Chapter 9

State institutions supporting constitutional democracy (ss 181-194) 

181. Establishment and governing principles
     1. The following state institutions strengthen constitutional democracy in the Republic:
        1. The Public Protector.
        2. The Human Rights Commission.
        
        [Para. (b) amended by s. 4 of Act 65 of 1998.]
        1. The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities.
        2. The Commission for Gender Equality.
        3. The Auditor-General.
        4. The Electoral Commission.
     2. These institutions are independent, and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice.
     3. Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions.
     4. No person or organ of state may interfere with the functioning of these institutions.
     5. These institutions are accountable to the National Assembly, and must report on their activities and the performance of their functions to the Assembly at least once a year.

 

 

 

181. Functions of Public Protector
     1. The Public Protector has the power, as regulated by national legislation-
        1. to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice;
        2. to report on that conduct; and
        3. to take appropriate remedial action.
     2. The Public Protector has the additional powers and functions prescribed by national legislation.
     3. The Public Protector may not investigate court decisions.
     4. The Public Protector must be accessible to all persons and communities.
     5. Any report issued by the Public Protector must be open to the public unless exceptional circumstances, to be determined in terms of national legislation, require that a report be kept confidential.

 

 

181. Tenure
     The Public Protector is appointed for a non-renewable period of seven years.

 

 

181. Functions of Human Rights Commission
     1. The Human Rights Commission must
        1. promote respect for human rights and a culture of human rights;
        2. promote the protection, development and attainment of human rights; and
        3. monitor and assess the observance of human rights in the Republic.
     2. The Human Rights Commission has the powers, as regulated by national legislation, necessary to perform its functions, including the power-
        1. to investigate and to report on the observance of human rights;
        2. to take steps to secure appropriate redress where human rights have been violated;
        3. to carry out research; and
        4. to educate.
     3. Each year, the Human Rights Commission must require relevant organs of state to provide the Commission with information on the measures that they have taken towards the realisation of the rights in the Bill of Rights concerning housing, health care, food, water, social security, education and the environment.
     4. The Human Rights Commission has the additional powers and functions prescribed by national legislation.
     
     [S. 184 amended by s. 4 of Act 65 of 1998.]

 

 

 

181. Functions of Commission
     1. The primary objects of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities are-
        1. to promote respect for the rights of cultural, religious and linguistic communities;
        2. to promote and develop peace, friendship, humanity, tolerance and national unity among cultural, religious and linguistic communities, on the basis of equality, non-discrimination and free association; and
        3. to recommend the establishment or recognition, in accordance with national legislation, of a cultural or other council or councils for a community or communities in South Africa.
     2. The Commission has the power, as regulated by national legislation, necessary to achieve its primary objects, including the power to monitor, investigate, research, educate, lobby, advise and report on issues concerning the rights of cultural, religious and linguistic communities.
     3. The Commission may report any matter which falls within its powers and functions to the Human Rights Commission for investigation.
     
     [Sub-s. (3) amended by s. 4 of Act 65 of 1998.]
     1. The Commission has the additional powers and functions prescribed by national legislation.

 

 

181. Composition of Commission
     1. The number of members of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities and their appointment and terms of office must be prescribed by national legislation.
     2. The composition of the Commission must-
        1. be broadly representative of the main cultural, religious and linguistic communities in South Africa; and
        2. broadly reflect the gender composition of South Africa.

 

 

 

181. Functions of Commission for Gender Equality
     1. The Commission for Gender Equality must promote respect for gender equality and the protection, development and attainment of gender equality.
     2. The Commission for Gender Equality has the power, as regulated by national legislation, necessary to perform its functions, including the power to monitor, investigate, research, educate, lobby, advise and report on issues concerning gender equality.
     3. The Commission for Gender Equality has the additional powers and functions prescribed by national legislation.

 

 

 

181. Functions of Auditor-General
     1. The Auditor-General must audit and report on the accounts, financial statements and financial management of-
        1. all national and provincial state departments and administrations;
        2. all municipalities; and
        3. any other institution or accounting entity required by national or provincial legislation to be audited by the Auditor-General.
     2. In addition to the duties prescribed in subsection (1), and subject to any legislation, the Auditor-General may audit and report on the accounts, financial statements and financial management of-
        1. any institution funded from the National Revenue Fund or a Provincial Revenue Fund or by a municipality; or
        2. any institution that is authorised in terms of any law to receive money for a public purpose.
     3. The Auditor-General must submit audit reports to any legislature that has a direct interest in the audit, and to any other authority prescribed by national legislation. All reports must be made public.
     4. The Auditor-General has the additional powers and functions prescribed by national legislation.

 

 

181. Tenure
     The Auditor-General must be appointed for a fixed, non-renewable term of between five and ten years.

 

 

 

181. Functions of Electoral Commission
     1. The Electoral Commission must-
        1. manage elections of national, provincial and municipal legislative bodies in accordance with national legislation;
        2. ensure that those elections are free and fair; and
        3. declare the results of those elections within a period that must be prescribed by national legislation and that is as short as reasonably possible.
     2. The Electoral Commission has the additional powers and functions prescribed by national legislation.

 

 

181. Composition of Electoral Commission
     The Electoral Commission must be composed of at least three persons. The number of members and their terms of office must be prescribed by national legislation.

 

 

 

181. Broadcasting Authority
     National legislation must establish an independent authority to regulate broadcasting in the public interest, and to ensure fairness and a diversity of views broadly representing South African society.

 

 

 

181. Appointments
     1. The Public Protector and the members of any Commission established by this Chapter must be women or men who-
        1. are South African citizens;
        2. are fit and proper persons to hold the particular office; and
        3. comply with any other requirements prescribed by national legislation.
     2. The need for a Commission established by this Chapter to reflect broadly the race and gender composition of South Africa must be considered when members are appointed.
     3. The Auditor-General must be a woman or a man who is a South African citizen and a fit and proper person to hold that office. Specialised knowledge of, or experience in, auditing, state finances and public administration must be given due regard in appointing the Auditor-General.
     4. The President, on the recommendation of the National Assembly, must appoint the Public Protector, the Auditor-General and the members of-
        1. the Human Rights Commission;
        
        [Para. (a) amended by s. 4 of Act 65 of 1998.]
        1. the Commission for Gender Equality; and
        2. the Electoral Commission.
     5. The National Assembly must recommend persons-
        1. nominated by a committee of the Assembly 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-
           1. of at least 60 per cent of the members of the Assembly, if the recommendation concerns the appointment of the Public Protector or the Auditor-General; or
           2. of a majority of the members of the Assembly, if the recommendation concerns the appointment of a member of a Commission.
     6. The involvement of civil society in the recommendation process may be provided for as envisaged in section 59 (1) (a).

 

 

181. Removal from office
     1. The Public Protector, the Auditor-General or a member of a Commission established by this Chapter may be removed from office only on-
        1. the ground of misconduct, incapacity or incompetence;
        2. a finding to that effect by a committee of the National Assembly; and
        3. the adoption by the Assembly of a resolution calling for that person's removal from office.
     2. A resolution of the National Assembly concerning the removal from office of-
        1. the Public Protector or the Auditor-General must be adopted with a supporting vote of at least two thirds of the members of the Assembly; or
        2. a member of a Commission must be adopted with a supporting vote of a majority of the members of the Assembly.
     3. The President-
        1. may suspend a person from office at any time after the start of the proceedings of a committee of the National Assembly for the removal of that person; and
        2. must remove a person from office upon adoption by the Assembly of the resolution calling for that person's removal.

 

Chapter 8

Courts and administration of justice (ss 165-180) 

165. Judicial authority
     1. The judicial authority of the Republic is vested in the courts.
     2. The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.
     3. No person or organ of state may interfere with the functioning of the courts.
     4. Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.
     5. An order or decision issued by a court binds all persons to whom and organs of state to which it applies.
     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.
     
     [Sub-s. (6) Added by s. 1 of Constitution Seventeenth Amendment Act, 2012.]

 

165. Judicial system
     The courts are-
     1. the Constitutional Court;
     2. the Supreme Court of Appeal;
     3. the High Court of South Africa, and any high court of appeal that may be established by an Act of Parliament to hear appeals from any court of a status similar to the High Court of South Africa;
     and
     
     [Para. (c) Substituted by s. 2(a) of Constitution Seventeenth Amendment Act, 2012.]
     1. the Magistrates' Courts; and
     2. any other court established or recognised in terms of an Act of Parliament, including any court of a status similar to either the High Court of South Africa or the Magistrates’ Courts.
     
     [Para. (e) Substituted by s. 2(b) of Constitution Seventeenth Amendment Act, 2012.]

 

165. Constitutional Court
     1. The Constitutional Court consists of the Chief Justice of South Africa, the Deputy Chief Justice and nine other judges.
     
     [Sub-s. (1) substituted by s. 11 of Act 34 of 2001.]
     1. A matter before the Constitutional Court must be heard by at least eight judges.
     2. The Constitutional Court-
        1. is the highest court of the Republic and
        2. may decide —
           1. 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 ; [Sub-s 3(a) Substituted by s. 3(a) of Constitution Seventeenth Amendment Act, 2012.]
     3. 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.
     4. 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.
     
     [Sub-s (5) Substituted by s. 3(b) of Constitution Seventeenth Amendment Act, 2012.]
     1. 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. to appeal directly to the Constitutional Court from any other court.
     2. A constitutional matter includes any issue involving the interpretation, protection or enforcement of the Constitution.

 

 

165. 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 of an Act of Parliament.
     
     [Sub-s. (1) substituted by s. 12 of Act 34 of 2001.]
     1. A matter before the Supreme Court of Appeal must be decided by the number of judges determined in terms of an Act of Parliament.
     
     [Sub-s. (2) substituted by s. 12 of Act 34 of 2001.]
     1. (a) The Supreme Court of Appeal may decide appeals in any matter arising from the High Court of South Africa or a court of a status similar to the High Court of South Africa, except in respect of labour or competition matters to such extent as may be determined by an Act of Parliament.
        (b) The Supreme Court of Appeal may decide only—
        1. appeals;
        2. issues connected with appeals; and
        3. any other matter that may be referred to it in circumstances defined by an Act of Parliament.
        
        [Sub-s 3 Substituted by s. 4 of Constitution Seventeenth Amendment Act, 2012.]

 

 

165. High Court of South Africa 
     
     1. The High Court of South Africa may decide—
        1. 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.
     [S. 169 Substituted by s. 5 of Constitution Seventeenth Amendment Act, 2012.] 
     
166. Other courts
     All courts other than those referred to in sections 167, 168 and 169 may decide any matter determined by an Act of Parliament, but a court of a status lower than the High Court of South Africa may not enquire into or rule on the constitutionality of any legislation or any conduct of the President.

[S. 170 Substituted by s. 6 of Constitution Seventeenth Amendment Act, 2012.]

 

 

 

165. Court procedures
     All courts function in terms of national legislation, and their rules and procedures must be provided for in terms of national legislation.

 

165. Powers of courts in constitutional matters
     1. When deciding a constitutional matter within its power, a court-
        1. 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.
     2. 1. The Supreme Court of Appeal, the High Court of South Africa or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President, but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court.
        
        
        [Sub.s 2(a) 
        Substituted by s. 7 of Constitution Seventeenth Amendment Act, 2012.]
        1. A court which makes an order of constitutional invalidity may grant a temporary interdict or other temporary relief to a party, or may adjourn the proceedings, pending a decision of the Constitutional Court on the validity of that Act or conduct.
        2. National legislation must provide for the referral of an order of constitutional invalidity to the Constitutional Court.
        3. Any person or organ of state with a sufficient interest may appeal, or apply, directly to the Constitutional Court to confirm or vary an order of constitutional invalidity by a court in terms of this subsection.

 

Inherent power

The Constitutional Court, the Supreme Court of Appeal and the High Court of South Africa each has the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice.

[S 173 Substituted by s. 8 of Constitution Seventeenth Amendment Act, 2012.] 

 

165. Appointment of judicial officers
     1. Any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer. Any person to be appointed to the Constitutional Court must also be a South African citizen.
     2. The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.
     3. The President as head of the national executive, after consulting the Judicial Service Commission and the leader of parties represented in the National Assembly, appoints the Chief Justice and the Deputy Chief Justice and, after consulting the Judicial Service Commission, appoints the President and Deputy President of the Supreme Court of Appeal.
     
     [Sub-s. (3) substituted by s. 13 of Act 34 of 2001.]
     1. 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.
     
     [Sub-s. (4) substituted by s. 13 of 34 of 2001.]
     1. 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.
     2. The President must appoint the judges of all other courts on the advice of the Judicial Service Commission.
     3. 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.
     4. 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.

 

165. Appointment of acting judges
     1. The President may appoint a woman or 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).
     
     [S. 175 substituted by s. 9 of Constitution Seventeenth Amendment Act of, 2012.]
     1. 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.

 

165. Terms of office and remuneration
     1. A Constitutional Court judge holds office for a non-renewable term of 12 years, or until he or she attains the age of 70, whichever occurs first, except where an Act of Parliament extends the term of office of a Constitutional Court judge.
     
     [Sub-s. (1) substituted by s. 15 of Act 34 of 2001.]
     1. Other judges hold office until they are discharged from active service in terms of an Act of Parliament.
     2. The salaries, allowances and benefits of judges may not be reduced.

 

165. Removal
     1. A judge may be removed from office only if-
        1. the Judicial Service Commission finds 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).

 

165. 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;
        
        [Para. (b) substituted by s. 16 (a) of Act 34 of 2001.]
        1. one Judge President designated by the Judges President;
        2. the Cabinet member responsible for the administration of justice, or an alternate designated by that Cabinet member;
        3. two practising advocates nominated from within the advocates' profession to represent the profession as a whole, and appointed by the President;
        4. two practising attorneys nominated from within the attorneys' profession to represent the profession as a whole, and appointed by the President;
        5. one teacher of law designated by teachers of law at South African universities;
        6. 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;
        7. four permanent delegates to the National Council of Provinces designated together by the Council with a supporting vote of at least six provinces;
        8. 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
        9. 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.
     
     [Para. (k) substituted by s. 10 of Constitution Seventeenth Amendment Act of, 2012.]
     1. 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.
     2. 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.
     3. The Judicial Service Commission has the powers and functions assigned to it in the Constitution and national legislation.
     4. 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).
     5. The Judicial Service Commission may determine its own procedure, but decisions of the Commission must be supported by a majority of its members.
     6. If the Chief Justice or the President of the Supreme Court of Appeal is temporarily unable to serve on the Commission, the Deputy Chief Justice or the Deputy President of the Supreme Court of Appeal, as the case may be, acts as his or her alternate on the Commission.
     
     [Sub-s. (7) added by s. 2 (b) of Act 65 of 1998 and substituted by s. 16 (c) of Act 34 of 2001.]
     1. The President and the persons who appoint, nominate or designate the members of the Commission in terms of subsection (1) (c), (e), (f) and (g), may, in the same manner appoint, nominate or designate an alternate for each of those members, to serve on the Commission whenever the member concerned is temporarily unable to do so by reason of his or her incapacity or absence from the Republic or for any other sufficient reason.
     
     [Sub-s. (8) added by s. 2 (b) of Act 65 of 1998.]

 

165. Prosecuting authority
     1. 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. 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. 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. 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.

 

 

165. Other matters concerning administration of justice
     National legislation may provide for any matter concerning the administration of justice that is not dealt with in the Constitution, including-
     1. training programmes for judicial officers;
     2. procedures for dealing with complaints about judicial officers; and
     3. the participation of people other than judicial officers in court decisions.

Chapter 7

Local government (ss 151-164) 

151. Status of municipalities
     1. The local sphere of government consists of municipalities, which must be established for the whole of the territory of the Republic.
     2. The executive and legislative authority of a municipality is vested in its Municipal Council.
     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.

151. 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. 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).

151. Developmental duties of municipalities
     A municipality must-
     1. structure and manage its administration and budgeting and planning processes to give priority to the basic needs of the community, and to promote the social and economic development of the community; and
     2. participate in national and provincial development programmes.

151. 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.

151. Establishment of municipalities
     1. 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.

        6.(A)If the criteria envisaged in subsection (3) (b) cannot be fulfilled without a municipal boundary extending across a provincial boundary-

        1. that municipal boundary may be determined across the provincial boundary, but only-
           1. with the concurrence of the provinces concerned; and
           2. after the respective provincial executives have been authorised by national legislation to establish a municipality within that municipal area; and
        2. national legislation may-
           1. subject to subsection (5), provide for the establishment in that municipal area of a municipality of a type agreed to between the provinces concerned;
           2. provide a framework for the exercise of provincial executive authority in that municipal area and with regard to that municipality; and
           3. provide for the re-determination of municipal boundaries where one of the provinces concerned withdraws its support of a municipal boundary determined in terms of paragraph (a).
     
     [Sub-s. (6A) has been deleted by s. 2 of the Constitution Twelfth Amendment Act 2005, commencement date: 1 March 2006.]
     1. 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).

151. 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. 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.

151. 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.
     
     [Sub-s. (1) substituted by s. 1 (a) of the Constitution Eighth Amendment Act of 2002 and amended by s. 3 of the Constitution Fifteenth Amendment Act of 2008.]
      
     1. 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.
     2. An electoral system in terms of subsection (2) must result, in general, in proportional representation.
     
     [Sub-s. (3) substituted by s. 1 (b) of Act 18 of 2002.]
     1. 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. ....
     
     [ Para. 4(b) has been deleted by s. 3 of the Constitution Twelfth Amendment Act, 2005]
      

     [Sub-s. (4) substituted by s. 2 of the Constitution Third Amendment Act of 1998.]

     1. A person may vote in a municipality only if that person is registered on that municipality's segment of the national common voters roll.
     2. 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.

151. 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.
     [Sub-s. (3) added by s. 4 of the Constitution Fifteenth Amendment Act of 2008.]

151. Terms of Municipal Councils
     1. The term of a Municipal Council may be no more than five years, as determined by national legislation.
     2. If a Municipal Council is dissolved in terms of national legislation, or when its term expires, an election must be held within 90 days of the date that Council was dissolved or its term expired.
     3. A Municipal Council, other than a Council that has been dissolved following an intervention in terms of section 139, remains competent to function from the time it is dissolved or its term expires, until the newly elected Council has been declared elected.
     
     [S. 159 substituted by s. 1 of Act 65 of 1998.]

151. 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;
        
        [Date of commencement of para. (b): 30 June 1997.]
        1. may elect an executive committee and other committees, subject to national legislation; and
        2. 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.
     4. 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.
     5. 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.
     6. 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.
     7. A Municipal Council must conduct its business in an open manner, and may close its sittings, or those of its committees, only when it is reasonable to do so having regard to the nature of the business being transacted.
     8. Members of a Municipal Council are entitled to participate in its proceedings and those of its committees in a manner that-
        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.

151. Privilege
     Provincial legislation within the framework of national legislation may provide for privileges and immunities of Municipal Councils and their members.

151. 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.

151. Organised local government
     An Act of Parliament enacted in accordance with the procedure established by section 76 must-
     1. provide for the recognition of national and provincial organisations representing municipalities; and
     2. determine procedures by which local government may-
        1. consult with the national or a provincial government;
        2. designate representatives to participate in the National Council of Provinces; and
        3. nominate persons to the Financial and Fiscal Commission.

[NB: Para. (b) has been substituted by s. 4 of the Constitution of the Republic of South Africa Second Amendment Act 61 of 2001, a provision which will be put into operation by proclamation.]

151. Other matters
     Any matter concerning local government not dealt with in the Constitution may be prescribed by national legislation or by provincial legislation within the framework of national legislation