Chapter 6

Provinces (ss 103-150) 

103. Provinces
     1. The Republic has the following provinces:
        1. Eastern Cape
        2. Free State
        3. Gauteng
        4. KwaZulu-Natal
        5. Mpumalanga
        6. Northern Cape
        7. Northern Province
        8. North West
        9. Western Cape.
     
     [Date of commencement of s. 103 (1): 1 March 2006.]
     1. 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
     
     [Date of commencement of s. 103 (2): 1 March 2006.]
      

     [Sub-s. (2) substituted by S.1 of the Constitution Twelfth Amendment Act, 2005.]

     1. (a) Whenever the geographical area of a province is re-determined by an amendment to the Constitution, an Act of Parliament may provide for measures to regulate, within a reasonable time, the legal, practical and any other consequences of the re-determination.

     (b) An Act of Parliament envisaged in paragraph (a) maybe enacted and implemented before such amendment to the Constitution takes effect, but any provincial functions, assets, rights, obligations, duties or liabilities may only be transferred in terms of that Act after that amendment to the Constitution takes effect." 

     [Sub-s. (3) substituted by S.1 of the Constitution Twelfth Amendment Act, 2005.] 
     [Date of commencement of s. 103 (3): 23 December 2005]

 

 

 

103. Legislative authority of provinces
     1. The legislative authority of a province is vested in its provincial legislature, and confers on the provincial legislature the power-
        1. to pass a constitution for its province or to amend any constitution passed by it in terms of sections 142 and 143;
        2. to pass legislation for its province with regard to-
           1. any matter within a functional area listed in Schedule 4;
           2. any matter within a functional area listed in Schedule 5;
           3. any matter outside those functional areas, and that is expressly assigned to the province by national legislation; and
           4. any matter for which a provision of the Constitution envisages the enactment of provincial legislation; and
        3. to assign any of its legislative powers to a Municipal Council in that province.
     2. The legislature of a province, by a resolution adopted with a supporting vote of at least two thirds of its members, may request Parliament to change the name of that province.
     3. A provincial legislature is bound only by the Constitution and, if it has passed a constitution for its province, also by that constitution, and must act in accordance with, and within the limits of, the Constitution and that provincial constitution.
     4. Provincial legislation with regard to a matter that is reasonably necessary for, or incidental to, the effective exercise of a power concerning any matter listed m Schedule 4, is for all purposes legislation with regard to a matter listed in Schedule 4.
     5. A provincial legislature may recommend to the National Assembly legislation concerning any matter outside the authority of that legislature, or in respect of which an Act of Parliament prevails over a provincial law.

 

 

103. Composition and election of provincial legislatures
     1. A provincial legislature consists of women and men elected as members in terms of an electoral system that-
        1. is prescribed by national legislation;
        2. is based on that province's segment of the national common voters roll;
        3. provides for a minimum voting age of 18 years; and
        4. (d) results, in general, in proportional representation.
     
     [Sub-s. (1) amended by s. 3 of the Constitution Tenth Amendment Act of 2003 and by s. 3 of the Constitution Fourteenth Amendment Act of 2008.]
     1. A provincial legislature consists of between 30 and 80 members. The number of members, which may differ among the provinces, must be determined in terms of a formula prescribed by national legislation.

 

103. Membership
     1. Every citizen who is qualified to vote for the National Assembly is eligible to be a member of a provincial legislature, except-
        1. anyone who is appointed by, or is in the service of, the state and receives remuneration for that appointment or service, other than-
           1. the Premier and other members of the Executive Council of a province; and
           2. other office-bearers whose functions are compatible with the functions of a member of a provincial legislature, and have been declared compatible with those functions by national legislation;
        2. members of the National Assembly, permanent delegates to the National Council of Provinces or members of a Municipal Council;
        3. unrehabilitated insolvents;
        4. anyone declared to be of unsound mind by a court of the Republic; or
        5. anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 months' imprisonment without the option of a fine, either in the Republic, or outside the Republic if the conduct constituting the offence would have been an offence in the Republic, but no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired. A disqualification under this paragraph ends five years after the sentence has been completed.
     2. A person who is not eligible to be a member of a provincial legislature in terms of subsection (1) (a) or (b) may be a candidate for the legislature, subject to any limits or conditions established by national legislation.
     3. A person loses membership of a provincial legislature if that person-
        1. ceases to be eligible;
        2. is absent from the legislature without permission in circumstances for which the rules and orders of the legislature prescribe loss of membership; or
        3. ceases to be a member of the party that nominated that person as a member of the legislature.
     
     [Sub-s. (3) substituted by s. 4 of the Constitution Tenth Amendment Act of 2003 and by s. 4 of the Constitution Fourteenth Amendment Act of 2008.]
      
     1. Vacancies in a provincial legislature must be filled in terms of national legislation.

 

 

103. Oath or affirmation
     Before members of a provincial legislature begin to perform their functions in the legislature, they must swear or affirm faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2.

 

 

103. Duration of provincial legislatures
     1. A provincial legislature is elected for a term of five years.
     2. If a provincial legislature is dissolved in terms of section 109, or when its term expires, the Premier of the province, by proclamation, must call and set dates for an election, which must be held within 90 days of the date the legislature was dissolved or its term expired. A proclamation calling and setting dates for an election may be issued before or after the expiry of the term of a provincial legislature.
     
     [Sub-s. (2) substituted by s. 1 of Act 3 of 1999.]
     1. If the result of an election of a provincial legislature is not declared within the period referred to in section 190, or if an election is set aside by a court, the President, by proclamation, must call and set dates for another election, which must be held within 90 days of the expiry of that period or of the date on which the election was set aside.
     2. A provincial legislature remains competent to function from the time it is dissolved or its term expires, until the day before the first day of polling for the next legislature.

 

 

103. Dissolution of provincial legislatures before expiry of term
     1. The Premier of a province must dissolve the provincial legislature if-
        1. the legislature has adopted a resolution to dissolve with a supporting vote of a majority of its members; and
        2. three years have passed since the legislature was elected.
     2. An Acting Premier must dissolve the provincial legislature if-
        1. there is a vacancy in the office of Premier; and
        2. the legislature fails to elect a new Premier within 30 days after the vacancy occurred.

 

 

103. Sittings and recess periods
     1. After an election, the first sitting of a provincial legislature must take place at a time and on a date determined by a judge designated by the Chief Justice, but not more than 14 days after the election result has been declared. A provincial legislature may determine the time and duration of its other sittings and its recess periods.
     
     [Sub-s. (1) substituted by s. 8 of Act 34 of 2001.]
     1. The Premier of a province may summon the provincial legislature to an extraordinary sitting at any time to conduct special business.
     2. A provincial legislature may determine where it ordinarily will sit.

 

 

103. Speakers and Deputy Speakers
     1. At the first sitting after its election, or when necessary to fill a vacancy, a provincial legislature must elect a Speaker and a Deputy Speaker from among its members.
     2. A judge designated by the Chief Justice must preside over the election of a Speaker. The Speaker presides over the election of a Deputy Speaker.
     
     [Sub-s. (2) substituted by s. 9 of Act 34 of 2001.]
     1. The procedure set out in Part A of Schedule 3 applies to the election of Speakers and Deputy Speakers.
     2. A provincial legislature may remove its Speaker or Deputy Speaker from office by resolution. A majority of the members of the legislature must be present when the resolution is adopted.
     3. In terms of its rules and orders, a provincial legislature may elect from among its members other presiding officers to assist the Speaker and the Deputy Speaker.

 

 

103. Decisions
     1. Except where the Constitution provides otherwise-
        1. a majority of the members of a provincial legislature must be present before a vote may be taken on a Bill or an amendment to a Bill;
        2. at least one third of the members must be present before a vote may be taken on any other question before the legislature; and
        3. all questions before a provincial legislature are decided by a majority of the votes cast.
     2. The member presiding at a meeting of a provincial legislature has no deliberative vote, but-
        1. must cast a deciding vote when there is an equal number of votes on each side of a question; and
        2. may cast a deliberative vote when a question must be decided with a supporting vote of at least two thirds of the members of the legislature.

 

 

103. Permanent delegates' rights in provincial legislatures
     A province's permanent delegates to the National Council of Provinces may attend, and may speak in, their provincial legislature and its committees, but may not vote. The legislature may require a permanent delegate to attend the legislature or its committees.

 

 

103. Powers of provincial legislatures
     1. In exercising its legislative power, a provincial legislature may-
        1. consider, pass, amend or reject any Bill before the legislature; and
        2. initiate or prepare legislation, except money Bills.
     2. A provincial legislature must provide for mechanisms-
        1. to ensure that all provincial executive organs of state in the province are accountable to it; and
        2. to maintain oversight of-
           1. the exercise of provincial executive authority in the province, including the implementation of legislation; and
           2. any provincial organ of state.

 

 

103. Evidence or information before provincial legislatures
     A provincial legislature or any of its committees may-
     1. summon any person to appear before it to give evidence on oath or affirmation, or to produce documents;
     2. require any person or provincial institution to report to it;
     3. compel, in terms of provincial legislation or the rules and orders, any person or institution to comply with a summons or requirement in terms of paragraph (a) or (b); and
     4. receive petitions, representations or submissions from any interested persons or institutions.

 

 

103. Internal arrangements, proceedings and procedures of provincial legislatures
     1. A provincial legislature may-
        1. determine and control its internal arrangements, proceedings and procedures; and
        2. make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement.
     2. The rules and orders of a provincial legislature must provide for-
        1. the establishment, composition, powers, functions, procedures and duration of its committees;
        2. the participation in the proceedings of the legislature and its committees of minority parties represented in the legislature, in a manner consistent with democracy;
        3. financial and administrative assistance to each party represented in the legislature, in proportion to its representation, to enable the party and its leader to perform their functions in the legislature effectively; and
        4. the recognition of the leader of the largest opposition party in the legislature, as the Leader of the Opposition.

 

 

103. Privilege
     1. Members of a provincial legislature and the province's permanent delegates to the National Council of Provinces-
        1. have freedom of speech in the legislature and in its committees, subject to its rules and orders; and
        2. are not liable to civil or criminal proceedings, arrest, imprisonment or damages for-
           1. anything that they have said in, produced before or submitted to the legislature or any of its committees; or
           2. anything revealed as a result of anything that they have said in, produced before or submitted to the legislature or any of its committees.
     2. Other privileges and immunities of a provincial legislature and its members may be prescribed by national legislation.
     3. Salaries, allowances and benefits payable to members of a provincial legislature are a direct charge against the Provincial Revenue Fund.

 

 

103. Public access to and involvement in provincial legislatures
     1. A provincial legislature must-
        1. facilitate public involvement in the legislative and other processes of the legislature and its committees; and
        2. conduct its business in an open manner, and hold its sittings, and those of its committees, in public, but reasonable measures may be taken-
           1. to regulate public access, including access of the media, to the legislature and its committees; and
           2. to provide for the searching of any person and, where appropriate, the refusal of entry to, or the removal of, any person.
     2. A provincial legislature may not exclude the public, including the media, from a sitting of a committee unless it is reasonable and justifiable to do so in an open and democratic society.

 

103. Introduction of Bills
     Only members of the Executive Council of a province or a committee or member of a provincial legislature may introduce a Bill in the legislature; but only the member of the Executive Council who is responsible for financial matters in the province may introduce a money Bill in the legislature.

 

103. Money Bills
     1. A Bill is a money Bill if it-
        1. appropriates money;
        2. imposes provincial taxes, levies, duties or surcharges;
        3. abolishes or reduces, or grants exemptions from, any provincial taxes, levies, duties or surcharges; or
        4. authorises direct charges against a Provincial Revenue Fund.
     2. A money Bill may not deal with any other matter except-
        1. a subordinate matter incidental to the appropriation of money;
        2. the imposition, abolition or reduction of provincial taxes, levies, duties or surcharges;
        3. the granting of exemption from provincial taxes, levies, duties or surcharges; or
        4. the authorisation of direct charges against a Provincial Revenue Fund.
     3. A provincial Act must provide for a procedure by which the province's legislature may amend a money Bill.
     
     [S. 120 substituted by s. 3 of Act 61 of 2001.]

 

103. Assent to Bills
     1. The Premier of a province must either assent to and sign a Bill passed by the provincial legislature in terms of this Chapter or, if the Premier has reservations about the constitutionality of the Bill, refer it back to the legislature for reconsideration.
     2. If, after reconsideration, a Bill fully accommodates the Premier's reservations, the Premier must assent to and sign the Bill; if not, the Premier must either-
        1. assent to and sign the Bill; or
        2. refer it to the Constitutional Court for a decision on its constitutionality.
     3. If the Constitutional Court decides that the Bill is constitutional, the Premier must assent to and sign it.

 

 

103. Application by members to Constitutional Court
     1. Members of a provincial legislature may apply to the Constitutional Court for an order declaring that all or part of a provincial Act is unconstitutional.
     2. An application-
        1. must be supported by at least 20 per cent of the members of the legislature; and
        2. must be made within 30 days of the date on which the Premier assented to and signed the Act.
     3. The Constitutional Court may order that all or part of an Act that is the subject of an application in terms of subsection (1) has no force until the Court has decided the application if-
        1. the interests of justice require this; and
        2. the application has a reasonable prospect of success.
     4. If an application is unsuccessful, and did not have a reasonable prospect of success, the Constitutional Court may order the applicants to pay costs.

 

103. Publication of provincial Acts
     A Bill assented to and signed by the Premier of a province becomes a provincial Act, must be published promptly and takes effect when published or on a date determined in terms of the Act.

 

 

103. Safekeeping of provincial Acts
     The signed copy of a provincial Act is conclusive evidence of the provisions of that Act and, after publication, must be entrusted to the Constitutional Court for safekeeping.

 

 

 

103. Executive authority of provinces
     1. The executive authority of a province is vested in the Premier of that province.
     2. The Premier exercises the executive authority, together with the other members of the Executive Council, by-
        1. implementing provincial legislation in the province;
        2. implementing all national legislation within the functional areas listed in Schedule 4 or 5 except where the Constitution or an Act of Parliament provides otherwise;
        3. administering in the province, national legislation outside the functional areas listed in Schedules 4 and 5, the administration of which has been assigned to the provincial executive in terms of an Act of Parliament;
        4. developing and implementing provincial policy;
        5. co-ordinating the functions of the provincial administration and its departments;
        6. preparing and initiating provincial legislation; and
        7. performing any other function assigned to the provincial executive in terms of the Constitution or an Act of Parliament.
     3. A province has executive authority in terms of subsection (2) (b) only to the extent that the province has the administrative capacity to assume effective responsibility. The national government, by legislative and other measures, must assist provinces to develop the administrative capacity required for the effective exercise of their powers and performance of their functions referred to in subsection (2).
     4. Any dispute concerning the administrative capacity of a province in regard to any function must be referred to the National Council of Provinces for resolution within 30 days of the date of the referral to the Council.
     5. Subject to section 100, the implementation of provincial legislation in a province is an exclusive provincial executive power.
     6. The provincial executive must act in accordance with-
        1. the Constitution; and
        2. the provincial constitution, if a constitution has been passed for the province.

 

103. Assignment of functions
     A member of the Executive Council of a province may assign any power or function that is to be exercised or performed in terms of an Act of Parliament or a provincial Act, to a Municipal Council. An assignment-
     1. must be in terms of an agreement between the relevant Executive Council member and the Municipal Council;
     2. must be consistent with the Act in terms of which the relevant power or function is exercised or performed; and
     3. takes effect upon proclamation by the Premier.

 

 

103. Powers and functions of Premiers
     1. The Premier of a province has the powers and functions entrusted to that office by the Constitution and any legislation.
     2. The Premier of a province is responsible for-
        1. assenting to and signing Bills;
        2. referring a Bill back to the provincial legislature for reconsideration of the Bill's constitutionality;
        3. referring a Bill to the Constitutional Court for a decision on the Bill's constitutionality;
        4. summoning the legislature to an extraordinary sitting to conduct special business;
        5. appointing commissions of inquiry; and
        6. calling a referendum in the province in accordance with national legislation.

 

 

103. Election of Premiers
     1. At its first sitting after its election, and whenever necessary to fill a vacancy, a provincial legislature must elect a woman or a man from among its members to be the Premier of the province.
     2. A judge designated by the Chief Justice must preside over the election of the Premier. The procedure set out in Part A of Schedule 3 applies to the election of the Premier.
     
     [Sub-s. (2) substituted by s. 10 of Act 34 of 2001.]
     1. An election to fill a vacancy in the office of Premier must be held at a time and on a date determined by the Chief Justice, but not later than 30 days after the vacancy occurs.
     
     [Sub-s. (3) substituted by s. 10 of Act 34 of 2001.]

 

 

103. Assumption of office by Premiers
     A Premier-elect must assume office within five days of being elected, by swearing or affirming faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2.

 

 

103. Term of office and removal of Premiers
     1. A Premier's term of office begins when the Premier assumes office and ends upon a vacancy occurring or when the person next elected Premier assumes office.
     2. No person may hold office as Premier for more than two terms, but when a person is elected to fill a vacancy in the office of Premier, the period between that election and the next election of a Premier is not regarded as a term.
     3. The legislature of a province, by a resolution adopted with a supporting vote of at least two thirds of its members, may remove the Premier from office only on the grounds of-
        1. a serious violation of the Constitution or the law;
        2. serious misconduct; or
        3. inability to perform the functions of office.
     4. Anyone who has been removed from the office of Premier in terms of subsection (3) (a) or (b) may not receive any benefits of that office, and may not serve in any public office.

 

 

103. Acting Premiers
     1. When the Premier is absent or otherwise unable to fulfil the duties of the office of Premier, or during a vacancy in the office of Premier, an office-bearer in the order below acts as the Premier:
        1. A member of the Executive Council designated by the Premier.
        2. A member of the Executive Council designated by the other members of the Council.
        3. The Speaker, until the legislature designates one of its other members.
     2. An Acting Premier has the responsibilities, powers and functions of the Premier.
     3. Before assuming the responsibilities, powers and functions of the Premier, the Acting Premier must swear or affirm faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2.

 

 

103. Executive Councils
     1. The Executive Council of a province consists of the Premier, as head of the Council, and no fewer than five and no more than ten members appointed by the Premier from among the members of the provincial legislature.
     2. The Premier of a province appoints the members of the Executive Council, assigns their powers and functions, and may dismiss them.

 

 

103. Accountability and responsibilities
     1. The members of the Executive Council of a province are responsible for the functions of the executive assigned to them by the Premier.
     2. Members of the Executive Council of a province are accountable collectively and individually to the legislature for the exercise of their powers and the performance of their functions.
     3. Members of the Executive Council of a province must-
        1. act in accordance with the Constitution and, if a provincial constitution has been passed for the province, also that constitution; and
        2. provide the legislature with full and regular reports concerning matters under their control.

 

103. Continuation of Executive Councils after elections
     When an election of a provincial legislature is held, the Executive Council and its members remain competent to function until the person elected Premier by the next legislature assumes office.

 

 

103. Oath or affirmation
     Before members of the Executive Council of a province begin to perform their functions, they must swear or affirm faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2.

 

 

103. Conduct of members of Executive Councils
     1. Members of the Executive Council of a province must act in accordance with a code of ethics prescribed by national legislation.
     2. Members of the Executive Council of a province 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.

 

 

103. Transfer of functions
     The Premier by proclamation may transfer to a member of the Executive Council-
     1. the administration of any legislation entrusted to another member; or
     2. any power or function entrusted by legislation to another member.

 

 

103. Temporary assignment of functions
     The Premier of a province may assign to a member of the Executive Council any power or function of another member who is absent from office or is unable to exercise that power or perform that function.

 

 

103. Provincial supervision of local government
     1. When a municipality cannot or does not fulfil an executive obligation in terms of legislation, the relevant provincial executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation, including-
        1. issuing a directive to the Municipal Council, 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 municipality to the extent necessary-
           1. to maintain essential national standards or meet established minimum standards for the rendering of a service;
           2. to prevent that Municipal Council from taking unreasonable action that is prejudicial to the interests of another municipality or to the province as a whole; or
           3. to maintain economic unity.
     2. If a provincial executive intervenes in a municipality in terms of subsection (1) (b)-
        1. the intervention must end unless it is approved by the Cabinet member responsible for local government affairs within 14 days of the intervention;
        2. notice of the intervention must be tabled in the provincial legislature and in the National Council of Provinces within 14 days of their respective first sittings after the intervention began;
        3. the intervention must end unless it is approved by the Council within 30 days of its first sitting after the intervention began; and
        4. the Council must review the intervention regularly and make any appropriate recommendations to the provincial executive.
     3. National legislation may regulate the process established by this section.

 

 

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

 

 

103. Motions of no confidence
     1. If a provincial legislature, by a vote supported by a majority of its members, passes a motion of no confidence in the province's Executive Council excluding the Premier, the Premier must reconstitute the Council.
     2. If a provincial legislature, by a vote supported by a majority of its members, passes a motion of no confidence in the Premier, the Premier and the other members of the Executive Council must resign.

 

 

 

103. Adoption of provincial constitutions
     A provincial legislature may pass a constitution for the province or, where applicable, amend its constitution, if at least two thirds of its members vote in favour of the Bill.

 

 

103. Contents of provincial constitutions
     1. A provincial constitution, or constitutional amendment, must not be inconsistent with this Constitution, but may provide for-
        1. provincial legislative or executive structures and procedures that differ from those provided for in this Chapter; or
        2. the institution, role, authority and status of a traditional monarch, where applicable.
     2. Provisions included in a provincial constitution or constitutional amendment in terms of paragraph (a) or (b) of subsection (1)-
        1. must comply with the values in section 1 and with Chapter 3; and
        2. may not confer on the province any power or function that falls-
           1. outside the area of provincial competence in terms of Schedules 4 and 5; or
           2. outside the powers and functions conferred on the province by other sections of the Constitution.

 

 

103. Certification of provincial constitutions
     1. If a provincial legislature has passed or amended a constitution, the Speaker of the legislature must submit the text of the constitution or constitutional amendment to the Constitutional Court for certification.
     2. No text of a provincial constitution or constitutional amendment becomes law until the Constitutional Court has certified-
        1. that the text has been passed in accordance with section 142; and
        2. that the whole text complies with section 143.

 

 

103. Signing, publication and safekeeping of provincial constitutions
     1. The Premier of a province must assent to and sign the text of a provincial constitution or constitutional amendment that has been certified by the Constitutional Court.
     2. The text assented to and signed by the Premier must be published in the national Government Gazette and takes effect on publication or on a later date determined in terms of that constitution or amendment.
     3. The signed text of a provincial constitution or constitutional amendment is conclusive evidence of its provisions and, after publication, must be entrusted to the Constitutional Court for safekeeping.

 

 

103. Conflicts between national and provincial legislation
     1. This section applies to a conflict between national legislation and provincial legislation falling within a functional area listed in Schedule 4.
     2. National legislation that applies uniformly with regard to the country as a whole prevails over provincial legislation if any of the following conditions is met:
        1. The national legislation deals with a matter that cannot be regulated effectively by legislation enacted by the respective provinces individually.
        2. The national legislation deals with a matter that, to be dealt with effectively, requires uniformity across the nation, and the national legislation provides that uniformity by establishing-
           1. norms and standards;
           2. frameworks; or
           3. national policies.
        3. The national legislation is necessary for-
           1. the maintenance of national security;
           2. the maintenance of economic unity;
           3. the protection of the common market in respect of the mobility of goods, services, capital and labour;
           4. the promotion of economic activities across provincial boundaries;
           5. the promotion of equal opportunity or equal access to government services; or
           6. the protection of the environment.
     3. National legislation prevails over provincial legislation if the national legislation is aimed at preventing unreasonable action by a province that-
        1. is prejudicial to the economic, health or security interests of another province or the country as a whole; or
        2. impedes the implementation of national economic policy.
     4. When there is a dispute concerning whether national legislation is necessary for a purpose set out in subsection (2) (c) and that dispute comes before a court for resolution, the court must have due regard to the approval or the rejection of the legislation by the National Council of Provinces.
     5. Provincial legislation prevails over national legislation if subsection (2) or (3) does not apply.
     6. A law made in terms of an Act of Parliament or a provincial Act can prevail only if that law has been approved by the National Council of Provinces.
     7. If the National Council of Provinces does not reach a decision within 30 days of its first sitting after a law was referred to it, that law must be considered for all purposes to have been approved by the Council.
     8. If the National Council of Provinces does not approve a law referred to in subsection (6), it must, within 30 days of its decision, forward reasons for not approving the law to the authority that referred the law to it.

 

 

103. Other conflicts
     1. If there is a conflict between national legislation and a provision of a provincial constitution with regard to-
        1. a matter concerning which this Constitution specifically requires or envisages the enactment of national legislation, the national legislation prevails over the affected provision of the provincial constitution;
        2. national legislative intervention in terms of section 44 (2), the national legislation prevails over the provision of the provincial constitution; or
        3. a matter within a functional area listed in Schedule 4, section 146 applies as if the affected provision of the provincial constitution were provincial legislation referred to in that section.
     2. National legislation referred to in section 44 (2) prevails over provincial legislation in respect of matters within the functional areas listed in Schedule 5.

 

 

103. Conflicts that cannot be resolved
     If a dispute concerning a conflict cannot be resolved by a court, the national legislation prevails over the provincial legislation or provincial constitution.

 

 

103. Status of legislation that does not prevail
     A decision by a court that legislation prevails over other legislation does not invalidate that other legislation, but that other legislation becomes inoperative for as long as the conflict remains.

 

 

103. Interpretation of conflicts
     When considering an apparent conflict between national and provincial legislation, or between national legislation and a provincial constitution, every court must prefer any reasonable interpretation of the legislation or constitution that avoids a conflict, over any alternative interpretation that results in a conflict.

Chapter 5 The president and national executive (ss 83-102) The President - The President- is the Head of State and head of the national executive; must uphold, defend and respect the Constitution as the supreme law of the Republic; and promotes the unity of the nation and that which will advance the Republic. Powers and functions of President 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. The President is responsible for- assenting to and signing Bills; referring a Bill back to the National Assembly for reconsideration of the Bill's constitutionality; referring a Bill to the Constitutional Court for a decision on the Bill's constitutionality; summoning the National Assembly, the National Council of Provinces or Parliament to an extraordinary sitting to conduct special business; making any appointments that the Constitution or legislation requires the President to make, other than as head of the national executive; appointing commissions of inquiry; calling a national referendum in terms of an Act of Parliament; receiving and recognising foreign diplomatic and consular representatives; appointing ambassadors, plenipotentiaries, and diplomatic and consular representatives; pardoning or reprieving offenders and remitting any fines, penalties or forfeitures; and conferring honours. Executive authority of the Republic The executive authority of the Republic is vested in the President. The President exercises the executive authority, together with the other members of the Cabinet, by- implementing national legislation except where the Constitution or an Act of Parliament provides otherwise; developing and implementing national policy; co-ordinating the functions of state departments and administrations; preparing and initiating legislation; and performing any other executive function provided for in the Constitution or in national legislation. Election of President 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. 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. [Sub-s. (2) substituted by s. 6 of Act 34 of 2001.] 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. [Sub-s. (3) substituted by s. 6 of Act 34 of 2001.] Assumption of office by President When elected President, a person ceases to be a member of the National Assembly and, within five days, must assume office by swearing or affirming faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2. Term of office of President 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. 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. Removal of President 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 grounds of- a serious violation of the Constitution or the law; serious misconduct; or inability to perform the functions of office. 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. Acting President 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: The Deputy President. A Minister designated by the President. A Minister designated by the other members of the Cabinet. The Speaker, until the National Assembly designates one of its other members. An Acting President has the responsibilities, powers and functions of the President. 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. 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. [Sub-s. (4) added by s. 1 of Act 35 of 1997.] Cabinet The Cabinet consists of the President, as head of the Cabinet, a Deputy President and Ministers. The President appoints the Deputy President and Ministers, assigns their powers and functions, and may dismiss them. The President- must select the Deputy President from among the members of the National Assembly; may select any number of Ministers from among the members of the National Assembly; and may select no more than two Ministers from outside the Assembly. The President must appoint a member of the Cabinet to be the leader of government business in the National Assembly. The Deputy President must assist the President in the execution of the functions of government. Accountability and responsibilities The Deputy President and Ministers are responsible for the powers and functions of the executive assigned to them by the President. Members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions. Members of the Cabinet must- act in accordance with the Constitution; and provide Parliament with full and regular reports concerning matters under their control. Deputy Ministers The President may appoint- any number of Deputy Ministers from among the members of the National Assembly; and no more than two Deputy Ministers from outside the Assembly, to assist the members of the Cabinet, and may dismiss them. 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. [S. 93 substituted by Annexure B to Schedule 6 to Act 108 of 1996 and by s. 7 of Act 34 of 2001.] Continuation of Cabinet after elections When an election of the National Assembly is held, the Cabinet, the Deputy President, Ministers and any Deputy Ministers remain competent to function until the person elected President by the next Assembly assumes office. Oath or affirmation Before the Deputy President, Ministers and any Deputy Ministers begin to perform their functions, they must swear or affirm faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2. Conduct of Cabinet members and Deputy Ministers Members of the Cabinet and Deputy Ministers must act in accordance with a code of ethics prescribed by national legislation. Members of the Cabinet and Deputy Ministers may not- undertake any other paid work; 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 use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person. 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. [Sub-s. (3) added by Annexure B to Schedule 6 to Act 108 of 1996.] Ministers must administer their portfolios in accordance with the policy determined by the Cabinet. [Sub-s. (4) added by Annexure B to Schedule 6 to Act 108 of 1996.] 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. [Sub-s. (5) added by Annexure B to Schedule 6 to Act 108 of 1996.] If the Minister concerned fails to comply with a requirement of the President under subsection (5), the President may remove the Minister from office- 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 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. [Sub-s. (6) added by Annexure B to Schedule 6 to Act 108 of 1996.] Transfer of functions The President by proclamation may transfer to a member of the Cabinet- the administration of any legislation entrusted to another member; or any power or function entrusted by legislation to another member. Temporary assignment of functions The President may assign to a Cabinet member any power or function of another member who is absent from office or is unable to exercise that power or perform that function. Assignment of functions A Cabinet member may assign any power or function that is to be exercised or performed in terms of an Act of Parliament to a member of a provincial Executive Council or to a Municipal Council. An assignment- must be in terms of an agreement between the relevant Cabinet member and the Executive Council member or Municipal Council; must be consistent with the Act of Parliament in terms of which the relevant power or function is exercised or performed; and takes effect upon proclamation by the President. National supervision of provincial administration When a province cannot or does not fulfil an executive obligation in terms of legislation or the Constitution, the national executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation, including- 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 assuming responsibility for the relevant obligation in that province to the extent necessary to- maintain essential national standards or meet established minimum standards for the rendering of a service; maintain economic unity; maintain national security; or prevent that province from taking unreasonable action that is prejudicial to the interests of another province or to the country as a whole. If the national executive intervenes in a province in terms of subsection (1) (b)- it must submit a written notice of the intervention to the National Council of Provinces within 14 days after the intervention began; 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 the Council must, while the intervention continues, review the intervention regularly and may make any appropriate recommendations to the national executive.  [Sub-s. (2) substituted by s. 2 (c) of the Constitution Eleventh Amendment Act of 2003.] National legislation may regulate the process established by this section. [S. 100 amended by s. 2 (a) of the Constitution Eleventh Amendment Act of 2003.] Executive decisions A decision by the President must be in writing if it- is taken in terms of legislation; or has legal consequences. 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. Proclamations, regulations and other instruments of subordinate legislation must be accessible to the public. National legislation may specify the manner in which, and the extent to which, instruments mentioned in subsection (3) must be- tabled in Parliament; and approved by Parliament. Motions of no confidence 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. 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.

Chapter 4

Parliament (ss 42-82)

42. Composition of Parliament
    1. 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. 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. The President may summon Parliament to an extraordinary sitting at any time to 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.

42. Legislative authority of the Republic
    In the Republic, the legislative authority-
    
    1. of the national sphere of government is vested in Parliament, as set out in section 44;
    2. of the provincial sphere of government is vested in the provincial legislatures, as set out in section 104; and
    3. of the local sphere of government is vested in the Municipal Councils, as set out in section 156.

42. National legislative authority
    1. The national legislative authority as vested in Parliament-
       1. confers on the National Assembly the power-
          1. to amend the Constitution;
          2. 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. to participate in amending the Constitution in accordance with section 74;
          2. 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. 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. 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. 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.

42. 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. 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.

The National Assembly (ss 46-59)

46. Composition and election
    1. The National Assembly consists of no fewer than 350 and no more than 400 women and men elected as members in terms of an electoral system that-
       1. is prescribed by national legislation;
       2. is based on the national common voters roll;
       3. provides for a minimum voting age of 18 years; and
       4. results, in general, in proportional representation.
    
    [Sub-s. (1) amended by s. 1 of the Constitution Tenth Amendment Act of 2003 and by s. 1 of the Constitution Fifteenth Amendment Act of 2008.]
     
    1. An Act of Parliament must provide a formula for determining the number of members of the National Assembly.

47. Membership
    1. Every citizen who is qualified to vote for the National Assembly is eligible to be a member of the Assembly, except-
       1. anyone who is appointed by, or is in the service of, the state and receives remuneration for that appointment or service, other than-
          1. the President, Deputy President, Ministers and Deputy Ministers; and
          2. other office-bearers whose functions are compatible with the functions of a member of the Assembly, and have been declared compatible with those functions by national legislation;
       2. permanent delegates to the National Council of Provinces or members of a provincial legislature or a Municipal Council;
       3. unrehabilitated insolvents;
       4. anyone declared to be of unsound mind by a court of the Republic; or
       5. anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 months' imprisonment without the option of a fine, either in the Republic, or outside the Republic if the conduct constituting the offence would have been an offence in the Republic, but no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired. A disqualification under this paragraph ends five years after the sentence has been completed.
    2. A person who is not eligible to be a member of the National Assembly in terms of subsection (1) (a) or (b) may be a candidate for the Assembly, subject to any limits or conditions established by national legislation.
    3. A person loses membership of the National Assembly if that person-
       1. ceases to be eligible;
       2. is absent from the Assembly without permission in circumstances for which the rules and orders of the Assembly prescribe loss of membership; or
       3. ceases to be a member of the party that nominated that person as a member of the Assembly.
    [Sub-s. (3) substituted by s. 2 of the Constitution Tenth Amendment Act of 2003 and by s. 2 of the Constitution Fifteenth Amendment Act of 2008.]
     
    1. Vacancies in the National Assembly must be filled in terms of national legislation.

47. Oath or affirmation
    Before members of the National Assembly begin to perform their functions in the Assembly, they must swear or affirm faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2.

47. Duration of National Assembly
    1. The National Assembly is elected for a term of five years.
    2. If the National Assembly is dissolved in terms of section 50, or when its term expires, the President, by proclamation, must call and set dates for an election, which must be held within 90 days of the date the Assembly was dissolved or its term expired. A proclamation calling and setting dates for an election may be issued before or after the expiry of the term of the National Assembly.
    
    [Sub-s. (2) substituted by s. 1 of Act 2 of 1999.]
    1. If the result of an election of the National Assembly is not declared within the period established in terms of section 190, or if an election is set aside by a court, the President, by proclamation, must call and set dates for another election, which must be held within 90 days of the expiry of that period or of the date on which the election was set aside.
    2. The National Assembly remains competent to function from the time it is dissolved or its term expires, until the day before the first day of polling for the next Assembly.

47. Dissolution of National Assembly before expiry of its term
    1. The President must dissolve the National Assembly if-
       1. the Assembly has adopted a resolution to dissolve with a supporting vote of a majority of its members; and
       2. three years have passed since the Assembly was elected.
    2. The Acting President must dissolve the National Assembly if-
       1. there is a vacancy in the office of President; and
       2. the Assembly fails to elect a new President within 30 days after the vacancy occurred.

47. Sittings and recess periods
    1. After an election, the first sitting of the National Assembly must take place at a time and on a date determined by the Chief Justice, but not more than 14 days after the election result has been declared. The Assembly may determine the time and duration of its other sittings and its recess periods.
    
    [Sub-s. (1) substituted by s. 1 of Act 34 of 2001.]
    1. The President may summon the National Assembly to an extraordinary sitting at any time to conduct special business.
    2. Sittings of the National Assembly are permitted at places other than the seat of Parliament only on the grounds of public interest, security or convenience, and if provided for in the rules and orders of the Assembly.

47. Speaker and Deputy Speaker
    1. At the first sitting after its election, or when necessary to fill a vacancy, the National Assembly must elect a Speaker and a Deputy Speaker from among its members.
    2. The Chief Justice must preside over the election of a Speaker, or designate another judge to do so. The Speaker presides over the election of a Deputy Speaker.
    
    [Sub-s. (2) substituted by s. 2 of Act 34 of 2001.]
    1. The procedure set out in Part A of Schedule 3 applies to the election of the Speaker and the Deputy Speaker.
    2. The National Assembly may remove the Speaker or Deputy Speaker from office by resolution. A majority of the members of the Assembly must be present when the resolution is adopted.
    3. In terms of its rules and orders, the National Assembly may elect from among its members other presiding officers to assist the Speaker and the Deputy Speaker.

47. Decisions
    1. Except where the Constitution provides otherwise-
       1. a majority of the members of the National Assembly must be present before a vote may be taken on a Bill or an amendment to a Bill;
       2. at least one third of the members must be present before a vote may be taken on any other question before the Assembly; and
       3. all questions before the Assembly are decided by a majority of the votes cast.
    2. The member of the National Assembly presiding at a meeting of the Assembly has no deliberative vote, but-
       1. must cast a deciding vote when there is an equal number of votes on each side of a question; and
       2. may cast a deliberative vote when a question must be decided with a supporting vote of at least two thirds of the members of the Assembly.

47. Rights of certain Cabinet members and Deputy Ministers in the National Assembly
    The President, and any member of the Cabinet or any Deputy Minister who is not a member of the National Assembly, may, subject to the rules and orders of the Assembly, attend and speak in the Assembly, but may not vote.

[S. 54 substituted by s. 3 of Act 34 of 2001.]

47. Powers of National Assembly
    1. In exercising its legislative power, the National Assembly may-
       1. consider, pass, amend or reject any legislation before the Assembly; and
       2. initiate or prepare legislation, except money Bills.
    2. The National Assembly must provide for mechanisms-
       1. to ensure that all executive organs of state in the national sphere of government are accountable to it; and
       2. to maintain oversight of-
          1. the exercise of national executive authority, including the implementation of legislation; and
          2. any organ of state.

47. Evidence or information before National Assembly
    The National Assembly or any of its committees may-
    1. summon any person to appear before it to give evidence on oath or affirmation, or to produce documents;
    2. require any person or institution to report to it;
    3. compel, in terms of national legislation or the rules and orders, any person or institution to comply with a summons or requirement in terms of paragraph (a) or (b); and
    4. receive petitions, representations or submissions from any interested persons or institutions.

47. Internal arrangements, proceedings and procedures of National Assembly
    1. The National Assembly may-
       1. determine and control its internal arrangements, proceedings and procedures; and
       2. make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement.
    2. The rules and orders of the National Assembly must provide for-
       1. the establishment, composition, powers, functions, procedures and duration of its committees;
       2. the participation in the proceedings of the Assembly and its committees of minority parties represented in the Assembly, in a manner consistent with democracy;
       3. financial and administrative assistance to each party represented in the Assembly in proportion to its representation, to enable the party and its leader to perform their functions in the Assembly effectively; and
       4. the recognition of the leader of the largest opposition party in the Assembly as the Leader of the Opposition.

47. Privilege
    1. Cabinet members, Deputy Ministers and members of the National Assembly-
       1. have freedom of speech in the Assembly and in its committees, subject to its rules and orders; and
       2. are not liable to civil or criminal proceedings, arrest, imprisonment or damages for-
          1. anything that they have said in, produced before or submitted to the Assembly or any of its committees; or
          2. anything revealed as a result of anything that they have said in, produced before or submitted to the Assembly or any of its committees.
    
    [Sub-s. (1) amended by s. 4 of Act 34 of 2001.]
    1. Other privileges and immunities of the National Assembly, Cabinet members and members of the Assembly may be prescribed by national legislation.
    2. Salaries, allowances and benefits payable to members of the National Assembly are a direct charge against the National Revenue Fund.

47. Public access to and involvement in National Assembly
    1. The National Assembly must-
       1. facilitate public involvement in the legislative and other processes of the Assembly and its committees; and
       2. conduct its business in an open manner, and hold its sittings, and those of its committees, in public, but reasonable measures may be taken-
          1. to regulate public access, including access of the media, to the Assembly and its committees; and
          2. to provide for the searching of any person and, where appropriate, the refusal of entry to, or the removal of, any person.
    2. The National Assembly may not exclude the public, including the media, from a sitting of a committee unless it is reasonable and justifiable to do so in an open and democratic society.

 

 

 

47. Composition of National Council
    1. The National Council of Provinces is composed of a single delegation from each province consisting of ten delegates.
    2. The ten delegates are-
       1. four special delegates consisting of-
          1. the Premier of the province or, if the Premier is not available, any member of the provincial legislature designated by the Premier either generally or for any specific business before the National Council of Provinces; and
          2. three other special delegates; and
       2. six permanent delegates appointed in terms of section 61 (2).
    3. The Premier of a province, or if the Premier is not available, a member of the province's delegation designated by the Premier, heads the delegation.

 

47. Allocation of delegates
    1. Parties represented in a provincial legislature are entitled to delegates in the province's delegation in accordance with the formula set out in Part B of Schedule 3.
    2. 1. A provincial legislature must, within 30 days after the result of an election of that legislature is declared-
          1. determine, in accordance with national legislation, how many of each party's delegates are to be permanent delegates and how many are to be special delegates; and
          2. appoint the permanent delegates in accordance with the nominations of the parties.
       2. .....
    
    [Para. (b) omitted by s. 1 of the Constitution Fourteenth Amendment Act of 2008.]

    [Sub-s. (2) substituted by s. 1 of the Constitution Ninth Amendment Act of 2002 and by s. 1 of the Constitution Fourteenth Amendment Act of 2008.] 

    1. The national legislation envisaged in subsection (2) (a) must ensure the participation of minority parties in both the permanent and special delegates' components of the delegation in a manner consistent with democracy.
    2. The legislature, with the concurrence of the Premier and the leaders of the parties entitled to special delegates in the province's delegation, must designate special delegates, as required from time to time, from among the members of the legislature.

 

47. Permanent delegates
    1. A person nominated as a permanent delegate must be eligible to be a member of the provincial legislature.
    2. If a person who is a member of a provincial legislature is appointed as a permanent delegate, that person ceases to be a member of the legislature.
    3. Permanent delegates are appointed for a term that expires-
       1. immediately before the first sitting of the provincial legislature after its next election.
       2. .....
    
    [Para. (b) omitted by s. 2 of the Constitution Fourteenth Amendment Act of 2008.]
     
    
    [Sub-s. (3) substituted by s. 2 of the Constitution Ninth Amendment Act of 2002 and by s. 2 of the Constitution Fourteenth Amendment Act of 2008.]
     
    1. A person ceases to be a permanent delegate if that person-
       1. ceases to be eligible to be a member of the provincial legislature for any reason other than being appointed as a permanent delegate;
       2. becomes a member of the Cabinet;
       3. has lost the confidence of the provincial legislature and is recalled by the party that nominated that person;
       4. ceases to be a member of the party that nominated that person and is recalled by that party; or
       5. is absent from the National Council of Provinces without permission in circumstances for which the rules and orders of the Council prescribe loss of office as a permanent delegate.
    2. Vacancies among the permanent delegates must be filled in terms of national legislation.
    3. Before permanent delegates begin to perform their functions in the National Council of Provinces, they must swear or affirm faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2.

 

47. Sittings of National Council
    1. The National Council of Provinces may determine the time and duration of its sittings and its recess periods.
    2. The President may summon the National Council of Provinces to an extraordinary sitting at any time to conduct special business.
    3. Sittings of the National Council of Provinces are permitted at places other than the seat of Parliament only on the grounds of public interest, security or convenience, and if provided for in the rules and orders of the Council.

 

 

47. Chairperson and Deputy Chairpersons
    1. The National Council of Provinces must elect a Chairperson and two Deputy Chairpersons from among the delegates.
    2. The Chairperson and one of the Deputy Chairpersons are elected from among the permanent delegates for five years unless their terms as delegates expire earlier.
    3. The other Deputy Chairperson is elected for a term of one year, and must be succeeded by a delegate from another province, so that every province is represented in turn.
    4. The Chief Justice must preside over the election of the Chairperson, or designate another judge to do so. The Chairperson presides over the election of the Deputy Chairpersons.
    
    [Sub-s. (4) substituted by s. 5 of Act 34 of 2001.]
    1. The procedure set out in Part A of Schedule 3 applies to the election of the Chairperson and the Deputy Chairpersons.
    2. The National Council of Provinces may remove the Chairperson or a Deputy Chairperson from office.
    3. In terms of its rules and orders, the National Council of Provinces may elect from among the delegates other presiding officers to assist the Chairperson and Deputy Chairpersons.

 

47. Decisions
    1. Except where the Constitution provides otherwise-
       1. each province has one vote, which is cast on behalf of the province by the head of its delegation; and
       2. all questions before the National Council of Provinces are agreed when at least five provinces vote in favour of the question.
    2. An Act of Parliament, enacted in accordance with the procedure established by either subsection (1) or subsection (2) of section 76, must provide for a uniform procedure in terms of which provincial legislatures confer authority on their delegations to cast votes on their behalf.

 

 

47. Participation by members of national executive
    1. Cabinet members and Deputy Ministers may attend, and may speak in, the National Council of Provinces, but may not vote.
    2. The National Council of Provinces may require a Cabinet member, a Deputy Minister or an official in the national executive or a provincial executive to attend a meeting of the Council or a committee of the Council.

 

 

47. Participation by local government representatives
    Not more than ten part-time representatives designated by organised local government in terms of section 163, to represent the different categories of municipalities, may participate when necessary in the proceedings of the National Council of Provinces, but may not vote.

 

 

47. Powers of National Council
    In exercising its legislative power, the National Council of Provinces may-
    1. consider, pass, amend, propose amendments to or reject any legislation before the Council, in accordance with this Chapter; and
    2. initiate or prepare legislation falling within a functional area listed in Schedule 4 or other legislation referred to in section 76 (3), but may not initiate or prepare money Bills.

 

 

47. Evidence or information before National Council
    The National Council of Provinces or any of its committees may-
    1. summon any person to appear before it to give evidence on oath or affirmation or to produce documents;
    2. require any institution or person to report to it;
    3. compel, in terms of national legislation or the rules and orders, any person or institution to comply with a summons or requirement in terms of paragraph (a) or (b); and
    4. receive petitions, representations or submissions from any interested persons or institutions.

 

 

47. Internal arrangements, proceedings and procedures of National Council
    1. The National Council of Provinces may-
       1. determine and control its internal arrangements, proceedings and procedures; and
       2. make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement.
    2. The rules and orders of the National Council of Provinces must provide for-
       1. the establishment, composition, powers, functions, procedures and duration of its committees;
       2. the participation of all the provinces in its proceedings in a manner consistent with democracy; and
       3. the participation in the proceedings of the Council and its committees of minority parties represented in the Council, in a manner consistent with democracy, whenever a matter is to be decided in accordance with section 75.

 

47. Privilege
    1. Delegates to the National Council of Provinces and the persons referred to in sections 66 and 67 -
       1. have freedom of speech in the Council and in its committees, subject to its rules and orders; and
       2. are not liable to civil or criminal proceedings, arrest, imprisonment or damages for-
          1. anything that they have said in, produced before or submitted to the Council or any of its committees; or
          2. anything revealed as a result of anything that they have said in, produced before or submitted to the Council or any of its committees.
    2. Other privileges and immunities of the National Council of Provinces, delegates to the Council and persons referred to in sections 66 and 67 may be prescribed by national legislation.
    3. Salaries, allowances and benefits payable to permanent members of the National Council of Provinces are a direct charge against the National Revenue Fund.

 

 

47. Public access to and involvement in National Council
    1. The National Council of Provinces must-
       1. facilitate public involvement in the legislative and other processes of the Council and its committees; and
       2. conduct its business in an open manner, and hold its sittings, and those of its committees, in public, but reasonable measures may be taken-
          1. to regulate public access, including access of the media, to the Council and its committees; and
          2. to provide for the searching of any person and, where appropriate, the refusal of entry to, or the removal of, any person.
    2. The National Council of Provinces may not exclude the public, including the media, from a sitting of a committee unless it is reasonable and justifiable to do so in an open and democratic society.

 

 

 

47. All Bills
    1. Any Bill may be introduced in the National Assembly.
    2. Only a Cabinet member or a Deputy Minister, or a member or committee of the National Assembly, may introduce a Bill in the Assembly, but only the Cabinet member responsible for national financial matters may introduce the following Bills in the Assembly:
       1. a money Bill; or
       2. a Bill which provides for legislation envisaged in section 214.
    
    [Sub-s. (2) substituted by s. 1 (a) of Act 61 of 2001.]
    1. A Bill referred to in section 76 (3), except a Bill referred to in subsection (2) (a) or (b) of this section, may be introduced in the National Council of Provinces.
    
    [Sub-s. (3) substituted by s. 1 (b) of Act 61 of 2001.]
    1. Only a member or committee of the National Council of Provinces may introduce a Bill in the Council.
    2. A Bill passed by the National Assembly must be referred to the National Council of Provinces if it must be considered by the Council. A Bill passed by the Council must be referred to the Assembly.

 

 

47. Bills amending the Constitution
    1. Section 1 and this subsection may be amended by a Bill passed by-
       1. the National Assembly, with a supporting vote of at least 75 per cent of its members; and
       2. the National Council of Provinces, with a supporting vote of at least six provinces.
    2. Chapter 2 may be amended by a Bill passed by-
       1. the National Assembly, with a supporting vote of at least two thirds of its members; and
       2. the National Council of Provinces, with a supporting vote of at least six provinces.
    3. Any other provision of the Constitution may be amended by a Bill passed-
       1. by the National Assembly, with a supporting vote of at least two thirds of its members; and
       2. also by the National Council of Provinces, with a supporting vote of at least six provinces, if the amendment-
          1. relates to a matter that affects the Council;
          2. alters provincial boundaries, powers, functions or institutions; or
          3. amends a provision that deals specifically with a provincial matter.
    4. A Bill amending the Constitution may not include provisions other than constitutional amendments and matters connected with the amendments.
    5. At least 30 days before a Bill amending the Constitution is introduced in terms of section 73 (2), the person or committee intending to introduce the Bill must-
       1. publish in the national Government Gazette, and in accordance with the rules and orders of the National Assembly, particulars of the proposed amendment for public comment;
       2. submit, in accordance with the rules and orders of the Assembly, those particulars to the provincial legislatures for their views; and
       3. submit, in accordance with the rules and orders of the National Council of Provinces, those particulars to the Council for a public debate, if the proposed amendment is not an amendment that is required to be passed by the Council.
    6. When a Bill amending the Constitution is introduced, the person or committee introducing the Bill must submit any written comments received from the public and the provincial legislatures-
       1. to the Speaker for tabling in the National Assembly; and
       2. in respect of amendments referred to in subsection (1), (2) or (3) (b), to the Chairperson of the National Council of Provinces for tabling in the Council.
    7. A Bill amending the Constitution may not be put to the vote in the National Assembly within 30 days of-
       1. its introduction, if the Assembly is sitting when the Bill is introduced; or
       2. its tabling in the Assembly, if the Assembly is in recess when the Bill is introduced.
    8. If a Bill referred to in subsection (3) (b), or any part of the Bill, concerns only a specific province or provinces, the National Council of Provinces may not pass the Bill or the relevant part unless it has been approved by the legislature or legislatures of the province or provinces concerned.
    9. A Bill amending the Constitution that has been passed by the National Assembly and, where applicable, by the National Council of Provinces, must be referred to the President for assent.

 

 

47. Ordinary Bills not affecting provinces
    1. When the National Assembly passes a Bill other than a Bill to which the procedure set out in section 74 or 76 applies, the Bill must be referred to the National Council of Provinces and dealt with in accordance with the following procedure:
       1. The Council must-
          1. pass the Bill;
          2. pass the Bill subject to amendments proposed by it; or
          3. reject the Bill.
       2. If the Council passes the Bill without proposing amendments, the Bill must be submitted to the President for assent.
       3. If the Council rejects the Bill or passes it subject to amendments, the Assembly must reconsider the Bill, taking into account any amendment proposed by the Council, and may-
          1. pass the Bill again, either with or without amendments; or
          2. decide not to proceed with the Bill.
       4. A Bill passed by the Assembly in terms of paragraph (c) must be submitted to the President for assent.
    2. When the National Council of Provinces votes on a question in terms of this section, section 65 does not apply; instead-
       1. each delegate in a provincial delegation has one vote;
       2. at least one third of the delegates must be present before a vote may be taken on the question; and
       3. the question is decided by a majority of the votes cast, but if there is an equal number of votes on each side of the question, the delegate presiding must cast a deciding vote.

 

 

47. Ordinary Bills affecting provinces
    1. When the National Assembly passes a Bill referred to in subsection (3), (4) or (5), the Bill must be referred to the National Council of Provinces and dealt with in accordance with the following procedure:
       1. The Council must-
          1. pass the Bill;
          2. pass an amended Bill; or
          3. reject the Bill.
       2. If the Council passes the Bill without amendment, the Bill must be submitted to the President for assent.
       3. If the Council passes an amended Bill, the amended Bill must be referred to the Assembly, and if the Assembly passes the amended Bill, it must be submitted to the President for assent.
       4. If the Council rejects the Bill, or if the Assembly refuses to pass an amended Bill referred to it in terms of paragraph (c), the Bill and, where applicable, also the amended Bill, must be referred to the Mediation Committee, which may agree on-
          1. the Bill as passed by the Assembly;
          2. the amended Bill as passed by the Council; or
          3. another version of the Bill.
       5. If the Mediation Committee is unable to agree within 30 days of the Bill's referral to it, the Bill lapses unless the Assembly again passes the Bill, but with a supporting vote of at least two thirds of its members.
       6. If the Mediation Committee agrees on the Bill as passed by the Assembly, the Bill must be referred to the Council, and if the Council passes the Bill, the Bill must be submitted to the President for assent.
       7. If the Mediation Committee agrees on the amended Bill as passed by the Council, the Bill must be referred to the Assembly, and if it is passed by the Assembly, it must be submitted to the President for assent.
       8. If the Mediation Committee agrees on another version of the Bill, that version of the Bill must be referred to both the Assembly and the Council, and if it is passed by the Assembly and the Council, it must be submitted to the President for assent.
       9. If a Bill referred to the Council in terms of paragraph (f) or (h) is not passed by the Council, the Bill lapses unless the Assembly passes the Bill with a supporting vote of at least two thirds of its members.
       10. If a Bill referred to the Assembly in terms of paragraph (g) or (h) is not passed by the Assembly, that Bill lapses, but the Bill as originally passed by the Assembly may again be passed by the Assembly, but with a supporting vote of at least two thirds of its members.
       11. A Bill passed by the Assembly in terms of paragraph (e), (i) or (j) must be submitted to the President for assent.
    2. When the National Council of Provinces passes a Bill referred to in subsection (3), the Bill must be referred to the National Assembly and dealt with in accordance with the following procedure:
       1. The Assembly must-
          1. pass the Bill;
          2. pass an amended Bill; or
          3. reject the Bill.
       2. A Bill passed by the Assembly in terms of paragraph (a) (i) must be submitted to the President for assent.
       3. If the Assembly passes an amended Bill, the amended Bill must be referred to the Council, and if the Council passes the amended Bill, it must be submitted to the President for assent.
       4. If the Assembly rejects the Bill, or if the Council refuses to pass an amended Bill referred to it in terms of paragraph (c), the Bill and, where applicable, also the amended Bill must be referred to the Mediation Committee, which may agree on-
          1. the Bill as passed by the Council;
          2. the amended Bill as passed by the Assembly; or
          3. another version of the Bill.
       5. If the Mediation Committee is unable to agree within 30 days of the Bill's referral to it, the Bill lapses.
       6. If the Mediation Committee-agrees on the Bill as passed by the Council, the Bill must be referred to the Assembly, and if the Assembly passes the Bill, the Bill must be submitted to the President for assent.
       7. If the Mediation Committee agrees on the amended Bill as passed by the Assembly, the Bill must be referred to the Council, and if it is passed by the Council, it must be submitted to the President for assent.
       8. If the Mediation Committee agrees on another version of the Bill, that version of the Bill must be referred to both the Council and the Assembly, and if it is passed by the Council and the Assembly, it must be submitted to the President for assent.
       9. If a Bill referred to the Assembly in terms of paragraph (f) or (h) is not passed by the Assembly, the Bill lapses.
    3. A Bill must be dealt with in accordance with the procedure established by either subsection (1) or subsection (2) if it falls within a functional area listed in Schedule 4 or provides for legislation envisaged in any of the following sections:
       1. Section 65 (2);
       2. section 163;
       3. section 182;
       4. section 195 (3) and (4);
       5. section 196; and
       6. section 197.
    4. A Bill must be dealt with in accordance with the procedure established by subsection (1) if it provides for legislation-
       1. envisaged in section 44 (2) or 220 (3); or
       2. envisaged in Chapter 13, and which affects the financial interests of the provincial sphere of government.
    5. A Bill envisaged in section 42 (6) must be dealt with in accordance with the procedure established by subsection (1), except that-
       1. when the National Assembly votes on the Bill, the provisions of section 53 (1) do not apply; instead, the Bill may be passed only if a majority of the members of the Assembly vote in favour of it; and
       2. if the Bill is referred to the Mediation Committee, the following rules apply:
          1. If the National Assembly considers a Bill envisaged in subsection (1) (g) or (h), that Bill may be passed only if a majority of the members of the Assembly vote in favour of it.
          2. If the National Assembly considers or reconsiders a Bill envisaged in subsection (1) (e), (i) or (j), that Bill may be passed only if at least two thirds of the members of the Assembly vote in favour of it.
    6. This section does not apply to money Bills.

 

47. Money Bills
    1. A Bill is a money Bill if it-
       1. appropriates money;
       2. imposes national taxes, levies, duties or surcharges;
       3. abolishes or reduces, or grants exemptions from, any national taxes, levies, duties or surcharges; or
       4. authorises direct charges against the National Revenue Fund, except a Bill envisaged in section 214 authorising direct charges.
    2. A money Bill may not deal with any other matter except-
       1. a subordinate matter incidental to the appropriation of money;
       2. the imposition, abolition or reduction of national taxes, levies, duties or surcharges;
       3. the granting of exemption from national taxes, levies, duties or surcharges; or
       4. the authorisation of direct charges against the National Revenue Fund.
    3. All money Bills must be considered in accordance with the procedure established by section 75. An Act of Parliament must provide for a procedure to amend money Bills before Parliament.

 

[S. 77 substituted by s. 2 of Act 61 of 2001.]

 

 

47. Mediation Committee
    1. The Mediation Committee consists of-
       1. nine members of the National Assembly elected by the Assembly in accordance with a procedure that is prescribed by the rules and orders of the Assembly and results in the representation of parties in substantially the same proportion that the parties are represented in the Assembly; and
       2. one delegate from each provincial delegation in the National Council of Provinces, designated by the delegation.
    2. The Mediation Committee has agreed on a version of a Bill, or decided a question, when that version, or one side of the question, is supported by-
       1. at least five of the representatives of the National Assembly; and
       2. at least five of the representatives of the National Council of Provinces.

 

47. Assent to Bills
    1. The President must either assent to and sign a Bill passed in terms of this Chapter or, if the President has reservations about the constitutionality of the Bill, refer it back to the National Assembly for reconsideration.
    2. The joint rules and orders must provide for the procedure for the reconsideration of a Bill by the National Assembly and the participation of the National Council of Provinces in the process.
    3. The National Council of Provinces must participate in the reconsideration of a Bill that the President has referred back to the National Assembly if-
       1. the President's reservations about the constitutionality of the Bill relate to a procedural matter that involves the Council; or
       2. section 74 (1), (2) or (3) (b) or 76 was applicable in the passing of the Bill.
    4. If, after reconsideration, a Bill fully accommodates the President's reservations, the President must assent to and sign the Bill; if not, the President must either-
       1. assent to and sign the Bill; or
       2. refer it to the Constitutional Court for a decision on its constitutionality.
    5. If the Constitutional Court decides that the Bill is constitutional, the President must assent to and sign it.

 

 

47. Application by members of National Assembly to Constitutional Court
    1. Members of the National Assembly may apply to the Constitutional Court for an order declaring that all or part of an Act of Parliament is unconstitutional.
    2. An application-
       1. must be supported by at least one third of the members of the National Assembly; and
       2. must be made within 30 days of the date on which the President assented to and signed the Act.
    3. The Constitutional Court may order that all or part of an Act that is the subject of an application in terms of subsection (1) has no force until the Court has decided the application if-
       1. the interests of justice require this; and
       2. the application has a reasonable prospect of success.
    4. If an application is unsuccessful, and did not have a reasonable prospect of success, the Constitutional Court may order the applicants to pay costs.

 

 

47. Publication of Acts - A Bill assented to and signed by the President becomes an Act of Parliament, must be published promptly, and takes effect when published or on a date determined in terms of the Act.

 

 

47. Safekeeping of Acts of Parliament - The signed copy of an Act of Parliament is conclusive evidence of the provisions of that Act and, after publication, must be entrusted to the Constitutional Court for safekeeping.