law that conflicts with national or provincial legislation is invalid. If there is a conflict between a by-law and national or provincial legislation that is inoperative because of a conflict referred to in section 149, the by-law must be regarded as valid for as long as that legislation is inoperative.
4. The national government and provincial governments must assign to a municipality, by agreement and subject to any conditions, the administration of a matter listed in Part A of Schedule 4 or Part A of Schedule 5 which necessarily relates to local government, if-
   1. that matter would most effectively be administered locally; and
   2. the municipality has the capacity to administer it.
5. A municipality has the right to exercise any power concerning a matter reasonably necessary for, or incidental to, the effective performance of its functions.

157. Composition and election of Municipal Councils

1. A Municipal Council consists of-
   1. members elected in accordance with subsections (2) and (3); or
   2. if provided for by national legislation-
      1. members appointed by other Municipal Councils to represent those other Councils; or
      2. both members elected in accordance with paragraph (a) and members appointed in accordance with subparagraph (i) of this paragraph.
2. Municipal government
   The election of members to a Municipal Council as anticipated in subsection (1) (a) must be in accordance with national legislation, which must prescribe a system-
   1. of proportional representation based on that municipality’s segment of the national common voters roll, and which provides for the election of members from lists of party candidates drawn up in a party’s order of preference; or
   2. of proportional representation as described in paragraph (a) combined with a system of ward representation based on that municipality’s segment of the national common voters roll.
3. An electoral system in terms of subsection (2) must result, in general, in proportional representation.

4

1. If the electoral system includes ward representation, the delimitation of wards must be done by an independent authority appointed in terms of, and operating according to, procedures and criteria prescribed by national legislation.
2. [repealed]
4. A person may vote in a municipality only if that person is registered on that municipality’s segment of the national common voters roll.
5. The national legislation referred to in subsection (1) (b) must establish a system that allows for parties and interests reflected within the Municipal Council making the appointment, to be fairly represented in the Municipal Council to which the appointment is made.

158. Membership of Municipal Councils

1. Every citizen who is qualified to vote for a Municipal Council is eligible to be a member of that Council, except-
   1. anyone who is appointed by, or is in the service of, the municipality and receives remuneration for that appointment or service, and who has not been exempted from this disqualification in terms of national legislation;
   2. anyone who is appointed by, or is in the service of, the state in another sphere, and receives remuneration for that appointment or service, and who has been disqualified from membership of a Municipal Council in terms of national legislation;
   3. anyone who is disqualified from voting for the National Assembly or is disqualified in terms of section 47(1) (c), (d) or (e) from being a member of the Assembly;
   4. a member of the National Assembly, a delegate to the National Council of Provinces or a member of a provincial legislature; but this disqualification does not apply to a member of a Municipal Council representing local government in the National Council; or
   5. a member of another Municipal Council; but this disqualification does not apply to a member of a Municipal Council representing that Council in another Municipal Council of a different category.
2. A person who is not eligible to be a member of a Municipal Council in terms of subsection (1) (a), (b), (d) or (e) may be a candidate for the Council, subject to any limits or conditions established by national legislation.
3. Vacancies in a Municipal Council must be filled in terms of national legislation.

159. Terms of Municipal Councils

1. The term of a Municipal Council may be no more than five years, as determined by national legislation.
2. If a Municipal Council is dissolved in terms of national legislation, or when its term expires, an election must be held within 90 days of the date that Council was dissolved or its term expired.
3. A Municipal Council, other than a Council that has been dissolved following an intervention in terms of section 139, remains competent to function from the time it is dissolved or its term expires, until the newly elected Council has been declared elected.

160. Internal procedures

1. A Municipal Council-
   1. makes decisions concerning the exercise of all the powers and the performance of all the functions of the municipality;
   2. must elect its chairperson;
   3. may elect an executive committee and other committees, subject to national legislation; and
   4. may employ personnel that are necessary for the effective performance of its functions.
2. The following functions may not be delegated by a Municipal Council:
   1. The passing of by-laws;
   2. the approval of budgets;
   3. the imposition of rates and other taxes, levies and duties; and
   4. the raising of loans.

3

1. A majority of the members of a Municipal Council must be present before a vote may be taken on any matter.
2. All questions concerning matters mentioned in subsection (2) are determined by a decision taken by a Municipal Council with a supporting vote of a majority of its members.
3. All other questions before a Municipal Council are decided by a majority of the votes cast.
3. No by-law may be passed by a Municipal Council unless-
   1. all the members of the Council have been given reasonable notice; and
   2. the proposed by-law has been published for public comment.
4. National legislation may provide criteria for determining-
   1. the size of a Municipal Council;
   2. whether Municipal Councils may elect an executive committee or any other committee; or
   3. the size of the executive committee or any other committee of a Municipal Council.
5. A Municipal Council may make by-laws which prescribe rules and orders for-
   1. its internal arrangements;
   2. its business and proceedings; and
   3. the establishment, composition, procedures, powers and functions of its committees.
6. A Municipal Council must conduct its business in an open manner, and may close its sittings, or those of its committees, only when it is reasonable to do so having regard to the nature of the business being transacted.
7. Members of a Municipal Council are entitled to participate in its proceedings and those of its committees in a manner that-
   1. allows parties and interests reflected within the Council to be fairly represented;
   2. is consistent with democracy; and
   3. may be regulated by national legislation.

161. Privilege

162. Publication of municipal by-laws

1. A municipal by-law may be enforced only after it has been published in the official gazette of the relevant province.
2. A provincial official gazette must publish a municipal by-law upon request by the municipality.
3. Municipal by-laws must be accessible to the public.

163. Organised local government

164. Other matters

165. Judicial authority

1. The judicial authority of the Republic is vested in the courts.
2. Judicial independence
   The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.
3. No person or organ of state may interfere with the functioning of the courts.
4. Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.
5. An order or decision issued by a court binds all persons to whom and organs of state to which it applies.
6. The Chief Justice is the head of the judiciary and exercises responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts.

166. Judicial system

167. Constitutional Court

1. Number of supreme court judges, Establishment of constitutional court
   The Constitutional Court consists of the Chief Justice of South Africa, the Deputy Chief Justice and nine other judges.
2. A matter before the Constitutional Court must be heard by at least eight judges.
3. The Constitutional Court-
   1. is the highest court of the Republic; and
   2. Constitutional court powers
      may decide-
      1. Constitutional interpretation
         constitutional matters; and
      2. any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by that Court; and
   3. makes the final decision whether a matter is within its jurisdiction.
4. Constitutional interpretation, Constitutional court powers
   Only the constitutional Court may-
   1. decide disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of state;
   2. decide on the constitutionality of any parliamentary or provincial Bill, but may do so only in the circumstances anticipated in section 79 or 121;
   3. decide applications envisaged in section 80 or 122;
   4. decide on the constitutionality of any amendment to the Constitution;
   5. decide that Parliament or the President has failed to fulfil a constitutional obligation; or
   6. certify a provincial constitution in terms of section 144.
5. Constitutional interpretation, Constitutional court powers
   The Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, the High Court of South Africa, or a court of similar status, before that order has any force.
6. National legislation or the rules of the Constitutional Court must allow a person, when it is in the interests of justice and with leave of the Constitutional Court-
   1. to bring a matter directly to the Constitutional Court; or
   2. Right to appeal judicial decisions
      to appeal directly to the Constitutional Court from any other court.
7. A constitutional matter includes any issue involving the interpretation, protection or enforcement of the Constitution.

168. Supreme Court of Appeal

1. The Supreme Court of Appeal consists of a President, a Deputy President and the number of judges of appeal determined in terms an Act of Parliament.
2. A matter before the Supreme Court of Appeal must be decided by the number of judges determined in terms of an Act of Parliament.

169. High Court of South Africa

1. The High Court of South Africa may decide-
   1. Constitutional interpretation
      any constitutional matter except a matter that-
      1. the Constitutional Court has agreed to hear directly in terms of section 167(6)(a); or
      2. is assigned by an Act of Parliament to another court of a status similar to the High Court of South Africa; and
   2. any other matter not assigned to another court by an Act of Parliament.
2. The High Court of South Africa consists of the Divisions determined by an Act of Parliament, which Act must provide for-
   1. the establishing of Divisions, with one or more seats in a Division; and
   2. the assigning of jurisdiction to a Division or a seat within a Division.
3. Each Division of the High Court of South Africa-
   1. has a Judge President;
   2. may have one or more Deputy Judges President; and
   3. has the number of other judges determined in terms of national legislation.

170. Other courts

171. Court procedures

172. Powers of courts in constitutional matters

1. Constitutional interpretation
   When deciding a constitutional matter within its power, a court-
   1. Constitutionality of legislation
      must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and
   2. may make any order that is just and equitable, including-
      1. an order limiting the retrospective effect of the declaration of invalidity; and
      2. an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.

173. Inherent power

174. Appointment of judicial officers

1. Eligibility for ordinary court judges, Eligibility for supreme court judges, Eligibility for const court judges
   Any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer. Any person to be appointed to the Constitutional Court must also be a South African citizen.
2. Eligibility for ordinary court judges, Eligibility for const court judges, Eligibility for supreme court judges
   The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.
3. Supreme court selection, Constitutional court selection
   The President as head of the national executive, after consulting the Judicial Service Commission and the leader of parties represented in the National Assembly, appoints the Chief Justice and the Deputy Chief Justice and, after consulting the Judicial Service Commission, appoints the President and Deputy President of the Supreme Court of Appeal.
4. Constitutional court selection
   The other judges of the Constitutional Court are appointed by the President, as head of the national executive, after consulting the Chief Justice and the leaders of parties represented in the National Assembly, in accordance with the following procedure:
   1. The Judicial Service Commission must prepare a list of nominees with three names more than the number of appointments to be made, and submit the list to the President.
   2. The President may make appointments from the list, and must advise the Judicial Service Commission, with reasons, if any of the nominees are unacceptable and any appointment remains to be made.
   3. The Judicial Service Commission must supplement the list with further nominees and the President must make the remaining appointments from the supplemented list.
5. Eligibility for const court judges
   At all times, at least four members of the Constitutional Court must be persons who were judges at the time they were appointed to the Constitutional Court.
6. Supreme court selection, Ordinary court selection
   The President must appoint the judges of all other courts on the advice of the Judicial Service Commission.
7. Other judicial officers must be appointed in terms of an Act of Parliament which must ensure that the appointment, promotion, transfer or dismissal of, or disciplinary steps against, these judicial officers take place without favour or prejudice.
8. Oaths to abide by constitution
   Before judicial officers begin to perform their functions, they must take an oath or affirm, in accordance with Schedule 2, that they will uphold and protect the Constitution.

175. Appointment of acting judges

1. Constitutional court selection
   The President may appoint a woman or a man to serve as an acting Deputy Chief Justice or judge of the Constitutional Court if there is a vacancy in any of those offices, or if the person holding such an office is absent. The appointment must be made on the recommendation of the Cabinet member responsible for the administration of justice acting with the concurrence of the Chief Justice, and an appointment as acting Deputy Chief Justice must be made from the ranks of the judges who had been appointed to the Constitutional Court in terms of section 174(4).
2. The Cabinet member responsible for the administration of justice must appoint acting judges to other courts after consulting the senior judge of the court on which the acting judge will serve.

176. Terms of office and remuneration

1. Constitutional court term limits, Constitutional court term length, Mandatory retirement age for judges
   A Constitutional Court judge holds office for a non-renewable term of 12 years, or until he or she attains the age of 70, whichever occurs first, except where an Act of Parliament extends the term of office of a Constitutional Court judge.
2. Supreme court term length, Mandatory retirement age for judges
   Other judges hold office until they are discharged from active service in terms of an Act of Parliament.
3. Protection of judges' salaries
   The salaries, allowances and benefits of judges may not be reduced.

177. Removal

1. A judge may be removed from office only if-
   1. the Judicial Service Commission funds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct; and
   2. the National Assembly calls for that judge to be removed, by a resolution adopted with a supporting vote of at least two thirds of its members.
2. The President must remove a judge from office upon adoption of a resolution calling for that judge to be removed.
3. The President, on the advice of the Judicial Service Commission, may suspend a judge who is the subject of a procedure in terms of subsection (1).

178. Judicial Service Commission

1. There is a Judicial Service Commission consisting of-
   1. the Chief Justice, who presides at meetings of the Commission;
   2. the President of the Supreme Court of Appeal;
   3. one Judge President designated by the Judges President;
   4. the Cabinet member responsible for the administration of justice, or an alternate designated by that Cabinet member;
   5. two practising advocates nominated from within the advocates’ profession to represent the profession as a whole, and appointed by the President;
   6. two practising attorneys nominated from within the attorneys’ profession to represent the profession as a whole, and appointed by the President;
   7. one teacher of law designated by teachers of law at South African universities;
   8. six persons designated by the National Assembly from among its members, at least three of whom must be members of opposition parties represented in the Assembly;
   9. four permanent delegates to the National Council of Provinces designated together by the Council with a supporting vote of at least six provinces;
   10. four persons designated by the President as head of the national executive, after consulting the leaders of all the parties in the National Assembly; and
   11. when considering matters relating to a specific Division of the High Court of South Africa, the Judge President of that Division and the Premier of the province concerned, or an alternate designated by each of them.
2. If the number of persons nominated from within the advocates’ or attorneys’ profession in terms of subsection (1) (e) or (f) equals the number of vacancies to be filled, the President must appoint them. If the number of persons nominated exceeds the number of vacancies to be filled, the President, after consulting the relevant profession, must appoint sufficient of the nominees to fill the vacancies, taking into account the need to ensure that those appointed represent the profession as a whole.
3. Members of the Commission designated by the National Council of Provinces serve until they are replaced together, or until any vacancy occurs in their number. Other members who were designated or nominated to the Commission serve until they are replaced by those who designated or nominated them.
4. The Judicial Service Commission has the powers and functions assigned to it in the Constitution and national legislation.
5. The Judicial Service Commission may advise the national government on any matter relating to the judiciary or the administration of justice, but when it considers any matter except the appointment of a judge, it must sit without the members designated in terms of subsection (1) (h) and (i).
6. The Judicial Service Commission may determine its own procedure, but decisions of the Commission must be supported by a majority of its members.
7. If the Chief Justice or the President of the Supreme Court of Appeal is temporarily unable to serve on the Commission, the Deputy Chief Justice or the Deputy President of the Supreme Court of Appeal, as the case may be, acts as his or her alternate on the Commission.
8. The President and the persons who appoint, nominate or designate the members of the Commission in terms of subsection (1) (c), (e), (f) and (g), may, in the same manner appoint, nominate or designate an alternate for each of those members, to serve on the Commission whenever the member concerned is temporarily unable to do so by reason of his or her incapacity or absence from the Republic or for any other sufficient reason.

179. Prosecuting authority

1. Attorney general
   There is a single national prosecuting authority in the Republic, structured in terms of an Act of Parliament, and consisting of-
   1. a National Director of Public Prosecutions, who is the head of the prosecuting authority, and is appointed by the President, as head of the national executive; and
   2. Directors of Public Prosecutions and prosecutors as determined by an Act of Parliament.
2. Attorney general
   The prosecuting authority has the power to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings.
3. National legislation must ensure that the Directors of Public Prosecutions-
   1. are appropriately qualified; and
   2. are responsible for prosecutions in specific jurisdictions, subject to subsection (5).
4. National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice.
5. Attorney general
   The National Director of Public Prosecutions-
   1. must determine, with the concurrence of the Cabinet member responsible for the administration of justice, and after consulting the Directors of Public Prosecutions, prosecution policy, which must be observed in the prosecution process;
   2. must issue policy directives which must be observed in the prosecution process;
   3. may intervene in the prosecution process when policy directives are not complied with; and
   4. may review a decision to prosecute or not to prosecute, after consulting the relevant Director of Public Prosecutions and after taking representations within a period specified by the National Director of Public Prosecutions, from the following:
      1. The accused person.
      2. The complainant.
      3. Any other person or party whom the National Director considers to be relevant.
6. Powers of cabinet
   The Cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority.
7. All other matters concerning the prosecuting authority must be determined by national legislation.

180. Other matters concerning administration of justice

181. Establishment and governing principles

1. The following state institutions strengthen constitutional democracy in the Republic:
   1. Ombudsman
      The Public Protector.
   2. Human rights commission
      The South African Human Rights Commission.
   3. The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities.
   4. The Commission for Gender Equality.
   5. The Auditor-General.
   6. Electoral commission
      The Electoral Commission.
2. Human rights commission, Ombudsman, Electoral commission
   These institutions are independent, and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice.
3. Ombudsman, Electoral commission, Human rights commission
   Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions.
4. Ombudsman, Human rights commission, Electoral commission
   No person or organ of state may interfere with the functioning of these institutions.
5. Human rights commission, Electoral commission, Ombudsman
   These institutions are accountable to the National Assembly, and must report on their activities and the performance of their functions to the Assembly at least once a year.

Part A. Public Protector

Part B. South African Human Rights Commission

Part C. Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities

Part D. Commission for Gender Equality

Part E. Auditor-General

Part F. Electoral Commission

Part G. Independent Authority to Regulate Broadcasting

Part H. General Provisions

195. Basic values and principles governing public administration

1. Public administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles:
   1. A high standard of professional ethics must be promoted and maintained.
   2. Efficient, economic and effective use of resources must be promoted.
   3. Public administration must be development-oriented.
   4. Services must be provided impartially, fairly, equitably and without bias.
   5. People’s needs must be responded to, and the public must be encouraged to participate in policy-making.
   6. Public administration must be accountable.
   7. Transparency must be fostered by providing the public with timely, accessible and accurate information.
   8. Good human-resource management and career-development practices, to maximise human potential, must be cultivated.
   9. Civil service recruitment
      Public administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness, and the need to redress the imbalances of the past to achieve broad representation.
2. The above principles apply to-
   1. administration in every sphere of government;
   2. organs of state; and
   3. public enterprises.
3. National legislation must ensure the promotion of the values and principles listed in subsection (1).
4. The appointment in public administration of a number of persons on policy considerations is not precluded, but national legislation must regulate these appointments in the public service.
5. Legislation regulating public administration may differentiate between different sectors, administrations or institutions.
6. The nature and functions of different sectors, administrations or institutions of public administration are relevant factors to be taken into account in legislation regulating public administration.

196. Public Service Commission

1. There is a single Public Service Commission for the Republic.
2. The Commission is independent and must be impartial, and must exercise its powers and perform its functions without fear, favour or prejudice in the interest of the maintenance of effective and efficient public administration and a high standard of professional ethics in the public service. The Commission must be regulated by national legislation.
3. Other organs of state, through legislative and other measures, must assist and protect the Commission to ensure the independence, impartiality, dignity and effectiveness of the Commission. No person or organ of state may interfere with the functioning of the Commission.
4. The powers and functions of the Commission are-
   1. to promote the values and principles set out in section 195, throughout the public service;
   2. to investigate, monitor and evaluate the organisation and administration, and the personnel practices, of the public service;
   3. to propose measures to ensure effective and efficient performance within the public service;
   4. to give directions aimed at ensuring that personnel procedures relating to recruitment, transfers, promotions and dismissals comply with the values and principles set out in section 195;
   5. to report in respect of its activities and the performance of its functions, including any finding it may make and directions and advice it may give, and to provide an evaluation of the extent to which the values and principles set out in section 195 are complied with; and
   6. either of its own accord or on receipt of any complaint-
      1. to investigate and evaluate the application of personnel and public administration practices, and to report to the relevant executive authority and legislature;
      2. to investigate grievances of employees in the public service concerning official acts or omissions, and recommend appropriate remedies;
      3. to monitor and investigate adherence to applicable procedures in the public service; and
      4. to advise national and provincial organs of state regarding personnel practices in the public service, including those relating to the recruitment, appointment, transfer, discharge and other aspects of the careers of employees in the public service.
   7. to exercise or perform the additional powers or functions prescribed by an Act of Parliament.
5. The Commission is accountable to the National Assembly.
6. The Commission must report at least once a year in terms of subsection (4)(e)
   1. to the National Assembly; and
   2. in respect of its activities in a province, to the legislature of that province.
7. The Commission has the following 14 commissioners appointed by the President:
   1. Five commissioners approved by the National Assembly in accordance with subsection (8) (a); and
   2. one commissioner for each province nominated by the Premier of the province in accordance with subsection (8) (b).

8

1. A commissioner appointed in terms of subsection (7) (a) must be-
   1. recommended by a committee of the National Assembly that is proportionally composed of members of all parties represented in the Assembly; and
   2. approved by the Assembly by a resolution adopted with a supporting vote of a majority of its members.
2. A commissioner nominated by the Premier of a province must be-
   1. recommended by a committee of the provincial legislature that is proportionally composed of members of all parties represented in the legislature; and
   2. approved by the legislature by a resolution adopted with a supporting vote of a majority of its members.
8. An Act of Parliament must regulate the procedure for the appointment of commissioners.
9. A commissioner is appointed for a term of five years, which is renewable for one additional term only, and must be a woman or a man who is-
   1. a South African citizen; and
   2. a fit and proper person with knowledge of, or experience in, administration, management or the provision of public services.
10. A commissioner may be removed from office only on-
    1. the ground of misconduct, incapacity or incompetence;
    2. a finding to that effect by a committee of the National Assembly or, in the case of a commissioner nominated by the Premier of a province, by a committee of the legislature of that province; and
    3. the adoption by the Assembly or the provincial legislature concerned, of a resolution with a supporting vote of a majority of its members calling for the commissioner’s removal from office.
11. The President must remove the relevant commissioner from office upon-
    1. the adoption by the Assembly of a resolution calling for that commissioner’s removal; or
    2. written notification by the Premier that the provincial legislature has adopted a resolution calling for that commissioner’s removal.
12. Commissioners referred to in subsection (7) (b) may exercise the powers and perform the functions of the Commission in their provinces as prescribed by national legislation.

197. Public Service

1. Within public administration there is a public service for the Republic, which must function, and be structured, in terms of national legislation, and which must loyally execute the lawful policies of the government of the day.
2. The terms and conditions of employment in the public service must be regulated by national legislation. Employees are entitled to a fair pension as regulated by national legislation.
3. No employee of the public service may be favoured or prejudiced only because that person supports a particular political party or cause.
4. Provincial governments are responsible for the recruitment, appointment, promotion, transfer and dismissal of members of the public service in their administrations within a framework of uniform norms and standards applying to the public service.

198. Governing principles

199. Establishment, structuring and conduct of security services

1. The security services of the Republic consist of a single defence force, a single police service and any intelligence services established in terms of the Constitution.
2. The defence force is the only lawful military force in the Republic.
3. Other than the security services established in terms of the Constitution, armed organisations or services may be established only in terms of national legislation.
4. The security services must be structured and regulated by national legislation.
5. International law
   The security services must act, and must teach and require their members to act, in accordance with the Constitution and the law, including customary international law and international agreements binding on the Republic.
6. Restrictions on the armed forces
   No member of any security service may obey a manifestly illegal order.
7. Restrictions on the armed forces
   Neither the security services, nor any of their members, may, in the performance of their functions-
   1. prejudice a political party interest that is legitimate in terms of the Constitution; or
   2. further, in a partisan manner, any interest of a political party.
8. To give effect to the principles of transparency and accountability, multi-party parliamentary committees, have oversight of all security services in a manner determined by national legislation or the rules and orders of Parliament.

Part A. Defence

Part B. Police

Part C. Intelligence

211. Recognition

1. The institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution.
2. A traditional authority that observes a system of customary law may function subject to any applicable legislation and customs, which includes amendments to, or repeal of, that legislation or those customs.
3. The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.

212. Role of traditional leaders

1. National legislation may provide for a role for traditional leadership as an institution at local level on matters affecting local communities.
2. To deal with matters relating to traditional leadership, the role of traditional leaders, customary law and the customs of communities observing a system of customary law-
   1. national or provincial legislation may provide for the establishment of houses of traditional leaders; and
   2. national legislation may establish a council of traditional leaders.

Part A. General Financial Matters

Part B. Financial and Fiscal Commission

Part C. Central Bank

Part D. Provincial and Local Financial Matters

Part A. International Law

Part B. Other Matters

1. Oath or solemn affirmation of President and Acting President

2. Oath or solemn affirmation of Deputy President

3. Oath or solemn affirmation of Ministers and Deputy Ministers

4. Oath or solemn affirmation of members of the National Assembly, permanent delegates to the National Council of Provinces and members of the provincial legislatures

1. Members of the National Assembly, permanent delegates to the National Council of Provinces and members of provincial legislatures, before the Chief Justice or a judge designated by the Chief Justice, must swear or affirm as follows:

   I, A.B., swear/solemnly affirm that I will be faithful to the Republic of South Africa and will obey, respect and uphold the Constitution and all other law of the Republic; and I solemnly promise to perform my functions as a member of the National Assembly/ permanent delegate to the National Council of Provinces/member of the legislature of the province of C.D. to the best of my ability.

   (In the case of an oath: So help me God.)

2. Persons filling a vacancy in the National Assembly, a permanent delegation to the National Council of Provinces or a provincial legislature may swear or affirm in terms of subitem (1) before the presiding officer of the Assembly, Council or legislature, as the case may be.

5. Oath or solemn affirmation of Premiers, Acting Premiers and members of provincial Executive Councils

6. Oath or solemn affirmation of Judicial Officers

1. Each judge or acting judge, before the Chief Justice or another judge designated by the Chief Justice, must swear or affirm as follows:

   I, A.B., swear/solemnly affirm that, as a Judge of the Constitutional Court/Supreme Court of Appeal/High Court/ E.F. Court, I will be faithful to the Republic of South Africa, will uphold and protect the Constitution and the human rights entrenched in it, and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law.

   (In the case of an oath: So help me God.)

2. A person appointed to the office of Chief Justice who is not already a judge at the time of that appointment must swear or affirm before the Deputy Chief Justice, or failing that judge, the next most senior available judge of the Constitutional Court.
3. Judicial officers, and acting judicial officers, other than judges, must swear/affirm in terms of national legislation.

Part A. Election procedures for constitutional office-bearers

Part B. Formula to determine party participation in provincial delegations to the National Council of Provinces

1. The number of delegates in a provincial delegation to the National Council of Provinces to which a party is entitled, must be determined by multiplying the number of seats the party holds in the provincial legislature by ten and dividing the result by the number of seats in the legislature plus one.
2. If a calculation in terms of item 1 yields a surplus not absorbed by the delegates allocated to a party in terms of that item, the surplus must compete with similar surpluses accruing to any other party or parties, and any undistributed delegates in the delegation must be allocated to the party or parties in the sequence of the highest surplus.
3. If the competing surpluses envisaged in item 2 are equal, the undistributed delegates in the delegation must be allocated to the party or parties with the same surplus in the sequence from the highest to the lowest number of votes that have been recorded for those parties during the last election for the provincial legislature concerned.
4. If more than one party with the same surplus recorded the same number of votes during the last election for the provincial legislature concerned, the legislature concerned must allocate the undistributed delegates in the delegation to the party or parties with 10 the same surplus in a manner which is consistent with democracy.

PART A

PART B

PART A

PART B

1. Definitions

2. Continuation of existing law

1. All law that was in force when the new Constitution took effect, continues in force, subject to-
   1. any amendment or repeal; and
   2. consistency with the new Constitution.
2. Old order legislation that continues in force in terms of subitem (1)-
   1. does not have a wider application, territorially or otherwise, than it had before the previous Constitution took effect unless subsequently amended to have a wider application; and
   2. continues to be administered by the authorities that administered it when the new Constitution took effect, subject to the new Constitution.

3. Interpretation of existing legislation

1. Unless inconsistent with the context or clearly inappropriate, a reference in any legislation that existed when the new Constitution took effect-
   1. to the Republic of South Africa or a homeland (except when it refers to a territorial area), must be construed as a reference to the Republic of South Africa under the new Constitution;
   2. to Parliament, the National Assembly or the Senate, must be construed as a reference to Parliament, the National Assembly or the National Council of Provinces under the new Constitution;
   3. to the President, an Executive Deputy President, a Minister, a Deputy Minister or the Cabinet, must be construed as a reference to the President, the Deputy President, a Minister, a Deputy Minister or the Cabinet under the new Constitution, subject to item 9 of this Schedule;
   4. to the President of the Senate, must be construed as a reference to the Chairperson of the National Council of Provinces;
   5. to a provincial legislature, Premier, Executive Council or member of an Executive Council of a province, must be construed as a reference to a provincial legislature, Premier, Executive Council or member of an Executive Council under the new Constitution, subject to item 12 of this Schedule; or
   6. to an official language or languages, must be construed as a reference to any of the official languages under the new Constitution.
2. Unless inconsistent with the context or clearly inappropriate, a reference in any remaining old order legislation-
   1. to a Parliament, a House of a Parliament or a legislative assembly or body of the Republic or of a homeland, must be construed as a reference to-
      1. Parliament under the new Constitution, if the administration of that legislation has been allocated or assigned in terms of the previous Constitution or this Schedule to the national executive; or
      2. the provincial legislature of a province, if the administration of that legislation has been allocated or assigned in terms of the previous Constitution or this Schedule to a provincial executive; or
   2. to a State President, Chief Minister, Administrator or other chief executive, Cabinet, Ministers’ Council or executive council of the Republic or of a homeland, must be construed as a reference to-
      1. the President under the new Constitution, if the administration of that legislation has been allocated or assigned in terms of the previous Constitution or this Schedule to the national executive; or
      2. the Premier of a province under the new Constitution, if the administration of that legislation has been allocated or assigned in terms of the previous Constitution or this Schedule to a provincial executive.

4. National Assembly

1. Anyone who was a member or office-bearer of the National Assembly when the new Constitution took effect, becomes a member or office-bearer of the National Assembly under the new Constitution, and holds office as a member or office-bearer in terms of the new Constitution.
2. The National Assembly as constituted in terms of subitem (1) must be regarded as having been elected under the new Constitution for a term that expires on 30 April 1999.
3. The National Assembly consists of 400 members for the duration of its term that expires on 30 April 1999, subject to section 49 (4) of the new Constitution.
4. The rules and orders of the National Assembly in force when the new Constitution took effect, continue in force, subject to any amendment or repeal.

5. Unfinished business before Parliament

1. Any unfinished business before the National Assembly when the new Constitution takes effect must be proceeded with in terms of the new Constitution.
2. Any unfinished business before the Senate when the new Constitution takes effect must be referred to the National Council of Provinces, and the Council must proceed with that business in terms of the new Constitution.

6. Elections of National Assembly

1. No election of the National Assembly may be held before 30 April 1999 unless the Assembly is dissolved in terms of section 50 (2) after a motion of no confidence in the President in terms of section 102(2) of the new Constitution.
2. Section 50 (1) of the new Constitution is suspended until 30 April 1999.
3. Despite the repeal of the previous Constitution, Schedule 2 to that Constitution, as amended by Annexure A to this Schedule, applies-
   1. to the first election of the National Assembly under the new Constitution;
   2. to the loss of membership of the Assembly in circumstances other than those provided for in section 47 (3) of the new Constitution; and
   3. to the filling of vacancies in the Assembly, and the supplementation, review and use of party lists for the filling of vacancies, until the second election of the Assembly under the new Constitution.
4. Section 47 (4) of the new Constitution is suspended until the second election of the National Assembly under the new Constitution.

7. National Council of Provinces

1. For the period which ends immediately before the first sitting of a provincial legislature held after its first election under the new Constitution-
   1. the proportion of party representation in the province’s delegation to the National Council of Provinces must be the same as the proportion in which the province’s 10 senators were nominated in terms of section 48 of the previous Constitution; and
   2. the allocation of permanent delegates and special delegates to the parties represented in the provincial legislature, is as follows:
      1. Eastern Cape

         Permanent Delegates - ANC 5, NP 1

         Special Delegates - ANC 4

      2. Free State

         Permanent Delegates - ANC 4, FF 1, NP 1

         Special Delegates - ANC 4

      3. Gauteng

         Permanent Delegates - ANC 3, DP 1, FF 1, NP 1

         Special Delegates - ANC 3, NP 1

      4. KwaZulu-Natal

         Permanent Delegates - ANC 1, DP 1, IFP 3, NP 1

         Special Delegates - ANC 2, IFP 2

      5. Mpumalanga

         Permanent Delegates - ANC 4, FF 1, NP 1

         Special Delegates - ANC 4

      6. Northern Cape

         Permanent Delegates - ANC 3, FF 1, NP 1

         Special Delegates - ANC 2, NP 2

      7. Northern Province

         Permanent Delegates - ANC 6

         Special Delegates - ANC 4

      8. North West

         Permanent Delegates - ANC 4, FF 1, NP 1

         Special Delegates - ANC 4

      9. North West

         Permanent Delegates - ANC 2, DP 1, NP 3

         Special Delegates - ANC 1, NP 3

2. A party represented in a provincial legislature-
   1. must nominate its permanent delegates from among the persons who were senators when the new Constitution took effect and are available to serve as permanent delegates; and
   2. may nominate other persons as permanent delegates only if none or an insufficient number of its former senators are available.
3. A provincial legislature must appoint its permanent delegates in accordance with the nominations of the parties.
4. Subitems (2) and (3) apply only to the first appointment of permanent delegates to the National Council of Provinces.
5. Section 62 (1) of the new Constitution does not apply to the nomination and appointment of former senators as permanent delegates in terms of this item.
6. The rules and orders of the Senate in force when the new Constitution took effect, must be applied in respect of the business of the National Council to the extent that they can be applied, subject to any amendment or repeal.

8. Former senators

1. A former senator who is not appointed as a permanent delegate to the National Council of Provinces is entitled to become a full voting member of the legislature of the province from which that person was nominated as a senator in terms of section 48 of the previous Constitution.
2. If a former senator elects not to become a member of a provincial legislature that person is regarded as having resigned as a senator the day before the new Constitution took effect.
3. The salary, allowances and benefits of a former senator appointed as a permanent delegate or as a member of a provincial legislature may not be reduced by reason only of that appointment.

9. National executive

1. Anyone who was the President, an Executive Deputy President, a Minister or a Deputy Minister under the previous Constitution when the new Constitution took effect, continues in and holds that office in terms of the new Constitution, but subject to subitem (2).
2. Until 30 April 1999, sections 84, 89, 90, 91, 93 and 96 of the new Constitution must be regarded to read as set out in Annexure B to this Schedule.
3. Subitem (2) does not prevent a Minister who was a senator when the new Constitution took effect, from continuing as a Minister referred to in section 91 (1) (a) of the new Constitution, as that section reads in Annexure B.

10. Provincial legislatures

1. Anyone who was a member or office-bearer of a province’s legislature when the new Constitution took effect, becomes a member or office-bearer of the legislature for that province under the new Constitution, and holds office as a member or office-bearer in terms of the new Constitution and any provincial constitution that may be enacted.
2. A provincial legislature as constituted in terms of subitem (1) must be regarded as having been elected under the new Constitution for a term that expires on 30 April 1999.
3. For the duration of its term that expires on 30 April 1999, and subject to section 108 (4), a provincial legislature consists of the number of members determined for that legislature under the previous Constitution plus the number of former senators who became members of the legislature in terms of item 8 of this Schedule.
4. The rules and orders of a provincial legislature in force when the new Constitution took effect, continue in force, subject to any amendment or repeal.

11. Elections of provincial legislatures

1. Despite the repeal of the previous Constitution, Schedule 2 to that Constitution, as amended by Annexure A to this Schedule, applies-
   1. to the first election of a provincial legislature under the new Constitution;
   2. to the loss of membership of a legislature in circumstances other than those provided for in section 106 (3) of the new Constitution; and
   3. to the filling of vacancies in a legislature, and the supplementation, review and use of party lists far the filling of vacancies, until the second election of the legislature under the new Constitution.
2. Section 106 (4) of the new Constitution is suspended in respect of a provincial legislature until the second election of the legislature under the new Constitution.

12. Provincial executives

1. Anyone who was the Premier or a member of the Executive Council of a province when the new Constitution took effect, continues in and holds that office in terms of the new Constitution and any provincial constitution that may be enacted, but subject to subitem (2).
2. Until the Premier elected after the first election of a province’s legislature under the new Constitution assumes office, or the province enacts its constitution, whichever occurs first, sections 132 and 136 of the new Constitution must be regarded to read as set out in Annexure C to this Schedule.

13. Provincial constitutions

14. Assignment of legislation to provinces

1. Legislation with regard to a matter within a functional area listed in Schedule 4 or 5 to the new Constitution and which, when the new Constitution took effect, was administered by an authority within the national executive, may be assigned by the President, by proclamation, to an authority within a provincial executive designated by the Executive Council of the province.
2. To the extent that it is necessary for an assignment of legislation under subitem (1) to be effectively carried out, the President, by proclamation, may-
   1. amend or adapt the legislation to regulate its interpretation or application;
   2. where the assignment does not apply to the whole of any piece of legislation, repeal and re-enact, with or without any amendments or adaptations referred to in paragraph (a), those provisions to which the assignment applies or to the extent that the assignment applies to them; or
   3. regulate any other matter necessary as a result of the assignment, including the transfer or secondment of staff, or the transfer of assets, liabilities, rights and obligations, to or from the national or a provincial executive or any department of state, administration, security service or other institution.

3

1. A copy of each proclamation issued in terms of subitem (1) or (2) must be submitted to the National Assembly and the National Council of Provinces within 10 days of the publication of the proclamation.
2. If both the National Assembly and the National Council by resolution disapprove the proclamation or any provision of it, the proclamation or provision lapses, but without affecting-
   1. the validity of anything done in terms of the proclamation or provision before it lapsed; or
   2. a right or privilege acquired or an obligation or liability incurred before it lapsed.
3. When legislation is assigned under subitem (1), any reference in the legislation to an authority administering it, must be construed as a reference to the authority to which it has been assigned.
4. Any assignment of legislation under section 235 (8) of the previous Constitution, including any amendment, adaptation or repeal and re-enactment of any legislation and any other action taken under that section, is regarded as having been done under this item.

15. Existing legislation outside Parliament’s legislative power

1. An authority within the national executive that administers any legislation falling outside Parliament’s legislative power when the new Constitution takes effect, remains competent to administer that legislation until it is assigned to an authority within a provincial executive in terms of item 14 of this Schedule.
2. Subitem (1) lapses two years after the new Constitution took effect.

16. Courts

1. Every court, including courts of traditional leaders, existing when the new Constitution took effect, continues to function and to exercise jurisdiction in terms of the legislation applicable to it, and anyone holding office as a judicial officer continues to hold office in terms of the legislation applicable to that office, subject to-
   1. any amendment or repeal of that legislation; and
   2. consistency with the new Constitution.

2

1. The Constitutional Court established by the previous Constitution becomes the Constitutional Court under the new Constitution.
2. [repealed]

3

1. The Appellate Division of the Supreme Court of South Africa becomes the Supreme Court of Appeal under the new Constitution.
2. [repealed]

4

1. A provincial or local division of the Supreme Court of South Africa or a supreme court of a homeland or a general division of such a court, becomes a High Court under the new Constitution without any alteration in its area of jurisdiction, subject to any rationalisation contemplated in subitem (6).
2. Anyone holding office or deemed to hold office as the Judge President, the Deputy Judge President or a judge of a court referred to in paragraph (a) when the new Constitution takes effect, becomes the Judge President, the Deputy Judge President or a judge of such a court under the new Constitution, subject to any rationalisation contemplated in subitem (6).
2. Unless inconsistent with the context or clearly inappropriate, a reference in any legislation or process to-
   1. the Constitutional Court under the previous Constitution, must be construed as a reference to the Constitutional Court under the new Constitution;
   2. the Appellate Division of the Supreme Court of South Africa, must be construed as a reference to the Supreme Court of Appeal; and
   3. a provincial or local division of the Supreme Court of South Africa or a supreme court of a homeland or general division of that court, must be construed as a reference to a High Court.

17. Cases pending before courts

18. Prosecuting authority

1. Section 108 of the previous Constitution continues in force until the Act of Parliament envisaged in section 179 of the new Constitution takes effect. This subitem does not affect the appointment of the National Director of Public Prosecutions in terms of section 179.
2. An attorney-general holding office when the new Constitution takes effect, continues to function in terms of the legislation applicable to that office, subject to subitem (1).

19. Oaths and affirmations

20. Other constitutional institutions

1. In this section ‘constitutional institution’ means-
   1. the Public Protector;
   2. the South African Human Rights Commission;
   3. the Commission on Gender Equality;
   4. the Auditor-General;
   5. the South African Reserve Bank;
   6. the Financial and Fiscal Commission;
   7. the Judicial Service Commission; or
   8. the Pan South African Language Board.
2. A constitutional institution established in terms of the previous Constitution continues to function in terms of the legislation applicable to it, and anyone holding office as a commission member, a member of the board of the Reserve Bank or the Pan South African Language Board, the Public Protector or the Auditor-General when the new Constitution takes effect, continues to hold office in terms of the legislation applicable to that office, subject to-
   1. any amendment or repeal of that legislation; and
   2. consistency with the new Constitution.
3. Sections 199 (1), 200 (1), (3) and (5) to (11) and 201 to 206 of the previous Constitution continue in force until repealed by an Act of Parliament passed in terms of section 75 of the new Constitution.
4. The members of the Judicial Service Commission referred to in section 105 (1) (h) of the previous Constitution cease to be members of the Commission when the members referred to in section 178 (1) (i) of the new Constitution are appointed.

21. Enactment of legislation required by new Constitution

1. Where the new Constitution requires the enactment of national or provincial legislation, that legislation must be enacted by the relevant authority within a reasonable period of the date the new Constitution took effect.
2. Section 198 (b) of the new Constitution may not be enforced until the legislation envisaged in that section has been enacted.
3. Section 199 (3) (a) of the new Constitution may not be enforced before the expiry of three months after the legislation envisaged in that section has been enacted.
4. National legislation envisaged in section 217 (3) of the new Constitution must be enacted within three years of the date on which the new Constitution took effect, but the absence of this legislation during this period does not prevent the implementation of the policy referred to in section 217 (2).
5. Until the Act of Parliament referred to in section 65 (2) of the new Constitution is enacted each provincial legislature may determine its own procedure in terms of which authority is conferred on its delegation to cast votes on its behalf in the National Council of Provinces.
6. Until the legislation envisaged in section 229 (1) (b) of the new Constitution is enacted, a municipality remains competent to impose any tax, levy or duty which it was authorised to impose when the Constitution took effect.

22. National unity and reconciliation

1. Notwithstanding the other provisions of the new Constitution and despite the repeal of the previous Constitution, all the provisions relating to amnesty contained in the previous Constitution under the heading ‘National Unity and Reconciliation’ are deemed to be part of the new Constitution for the purposes of the Promotion of National Unity and Reconciliation Act, 1995 (Act 34 of 1995), as amended, including for the purposes of its validity.
2. For the purposes of subitem (1), the date ’6 December 1993’ where it appears in the provisions of the previous Constitution under the heading ‘National Unity and Reconciliation,’ must be read as ’11 May 1994.’

23. Bill of Rights

1. National legislation envisaged in sections 9 (4), 32 (2) and 33 (3) of the new Constitution must be enacted within three years of the date on which the new Constitution took effect.
2. Until the legislation envisaged in sections 32 (2) and 33 (3) of the new Constitution is enacted-
   1. section 32 (1) must be regarded to read as follows:

      ‘(1) Every person has the right of access to all information held by the state or any of its organs in any sphere of government in so far as that information is required for the exercise or protection of any of their rights.’; and

   2. section 33 (1) and (2) must be regarded to read as follows:

      ‘Every person has the right to

      (a) lawful administrative action where any of their rights or interests is affected or threatened;

      (b) procedurally fair administrative action where any of their rights or legitimate expectations is affected or threatened;

      (c) be furnished with reasons in writing for administrative action which affects any of their rights or interests unless the reasons for that action have been made public; and

      (d) administrative action which is justifiable in relation to the reasons given for it where any of their rights is affected or threatened.’

3. Sections 32 (2) and 33 (3) of the new Constitution lapse if the legislation envisaged in those sections, respectively, is not enacted within three years of the date the new Constitution took effect.

24. Public administration and security services

1. Sections 82 (4) (b), 215, 218 (1), 219 (1), 224 to 228, 236 (1), (2), (3), (6), (7) (b) and (8), 237 (1) and (2) (a) and 239 (4) and (5) of the previous Constitution continue in force as if the previous Constitution had not been repealed, subject to-
   1. the amendments to those sections as set out in Annexure D;
   2. any further amendment or any repeal of those sections by an Act of Parliament passed in terms of section 75 of the new Constitution; and
   3. consistency with the new Constitution.
2. The Public Service Commission and the provincial service commissions referred to in Chapter 13 of the previous Constitution continue to function in terms of that Chapter and the legislation applicable to it as if that Chapter had not been repealed, until the Commission and the provincial service commissions are abolished by an Act of Parliament passed in terms of section 75 of the new Constitution.
3. The repeal of the previous Constitution does not affect any proclamation issued under section 237 (3) of the previous Constitution, and any such proclamation continues in force, subject to-
   1. any amendment or repeal; and
   2. consistency with the new Constitution

25. Additional disqualification for legislatures

1. Anyone who, when the new Constitution took effect, was serving a sentence in the Republic of more than 12 months’ imprisonment without the option of a fine, is not eligible to be a member of the National Assembly or a provincial legislature.
2. The disqualification of a person in terms of subitem (1)
   1. lapses if the conviction is set aside on appeal, or the sentence is reduced on appeal to a sentence that does not disqualify that person; and
   2. ends five years after the sentence has been completed.

26. Local government

1. Notwithstanding the provisions of sections 151, 155, 156 and 157 of the new Constitution-
   1. the provisions of the Local Government Transition Act, 1993 (Act 209 of 1993), as may be amended from time to time by national legislation consistent with the new Constitution, remain in force in respect of a Municipal Council until a Municipal Council replacing that Council has been declared elected as a result of the first general election of Municipal Councils after the commencement of the new Constitution; and
   2. a traditional leader of a community observing a system of indigenous law and residing on land within the area of a transitional local council, transitional rural council or transitional representative council, referred to in the Local Government Transition Act, 1993, and who has been identified as set out in section 182 of the previous Constitution, is ex officio entitled to be a member of that council until a Municipal Council replacing that council has been declared elected as a result of the first general election of Municipal Councils after the commencement of the new Constitution.
2. Section 245 (4) of the previous Constitution continues in force until the application of that section lapses. Section 16 (5) and (6) of the Local Government Transition Act, 1993, may not be repealed before 30 April 2000.

27. Safekeeping of Acts of Parliament and provincial Acts

28. Registration of immovable property owned by the state

1. On the production of a certificate by a competent authority that immovable property owned by the state is vested in a particular government in terms of section 239 of the previous Constitution, a registrar of deeds must make such entries or endorsements in or on any relevant register, title deed or other document to register that immovable property in the name of that government.
2. No duty, fee or other charge is payable in respect of a registration in terms of subitem (1).

ANNEXURE A. AMENDMENTS TO SCHEDULE 2 TO THE PREVIOUS CONSTITUTION

1. The replacement of item 1 with the following item:

   ‘1. Parties registered in terms of national legislation and contesting an election of the National Assembly, shall nominate candidates for such election on lists of candidates prepared in accordance with this Schedule and national legislation.’

2. The replacement of item 2 with the following item:

   ‘2. The seats in the National Assembly as determined in terms of section 46 of the new Constitution, shall be filled as follows:

   (a) One half of the seats from regional lists submitted by the respective parties, with a fixed number of seats reserved for each region as determined by the Commission for the next election of the Assembly, taking into account available scientifically based data in respect of voters, and representations by interested parties.

   (b) The other half of the seats from national lists submitted by the respective parties, or from regional lists where national lists were not submitted.’

3. The replacement of item 3 with the following item:

   ‘3. The lists of candidates submitted by a party, shall in total contain the names of not more than a number of candidates equal to the number of seats in the National Assembly, and each such list shall denote such names in such fixed order of preference as the party may determine.’

4. The amendment of item 5 by replacing the words preceding paragraph (a) with the following words:

   ‘5. The seats referred to in item 2 (a) shall be allocated per region to the parties contesting an election, as follows:.’

5. The amendment of item 6-
   1. by replacing the words preceding paragraph (a) with the following words:

      ‘6. The seats referred to in item 2 (b) shall be allocated to the parties contesting an election, as follows:’; and

   2. by replacing paragraph (a) with the following paragraph:

      ‘(a) A quota of votes per seat shall be determined by dividing the total number of votes cast nationally by the number of seats in the National Assembly, plus one, and the result plus one, disregarding fractions, shall be the quota of votes per seat.’

6. The amendment of item 7 (3) by replacing paragraph (b) with the following paragraph:

   ‘(b) An amended quota of votes per seat shall be determined by dividing the total number of votes cast nationally, minus the number of votes cast nationally in favour of the party referred to in paragraph (a), by the number of seats in the Assembly, plus one, minus the number of seats finally allocated to the said party in terms of paragraph (a).’

7. The replacement of item 10 with the following item:

   ‘10. The number of seats in each provincial legislature shall be as determined in terms of section 105 of the new Constitution.’

8. The replacement of item 11 with the following item:

   ‘11. Parties registered in terms of national legislation and contesting an election of a provincial legislature, shall nominate candidates for election to such provincial legislature on provincial lists prepared in accordance with this Schedule and national legislation.’

9. The replacement of item 16 with the following item:

   ‘16 Designation of representatives

   (1) After the counting of votes has been concluded, the number of representatives of each party has been determined and the election result has been declared in terms of section 190 of the new Constitution, the Commission shall, within two days after such declaration, designate from each list of candidates, published in terms of national legislation, the representatives of each party in the legislature.

   (2) Following the designation in terms of subitem (1), if a candidate’s name appears on more than one list for the National Assembly or on lists for both the National Assembly and a provincial legislature (if an election of the Assembly and a provincial legislature is held at the same time), and such candidate is due for designation as a representative in more than one case, the party which submitted such lists shall, within two days after the said declaration, indicate to the Commission from which list such candidate will be designated or in which legislature the candidate will serve, as the case may be, in which event the candidate’s name shall be deleted from the other lists.

   (3) The Commission shall forthwith publish the list of names of representatives in the legislature or legislatures.’

10. The amendment of item 18 by replacing paragraph (b) with the following paragraph:

    ‘(b) a representative is appointed as a permanent delegate to the National Council of Provinces;.’

11. The replacement of item 19 with the following item:

    ‘19. Lists of candidates of a party referred to in item 16 (1) may be supplemented on one occasion only at any time during the first 12 months following the date on which the designation of representatives in terms of item 16 has been concluded, in order to fill casual vacancies: Provided that any such supplementation shall be made at the end of the list.’

12. The replacement of item 23 with the following item:

    ‘23 Vacancies

    (1) In the event of a vacancy in a legislature to which this Schedule applies, the party which nominated the vacating member shall fill the vacancy by nominating a person-

    (a) whose name appears on the list of candidates from which the vacating member was originally nominated; and

    (b) who is the next qualified and available person on the list.

    (2) A nomination to fill a vacancy shall be submitted to the Speaker in writing.

    (3) If a party represented in a legislature dissolves or ceases to exist and the members in question vacate their seats in consequence of item 23A (1), the seats in question shall be allocated to the remaining parties mutatis mutandis as if such seats were forfeited seats in terms of item 7 or 14, as the case may be.’

13. The insertion of the following item after item 23:

    ‘23A Additional ground for loss of membership of legislatures

    (1) A person loses membership of a legislature to which this Schedule applies if that person ceases to be a member of the party which nominated that person as a member of the legislature.

    (2) Despite subitem (1) any existing political party may at any time change its name.

    (3) An Act of Parliament may, within a reasonable period after the new Constitution took effect, be passed in accordance with section 76 (1) of the new Constitution to amend this item and item 23 to provide for the manner in which it will be possible for a member of a legislature who ceases to be a member of the party which nominated that member, to retain membership of such legislature.

    (4) An Act of Parliament referred to in subitem (3) may also provide for-

    (a) any existing party to merge with another party; or

    (b) any party to subdivide into more than one party.’

14. The deletion of item 24.
15. The amendment of item 25-
    1. by replacing the definition of ‘Commission’ with the following definition: ‘Commission’ means the Electoral Commission referred to in section 190 of the new Constitution;’; and
    2. by inserting the following definition after the definition of ‘national list’: ‘new Constitution’ means the Constitution of the Republic of South Africa, 1996;.’
16. The deletion of item 26.

ANNEXURE B. GOVERNMENT OF NATIONAL UNITY: NATIONAL SPHERE

1. Section 84 of the new Constitution is deemed to contain the following additional subsection:

   ‘(3) The President must consult the Executive Deputy Presidents-

   (a) in the development and execution of the policies of the national government;

   (b) in all matters relating to the management of the Cabinet and the performance of Cabinet business;

   (c) in the assignment of functions to the Executive Deputy Presidents;

   (d) before making any appointment under the Constitution or any legislation, including the appointment of ambassadors or other diplomatic representatives;

   (e) before appointing commissions of inquiry;

   (f) before calling a referendum; and

   (g) before pardoning or reprieving offenders.’

2. Section 89 of the new Constitution is deemed to contain the following additional subsection:

   ‘(3) Subsections (1) and (2) apply also to an Executive Deputy President.’

3. Paragraph (a) of section 90 (1) of the new Constitution is deemed to read as follows:

   ‘(a) an Executive Deputy President designated by the President;.’

4. Section 91 of the new Constitution is deemed to read as follows:

   ‘91 Cabinet

   (1) The Cabinet consists of the President, the Executive Deputy Presidents and-

   (a) not more than 27 Ministers who are members of the National Assembly and appointed in terms of subsections (8) to (12); and

   (b) not more than one Minister who is not a member of the National Assembly and appointed in terms of subsection (13), provided the President, acting in consultation with the Executive Deputy Presidents and the leaders of the participating parties, deems the appointment of such a Minister expedient.

   (2) Each party holding at least 80 seats in the National Assembly is entitled to designate an Executive Deputy President from among the members of the Assembly.

   (3) If no party or only one party holds 80 or more seats in the Assembly, the party holding the largest number of seats and the party holding the second largest number of seats are each entitled to designate one Executive Deputy President from among the members of the Assembly.

   (4) On being designated, an Executive Deputy President may elect to remain or cease to be a member of the Assembly.

   (5) An Executive Deputy President may exercise the powers and must perform the functions vested in the office of Executive Deputy President by the Constitution or assigned to that office by the President.

   (6) An Executive Deputy President holds office-

   (a) until 30 April 1999 unless replaced or recalled by the party entitled to make the designation in terms of subsections (2) and (3); or

   (b) until the person elected President after any election of the National Assembly held before 30 April 1999, assumes office.

   (7) A vacancy in the office of an Executive Deputy President may be filled by the party which designated that Deputy President.

   (8) A party holding at least 20 seats in the National Assembly and which has decided to participate in the government of national unity, is entitled to be allocated one or more of the Cabinet portfolios in respect of which Ministers referred to in subsection (1) (a) are to be appointed, in proportion to the number of seats held by it in the National Assembly relative to the number of seats held by the other participating parties.

   (9) Cabinet portfolios must be allocated to the respective participating parties in accordance with the following formula:

   (a) A quota of seats per portfolio must be determined by dividing the total number of seats in the National Assembly held jointly by the participating parties by the number of portfolios in respect of which Ministers referred to in subsection (1) (a) are to be appointed, plus one.

   (b) The result, disregarding third and subsequent decimals, if any, is the quota of seats per portfolio.

   (c) The number of portfolios to be allocated to a participating party is determined by dividing the total number of seats held by that party in the National Assembly by the quota referred to in paragraph (b).

   (d) The result, subject to paragraph (e), indicates the number of portfolios to be allocated to that party.

   (e) Where the application of the above formula yields a surplus not absorbed by the number of portfolios allocated to a party, the surplus competes with other similar surpluses accruing to another party or parties, and any portfolio or portfolios which remain unallocated must be allocated to the party or parties concerned in sequence of the highest surplus.

   (10) The President after consultation with the Executive Deputy Presidents and the leaders of the participating parties must-

   (a) determine the specific portfolios to be allocated to the respective participating parties in accordance with the number of portfolios allocated to them in terms of subsection (9);

   (b) appoint in respect of each such portfolio a member of the National Assembly who is a member of the party to which that portfolio was allocated under paragraph (a), as the Minister responsible for that portfolio;

   (c) if it becomes necessary for the purposes of the Constitution or in the interest of good government, vary any determination under paragraph (a), subject to subsection (9);

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

   (i) if the President is requested to do so by the leader of the party of which the Minister in question is a member; or

   (ii) if it becomes necessary for the purposes of the Constitution or in the interest of good government; or

   (e) fill, when necessary, subject to paragraph (b), a vacancy in the office of Minister.

   (11) Subsection (10) must be implemented in the spirit embodied in the concept of a government of national unity, and the President and the other functionaries concerned must in the implementation of that subsection seek to achieve consensus at all times: Provided that if consensus cannot be achieved on-

   (a) the exercise of a power referred to in paragraph (a), (c) or (d) (ii) of that subsection, the President’s decision prevails;

   (b) the exercise of a power referred to in paragraph (b), (d) (i) or (e) of that subsection affecting a person who is not a member of the President’s party, the decision of the leader of the party of which that person is a member prevails; and

   (c) the exercise of a power referred to in paragraph (b) or (e) of that subsection affecting a person who is a member of the President’s party, the President’s decision prevails.

   (12) If any determination of portfolio allocations is varied under subsection (10) (c), the affected Ministers must vacate their portfolios but are eligible, where applicable, for reappointment to other portfolios allocated to their respective parties in terms of the varied determination.

   (13) The President-

   (a) in consultation with the Executive Deputy Presidents and the leaders of the participating parties, must-

   (i) determine a specific portfolio for a Minister referred to in subsection (1) (b) should it become necessary pursuant to a decision of the President under that subsection;

   (ii) appoint in respect of that portfolio a person who is not a member of the National Assembly, as the Minister responsible for that portfolio; and

   (iii) fill, if necessary, a vacancy in respect of that portfolio; or

   (b) after consultation with the Executive Deputy Presidents and the leaders of the participating parties, must terminate any appointment under paragraph (a) if it becomes necessary for the purposes of the Constitution or in the interest of good government.

   (14) Meetings of the Cabinet must be presided over by the President, or, if the President so instructs, by an Executive Deputy President: Provided that the Executive Deputy Presidents preside over meetings of the Cabinet in turn unless the exigencies of government and the spirit embodied in the concept of a government of national unity otherwise demand.

   (15) The Cabinet must function in a manner which gives consideration to the consensus- seeking spirit embodied in the concept of a government of national unity as well as the need for effective government.’

5. Section 93 of the new Constitution is deemed to read as follows:

   ‘93 Appointment of Deputy Ministers

   (1) The President may, after consultation with the Executive Deputy Presidents and the leaders of the parties participating in the Cabinet, establish deputy ministerial posts.

   (2) A party is entitled to be allocated one or more of the deputy ministerial posts in the same proportion and according to the same formula that portfolios in the Cabinet are allocated.

   (3) The provisions of section 91 (10) to (12) apply, with the necessary changes, in respect of Deputy Ministers, and in such application a reference in that section to a Minister or a portfolio must be read as a reference to a Deputy Minister or a deputy ministerial post, respectively.

   (4) If a person is appointed as the Deputy Minister of any portfolio entrusted to a Minister-

   (a) that Deputy Minister must exercise and perform on behalf of the relevant Minister any of the powers and functions assigned to that Minister in terms of any legislation or otherwise which may, subject to the directions of the President, be assigned to that Deputy Minister by that Minister; and

   (b) any reference in any legislation to that Minister must be construed as including a reference to the Deputy Minister acting in terms of an assignment under paragraph (a) by the Minister for whom that Deputy Minister acts.

   (5) Whenever a Deputy Minister is absent or for any reason unable to exercise or perform any of the powers or functions of office, the President may appoint any other Deputy Minister or any other person to act in the said Deputy Minister’s stead, either generally or in the exercise or performance of any specific power or function.’

6. Section 96 of the new Constitution is deemed to contain the following additional subsections:

   ‘(3) Ministers are accountable individually to the President and to the National Assembly for the administration of their portfolios, and all members of the Cabinet are correspondingly accountable collectively for the performance of the functions of the national government and for its policies.

   (4) Ministers must administer their portfolios in accordance with the policy determined by the Cabinet.

   (5) If a Minister fails to administer the portfolio in accordance with the policy of the Cabinet, the President may require the Minister concerned to bring the administration of the portfolio into conformity with that policy.

   (6) If the Minister concerned fails to comply with a requirement of the President under subsection (5), the President may remove the Minister from office-

   (a) if it is a Minister referred to in section 91 (1) (a), after consultation with the Minister and, if the Minister is not a member of the President’s party or is not the leader of a participating party, also after consultation with the leader of that Minister’s party; or

   (b) if it is a Minister referred to in section 91 (1) (b), after consultation with the Executive Deputy Presidents and the leaders of the participating parties.’

ANNEXURE C. GOVERNMENT OF NATIONAL UNITY: PROVINCIAL SPHERE

1. Section 132 of the new Constitution is deemed to read as follows:

   ‘132 Executive Councils

   (1) The Executive Council of a province consists of the Premier and not more than 10 members appointed by the Premier in accordance with this section.

   (2) A party holding at least 10 per cent of the seats in a provincial legislature and which has decided to participate in the government of national unity, is entitled to be allocated one or more of the Executive Council portfolios in proportion to the number of seats held by it in the legislature relative to the number of seats held by the other participating parties.

   (3) Executive Council portfolios must be allocated to the respective participating parties according to the same formula set out in section 91 (9), and in applying that formula a reference in that section to-

   (a) the Cabinet, must be read as a reference to an Executive Council;

   (b) a Minister, must be read as a reference to a member of an Executive Council; and

   (c) the National Assembly, must be read as a reference to the provincial legislature.

   (4) The Premier of a province after consultation with the leaders of the participating parties must-

   (a) determine the specific portfolios to be allocated to the respective participating parties in accordance with the number of portfolios allocated to them in terms of subsection (3);

   (b) appoint in respect of each such portfolio a member of the provincial legislature who is a member of the party to which that portfolio was allocated under paragraph (a), as the member of the Executive Council responsible for that portfolio;

   (c) if it becomes necessary for the purposes of the Constitution or in the interest of good government, vary any determination under paragraph (a), subject to subsection (3);

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

   (i) if the Premier is requested to do so by the leader of the party of which the Executive Council member in question is a member; or

   (ii) if it becomes necessary for the purposes of the Constitution or in the interest of good government;

   (e) fill, when necessary, subject to paragraph (b), a vacancy in the office of a member of the Executive Council.

   (5) Subsection (4) must be implemented in the spirit embodied in the concept of a government of national unity, and the Premier and the other functionaries concerned must in the implementation of that subsection seek to achieve consensus at all times: Provided that if consensus cannot be achieved on-

   (a) the exercise of a power referred to in paragraph (a), (c) or (d) (ii) of that subsection, the Premier’s decision prevails;

   (b) the exercise of a power referred to in paragraph (b), (d) (i) or (e) of that subsection affecting a person who is not a member of the Premier’s party, the decision of the leader of the party of which such person is a member prevails; and

   (c) the exercise of a power referred to in paragraph (b) or (e) of that subsection affecting a person who is a member of the Premier’s party, the Premier’s decision prevails.

   (6) If any determination of portfolio allocations is varied under subsection (4) (c), the affected members must vacate their portfolios but are eligible, where applicable, for reappointment to other portfolios allocated to their respective parties in terms of the varied determination.

   (7) Meetings of an Executive Council must be presided over by the Premier of the province.

   (8) An Executive Council must function in a manner which gives consideration to the consensus-seeking spirit embodied in the concept of a government of national unity, as well as the need for effective government.’

2. Section 136 of the new Constitution is deemed to contain the following additional subsections:

   ‘(3) Members of Executive Councils are accountable individually to the Premier and to the provincial legislature for the administration of their portfolios, and all members of the Executive Council are correspondingly accountable collectively for the performance of the functions of the provincial government and for its policies.

   (4) Members of Executive Councils must administer their portfolios in accordance with the policy determined by the Council.

   (5) If a member of an Executive Council fails to administer the portfolio in accordance with the policy of the Council, the Premier may require the member concerned to bring the administration of the portfolio into conformity with that policy.

   (6) If the member concerned fails to comply with a requirement of the Premier under subsection (5), the Premier may remove the member from office after consultation with the member, and if the member is not a member of the Premier’s party or is not the leader of a participating party, also after consultation with the leader of that member’s party.’

ANNEXURE D. PUBLIC ADMINISTRATION AND SECURITY SERVICES: AMENDMENTS TO SECTIONS OF THE PREVIOUS CONSTITUTION

1. The amendment of section 218 of the previous Constitution-
   1. by replacing in subsection (1) the words preceding paragraph (a) with the following words:

      ‘(1) Subject to the directions of the Minister of Safety and Security, the National Commissioner shall be responsible for-’;

   2. by replacing paragraph (b) of subsection (1) with the following paragraph:

      ‘(b) the appointment of provincial commissioners;’;

   3. by replacing paragraph (d) of subsection (1) with the following paragraph:

      ‘(d) the investigation and prevention of organised crime or crime which requires national investigation and prevention or specialised skills;’; and

   4. by replacing paragraph (k) of subsection (1) with the following paragraph:

      ‘(k) the establishment and maintenance of a national public order policing unit to be deployed in support of and at the request of the Provincial Commissioner;.’

2. The amendment of section 219 of the previous Constitution by replacing in subsection (1) the words preceding paragraph (a) with the following words:

   ‘(1) Subject to section 218 (1), a Provincial Commissioner shall be responsible for-.’

3. The amendment of section 224 of the previous Constitution by replacing the proviso to subsection (2) with the following proviso:

   ‘Provided that this subsection shall also apply to members of any armed force which submitted its personnel list after the commencement of the Constitution of the Republic of South Africa, 1993 (Act 200 of 1993), but before the adoption of the new constitutional text as envisaged in section 73 of that Constitution, if the political organisation under whose authority and control it stands or with which it is associated and whose objectives it promotes did participate in the Transitional Executive Council or did take part in the first election of the National Assembly and the provincial legislatures under the said Constitution.’

4. The amendment of section 227 of the previous Constitution by replacing subsection (2) with the following subsection:

   ‘(2) The National Defence Force shall exercise its powers and perform its functions solely in the national interest in terms of Chapter 11 of the Constitution of the Republic of South Africa, 1996.’

5. The amendment of section 236 of the previous Constitution-
   1. by replacing subsection (1) with the following subsection:

      ‘(1) A public service, department of state, administration or security service which immediately before the commencement of the Constitution of the Republic of South Africa, 1996 (hereinafter referred to as ‘the new Constitution’), performed governmental functions, continues to function in terms of the legislation applicable to it until it is abolished or incorporated or integrated into any appropriate institution or is rationalised or consolidated with any other institution.’;

   2. by replacing subsection (6) with the following subsection:

      ‘(6) (a) The President may appoint a commission to review the conclusion or amendment of a contract, the appointment or promotion, or the award of a term or condition of service or other benefit, which occurred between 27 April 1993 and 30 September 1994 in respect of any person referred to in subsection (2) or any class of such persons.

      (b) The commission may reverse or alter a contract, appointment, promotion or award if not proper or justifiable in the circumstances of the case.’; and

   3. by replacing ‘this Constitution,’ wherever this occurs in section 236, with ‘the new Constitution.’
6. The amendment of section 237 of the previous Constitution-
   1. by replacing paragraph (a) of subsection (1) with the following paragraph:

      ‘(a) The rationalisation of all institutions referred to in section 236 (1), excluding military forces referred to in section 224 (2), shall after the commencement of the Constitution of the Republic of South Africa, 1996, continue, with a view to establishing-

      (i) an effective administration in the national sphere of government to deal with matters within the jurisdiction of the national sphere; and

      (ii) an effective administration for each province to deal with matters within the jurisdiction of each provincial government.’; and

   2. by replacing subparagraph (i) of subsection (2) (a) with the following subparagraph:

      ‘(i) institutions referred to in section 236 (1), excluding military forces, shall rest with the national government, which shall exercise such responsibility in co-operation with the provincial governments;.’

7. The amendment of section 239 of the previous Constitution by replacing subsection (4) with the following subsection:

   ‘(4) Subject to and in accordance with any applicable law, the assets, rights, duties and liabilities of all forces referred to in section 224 (2) shall devolve upon the National Defence Force in accordance with the directions of the Minister of Defence.’