Chapter 12

Traditional leaders (ss 211-212) 

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

 

 

211. 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.

 

Chapter 11

Security services (ss 198-210) 

198. Governing principles - The following principles govern national security in the Republic:
     1. National security must reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life.
     2. The resolve to live in peace and harmony precludes any South African citizen from participating in armed conflict, nationally or internationally, except as provided for in terms of the Constitution or national legislation.
     3. National security must be pursued in compliance with the law, including international law.
     4. National security is subject to the authority of Parliament and the national executive.

 

 

198. Establishment, structuring and conduct of security services
     1. The security services of the Republic consist of a single defence force, a single police service and any intelligence services established in terms of the Constitution.
     2. The defence force is the only lawful military force in the Republic.
     3. Other than the security services established in terms of the Constitution, armed organisations or services may be established only in terms of national legislation.
     4. The security services must be structured and regulated by national legislation.
     5. The security services must act, and must teach and require their members to act, in accordance with the Constitution and the law, including customary international law and international agreements binding on the Republic.
     6. No member of any security service may obey a manifestly illegal order.
     7. Neither the security services, nor any of their members, may, in the performance of their functions-
        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 must have oversight of all security services in a manner determined by national legislation or the rules and orders of Parliament.

 

Defence (ss 200-204)

198. Defence force
     1. The defence force must be structured and managed as a disciplined military force.
     2. The primary object of the defence force is to defend and protect the Republic, its territorial integrity and its people in accordance with the Constitution and the principles of international law regulating the use of force.

 

 

198. Political responsibility
     1. A member of the Cabinet must be responsible for defence.
     2. Only the President, as head of the national executive, may authorise the employment of the defence force-
        1. in co-operation with the police service;
        2. in defence of the Republic; or
        3. in fulfilment of an international obligation.
     3. When the defence force is employed for any purpose mentioned in subsection (2), the President must inform Parliament, promptly and in appropriate detail, of-
        1. the reasons for the employment of the defence force;
        2. any place where the force is being employed;
        3. the number of people involved; and
        4. the period for which the force is expected to be employed.
     4. If Parliament does not sit during the first seven days after the defence force is employed as envisaged in subsection (2), the President must provide the information required in subsection (3) to the appropriate oversight committee.

 

 

198. Command of defence force
     1. The President as head of the national executive is Commander-in-Chief of the defence force, and must appoint the Military Command of the defence force.
     2. Command of the defence force must be exercised in accordance with the directions of the Cabinet member responsible for defence, under the authority of the President.

 

198. State of national defence
     1. The President as head of the national executive may declare a state of national defence, and must inform Parliament promptly and in appropriate detail of-
        1. the reasons for the declaration;
        2. any place where the defence force is being employed; and
        3. the number of people involved.
     2. If Parliament is not sitting when a state of national defence is declared, the President must summon Parliament to an extraordinary sitting within seven days of the declaration.
     3. A declaration of a state of national defence lapses unless it is approved by Parliament within seven days of the declaration.

 

 

198. Defence civilian secretariat - A civilian secretariat for defence must be established by national legislation to function under the direction of the Cabinet member responsible for defence.

 

 

 

198. Police service
     1. The national police service must be structured to function in the national, provincial and, where appropriate, local spheres of government.
     2. National legislation must establish the powers and functions of the police service and must enable the police service to discharge its responsibilities effectively, taking into account the requirements of the provinces.
     3. The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.

 

 

198. Political responsibility
     1. A member of the Cabinet must be responsible for policing and must determine national policing policy after consulting the provincial governments and taking into account the policing needs and priorities of the provinces as determined by the provincial executives.
     2. The national policing policy may make provision for different policies in respect of different provinces after taking into account the policing needs and priorities of these provinces.
     3. Each province is entitled-
        1. to monitor police conduct;
        2. to oversee the effectiveness and efficiency of the police service, including receiving reports on the police service;
        3. to promote good relations between the police and the community;
        4. to assess the effectiveness of visible policing; and
        5. to liaise with the Cabinet member responsible for policing with respect to crime and policing in the province.
     4. A provincial executive is responsible for policing functions-
     5. vested in it by this Chapter;
     6. assigned to it in terms of national legislation; and
     7. allocated to it in the national policing policy.
     8. In order to perform the functions set out in subsection (3), a province-
        1. may investigate, or appoint a commission of inquiry into, any complaints of police inefficiency or a breakdown in relations between the police and any community; and
        2. must make recommendations to the Cabinet member responsible for policing.
     9. On receipt of a complaint lodged by a provincial executive, an independent police complaints body established by national legislation must investigate any alleged misconduct of, or offence committed by, a member of the police service in the province.
     10. National legislation must provide a framework for the establishment, powers, functions and control of municipal police services.
     11. A committee composed of the Cabinet member and the members of the Executive Councils responsible for policing must be established to ensure effective co-ordination of the police service and effective co-operation among the spheres of government.
     12. A provincial legislature may require the provincial commissioner of the province to appear before it or any of its committees to answer questions.

 

 

198. Control of police service
     1. The President as head of the national executive must appoint a woman or a man as the National Commissioner of the police service, to control and manage the police service.
     2. The National Commissioner must exercise control over and manage the police service in accordance with the national policing policy and the directions of the Cabinet member responsible for policing.
     3. The National Commissioner, with the concurrence of the provincial executive, must appoint a woman or a man as the provincial commissioner for that province, but if the National Commissioner and the provincial executive are unable to agree on the appointment, the Cabinet member responsible for policing must mediate between the parties.
     4. The provincial commissioners are responsible for policing in their respective provinces-
        1. as prescribed by national legislation; and
        2. subject to the power of the National Commissioner to exercise control over and manage the police service in terms of subsection (2).
     5. The provincial commissioner must report to the provincial legislature annually on policing in the province, and must send a copy of the report to the National Commissioner.
     6. If the provincial commissioner has lost the confidence of the provincial executive, that executive may institute appropriate proceedings for the removal or transfer of, or disciplinary action against, that commissioner, in accordance with national legislation.

 

 

198. Police civilian secretariat - A civilian secretariat for the police service must be established by national legislation to function under the direction of the Cabinet member responsible for policing.

 

Intelligence (ss 209-210)

198. Establishment and control of intelligence services
     1. Any intelligence service, other than any intelligence division of the defence force or police service, may be established only by the President, as head of the national executive, and only in terms of national legislation.
     2. The President as head of the national executive must appoint a woman or a man as head of each intelligence service established in terms of subsection (1), and must either assume political responsibility for the control and direction of any of those services, or designate a member of the Cabinet to assume that responsibility.

 

 

198. Powers, functions and monitoring - National legislation must regulate the objects, powers and functions of the intelligence services, including any intelligence division of the defence force or police service, and must provide for-
     1. the co-ordination of all intelligence services; and
     2. civilian monitoring of the activities of those services by an inspector appointed by the President, as head of the national executive, and approved by a resolution adopted by the National Assembly with a supporting vote of at least two thirds of its members.

 

 

 

Chapter 10

Public administration (ss 195-197) 

195. Basic values and principles governing public administration
     1. Public administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles:
        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. 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.

 

 

195. 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.
     [Para. (g) added by s. 3 of Act 65 of 1998.]
     1. The Commission is accountable to the National Assembly.
     2. 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.
     3. 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).
     4. 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.
     5. An Act of Parliament must regulate the procedure for the appointment of commissioners.
     6. 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.
     7. 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.
     8. 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.
     9. 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.

 

 

195. 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.