1. Continuation of existing laws
      Subject to this Constitution, all laws which immediately before the commencement of this Constitution were in force in any area which forms part of the national territory, shall continue in force in such area, subject to any repeal or amendment of such laws by a competent authority.

 

    1. Repeal of laws
      1. The laws mentioned in Schedule 7 are hereby repealed to the extent set out in the third column of the said Schedule.
      2. Notwithstanding the repeal of sections 13 and 101 (2) of the previous Constitution, any pension which, but for such repeal, would have been payable shall continue to be payable as if such repeal had not been effected.

 

    1. Continuation of international agreements and status of international law
      1. All rights and obligations under international agreements which immediately before the commencement of this Constitution were vested in or binding on the Republic within the meaning of the previous Constitution, shall be vested in or binding on the Republic under this Constitution, unless provided otherwise by an Act of Parliament.
      2. Parliament shall, subject to this Constitution, be competent to agree to the ratification of or accession to an international agreement negotiated and signed in terms of section 82 (1) (i).
      3. Where Parliament agrees to the ratification of or accession to an international agreement under subsection (2), such international agreement shall be binding on the Republic and shall form part of the law of the Republic, provided Parliament expressly so provides and such agreement is not inconsistent with this Constitution.
      4. The rules of customary international law binding on the Republic, shall, unless inconsistent with this Constitution or an Act of Parliament, form part of the law of the Republic.

 

    1. Interpretation
        1. Unless it is inconsistent with the context or clearly inappropriate, a reference in a law referred to in section 229-
            1. to the Republic or to any territory which after the commencement of this Constitution forms part of the national territory-
              1. as a constitutional institution, shall be construed as a reference to the Republic referred to in section 1; or
              2. as a territorial area, shall be construed as a reference to that part of the national territory in which the law in question was in force immediately before such commencement, unless such law is applied by a law of a competent authority to the whole or any part of the national territory;

            1. to a Parliament, House of a Parliament or legislative assembly or body of any territory which after the commencement of this Constitution forms part of the national territory, shall-
              1. if the administration of such a law is allocated in terms of this Constitution to the national government, be construed as a reference to Parliament referred to in section 36; or
              2. if the administration of such law is allocated or assigned in terms of this Constitution to a government of a province, be construed as a reference to the provincial legislature of that province;

            1. to a State President, Chief Minister, Administrator or other chief executive, Cabinet, Ministers' Council or executive council of any territory which after the commencement of this Constitution forms part of the national territory, shall-
              1. if the administration of such law is allocated in terms of this Constitution to the national government, be construed as a reference to the President acting in accordance with this Constitution; or
              2. if the administration of such law is allocated or assigned in terms of this Constitution to a government of a province, be construed as a reference to the Premier of such province acting in terms of this Constitution;

          1. to an official language or to both official languages, shall be construed, with due regard to section 3, as a reference to any of the official South African languages under this Constitution.

          1. Any reference in this Constitution to any particular law shall be construed as a reference to that law as it exists from time to time after any amendment or replacement thereof by a competent authority.
          2. An amendment, replacement or repeal of a law referred to in paragraph (a), shall for the purposes of section 62 not be considered to be an amendment of this Constitution, and any such amendment, replacement or repeal of a law shall for its validity be dependent on its consistency with this Constitution in terms of section 4 (1).

      1. No law shall be constitutionally invalid solely by reason of the fact that the wording used is prima facie capable of an interpretation which is inconsistent with a provision of this Constitution, provided such a law is reasonably capable of a more restricted interpretation which is not inconsistent with any such provision, in which event such law shall be construed as having a meaning in accordance with the said more restricted interpretation.
      2. In interpreting this Constitution a provision in any Schedule, including the provision under the heading 'National Unity and Reconciliation', to this Constitution shall not by reason only of the fact that it is contained in a Schedule, have a lesser status than any other provision of this Constitution which is not contained in a Schedule, and such provision shall for all purposes be deemed to form part of the substance of this Constitution.
        1. Notwithstanding the provisions of the Independent Electoral Commission Act, 1993 (Act 150 of 1993),the President may at any time after the dissolution of the Independent Electoral Commission in terms of section 9 of that Act, by proclamation in the Gazette, reconvene the Commission for the purposes of a referendum or election referred to in section 124.
        2. If any person who before its dissolution was a member of the Commission, cannot or is unwilling to serve as a member after it has been reconvened under paragraph (a), Parliament may, by resolution adopted at a joint sitting of the National Assembly and the Senate by a majority of at least two-thirds of the total number of members of both Houses, appoint any suitably qualified person to replace any such member.

 

    1. Definitions
      1. In this Constitution, unless the context otherwise indicates- 'Chief Justice' means the Chief Justice of the Supreme Court of South Africa referred to in section 97 (1); 'Commission on Provincial Government' means the Commission established by section 163; 'Financial and Fiscal Commission' means the Commission established by section 198; 'House',in relation to Parliament, means the National Assembly or the Senate; 'Independent Electoral Commission' means the Commission established by section 4 of the Independent Electoral Commission Act, 1993 (Act 150 of 1993); 'South African National Defence Force' means the Defence Force established by section 224 (1); 'National Revenue Fund' means the Revenue Fund established by section 185; 'new constitutional text' means the text of a new Constitution contemplated in Chapter 5; 'organ of state' includes any statutory body or functionary; 'previous Constitution' means the Republic of South Africa Constitution Act, 1983 (Act No 110 of 1983); 'Provincial Revenue Fund' means the Revenue Fund of a province established by section 159 (1); 'Public Service Commission' means the Commission established by section 209; 'Republic' means the Republic of South Africa referred to in section 1; 'Transitional Executive Council' means the Council established by section 2 of the Transitional Executive Council Act, 1993 (Act No 151 of 1993).
      2. A reference in this Constitution to rules and orders shall according to the context be construed as a reference to the rules and orders of the National Assembly or the Senate, or the joint rules and orders of the National Assembly and the Senate, or the rules and orders of the Constitutional Assembly, or the rules and orders of a provincial legislature.
      3. Where in this Constitution any functionary is required to take a decision in consultation with another functionary, such decision shall require the concurrence of such other functionary: Provided that if such other functionary is a body of persons it shall express its concurrence in accordance with its own decision-making procedures.
      4. Where in this Constitution any functionary is required to take a decision after consultation with another functionary, such decision shall be taken in good faith after consulting and giving serious consideration to the views of such other functionary.

 

    1. Transitional arrangements: Legislative authorities
      1. A person who immediately before the commencement of this Constitution was a member of Parliament or of any other legislature (excluding a local government) which exercised legislative powers in respect of any area which forms part of the national territory, shall upon such commencement cease to be such a member, but shall for the purpose of any law relating to the payment of pension benefits to such members not be disqualified solely by reason of this section.
      2. A person who immediately before the commencement of this Constitution was employed by Parliament, shall after such commencement continue in such employment, subject to and in accordance with the applicable laws regulating such employment.
      3. The provisions of section 236 (4), (5) and (6) shall apply mutatis mutandis in respect of a person referred to in subsection (2).
      4. A person who immediately before the commencement of this Constitution was employed by a legislature referred to in subsection (1) other than Parliament, shall be deemed to be employed by the administration in that part of the national territory in which such legislature exercised legislative powers, subject to and in accordance with the applicable laws regulating such employment, and sections 236 and 237 shall apply mutatis mutandis in respect of such person.
      5. Any matter before Parliament or any such other legislature which immediately before the commencement of this Constitution was not yet disposed of by Parliament or such legislature, as the case may be, shall lapse upon such commencement.
      6. The rules and orders of Parliament in force immediately before the commencement of this Constitution, shall, to the extent that they can mutatis mutandis be applied in respect of the business and proceedings of Parliamentunder this Constitution, continue in force until amended or replaced in terms of this Constitution.

 

    1. Transitional arrangements: Executive authorities
        1. A person who immediately before the commencement of this Constitution was-
          1. the State President or a Minister or Deputy Minister of the Republic within the meaning of the previous Constitution;
          2. the Administrator or a member of the Executive Council of a province; or
          3. the President, Chief Minister or other chief executive or a Minister, Deputy Minister or other political functionary in a government under any other constitution or constitutional arrangement which was in force in an area which forms part of the national territory, shall continue in office until the President has been elected in terms of section 77 (1) (a) and has assumed office: Provided that a person referred to in paragraph (a), (b) or (c) shall for the purposes of section 42 (1) (e) and while continuing in office, be deemed not to hold an office of profit under the Republic.

        1. Any vacancy which may occur in an office referred to in subsection (1) (a), (b) or (c) shall, if necessary, be filled by a person designated by the persons continuing in office in terms of subsection (1) (a), acting in consultation with the Transitional Executive Council.
        2. Executive authority which was vested in a person or persons referred to in subsection (1) (a), (b) or (c) in terms of a constitution or constitutional arrangement in force immediately before the commencement of this Constitution, shall during the period in which the said person or persons continue in office in terms of subsection (1), be exercised in accordance with such constitution or constitutional arrangement, as if it had not been repealed or superseded by this Constitution, and any such person or persons shall continue to be competent to administer any department of state, administration, force or other institution which was entrusted to, and to exercise and perform any power or function which was vested in, him or her or them immediately before the said commencement: Provided that-
          1. no such executive authority, power or function shall be exercised or performed if the Transitional Executive Council disapproves thereof; and
          2. once the election results of the National Assembly have been certified by the Independent Electoral Commission in terms of the Independent Electoral Commission Act, 1993, the State President referred to in subsection (1) (a) shall exercise and perform his or her powers and functions in consultation with the leader of the party which has received the largest number of votes in the said election.

        1. The Transitional Executive Council may by resolution of a majority of all its members at any time during the period in which the said State President continues in office in terms of subsection (1), require him or her, or any other appropriate authority, to take such steps in terms of any law as are necessary to maintain law and order, including the declaration of a state of emergency or of an area to be an unrest area in terms of an applicable law.
        2. Upon the assumption of office by the President in terms of this Constitution-
          1. the executive authority of the Republic as contemplated in section 75 shall vest in the President acting in accordance with this Constitution; and
          2. the executive authority of a province as contemplated in section 144 shall, subject to subsections (8) and (9), vest in the Premier of that province acting in accordance with this ConstItution, or while the Premier of a province has not yet assumed office, in the President acting in accordance with section 75 until the Premier assumes office.

        1. The power to exercise executive authority in terms of laws which, immediately prior to the commencement of this Constitution, were in force in any area which forms part of the national territory and which in terms of section 229 continue in force after such commencement, shall be allocated as follows:
            1. All laws with regard to matters which-
              1. do not fall within the functional areas specified in Schedule 6; or
              2. do fall within such functional are as but are matters referred to in paragraphs (a) to (e) of section 126 (3) (which shall be deemed to include all policing matters until the laws in question have been assigned under subsection (8) and for the purposes of which subsection (8) shall apply mutatis mutandis), shall be administered by a competent authority within the jurisdiction of the national government: Provided that any policing function which but for subparagraph (ii) would have been performed subject to the directions of a member of the Executive Council of a province in terms of section 219 (1) shall be performed after consultation with the said member within that province.

            1. All laws with regard to matters which fall within the functional areas specified in Schedule 6 and which are not matters referred to in paragraphs (a) to (e) of section 126 (3) shall-
              1. if any such law was immediately before the commencement of this Constitution administered by or under the authority of a functionary referred to in subsection (1) (a) or (b), be administered by a competent authority within the jurisdiction of the national government until the administration of any such law is with regard to any particular province assigned under subsection (8) to a competent authority within the jurisdiction of the government of such province; or
              2. if any such law was immediately before the said commencement administered by or under the authority of a functionary referred to in subsection (1) (c), subject to subsections(8) and (9) be administered by a competent authority within the jurisdiction of the government of the province in which that law applies, to the extent that it so applies: Provided that this subparagraph shall not apply to policing matters, which shall be dealt with as contemplated in paragraph (a).

          1. In this subsection and subsection (8) 'competent authority' shall mean-
            1. in relation to a law of which the administration is allocated to the national government, an authority designated by the President; and
            2. in relation to a law of which the administration is allocated to the government of a province, an authority designated by the Premier of the province.

          1. The President may, after consultation with the Premier of a province, by proclamation in the Gazette take such measures, including legislative measures, as he or she considers necessary for the better achievement of this section.
          2. A copy of a proclamation under paragraph (a), shall be submitted to Parliament within 14 days after the publication thereof.
          3. If Parliament disapproves of any such proclamation or any provisionthereof, such proclamation or provision shall thereafter cease to be of force and effect to the extent to which it is so disapproved, but without prejudice to the validity of anything done in terms of such proclamation up to the date upon which it so ceased to be of force and effect, or to any right, privilege, obligation or liability acquired, accrued or incurred as at the said date under and by virtue of such proclamation.

            1. The President may, and shall if so requested by the Premier of a province, and provided the province has the administrative capacity to exercise and perform the powers and functions in question, by proclamation in the Gazette assign, within the framework of section 126, the administration of a law referred to in subsection (6) (b) to a competent authority within the jurisdiction of the government of a province, either generally or to the extent specified in the proclamation.
            2. When the President so assigns the administration of a law, or at any time thereafter, and to the extent that he or she considers it necessary for the efficient carrying out of the assignment, he or she may-
              1. amend or adapt such law in order to regulate its application or interpretation;
              2. where the assignment does not relate to the whole of such law, repeal and re-enact, whether with or without an amendment or adaptation contemplated in subparagraph (i), those of its provisions to which the assignment relates or to the extent that the assignment relates to them; and
              3. regulate any other matter necessary, in his or her opinion, as a result of the assignment, including matters relating to the transfer or secondment of persons (subject to sections 236 and 237) and relating to the transfer of assets, liabilities, rights and obligations, including funds, to or from the national or a provincial government or any department of state, administration, force or other institution.

          1. In regard to any policing power the President may only make that assignment effective upon the rationalisation of the police service as contemplated in section 237: Provided that such assignment to a province may be made where such rationalisation has been completed in such a province.
          2. Any reference in a law to the authority administering such law, shall upon the assignment of such law in terms of paragraph (a) be deemed to be a reference mutatis mutandis to the appropriate authority of the province concerned.

        1. If for any reason a provincial government is unable to assume responsibility within 14 days after the election of its Premier, for the administration of a law referred to in subsection (6) (b), the President shall by proclamation in the Gazette assign the administration of such law to a special administrator or other appropriate authority within the jurisdiction of the national government, either generally or to the extent specified in the proclamation, until that provincial government is able to assume the said responsibility.
        2. Subsection (8) (b) and (d) shall mutatis mutandis apply in respect of an assignment under paragraph (a) of this subsection.

 

    1. Transitional arrangements: Public administration
        1. A public service, department of state (including a police force), administration, military force as defined in section 224 (2) (a) or (b) or other institution (excluding any local government) which immediately before the commencement of this Constitution performed governmental functions under the control of an authority referred to in section 235 (1) (a), (b) or (c), shall, subject to subsection (7), continue to function as such in accordance with the laws applicable to it until it is, as the case may be, abolished or incorporated or integrated into any appropriate institution or is rationalised as contemplated in any other Chapter, consolidated with any other institution or otherwise rationalised as contemplated in section 237, as the case may be: Provided that a military force referred to in this subsection shall not be employed for service referred to in section 227 (1) (a), (b) or (e) otherwise than by the President and shall only be used for such service by the authority referred to in section 225 in accordance with section 227 (2).
        2. A person who immediately before the commencement of this Constitution was employed by an institution referred to in subsection (1) shall continue in such employment subject to and in accordance with this Constitution and other applicable laws regulating such employment.
        3. Subject to subsections (1) and (2), all powers, directions, orders, instructions or delegations which were in force in respect of an institution which immediately before the commencement of this Constitution performed governmental functions as contemplated in subsection (1) shall, after the said commencement, continue in force for the purpose of the continued functioning within the contemplation of subsection (1) of any such institution, until cancelled or otherwise no longer in force in law.
        4. Subject to this Constitution and subsection (5), the terms and conditions of employment applicable to a person employed by an institution referred to in subsection (1) immediately before the commencement of this Constitution, shall continue to apply to him or her until amended by or under any law, including any law enacted in order to establish uniformity of the terms and conditions of employment in accordance with those generally prevailing at such commencement.
        5. Subject to any law relating to unfitness or incapacity of a person to carry out his or her duties efficiently, the pensionable salary or pensionable salary scale of a person referred to in subsection (2) shall not be reduced below that applicable to such person immediately before the commencement of this Constitution.
        6. Notwithstanding the provisions of this section, the conclusion or amendment of a contract, the appointment or promotion, or the award of a term or condition of service or other benefit, which occurred between 27 April 1993 and 30 September 1994 in respect of any person employed at any time during the said period by an institution referred to in subsection (1), or any class of such persons, may, at the instance of any interested party, before 31 December 1996 be referred to a commission appointed by the President and presided over by a judge, for review, and if not proper or justifiable in the circumstances of the case, the commission may reverse or alter the contract, appointment, promotion or award before a date to be determined by the Minister for the Public Service and Administration.
      [Sub-s. (6) amended by s. 1 of Act No. 20 of 1995 and substituted by s. 2 of Act No. 7 of 1996.]
          1. At the commencement of this Constitution the South African Police existing in terms of the Police Act, 1958 (Act No 7 of 1958), and all other police forces established by law shall be deemed to constitute the South African Police Service referred to in section 214, and any reference to the South African Police or any such force in the said Act or law shall be deemed to be a reference to the said Service.
          2. Any reference in any law to the South African Police or any other police force (excluding a municipal police service) shall, unless the context indicates otherwise, be construed as a reference to the said South African Police Service.

        1. The South African National Defence Force referred to in section 224 shall, subject to this Constitution and any Act of Parliament, mutatis mutandis be governed by the Defence Act, 1957 (Act 44 of 1957).
        2. Any reference in any law to a defence force referred to in section 224 (2) (a) or (b), shall be deemed to be a reference to the South African National Defence Force.
        3. If the number of the members of the South African National Defence Force exceeds the personnel strength determined in respect of the force design and structure for the Force, any member of the Force who, due to integration, consolidation and rationalisation of the South African National Defence Force is not accommodated in such force design and structure, shall be dealt with in accordance with a law.
        4. The continuance of membership of members of the South African National Defence Force referred to in section 224 (2) (c) shall be subject to such members entering into an agreement for temporary or permanent appointment with the South African National Defence Force within a reasonable time: Provided that such agreements shall be in accordance with normal employment policies and terms and conditions of service.

 

    1. Rationalisation of public administration
            1. All institutions referred to in section 236 (1), excluding military forces referred to in section 224 (2), shall as soon as is possible after the commencement of this Constitution be rationalised with a view to establishing within the public service contemplated in section 212 (1)-
              1. an effective administration at the national level of government to deal with matters within the jurisdiction of the national government referred to in section 235 (5) (a); and
              2. an effective administration for each province to deal with matters within the jurisdiction of each provincial government referred to in section 235 (5) (b).

          1. All military forces referred to in section 224 (2) shall be rationalised for the purposes of the South African National Defence Force.

          1. The responsibility for the rationalisation of-
            1. institutions referred to in section 236 (1), excluding military forces, shall primarily but not exclusively rest with the national government, which shall exercise such responsibility in co-operation with the provincial governments and the Commission on Provincial Government, and with due regard to the advice of the Public Service Commission: Provided that in the case of policing services, the national government shall exercise such responsibility in co-operation with the committee referred to in section 220 (1) and the Board of Commissioners referred to in section 220 (2); and
            2. military forces shall rest with the national government.
            1. In anticipation of the adoption of the Act of Parliament contemplated in section 214-
              1. the National Commissioner and Provincial Commissioners of the South African Police Service contemplated in section 214 (2) (a) may be appointed;
              2. a meeting of the National Commissioner and the Provincial Commissioners or their nominees shall be deemed to be a meeting of the Board of Commissioners contemplated in section 220 (2) and any decision taken at such a meeting shall be deemed to be a decision of the Board;
              3. the existing police forces, deemed in terms of section 236 (7) to constitute the South African Police Service contemplated in section 214, may be rationalised in accordance with this section; and
              4. proclamations to regulate such rationalisation may be issued in terms of subsection (3). [Para. (aA) inserted by s. 8 of Act 29 of 1994.]

          1. Subject to section 235 (6), (7), (8) and (9), the responsibility for the internal rationalisation of an administration referred to in subsection (1) (a) (ii) shall primarily rest with the relevant provincial government, with due regard to the advice of the Public Service Commission and any relevant provincial service commission: Provided that the rationalisation of all police forces shall be dealt with in accordance with paragraph (a) (I).

            1. The President may, subject to subsection (2) (a), by proclamation in the Gazette take such steps as he or she considers necessary in order to achieve the aim mentioned in subsection (1).
            2. Without derogating from the generality of paragraph (a), the steps referred to in that paragraph may include-
              1. the amendment, repeal or replacement of any law regulating the establishment, functions and other matters relating to an institution referred to in section 236 (1), or of any law referred to in section 236 (2), or of any law which deals with any of the aforegoing matters in a consequential manner: Provided that if a law referred to in section 236 (2) is repealed, provision shall be made for the application of any law of general application regulating the employment of persons or any class of persons in the employment of the state, to the persons or class of persons affected by such repeal; and
              2. measures relating to the transfer or secondment of personnel, or the allocation of property, funds, rights and obligations, including administrative records, in order to establish the administrations referred to in subsection (2) and rationalise the South African Police Service and the South African National Defence Force.

          1. A copy of a proclamation under paragraph (a), shall be submitted to Parliament within 14 days after the publication thereof.
          2. If Parliament disapproves of any such proclamation or any provisionthereof, such proclamation or provision shall thereafter cease to be of force and effect to the extent to which it is so disapproved, but without prejudice to the validity of anything done in terms of such proclamation up to the date upon which it so ceased to be of force and effect, or to any right, privilege, obligation or liability acquired, accrued or incurred as at the said date under and by virtue of such proclamation.

        1. The labour appeal court established by section 17A of the Labour Relations Act, 1956 (Act 28 of 1956), sitting as a special tribunal in terms of an Act to be passed by Parliament, shall be competent to determine any claim or dispute of right in terms of a law regulating as at 1 November 1993 employment in an institution referred to in section 236 (1) and arising out of the implementation of this section and section 236.
        2. The Act of Parliament contemplated in paragraph (a) shall prescribe expeditious procedures for the adjudication of claims and disputes contemplated in this section, including the granting of interim and final relief.
        3. Notwithstanding the provisions of any law the procedures contemplated in paragraph (b) shall be the only procedures to be followed in such court.
        4. A decision of the court on any such claim or dispute shall be final and binding.
        5. This subsection and the Act of Parliament contemplated in paragraph (a) shall lapse-
          1. in respect of the South African National Defence Force, on 31 December 1998; and
          2. in respect of any other institution, two years from the commencement of this Constitution, save that any matter properly before the court referred to in paragraph (a) on the dates contemplated in subparagraphs (i) and (ii), respectively, shall be heard and determined as if this subsection and the said Act had not lapsed.

[Par. (e) substituted by s. 2 of Act No. 20 of 1995.]
 

    1. Transitional arrangements: Public service commissidns
        1. A public service commission established for a public service referred to in section 236 (1) shall, subject to subsections(3) and (4), after the commencement of this Constitution continue to function as such in accordance with the laws applicable to it.
          1. A person who immediately before the commencement of this Constitution was the chairperson or member of a public service commission referred to in subsection (1) shall, subject to subsections (3) and (4) and section 237, after such commencement, continue in office in accordance with the laws regulating his or her appointment.
          2. Section 236 (3), (4) and (5) shall apply mutatis mutandis in respect of a person referred to in paragraph (a) of this subsection.

        1. The Commission for Administration established by the Commission for Administration Act, 1984 (Act 65 of 1984), shall cease to exist upon the appointment of the members of the Public Service Commission referred to in section 209: Provided that a person who immediately before such appointment held office as the chairperson or a member of the Commission for Administration shall be entitled to be appointed as a member of the Public Service Commission.
        2. A public service commission, other than the Commission for Administration referred to in subsection (3), which continues to perform its functions in any part of the national territory, shall mutatis mutandis be subject to rationalisation under section 237 and shall cease to exist to the extent that it is superseded by the establishment of a provincial service commission contemplated in section 213 or otherwise rationalised or abolished under section 237.
        3. If-
          1. the chairperson or a member referred to in the proviso to subsection (3) elects not to be appointed to the Public Service Commission; or
          2. the chairperson or a member of a public service commission referred to in subsection (4), is not upon the abolition of such public service commission appointed to any provincial service commission, the period of office for which such a chairperson or member has been appointed shall for the purpose of any applicable law regulating retirement benefits, be deemed to have been completed.

      1. Any reference in any law to the Commission for Administration referred to in subsection (3), shall be deemed to be a reference to the Public Service Commission.

 

    1. Transitional arrangements: Assets and liabilities
        1. All assets, including funds and administrative records, which immediately before the commencement of this Constitution vested in an authority referred to in section 235 (1) (a), (b) or (c), or in a government, administration or force under the control of such an authority, shall be allocated as follows:
            1. Where any asset is applied or intended to be applied for or in connection with a matter which-
              1. does not fall within a functional area specified in Schedule 6; or
              2. does fall within such a functional area but is a matter referred to in paragraphs (a) to (e) of section 126 (3) (which shall be deemed to include a police asset), such asset shall vest in the national government.

          1. Where any asset is applied or intended to be applied for or in connection with a matter which is not a matter referred to in paragraphs (a) to (e) of section 126 (3), such asset shall, subject to paragraph(c),vest in the relevant provincial government.
          2. Where any asset referred to in paragraph (b) is applied or intended to be applied for or in connection with the administration of a particular law or the performance of a particular function in a particular area, such asset shall vest in the government to which the administration of that law is assigned, or is assigned in that particular area, in terms of section 235 (6), (8) or (9), or to which the performance of that function is entrusted, or entrusted in the particular area, in terms of section 237.
          3. Where any asset cannot in terms of the aforegoing rules be classified with reference to a particular matter, law or function, or where there is disagreement between two or more governments, the advice of the Commission on Provincial Government shall be obtained, and any dispute shall be resolved with due regard to such advice.
          4. Parliament shall be competent to enact a law to facilitate the application of this section and to prescribe guidelines for the resolution of disputes arising from such application.
          5. All assets under the control of a police force shall vest in the South African Police Service.

          1. A registrar of deeds shall upon the production of a certificate by a competent authority that immovable property described in the certificate is vested in a particular government in terms of this section, make such entries or endorsements in or on any relevant register, title deed or other document to register such immovable property in the name of such government.
          2. No duty, fee or other charge shall be payable in respect of a registration in terms of paragraph (a).

            1. All debts and liabilities which immediately before the commencement of this Constitution vested in an authority referred to in section 235 (1) (a), (b) or (c), or in a government, administration or force under the control of such authority shall be assumed by the national government.

          1. The debts and liabilities referred to in paragraph (a), shall be deemed to be State debt as defined in section 1 of the Exchequer Act, 1975 (Act No. 66 of 1975).

      [Sub-s. (3) substituted by s. 11 of Act No. 44 of 1995.]

      1. Subject to and in accordance with any applicable law, the assets, rights, duties and liabilities of all forces referred to in section 224(2) shall devolve upon the South African National Defence Force.
      2. Anything done in terms of this section shall be subject to audit by the Auditor-General.

 

    1. Transitional arrangements: State Revenue Fund
      1. At the commencement of this Constitution the State Revenue Fund established in terms of section 81 of the previous Constitution shall continue to exist until an Act of Parliament contemplated in section 185(1) is adopted prescribing the administration of the National Revenue Fund.
      2. While the State Revenue Fund continues to exist it shall for all purposes be deemed to be the National Revenue Fund.
      3. The Accounts of the State Revenue Fund referred to in section 82 of the previous Constitution shall be phased out and closed as soon as circumstances permit.
      4. In the 1994/1995 financial year the head of the department of the Treasury, as defined in section 1 of the Exchequer Act, 1975 (Act No 66 of 1975), may, in consultation with the Minister responsible for national financial matters, from the Exchequer Account, on conditions aimed at ensuring financial control, grant advances to provincial governments as he or she deems necessary for the purposes of establishing and funding of structures of government at provincial level as contemplated in this Constitution until Parliament has appropriated money for such purposes.
      5. Any Revenue Fund established before the commencement of this Constitution by a law in force in an area which forms part of the national territory, excluding the State Revenue Fund referred to in subsection (1), shall, subject to subsection (6) and any laws governing the application and withdrawal of moneys from such Revenue Fund, continue to exist until the money therein is transferred under this Chapter to the National Revenue Fund or to any relevant Provincial Revenue Fund, as the case may be, or otherwise dealt with by a competent authority.
      6. Moneys in a Revenue Fund referred to in subsection (5) may only be withdrawn in order to meet expenditure for services in the area in respect of which the Fund was established and in respect of which an appropriation has been made for the current or in the immediately preceding financial year or for which there is other statutory authority: Provided that no withdrawal shall be made from such Revenue Fund other than with the concurrence of a person designated by the President for that purpose.

 

    1. Transitional arrangements: Judiciary
        1. Every court of law existing immediately before the commencement of this Constitution in an area which forms part of the national territory, shall be deemed to have been duly constituted in terms of this Constitution or the laws in force after such commencement, and shall continue to function as such in accordance with the laws applicable to it until changed by a competent authority: Provided-
          1. that an appellate division of a supreme court which immediately before the commencement of this Constitution exercised jurisdiction in respect of an area which forms part of the national territory, other than the Appellate Division of the Supreme Court of South Africa, shall cease to exist with effect from the date of commencement of the Constitution of the Republic of South Africa Third Amendment Act, 1994;
          2. that any case pending before any such appellate division immediately before the said date shall be disposed of by such appellate division and the judges of appeal serving in such appellate division as if such division had not ceased to exist; and
          3. that any person who immediately before the said date was the chief justice in respect of any such appellate division, shall continue in office without any change in the terms and conditions of his or her service and shall be deemed to be the Judge President of the supreme court of which that appellate division previously formed part until the existing court structures have been rationalised as contemplated in section 242 (1). [Sub-s. (1) amended by s. 15 (a) of Act 13 of 1994.]

      1A. Until the court structures contemplated in Chapter 7 have been established as required by section 242 (1), the jurisdiction of courts of law which existed immediately before the commencement of this Constitution and which continued to exist by virtue of subsection (1) of this section, shall be as follows:

          1. The Appellate Division of the Supreme Court of South Africa shall have the same jurisdiction as that which is vested in terms of this Constitution in the Appellate Division contemplated in section 101 (1), and shall exercise such jurisdiction in respect of the whole of the national territory;
          2. a provincial or local division of the said Supreme Court of South Africa, and any other supreme court or general division thereof, shall have the same jurisdiction as that which is vested in terms of this Constitution in a provincial or local division contemplated in section 101 (1), and shall exercise such jurisdiction in respect of the area of jurisdiction for which it was established; and
          3. any other court shall, in addition to the jurisdiction vested in it immediately before the commencement of this Constitution, have the same jurisdiction as that which is vested in terms of section 103 in a court of similar status contemplated therein, and shall exercise such jurisdiction in respect of the area of jurisdiction for which it was established. [Sub-s. (1A) inserted by s. 15 (b) of Act 13 of 1994.]

      1B. For the purposes of the application of this Constitution while the existing court structures referred to in subsection (1) continue, any reference in this Constitution to any of the court structures contemplated in Chapter 7 shall, unless inconsistent with the context or clearly inappropriate, be deemed to be a reference to the corresponding existing court structure, and in such application a reference to a provincial division shall be construed also to refer to any of the other supreme courts, or general division of any such court, referred to in subsection (1A) [Sub-s. (1B) inserted by s. 15 (b) of Act 13 of 1994.]

        1. The Chief Justice of South Africa, the judges-president and deputy judges-president of the various divisions of the Supreme Court of South Africa, the judges of appeal of the Appellate Division of the said Supreme Court, and the other judges of the said Supreme Court, holding office immediately before the commencement of this Constitution, shall be deemed to have been duly appointed to the corresponding positions in terms of Chapter 7 and shall continue to hold office in accordance with the applicable laws.

      2A. The chief justice of a supreme court referred to in the proviso to subsection (1) who in terms of that proviso continues in office as the Judge President of such supreme court, and the other judges of such supreme court, including the judges of any other supreme court which did not have an appellate division, holding office immediately before the commencement of this Constitution, shall be deemed to have been duly appointed to the corresponding positions in terms of Chapter 7 and shall continue in office in accordance with the applicable laws. [Sub-s. (2A) inserted by s. 15 (c) of Act 13 of 1994.]

        1. All other judicial officers holding office immediately before the commencement of this Constitution in terms of a law, shall continue to hold such office in accordance with such law.
        2. Every attorney-general holding office immediately before the commencement of this Constitution in terms of a law, shall continue to hold such office in accordance with such law.
        3. Subject to this Constitution, all measures which immediately before the commencement of this Constitution were in operation and applied to judicial officers and attorneys-general, including measures regarding the remuneration, pension and pension benefits, leave gratuity and any other term and condition of service, shall continue in operation and to apply to the said judicial officers and attorneys-general, until amended or repealed by a competent authority: Provided that no such measure shall, except in accordance with an applicable law, be changed in a manner which affects such judicial officers and attorneys-general to their detriment.
        4. The provisions of section 236 (5) and (6) shall apply mutatis mutandis in respect of persons referred to in subsections (3) and (4) of this section.
          1. Persons referred to in subsections (2), (2A), (3) and (4) shall within 30 days of the election of the President in terms of section 77 (1) (a) make and subscribe an oath or solemn affirmation in the terms set out in Schedule 3 before the Chief Justice or a judge of the Supreme Court designated by the Chief Justice for this purpose, or, in the case of a person continuing in office or appointed as the Chief Justice or the President of the Constitutional Court, before the President.
          2. For the purposes of paragraph (a) a reference in the relevant oath of office or solemn affirmation set out in Schedule 3 to a Judge of the Supreme Court shall, in the case of a judicial officer referred to in subsection (3), be construed as a reference to the office of such judicial officer. [Sub-s. (7) substituted by s. 15 (d) of Act 13 of 1994.]

      1. All proceedings which immediately before the commencement of this Constitution were pending before any court of law, including any tribunal or reviewing authority established by or under law, exercising jurisdiction in accordance with the law then in force, shall be dealt with as if this Constitution had not been passed: Provided that if an appeal in such proceedings is noted or review proceedings with regard thereto are instituted after such commencement such proceedings shall be brought before the court having jurisdiction under this Constitution.
      2. Any legal proceedings instituted before or after the commencement of this Constitution by or against a government, authority or functionary which ceased to exist at or after such commencement, may be continued by or against the relevant government, authority or functionary which superseded the said government, authority or functionary.
      3. The laws and other measures which immediately before the commencement of this Constitution regulated the jurisdiction of courts of law, court procedures, the power and authority of judicial officers and all other matters pertaining to the establishment and functioning of courts of law, shall continue in force subject to any amendment or repeal thereof by a competent authority.

 

    1. Rationalisation of court structures
      1. All jurisdictional areas and court structures appropriate thereto existing immediately before the commencement of this Constitution, shall as soon as possible after such commencement be rationalised in accordance with an Act of Parliament with a view to establishing the jurisdictional areas and court structures contemplated in Chapter 7.
      2. The rationalisation of the jurisdictional areas and court structures referred to in subsection (1) shall be the responsibility of the national government after consultation with the Judicial Service Commission.
      3. The rationalisation contemplated in subsection (1) includes-
        1. the amendment, repeal or replacement of any law regulating the establishment, functions, jurisdiction and other matters relating to a court referred to in section 241 (1), or of any law referred to in section 241 (2), or of any law which deals with any of the aforegoing matters in a consequential manner: Provided that if a law referred to in section 241 (2) is repealed, provision shall be made for the application of any law of general application regulating the service of judicial officers or any class of judicial officers, to the judicial officers or class of judicial officers affected by such repeal; and
        2. measures relating to the transfer or secondment of judicial officers, or the allocation of property, including court and administrative records, in order to establish the said jurisdictional areas or court structures.

 

    1. Transitional arrangements: Ombudsman
        1. A person who immediately before the commencement of this Constitution was-
          1. the Ombudsman in terms of the Ombudsman Act, 1979 (Act 118 of 1979), shall continue to hold office and to exercise and perform the powers and functions of the Ombudsman in accordance with the said Act until the Public Protector has been appointed under section 110 and has assumed office;
          2. an assistant to the Ombudsman, shall continue as such until the Public Protector has been appointed and has assumed office, whereupon such person shall be deemed to have been appointed under section 113; or
          3. an ombudsman in terms of a law of an area which forms part of the national territory (other than the Ombudsman referred to in paragraph (a)), or in the employ of such an ombudsman, shall continue in such office or employment in accordance with the law which regulated such office or employment, until the office of such ombudsman is abolished or such ombudsman or person is appointed as, or to the office of, a provincial public protector contemplated in section 114.

      1. (2) Section 236 (4), (5) and (6) shall apply mutatis mutandis to a person referred to in subsection (1) (c).

 

    1. Transitional arrangements: Auditor-General
        1. A person who immediately before the commencement of this Constitution was-
          1. the Auditor-General in terms of the Auditor-General Act, 1989 (Act 52 of 1989), shall continue in office subject to section 191 and the laws applicable to such office;
          2. employed in terms of the Audit Arrangements Act, 1992 (Act 122 of 1992), shall continue in such employment subject to and in accordance with this Constitution, the said Act and any other applicable law regulating such employment; and
          3. the auditor-general of any area which forms part of the national territory (other than the Auditor-General referred to in paragraph (a)), shall continue in such office or employment in accordance with the laws regulating such office or employment, until such office of auditor-general is abolished by law: Provided that any such auditor-general shall be eligible for appointment under section 194: Provided further that should such a person not be appointed, he or she shall have the right to retire and if he or she so retires he or she shall be entitled to such pension as he or she would have been entitled to under the pensions law applicable to him or her if he or she had been compelled to retire from the public service owing to the abolition of his or her post.

      1. For the purpose of subsection (1), the persons referred to in that subsection shall not be dealt with less favourably than an officer or employee in a public service.

 

    1. Transitional arrangements: Local government
        1. Local government shall not be restructured otherwise than in terms of the Local Government Transition Act, 1993 (Act No. 209 of 1993), in respect of any area in which members of a district council, a metropolitan substructure, a transitional council, a transitional representative council or a transitional rural council as contemplated in the Local Government Transition Act, 1993, have not been elected in terms of that Act.
      [Sub-s. (1) substituted by s. 3 (a) of Act No. 7 of 1996.]
        1. Restructuring of local government which takes place as a result of legislation enacted by a competent authority after an election contemplated in subsection (1) shall be effected in accordance with the principles embodied in Chapter 10 and the Constitution as a whole.
      [Sub-s. (2) substituted by s. 3 (a) of Act No. 7 of 1996.]
          1. For the purposes of the first election of members of a transitional local council or a transitional metropolitan substructure as referred to in the Local Government Transition Act, 1993, after the commencement of this Constitution, the area of jurisdiction of such transitional local council and transitional metropolitan substructure shall be divided into wards in accordance with that Act.
          2. Forty per cent of the members of a transitional local council and a transitional metropolitan substructure shall be elected according to the system of proportional representation applicable to an election of the National Assembly and regulated specifically by or under the Local Government Transition Act, 1993, and sixty per cent of the members shall be elected to represent wards as contemplated in paragraph (a): Provided that-
            1. if such wards are represented by more than one member, all such wards shall be represented by the same number of members; and
            2. notwithstanding anything to the contrary contained in this Constitution, where the area of jurisdiction of the transitional local council or transitional metropolitan substructure includes—

              aa. the area of jurisdiction of any institution or body as was referred to in section 84 (1) (f) of the Provincial Government Act, 1961 (Act No. 32 of 1961); and

              bb. any other area not falling within the area of jurisdiction of the institution or body referred to in item (aa),

              no area referred to in items (aa) or (bb) shall be allocated less than half of the total number of wards of the transitional local council or transitional metropolitan substructure concerned: Provided further that an area referred to in item (aa) shall be deemed not to include any area for which a local government body referred to in paragraphs (a), (b) and (c) of the definition of “local government body” in section 1 (1) of the Local Government Transition Act, 1993 (as that Act exists at the commencement of this Constitution), has been established.
        2. Until a period of not less than three years has elapsed from the date on which the members of a district council, a metropolitan substructure, a transitional council, a transitional representative council or a transitional rural council as contemplated in the Local Government Transition Act, 1993, have been elected in terms of that Act, such council or substructure, as the case may be, shall not be disestablished and no change shall be made to the powers, area of jurisdiction, wards or number of seats thereof except in accordance with an Act of Parliament further regulating the local government transition process or by way of proclamation in the Provincial Gazette by the Premier of a province acting in consultation with the Minister for Provincial Affairs and Constitutional Development.
      [S. 245 amended by s. 9 of Act No. 29 of 1994 and substituted by s. 12 of Act No. 44 of 1995. Subs. (4) added by s. 3 (b) of Act No. 7 of 1996]

 

    1. Transitional arrangements: Pension of political office-bearers
      The right of any person in terms of any law which at the commencement of this Constitution provides for the payment of pensions from the exchequer or from any pension fund or arrangement to which the state contributes or has contributed, to or in respect of political office-bearers or former political office-bearers (including members and former members of Parliament and of any other legislative assembly which exercised legislative powers in respect of any area which forms part of the national territory) shall continue and shall not be diminished: Provided that those who have already received benefits that were due to them shall not benefit again by reason of the provisions of this section.

 

    1. Special provisions regarding existing educational institutions
      1. The national government and the provincial governments as provided for in this Constitution shall not alter the rights, powers and functions of the governing bodies, management councils or similar authorities of departmental, community-managed or state-aided primary or secondary schools under laws existing immediately before the commencement of this Constitution unless an agreement resulting from bona fide negotiation has been reached with such bodies and reasonable notice of any proposed alteration has been given.
      2. The national government shall not alter the rights, powers and functions of the controlling bodies of universities and technikons under laws existing immediately before the commencement of this Constitution, unless agreement resulting from bona fide negotiation has been reached with such bodies, and reasonable notice of any proposed alteration has been given.
      3. Should agreement not be reached in terms of subsection (1) or (2), the national government and the provincial governments shall, subject to the other provisions of this Constitution, not be precluded from altering the rights, powers and functions of the governing bodies, management councils or similar authorities of departmental, community-managed or state-aided primary or secondary schools, as well as the controlling bodies of universities and technikons, provided that interested persons and bodies shall be entitled to challenge the validity of any such alteration in terms of this Constitution.
      4. In order to ensure an acceptable quality of education, the responsible government shall provide funds to departmental, community-managed or state-aided primary or secondary schools on an equitable basis.

 

    1. National flag and anthem
      1. The State President may at any time before the commencement of this Constitution or while continuing in office in terms of section 235 (1) (a), exercise, on the advice of the Transitional Executive Council, the powers conferred upon the President by section 2 (1) and (2), and if theState President in the exercise of such powers issues a proclamation referred to in that section, such proclamation shall for all purposes be deemed to form part of this Constitution.
      2. This section shall come into operation on the date of promulgation of this Constitution. [Date of commencement of s. 248: 28 January 1994.]

 

    1. First election of National Assembly
      1. Notwithstanding the fact that Chapter 4 may not yet be in force, the State President may, by proclamation in the Gazette, call an election in terms of the Electoral Act, 1993, for the election of the members of the National Assembly and the provincial legislatures. [Sub-s. (1) substituted by s. 10 (1) of Act 2 of 1994.]
      2. Such election shall be conducted in accordance with Schedule 2 and the Electoral Act, 1993, as amended by the Constitution of the Republic of South Africa Amendment Act, 1994, and the Electoral Amendment Act, 1994, respectively. [Sub-s. (2) substituted by s. 10 (1) of Act 2 of 1994.]
      3. This section shall come into operation on the date of promulgation of this Constitution. [Date of commencement of s. 249: 28 January 1994.]

 

    1. Non-certification of election by Independent Electoral Commission
        1. If in the application of section 18 of the Independent Electoral Commission Act, 1993, the Independent Electoral Commission declares that it is unable to certify that any election referred to in that section was substantially free and fair, the Commission shall declare that either-
          1. it is able to determine a result based on the votes which could be counted; or
          2. it is unable to determine any result.

        1. If the Independent Electoral Commission declares as contemplated in subsection (1) (a)-
          1. a new election shall be held for the National Assembly and the provincial legislatures or a relevant provincial legislature, as the case may be, mutatis mutandis in accordance with this Constitution and the Electoral Act, 1993, as soon as practicable but in any event not later than 12 months after the date of the election in question: Provided that any reference to the Transitional Executive Council in the said Act shall be deemed to be a reference to Parliament;
          2. Parliament and the provincial legislatures or a provincial legislature, as the case may be, shall be established on the basis of the result determined in terms of subsection (1) (a): Provided that no provincial legislature shall be established unless the National Assembly is established;
          3. no amendment by a Parliament established on the basis of a declaration in terms of subsection (1) (a), of this Constitution, the Independent Electoral Commission Act, 1993, the Electoral Act, 1993, the Independent Media Commission Act, 1993, or the Independent Broadcasting Authority Act, 1993, shall be permissible until the election contemplated in paragraph (a) has been certified as substantially free and fair in terms of the Independent Electoral Commission Act, 1993; and
          4. any provincial legislature established on the basis of a declaration in terms of subsection (1) (a), shall have no legislative competence save for the enactment of laws necessary for the appropriation of revenue or moneys, or the imposition of taxation within the framework of section 126, until the election contemplated in paragraph (a) has been certified as substantially free and fair in terms of the Independent Electoral Commission Act, 1993.

        1. If the Independent Electoral Commission declares as contemplated in subsection (1) (b)-
          1. a new election shall be held for the National Assembly and the provincial legislatures, or a relevant provincial legislature, as the case may be, in accordance with this Constitution and the Electoral Act, 1993, as soon as practicable, but in any event not later than within 10 weeks after the date of the election in question: Provided that a new election for the National Assembly and the provincial legislatures shall be held simultaneously; and
          2. the constitutional arrangements under the Republic of South Africa Constitution Act, 1983 (Act No 110 of 1983), the Transitional Executive Council Act, 1993, the Independent Electoral Commission Act, 1993, the Electoral Act, 1993, the Independent Media Commission Act, 1993, and the Independent Broadcasting Authority Act, 1993, shall apply, until the election referred to in paragraph (a) has been held.

      1. Notwithstanding the provisions of any other law, the Independent Electoral Commission shall continue to exist for the purposes set out in this section and the Commission shall exercise its function contemplated in section 18 of the Independent Electoral Commission Act, 1993, with reference to an election referred to in this section: Provided that section 232 (5) (b) shall apply mutatis mutandis in respect of the replacement of members of the Commission.

 

    1. Short title and commencement
    2. This Act shall be called the Constitution of the Republic of South Africa, 1993, and shall, subject to subsection (2), come into operation on 27 April 1994
    3. The State President may, in consultation with the Transitional Executive Council, by proclamation in the Gazette provide that a provision of this Constitution specified in the proclamation shall come into operation on a date prior to the date referred to in subsection (1).
    4. Different dates may be fixed in terms of subsection (2) in respect of different provisions of this Constitution.
    5. A reference in a provision of this Constitution to the commencement of this Constitution shall, unless the context otherwise indicates, be construed as a reference to the commencement of such provision.

National Unity and Reconciliation

This Constitution provides a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex. The pursuit of national unity, the well-being of all South African citizens and peace require reconciliation between the people of South Africa and the reconstruction of society.

The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge.

These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation.

In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past. To this end, Parliament under this Constitution shall adopt a law determining a firm cut-off date, which shall be a date after 8 October 1990 and before 6 December 1993, and providing for the mechanisms, criteria and procedures, including tribunals, if any, through which such amnesty shall be dealt with at any time after the law has been passed.

With this Constitution and these commitments we, the people of South Africa, open a new chapter in the history of our country.

Nkosi sikelel' iAfrika. God seën Suid-Afrika
Morena boloka sechaba sa heso. May God bless our country
Mudzimu fhatutshedza Afrika. Hosi katekisa Afrika

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Chapter 14

General provisions (ss 231-243)
International Law (ss 231-233) 

  1. International agreements
    1. The negotiating and signing of all international agreements is the responsibility of the national executive.
    2. An international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces, unless it is an agreement referred to in subsection (3).
    3. An international agreement of a technical, administrative or executive nature, or an agreement which does not require either ratification or accession, entered into by the national executive, binds the Republic without approval by the National Assembly and the National Council of Provinces, but must be tabled in the Assembly and the Council within a reasonable time.
    4. Any international agreement becomes law in the Republic when it is enacted into law by national legislation; but a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.
    5. The Republic is bound by international agreements which were binding on the Republic when this Constitution took effect.

 

 

  1. Customary international law
    Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.

 

  1. Application of international law
    When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.

 

 Other Matters (ss 234-243)

  1. Charters of Rights
    In order to deepen the culture of democracy established by the Constitution, Parliament may adopt Charters of Rights consistent with the provisions of the Constitution.

 

 

  1. Self-determination
    The right of the South African people as a whole to self-determination, as manifested in this Constitution, does not preclude, within the framework of this right, recognition of the notion of the right of self-determination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way, determined by national legislation.

 

 

  1. Funding for political parties
    To enhance multi-party democracy, national legislation must provide for the funding of political parties participating in national and provincial legislatures on an equitable and proportional basis.

 

 

  1. Diligent performance of obligations
    All constitutional obligations must be performed diligently and without delay.

 

 

  1. Agency and delegation
    An executive organ of state in any sphere of government may-
    1. delegate any power or function that is to be exercised or performed in terms of legislation to any other executive organ of state, provided the delegation is consistent with the legislation in terms of which the power is exercised or the function is performed; or
    2. exercise any power or perform any function for any other executive organ of state on an agency or delegation basis.

 

 

  1. Definitions
    In the Constitution, unless the context indicates otherwise-
    1. 'national legislation' includes-
      1. subordinate legislation made in terms of an Act of Parliament; and
      2. legislation that was in force when the Constitution took effect and that is administered by the national government;
    2. 'organ of state' means-
      1. any department of state or administration in the national, provincial or local sphere of government; or
      2. any other functionary or institution-
        1. exercising a power or performing a function in terms of the Constitution or a provincial constitution; or
        2. exercising a public power or performing a public function in terms of any legislation,
        but does not include a court or a judicial officer;
    3. 'provincial legislation' includes-
      1. subordinate legislation made in terms of a provincial Act; and
      2. legislation that was in force when the Constitution took effect and that is administered by a provincial government.

 

 

  1. Inconsistencies between different texts
    In the event of an inconsistency between different texts of the Constitution, the English text prevails.

 

  1. Transitional arrangements
    Schedule 6 applies to the transition to the new constitutional order established by this Constitution, and any matter incidental to that transition.

 

  1. Repeal of laws
    The laws mentioned in Schedule 7 are repealed, subject to section 243 and Schedule 6.

 

 

  1. Short title and commencement
    1. This Act is called the Constitution of the Republic of South Africa, 1996, and comes into effect as soon as possible on a date set by the President by proclamation, which may not be a date later than 1 July 1997.
    2. The President may set different dates before the date mentioned in subsection (1) in respect of different provisions of the Constitution.
    3. Unless the context otherwise indicates, a reference in a provision of the Constitution to a time when the Constitution took effect must be construed as a reference to the time when that provision took effect.
    4. If a different date is set for any particular provision of the Constitution in terms of subsection (2), any corresponding provision of the Constitution of the Republic of South Africa, 1993 (Act 200 of 1993), mentioned in the proclamation, is repealed with effect from the same date.
    5. Sections 213, 214, 215, 216, 218, 226, 227, 228, 229 and 230 come into effect on 1 January 1998, but this does not preclude the enactment in terms of this Constitution of legislation envisaged in any of these provisions before that date. Until that date any corresponding and incidental provisions of the Constitution of the Republic of South Africa, 1993, remain in force.

 

Chapter 12

Traditional leaders (ss 211-212) 

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

 

 

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

Chapter 13

Finance (ss 213-230) 
General Financial Matters (ss 213-219) 

    1. National Revenue Fund
      1. There is a National Revenue Fund into which all money received by the national government must be paid, except money reasonably excluded by an Act of Parliament.
      2. Money may be withdrawn from the National Revenue Fund only-
        1. in terms of an appropriation by an Act of Parliament; or
        2. as a direct charge against the National Revenue Fund, when it is provided for in the Constitution or an Act of Parliament.
      3. A province's equitable share of revenue raised nationally is a direct charge against the National Revenue Fund.

    1. quitable shares and allocations of revenue
      1. An Act of Parliament must provide for-
        1. the equitable division of revenue raised nationally among the national, provincial and local spheres of government;
        2. the determination of each province's equitable share of the provincial share of that revenue; and
        3. any other allocations to provinces, local government or municipalities from the national government's share of that revenue, and any conditions on which those allocations may be made.
      2. The Act referred to in subsection (1) may be enacted only after the provincial governments, organised local government and the Financial and Fiscal Commission have been consulted, and any recommendations of the Commission have been considered, and must take into account-
        1. the national interest;
        2. any provision that must be made in respect of the national debt and other national obligations;
        3. the needs and interests of the national government, determined by objective criteria;
        4. the need to ensure that the provinces and municipalities are able to provide basic services and perform the functions allocated to them;
        5. the fiscal capacity and efficiency of the provinces and municipalities;
        6. developmental and other needs of provinces, local government and municipalities;
        7. economic disparities within and among the provinces;
        8. obligations of the provinces and municipalities in terms of national legislation;
        9. the desirability of stable and predictable allocations of revenue shares; and
        10. the need for flexibility in responding to emergencies or other temporary needs, and other factors based on similar objective criteria.


    1. National, provincial and municipal budgets
      1. National, provincial and municipal budgets and budgetary processes must promote transparency, accountability and the effective financial management of the economy, debt and the public sector.
      2. National legislation must prescribe-
        1. the form of national, provincial and municipal budgets;
        2. when national and provincial budgets must be tabled; and
        3. that budgets in each sphere of government must show the sources of revenue and the way in which proposed expenditure will comply with national legislation.
      3. Budgets in each sphere of government must contain-
        1. estimates of revenue and expenditure, differentiating between capital and current expenditure;
        2. proposals for financing any anticipated deficit for the period to which they apply; and
        3. an indication of intentions regarding borrowing and other forms of public liability that will increase public debt during the ensuing year.


    1. Treasury control
        1. National legislation must establish a national treasury and prescribe measures to ensure both transparency and expenditure control in each sphere of government, by introducing-
          1. generally recognised accounting practice;
          2. uniform expenditure classifications; and
          3. uniform treasury norms and standards.
        2. The national treasury must enforce compliance with the measures established in terms of subsection (1), and may stop the transfer of funds to an organ of state if that organ of state commits a serious or persistent material breach of those measures.

      [Sub-s. (2) substituted by s. 5 (a) of Act 61 of 2001.]
      1. A decision to stop the transfer of funds due to a province in terms of section 214 (1) (b) may be taken only in the circumstances mentioned in subsection (2) and
          1. may not stop the transfer of funds for more than 120 days; and
          2. may be enforced immediately, but will lapse retrospectively unless Parliament approves it following a process substantially the same as that established in terms of section 76 (1) and prescribed by the joint rules and orders of Parliament. This process must be completed within 30 days of the decision by the national treasury.

        [Sub-s. (3) amended by s. 5 (b) of Act 61 of 2001.]
      2. Parliament may renew a decision to stop the transfer of funds for no more than 120 days at a time, following the process established in terms of subsection (3).
      3. Before Parliament may approve or renew a decision to stop the transfer of funds to a province-
          1. the Auditor-General must report to Parliament; and
          2. the province must be given an opportunity to answer the allegations against it, and to state its case, before a committee.

        [Date of commencement of . 216: 1 January 1998.]


    1. Procurement
        1. When an organ of state in the national, provincial or local sphere of government, or any other institution identified in national legislation, contracts for goods or services, it must do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective.
        2. Subsection (1) does not prevent the organs of state or institutions referred to in that subsection from implementing a procurement policy providing for-
          1. categories of preference in the allocation of contracts; and
          2. the protection or advancement of persons, or categories of persons, disadvantaged by unfair discrimination.
        3. National legislation must prescribe a framework within which the policy referred to in subsection (2) must be implemented.

      [Sub-s. (3) substituted by s. 6 of Act 61 of 2001.]


    1. Government guarantees
      1. The national government, a provincial government or a municipality may guarantee a loan only if the guarantee complies with any conditions set out in national legislation.
      2. National legislation referred to in subsection (1) may be enacted only after any recommendations of the Financial and Fiscal Commission have been considered.
      3. Each year, every government must publish a report on the guarantees it has granted.


    1. Remuneration of persons holding public office
      1. An Act of Parliament must establish a framework for determining-
        1. the salaries, allowances and benefits of members of the National Assembly, permanent delegates to the National Council of Provinces, members of the Cabinet, Deputy Ministers, traditional leaders and members of any councils of traditional leaders; and
        2. the upper limit of salaries, allowances or benefits of members of provincial legislatures, members of Executive Councils and members of Municipal Councils of the different categories.
      2. National legislation must establish an independent commission to make recommendations concerning the salaries, allowances and benefits referred to in subsection (1).
      3. Parliament may pass the legislation referred to in subsection (1) only after considering any recommendations of the commission established in terms of subsection (2).
      4. The national executive, a provincial executive, a municipality or any other relevant authority may implement the national legislation referred to in subsection (1) only after considering any recommendations of the commission established in terms of subsection (2).
      5. National legislation must establish frameworks for determining the salaries, allowances and benefits of judges, the Public Protector, the Auditor-General, and members of any commission provided for in the Constitution, including the broadcasting authority referred to in section 192.


Financial and Fiscal Commission (ss 220-222)

    1. Establishment and functions
      1. There is a Financial and Fiscal Commission for the Republic which makes recommendations envisaged in this Chapter, or in national legislation, to Parliament, provincial legislatures and any other authorities determined by national legislation.
      2. The Commission is independent and subject only to the Constitution and the law, and must be impartial.
      3. The Commission must function in terms of an Act of Parliament and, in performing its functions, must consider all relevant factors, including those listed in section 214 (2).


    1. Appointment and tenure of members
        1. The Commission consists of the following women and men appointed by the President, as head of the national executive:
            1. A chairperson and a deputy chairperson;

            1. three persons selected, after consulting the Premiers, from a list compiled in accordance with a process prescribed by national legislation;
            2. two persons selected, after consulting organised local government compiled in accordance with a process prescribed by national legislation; and
            3. two other persons.

          [Sub-s. (1) substituted by s. 7 (a) of Act 61 of 2001]
        2. National legislation referred to in subsection (1) must provide for the participation of

          1. the Premiers in the compilation of a list envisaged in subsection (1)(b)and

          1. organised local government in the compilation of a list envisaged in subsection (1)(c)

      [Sub-s. (1A) has been inserted by s.7(b) of Act 61 of 2001]

        1. Members of the Commission must have appropriate expertise.
        2. Members serve for a term established in terms of national legislation. The President may remove a member from office on the ground of misconduct, incapacity or incompetence.


      1. Reports
        The Commission must report regularly both to Parliament and to the provincial legislatures.


    Central Bank (ss 223-225)

      1. Establishment
        The South African Reserve Bank is the central bank of the Republic and is regulated in terms of an Act of Parliament.

      1. Primary object
        1. The primary object of the South African Reserve Bank is to protect the value of the currency in the interest of balanced and sustainable economic growth in the Republic.
        2. The South African Reserve Bank, in pursuit of its primary object, must perform its functions independently and without fear, favour or prejudice, but there must be regular consultation between the Bank and the Cabinet member responsible for national financial matters.


      1. Powers and functions
        The powers and functions of the South African Reserve Bank are those customarily exercised and performed by central banks, which powers and functions must be determined by an Act of Parliament and must be exercised or performed subject to the conditions prescribed in terms of that Act.


    Provincial and Local Financial Matters (ss 226-230)

      1. Provincial Revenue Funds
        1. There is a Provincial Revenue Fund for each province into which all money received by the provincial government must be paid, except money reasonably excluded by an Act of Parliament.
        2. Money may be withdrawn from a Provincial Revenue Fund only-
          1. in terms of an appropriation by a provincial Act; or
          2. as a direct charge against the Provincial Revenue Fund, when it is provided for in the Constitution or a provincial Act.
        3. Revenue allocated through a province to local government in that province in terms of section 214 (1), is a direct charge against that province's Revenue Fund.
        4. National legislation may determine a framework within which-
            1. a provincial Act may in terms of subsection (2) (b) authorise the withdrawal of money as a direct charge against a Provincial Revenue Fund; and
            2. revenue allocated through a province to local government in that province in terms of subsection (3) must be paid to municipalities in the province.

          [Sub-s. (4) added by s. 8 of Act 61 of 2001.]


      1. National sources of provincial and local government funding
        1. Local government and each province-
          1. is entitled to an equitable share of revenue raised nationally to enable it to provide basic services and perform the functions allocated to it; and
          2. may receive other allocations from national government revenue, either conditionally or unconditionally.
        2. Additional revenue raised by provinces or municipalities may not be deducted from their share of revenue raised nationally, or from other allocations made to them out of national government revenue. Equally, there is no obligation on the national government to compensate provinces or municipalities that do not raise revenue commensurate with their fiscal capacity and tax base.
        3. A province's equitable share of revenue raised nationally must be transferred to the province promptly and without deduction, except when the transfer has been stopped in terms of section 216.
        4. A province must provide for itself any resources that it requires, in terms of a provision of its provincial constitution, that are additional to its requirements envisaged in the Constitution.


      1. Provincial taxes
          1. A provincial legislature may impose-
            1. taxes, levies and duties other than income tax, value-added tax, general sales tax, rates on property or customs duties; and
            2. flat-rate surcharges on any tax, levy or duty that is imposed by national legislation, other than on corporate income tax, value-added tax, rates on property or customs duties.

        [Para. (b) substituted by s. 9 of Act 61 of 2001.]
        1. The power of a provincial legislature to impose taxes, levies, duties and surcharges-
          1. may not be exercised in way that materially and unreasonably prejudices national economic policies, economic activities across provincial boundaries, or the national mobility of goods, services, capital or labour; and
          2. must be regulated in terms of an Act of Parliament, which may be enacted only after any recommendations of the Financial and Fiscal Commission have been considered.


      1. Municipal fiscal powers and functions
        1. Subject to subsections (2), (3) and (4), a municipality may impose-
          1. rates on property and surcharges on fees for services provided by or on behalf of the municipality; and
          2. if authorised by national legislation, other taxes, levies and duties appropriate to local government or to the category of local government into which that municipality falls, but no municipality may impose income tax, value-added tax, general sales tax or customs duty.
        2. The power of a municipality to impose rates on property, surcharges on fees for services provided by or on behalf of the municipality, or other taxes, levies or duties-
          1. may not be exercised in a way that materially and unreasonably prejudices national economic policies, economic activities across municipal boundaries, or the national mobility of goods, services, capital or labour; and
          2. may be regulated by national legislation.
        3. When two municipalities have the same fiscal powers and functions with regard to the same area, an appropriate division of those powers and functions must be made in terms of national legislation. The division may be made only after taking into account at least the following criteria:
          1. The need to comply with sound principles of taxation.
          2. The powers and functions performed by each municipality.
          3. The fiscal capacity of each municipality.
          4. The effectiveness and efficiency of raising taxes, levies and duties.
          5. Equity.
        4. Nothing in this section precludes the sharing of revenue raised in terms of this section between municipalities that have fiscal power and functions in the same area.
        5. National legislation envisaged in this section may be enacted only after organised local government and the Financial and Fiscal Commission have been consulted, and any recommendations of the Commission have been considered.


      1. Provincial loans
          1. A province may raise loans for capital or current expenditure in accordance with national legislation, but loans for current expenditure may be raised only when necessary for bridging purposes during a fiscal year.
          2. National legislation referred to in subsection (1) may be enacted only after any recommendations of the Financial and Fiscal Commission have been considered.

        [S. 230 substituted by s. 10 of Act 61 of 2001.]


    1. A.   Municipal loans
      1. A Municipal Council may, in accordance with national legislation-
        1. raise loans for capital or current expenditure for the municipality, but loans for current expenditure may be raised only when necessary for bridging purposes during a fiscal year; and
        2. bind itself and a future Council in the exercise of its legislative and executive authority to secure loans or investments for the municipality.
      2. National legislation referred to in subsection (1) may be enacted only after any recommendations of the Financial and Fiscal Commission have been considered.

     

    Chapter 11

    Security services (ss 198-210) 

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

     

     

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

     

    Defence (ss 200-204)

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

     

     

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

     

     

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

     

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

     

     

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

     

     

    Police (ss 205-208)

     

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

     

     

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

     

     

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

     

     

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

     


    Intelligence (ss 209-210)

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

     

     

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

     

     

    1. Chapter 10 (ss 195-197)
    2. Chapter 9 (ss 181-194)
    3. Chapter 8 (ss 165-180)
    4. Chapter 7 (ss 151-164)