CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, ACT 200 OF 1993
[ASSENTED TO 25 JANUARY 1994] . . . .[DATE OF COMMENCEMENT: 27 APRIL 1994]
(Unless otherwise indicated: see s. 251 (2))
(Afrikaans text signed by the State President)
ACT
To introduce a new Constitution for the Republic of South Africa
and to provide for matters incidental thereto.
TABLE OF CONTENTS
Sections
CHAPTER 1 Constituent and Formal Provisions. . . . . . . . . . . . . .1-4
CHAPTER 2 Citizenship and Franchise. . . . . . . . . . . . . . . . . .5-6
CHAPTER 3 Fundamental Rights . . . . . . . . . . . . . . . . . . . . .7-35
CHAPTER 4 Parliament . . . . . . . . . . . . . . . . . . . . . . . . .36-67
- The National Assembly. . . . . . . . . . . . . . . . . . .40-47
- The Senate . . . . . . . . . . . . . . . . . . . . . . . .48-54
- The National Assembly and the Senate . . . . . . . . . . .55-67
CHAPTER 5 The Adoption of the new Constitution . . . . . . . . . . . .68-74
CHAPTER 6 The National Executive . . . . . . . . . . . . . . . . . . .75-95
CHAPTER 7 The Judicial Authority and the Administration of
Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96-109
CHAPTER 8 The Public Protector, Human Rights Commission,
Commission on Gender Equality and Restitution of
Land Rights
- The Public Protector . . . . . . . . . . . . . . . . . .110-114
- Human Rights Commission. . . . . . . . . . . . . . . . .115-118
- Commission on Gender Equality. . . . . . . . . . . . . .119-120
- Restitution of Land Rights . . . . . . . . . . . . . . .121-123
CHAPTER 9 Provincial Government. . . . . . . . . . . . . . . . . . . . .124
- Provincial Legislative Authority . . . . . . . . . . . .125-143
- Provincial Executive Authority . . . . . . . . . . . . .144-154
- Provincial Finance and Fiscal Affairs. . . . . . . . . .155-159
- Provincial Constitutions . . . . . . . . . . . . . . . .160-162
- Commission on Provincial Government. . . . . . . . . . .163-173
CHAPTER 10 Local Government. . . . . . . . . . . . . . . . . . .174-180
CHAPTER 11 Traditional Authorities . . . . . . . . . . . . . . .181-184
CHAPTER 12 Finance
- General Financial Affairs. . . . . . . . . . . . . . . .185-190
- Auditor-General. . . . . . . . . . . . . . . . . . . . .191-194
- South African Reserve Bank . . . . . . . . . . . . . . .195-197
- Financial and Fiscal Commission. . . . . . . . . . . . .198-206
- Commission on Remuneration of Representatives. . . . . .207-208
CHAPTER 13 Public Service Commission and Public Service
- Public Service Commission. . . . . . . . . . . . . . . .209-211
- The Public Service . . . . . . . . . . . . . . . . . . . . .212
- Provincial Service Commissions . . . . . . . . . . . . . . .213
CHAPTER 14 Police and Defence
- South African Police Service . . . . . . . . . . . . . .214-223
- National Defence Force . . . . . . . . . . . . . . . . .224-228
CHAPTER 15 General and Transitional Provisions . . . . . . . . .229-251
SCHEDULE 1 Part 1: Definitions of Provinces
Part 2: Contentious Areas
SCHEDULE 2 System for Election of National Assembly and Provincial
Legislatures
SCHEDULE 3 Oaths and Affirmations of Office
SCHEDULE 4 Constitutional Principles
SCHEDULE 5 Procedure for Election of President
SCHEDULE 6 Legislative Competences of Provinces
SCHEDULE 7 Repeal of Laws
Preamble
In humble submission to Almighty God,
We, the people of South Africa declare that-
WHEREAS there is a need to create a new order in which all
South Africans will be entitled to a common South African
citizenship in a sovereign and democratic constitutional state in
which there is equality between men and women and people of all
races so that all citizens shall be able to enjoy and exercise
their fundamental rights and freedoms;
AND WHEREAS in order to secure the achievement of this goal,
elected representatives of all the people of South Africa should
be mandated to adopt a new Constitution in accordance with a
solemn pact recorded as Constitutional Principles;
AND WHEREAS it is necessary for such purposes that provision
should be made for the promotion of national unity and the
restructuring and continued governance of South Africa while an
elected Constitutional Assembly draws up a final Constitution;
NOW THEREFORE the following provisions are adopted as the
Constitution of the Republic of South Africa:
CHAPTER 1
CONSTITUENT AND FORMAL PROVISIONS (ss. 1-4)
1 Republic of South Africa
(1) The Republic of South Africa shall be one, sovereign
state.
(2) The national territory of the Republic shall comprise
the areas defined in Part 1 of Schedule 1.
2 National symbols
(1) The national flag of the Republic shall be the flag the
design of which is determined by the President by proclamation in
the Gazette.
(2) The national anthem of the Republic shall be as
determined by the President by proclamation in the Gazette.
(3) The coat of arms of the Republic and the seal of the
Republic under the previous Constitution shall be the national
coat of arms of the Republic and the seal of the Republic under
this Constitution.
3 Languages
(1) Afrikaans, English, isiNdebele, Sesotho sa Leboa,
Sesotho, siSwati, Xitsonga, Setswana, Tshivenda, isiXhosa and
isiZulu shall be the official South African languages at national
level, and conditions shall be created for their development and
for the promotion of their equal use and enjoyment.
(2) Rights relating to language and the status of languages
existing at the commencement of this Constitution shall not be
diminished, and provision shall be made by an Act of Parliament
for rights relating to language and the status of languages
existing only at regional level, to be extended nationally in
accordance with the principles set out in subsection (9).
(3) Wherever practicable, a person shall have the right to
use and to be addressed in his or her dealings with any public
administration at the national level of government in any
official South African language of his or her choice.
(4) Regional differentiation in relation to language policy
and practice shall be permissible.
(5) A provincial legislature may, by a resolution adopted by
a majority of at least two-thirds of all its members, declare any
language referred to in subsection (1) to be an official language
for the whole or any part of the province and for any or all
powers and functions within the competence of that legislature,
save that neither the rights relating to language nor the status
of an official language as existing in any area or in relation to
any function at the time of the commencement of this Constitu
tion, shall be diminished.
(6) Wherever practicable, a person shall have the right to
use and to be addressed in his or her dealings with any public
administration at the provincial level of government in any one
of the official languages of his or her choice as contemplated in
subsection (5).
(7) A member of Parliament may address Parliament in the
official South African language of his or her choice.
(8) Parliament and any provincial legislature may, subject
to this section, make provision by legislation for the use of
official languages for the purposes of the functioning of
government, taking into account questions of usage, practicality
and expense.
(9) Legislation, as well as official policy and practice, in
relation to the use of languages at any level of government shall
be subject to and based on the provisions of this section and the
following principles:
(a) The creation of conditions for the development and
for the promotion of the equal use and enjoyment of all official
South African languages;
(b) the extension of those rights relating to language
and the status of languages which at the commencement of this
Constitution are restricted to certain regions;
(c) the prevention of the use of any language for the
purposes of exploitation, domination or division;
(d) the promotion of multilingualism and the provision
of translation facilities;
(e) the fostering of respect for languages spoken in
the Republic other than the official languages, and the encour
agement of their use in appropriate circumstances; and
(f) the non-diminution of rights relating to language
and the status of languages existing at the commencement of this
Constitution.
(10) (a) Provision shall be made by an Act of Parliament for
the establishment by the Senate of an independent Pan South
African Language Board to promote respect for the principles
referred to in subsection (9) and to further the development of
the official South African languages.
(b) The Pan South African Language Board shall be consulted,
and be given the opportunity to make recommendations, in relation
to any proposed legislation contemplated in this section.
(c) The Pan South African Language Board shall be responsi
ble for promoting respect for and the development of German,
Greek, Gujerati, Hindi, Portuguese, Tamil, Telegu, Urdu and other
languages used by communities in South Africa, as well as Arabic,
Hebrew and Sanskrit and other languages used for religious
purposes.
4 Supremacy of the Constitution
(1) This Constitution shall be the supreme law of the
Republic and any law or act inconsistent with its provisions
shall, unless otherwise provided expressly or by necessary
implication in this Constitution, be of no force and effect to
the extent of the inconsistency.
(2) This Constitution shall bind all legislative, executive
and judicial organs of state at all levels of government.
CHAPTER 2
CITIZENSHIP AND FRANCHISE (ss. 5-6)
5 Citizenship
(1) There shall be a South African citizenship.
(2) South African citizenship and the acquisition, loss and
restoration of South African citizenship shall, subject to section
20 read with section 33 (1), be regulated by an Act of Parliament.
(3) Every person who is a South African citizen shall, subject
to this Constitution, be entitled to enjoy all rights, privileges
and benefits of South African citizenship, and shall be subject to
all duties, obligations and responsibilities of South African
citizenship as are accorded or imposed upon him or her in terms of
this Constitution or an Act of Parliament.
6 The franchise
Every person who is-
(a) (i) a South African citizen; or
(ii) not such a citizen but who in terms of an Act
of Parliament has been accorded the right to exercise the
franchise;
(b) of or over the age of 18 years; and
(c) not subject to any disqualifications as may be
prescribed by law,
shall be entitled to vote in elections of the National Assembly, a
provincial legislature or a local government and in referenda or
plebiscites contemplated in this Constitution, in accordance with
and subject to the laws regulating such elections, referenda and
plebiscites.
CHAPTER 3
FUNDAMENTAL RIGHTS (ss. 7-35)
7 Application
(1) This Chapter shall bind all legislative and executive
organs of state at all levels of government.
(2) This Chapter shall apply to all law in force and all
administrative decisions taken and acts performed during the period
of operation of this Constitution.
(3) Juristic persons shall be entitled to the rights contained
in this Chapter where, and to the extent that, the nature of the
rights permits.
(4) (a) When an infringement of or threat to any right
entrenched in this Chapter is alleged, any person referred to in
paragraph (b) shall be entitled to apply to a competent court of
law for appropriate relief, which may include a declaration of
rights.
(b) The relief referred to in paragraph (a) may be sought
by-
(i) a person acting in his or her own interest;
(ii) an association acting in the interest of its
members;
(iii) a person acting on behalf of another
person who is not in a position to seek such relief in his or her
own name;
(iv) a person acting as a member of or in the
interest of a group or class of persons; or
(v) a person acting in the public interest.
8 Equality
(1) Every person shall have the right to equality before the
law and to equal protection of the law.
(2) No person shall be unfairly discriminated against,
directly or indirectly, and, without derogating from the generality
of this provision, on one or more of the following grounds in
particular: race, gender, sex, ethnic or social origin, colour,
sexual orientation, age, disability, religion, conscience, belief,
culture or language.
(3) (a) This section shall not preclude measures designed to
achieve the adequate protection and advancement of persons or
groups or categories of persons disadvantaged by unfair discrimina
tion, in order to enable their full and equal enjoyment of all
rights and freedoms.
(b) Every person or community dispossessed of rights in land
before the commencement of this Constitution under any law which
would have been inconsistent with subsection (2) had that
subsection been in operation at the time of the dispossession,
shall be entitled to claim restitution of such rights subject to
and in accordance with sections 121, 122 and 123.
(4) Prima facie proof of discrimination on any of the grounds
specified in subsection (2) shall be presumed to be sufficient
proof of unfair discrimination as contemplated in that subsection,
until the contrary is established.
9 Life
Every person shall have the right to life.
10 Human dignity
Every person shall have the right to respect for and
protection of his or her dignity.
11 Freedom and security of the person
(1) Every person shall have the right to freedom and security
of the person, which shall include the right not to be detained
without trial.
(2) No person shall be subject to torture of any kind, whether
physical, mental or emotional, nor shall any person be subject to
cruel, inhuman or degrading treatment or punishment.
12 Servitude and forced labour
No person shall be subject to servitude or forced labour.
13 Privacy
Every person shall have the right to his or her personal
privacy, which shall include the right not to be subject to
searches of his or her person, home or property, the seizure of
private possessions or the violation of private communications.
14 Religion, belief and opinion
(1) Every person shall have the right to freedom of
conscience, religion, thought, belief and opinion, which shall
include academic freedom in institutions of higher learning.
(2) Without derogating from the generality of subsection (1),
religious observances may be conducted at state or state- aided
institutions under rules established by an appropriate authority
for that purpose, provided that such religious observances are
conducted on an equitable basis and attendance at them is free and
voluntary.
(3) Nothing in this Chapter shall preclude legislation
recognising-
(a) a system of personal and family law adhered to by
persons professing a particular religion; and
(b) the validity of marriages concluded under a system
of religious law subject to specified procedures.
15 Freedom of expression
(1) Every person shall have the right to freedom of speech and
expression, which shall include freedom of the press and other
media, and the freedom of artistic creativity and scientific
research.
(2) All media financed by or under the control of the state
shall be regulated in a manner which ensures impartiality and the
expression of a diversity of opinion.
16 Assembly, demonstration and petition
Every person shall have the right to assemble and demonstrate
with others peacefully and unarmed, and to present petitions.
17 Freedom of association
Every person shall have the right to freedom of association.
18 Freedom of movement
Every person shall have the right to freedom of movement
anywhere within the national territory.
19 Residence
Every person shall have the right freely to choose his or her
place of residence anywhere in the national territory.
20 Citizens' rights
Every citizen shall have the right to enter, remain in and
leave the Republic, and no citizen shall without justification be
deprived of his or her citizenship.
21 Political rights
(1) Every citizen shall have the right-
(a) to form, to participate in the activities of and to
recruit members for a political party;
(b) to campaign for a political party or cause; and
(c) freely to make political choices.
(2) Every citizen shall have the right to vote, to do so in
secret and to stand for election to public office.
22 Access to court
Every person shall have the right to have justiciable disputes
settled by a court of law or, where appropriate, another
independent and impartial forum.
23 Access to information
Every person shall have the right of access to all information
held by the state or any of its organs at any level of government
in so far as such information is required for the exercise or
protection of any of his or her rights.
24 Administrative justice
Every person shall have the right to-
(a) lawful administrative action where any of his or her
rights or interests is affected or threatened;
(b) procedurally fair administrative action where any of
his or her rights or legitimate expectations is affected or
threatened;
(c) be furnished with reasons in writing for administra
tive action which affects any of his or her rights or interests
unless the reasons for such action have been made public; and
(d) administrative action which is justifiable in
relation to the reasons given for it where any of his or her rights
is affected or threatened.
25 Detained, arrested and accused persons
(1) Every person who is detained, including every sentenced
prisoner, shall have the right-
(a) to be informed promptly in a language which he or
she understands of the reason for his or her detention;
(b) to be detained under conditions consonant with human
dignity, which shall include at least the provision of adequate
nutrition, reading material and medical treatment at state expense;
(c) to consult with a legal practitioner of his or her
choice, to be informed of this right promptly and, where
substantial injustice would otherwise result, to be provided with
the services of a legal practitioner by the state;
(d) to be given the opportunity to communicate with, and
to be visited by, his or her spouse or partner, next-of-kin,
religious counsellor and a medical practitioner of his or her
choice; and
(e) to challenge the lawfulness of his or her detention
in person before a court of law and to be released if such
detention is unlawful.
(2) Every person arrested for the alleged commission of an
offence shall, in addition to the rights which he or she has as a
detained person, have the right-
(a) promptly to be informed, in a language which he or
she understands, that he or she has the right to remain silent and
to be warned of the consequences of making any statement;
(b) as soon as it is reasonably possible, but not later
than 48 hours after the arrest or, if the said period of 48 hours
expires outside ordinary court hours or on a day which is not a
court day, the first court day after such expiry, to be brought
before an ordinary court of law and to be charged or to be informed
of the reason for his or her further detention, failing which he or
she shall be entitled to be released;
(c) not to be compelled to make a confession or
admission which could be used in evidence against him or her; and
(d) to be released from detention with or without bail,
unless the interests of justice require otherwise.
(3) Every accused person shall have the right to a fair trial,
which shall include the right-
(a) to a public trial before an ordinary court of law
within a reasonable time after having been charged;
(b) to be informed with sufficient particularity of the
charge;
(c) to be presumed innocent and to remain silent during
plea proceedings or trial and not to testify during trial;
(d) to adduce and challenge evidence, and not to be a
compellable witness against himself or herself;
(e) to be represented by a legal practitioner of his or
her choice or, where substantial injustice would otherwise result,
to be provided with legal representation at state expense, and to
be informed of these rights;
(f) not to be convicted of an offence in respect of any
act or omission which was not an offence at the time it was
committed, and not to be sentenced to a more severe punishment than
that which was applicable when the offence was committed;
(g) not to be tried again for any offence of which he or
she has previously been convicted or acquitted;
(h) to have recourse by way of appeal or review to a
higher court than the court of first instance;
(i) to be tried in a language which he or she
understands or, failing this, to have the proceedings interpreted
to him or her; and
(j) to be sentenced within a reasonable time after
conviction.
26 Economic activity
(1) Every person shall have the right freely to engage in
economic activity and to pursue a livelihood anywhere in the
national territory.
(2) Subsection (1) shall not preclude measures designed to
promote the protection or the improvement of the quality of life,
economic growth, human development, social justice, basic
conditions of employment, fair labour practices or equal
opportunity for all, provided such measures are justifiable in an
open and democratic society based on freedom and equality.
27 Labour relations
(1) Every person shall have the right to fair labour
practices.
(2) Workers shall have the right to form and join trade
unions, and employers shall have the right to form and join
employers' organisations.
(3) Workers and employers shall have the right to organise and
bargain collectively.
(4) Workers shall have the right to strike for the purpose of
collective bargaining.
(5) Employers' recourse to the lock-out for the purpose of
collective bargaining shall not be impaired, subject to section 33
(1).
28 Property
(1) Every person shall have the right to acquire and hold
rights in property and, to the extent that the nature of the rights
permits, to dispose of such rights.
(2) No deprivation of any rights in property shall be
permitted otherwise than in accordance with a law.
(3) Where any rights in property are expropriated pursuant to
a law referred to in subsection (2), such expropriation shall be
permissible for public purposes only and shall be subject to the
payment of agreed compensation or, failing agreement, to the
payment of such compensation and within such period as may be
determined by a court of law as just and equitable, taking into
account all relevant factors, including, in the case of the
determination of compensation, the use to which the property is
being put, the history of its acquisition, its market value, the
value of the investments in it by those affected and the interests
of those affected.
29 Environment
Every person shall have the right to an environment which is
not detrimental to his or her health or well-being.
30 Children
(1) Every child shall have the right-
(a) to a name and nationality as from birth;
(b) to parental care;
(c) to security, basic nutrition and basic health and
social services;
(d) not to be subject to neglect or abuse; and
(e) not to be subject to exploitative labour practices
nor to be required or permitted to perform work which is hazardous
or harmful to his or her education, health or well- being.
(2) Every child who is in detention shall, in addition to the
rights which he or she has in terms of section 25, have the right
to be detained under conditions and to be treated in a manner that
takes account of his or her age.
(3) For the purpose of this section a child shall mean a
person under the age of 18 years and in all matters concerning such
child his or her best interest shall be paramount.
31 Language and culture
Every person shall have the right to use the language and to
participate in the cultural life of his or her choice.
32 Education
Every person shall have the right-
(a) to basic education and to equal access to
educational institutions;
(b) to instruction in the language of his or her choice
where this is reasonably practicable; and
(c) to establish, where practicable, educational
institutions based on a common culture, language or religion,
provided that there shall be no discrimination on the ground of
race.
33 Limitation
(1) The rights entrenched in this Chapter may be limited by
law of general application, provided that such limitation-
(a) shall be permissible only to the extent that it is-
(i) reasonable; and
(ii) justifiable in an open and democratic society
based on freedom and equality; and
(b) shall not negate the essential content of the right
in question,
and provided further that any limitation to-
(aa) a right entrenched in section 10, 11, 12, 14
(1), 21, 25 or 30 (1) (d) or (e) or (2); or
(bb) a right entrenched in section 15, 16, 17, 18,
23 or 24, in so far as such right relates to free and fair
political activity,
shall, in addition to being reasonable as required in paragraph (a)
(i), also be necessary.
(2) Save as provided for in subsection (1) or any other
provision of this Constitution, no law, whether a rule of the
common law, customary law or legislation, shall limit any right
entrenched in this Chapter.
(3) The entrenchment of the rights in terms of this Chapter
shall not be construed as denying the existence of any other rights
or freedoms recognised or conferred by common law, customary law or
legislation to the extent that they are not inconsistent with this
Chapter.
(4) This Chapter shall not preclude measures designed to
prohibit unfair discrimination by bodies and persons other than
those bound in terms of section 7 (1).
(5) (a) The provisions of a law in force at the commencement
of this Constitution promoting fair employment practices, orderly
and equitable collective bargaining and the regulation of
industrial action shall remain of full force and effect until
repealed or amended by the legislature.
(b) If a proposed enactment amending or repealing a law
referred to in paragraph (a) deals with a matter in respect of
which the National Manpower Commission, referred to in section 2A
of the Labour Relations Act, 1956 (Act 28 of 1956), or any other
similar body which may replace the Commission, is competent in
terms of a law then in force to consider and make recommendations,
such proposed enactment shall not be introduced in Parliament
unless the said Commission or such other body has been given an
opportunity to consider the proposed enactment and to make
recommendations with regard thereto.
34 State of emergency and suspension
(1) A state of emergency shall be proclaimed prospectively
under an Act of Parliament, and shall be declared only where the
security of the Republic is threatened by war, invasion, general
insurrection or disorder or at a time of national disaster, and if
the declaration of a state of emergency is necessary to restore
peace or order.
(2) The declaration of a state of emergency and any action
taken, including any regulation enacted, in consequence thereof,
shall be of force for a period of not more than 21 days, unless it
is extended for a period of not longer than three months, or
consecutive periods of not longer than three months at a time, by
resolution of the National Assembly adopted by a majority of at
least two-thirds of all its members.
(3) Any superior court shall be competent to enquire into the
validity of a declaration of a state of emergency, any extension
thereof, and any action taken, including any regulation enacted,
under such declaration.
(4) The rights entrenched in this Chapter may be suspended
only in consequence of the declaration of a state of emergency, and
only to the extent necessary to restore peace or order.
(5) Neither any law which provides for the declaration of a
state of emergency, nor any action taken, including any regulation
enacted, in consequence thereof, shall permit or authorise-
(a) the creation of retrospective crimes;
(b) the indemnification of the state or of persons
acting under its authority for unlawful actions during the state of
emergency; or
(c) the suspension of this section, and sections 7, 8
(2), 9, 10, 11 (2), 12, 14, 27 (1) and (2), 30 (1) (d) and (e) and
(2) and 33 (1) and (2).
(6) Where a person is detained under a state of emergency the
detention shall be subject to the following conditions:
(a) An adult family member or friend of the detainee
shall be notified of the detention as soon as is reasonably
possible;
(b) the names of all detainees and a reference to the
measures in terms of which they are being detained shall be
published in the Gazette within five days of their detention;
(c) when rights entrenched in section 11 or 25 have been
suspended-
(i) the detention of a detainee shall, as soon as
it is reasonably possible but not later than 10 days after his or
her detention, be reviewed by a court of law, and the court shall
order the release of the detainee if it is satisfied that the
detention is not necessary to restore peace or order;
(ii) a detainee shall at any stage after the expiry
of a period of 10 days after a review in terms of subparagraph (i)
be entitled to apply to a court of law for a further review of his
or her detention, and the court shall order the release of the
detainee if it is satisfied that the detention is no longer
necessary to restore peace or order;
(d) the detainee shall be entitled to appear before the
court in person, to be represented by legal counsel, and to make
representations against his or her continued detention;
(e) the detainee shall be entitled at all reasonable
times to have access to a legal representative of his or her
choice;
(f) the detainee shall be entitled at all times to have
access to a medical practitioner of his or her choice; and
(g) the state shall for the purpose of a review referred
to in paragraph (c) (i) or (ii) submit written reasons to justify
the detention or further detention of the detainee to the court,
and shall furnish the detainee with such reasons not later than two
days before the review.
(7) If a court of law, having found the grounds for a
detainee's detention unjustified, orders his or her release, such
a person shall not be detained again on the same grounds unless the
state shows good cause to a court of law prior to such
re-detention.
35 Interpretation
(1) In interpreting the provisions of this Chapter a court of
law shall promote the values which underlie an open and democratic
society based on freedom and equality and shall, where applicable,
have regard to public international law applicable to the
protection of the rights entrenched in this Chapter, and may have
regard to comparable foreign case law.
(2) No law which limits any of the rights entrenched in this
Chapter, shall be constitutionally invalid solely by reason of the
fact that the wording used prima facie exceeds the limits imposed
in this Chapter, provided such a law is reasonably capable of a
more restricted interpretation which does not exceed such limits,
in which event such law shall be construed as having a meaning in
accordance with the said more restricted interpretation.
(3) In the interpretation of any law and the application and
development of the common law and customary law, a court shall have
due regard to the spirit, purport and objects of this Chapter.
CHAPTER 4
PARLIAMENT (ss. 36-67)
36 Constitution of Parliament
Parliament shall consist of the National Assembly and the
Senate.
37 Legislative authority of Republic
The legislative authority of the Republic shall, subject to
this Constitution, vest in Parliament, which shall have the power
to make laws for the Republic in accordance with this Constitution.
38 Duration of Parliament
(1) Parliament as constituted in terms of the first election
under this Constitution shall, subject to subsection (2), continue
for five years as from the date of the first sitting of the
National Assembly under this Constitution.
(2) If during the period referred to in subsection (1)
Parliament is dissolved under section 73 (9) or 93 (1) or (3) (c),
the Houses of Parliament as constituted then, shall continue for
the period up to the day immediately preceding the commencement of
polling for the election of the National Assembly held in pursuance
of such dissolution.
(3) Notwithstanding any dissolution of Parliament-
(a) every person who at the date of the dissolution is
a member of the National Assembly or the Senate shall remain a
member thereof;
(b) the National Assembly and the Senate shall remain
competent to perform their functions; and
(c) the President shall be competent to summon
Parliament by proclamation in the Gazette to an extraordinary
sitting for the despatch of urgent business,
during the period for which the Houses of Parliament continue in
terms of subsection (2) after the dissolution.
(4) If Parliament is dissolved and a new Parliament is
constituted as contemplated in section 39, this section shall apply
mutatis mutandis in respect of such new Parliament save that the
new Parliament shall continue for the unexpired part of the period
referred to in subsection (1).
39 Elections
(1) Upon a dissolution of Parliament in terms of section 73
(9) or 93 (1) or (3) (c), the President shall by proclamation in
the Gazette-
(a) call an election of the National Assembly, which
election shall take place within 90 days after the dissolution of
Parliament on a date or dates specified in the proclamation; and
(b) request parties represented in the provincial
legislatures to nominate persons as senators for the respective
provinces in accordance with section 48 (1) (b).
(2) An election referred to in subsection (1) (a) shall be
held in accordance with the Electoral Act, 1993.
The National Assembly (ss. 40-47)
40 Composition of National Assembly
(1) The National Assembly shall consist of 400 members elected
in accordance with the system of proportional representation of
voters as provided for in Schedule 2 and the Electoral Act, 1993.
(2) A person nominated as a candidate for election to the
National Assembly on a regional list contemplated in Schedule 2,
shall, subject to subsection (3), at the time of the nomination be
ordinarily resident in the province in respect of which that
regional list applies.
(3) Notwithstanding subsection (2), a regional list may
contain the names of candidates who are not ordinarily resident in
the province in respect of which that list applies, provided that
no such list shall contain the names of more than one such
candidate or more than 10 per cent of the total number of
candidates the party concerned is entitled to nominate on that
list, whichever is the greater number.
(4) For the purposes of this section, a person shall be deemed
to be ordinarily resident at the place where he or she normally
lives and to which he or she returns regularly after any period of
temporary absence, including the place where he or she was
previously so ordinarily resident and to which he or she returns
regularly after any period of absence.
(5) If a regional list contemplated in subsection (2) contains
more names of candidates not ordinarily resident in the province in
respect of which that list applies than are permissible under that
subsection, the surplus of such names so contained shall be deleted
mutatis mutandis in accordance with section 22 (8) of the Electoral
Act, 1993.
41 Speaker and Deputy Speaker of National Assembly
(1) At its first sitting after it has been convened under
section 46 (2), and after the election of the President, the
National Assembly, with the Chief Justice or a judge of the Supreme
Court designated by him or her acting as the chairperson, shall
elect one of its members to be the Speaker, and shall thereafter
elect another of its members to be the Deputy Speaker.
(2) The provisions of Schedule 5 shall apply mutatis mutandis
to the election of the Speaker and the Deputy Speaker.
(3) The Speaker shall be vested with all powers and functions
assigned to him or her by this Constitution, an Act of Parliament
and the rules and orders.
(4) If the Speaker is absent or for any reason unable to
exercise or perform the powers or functions vested in the office of
Speaker, or when the office of Speaker is vacant, the Deputy
Speaker shall act as Speaker during the Speaker's absence or
inability or until a Speaker is elected.
(5) If any of the circumstances described in subsection (4)
applies with reference to both the Speaker and the Deputy Speaker,
a member of the National Assembly designated in terms of the rules
and orders shall act as Speaker while the said circumstances
prevail.
(6) The Deputy Speaker or the member designated under
subsection (5), while acting as Speaker, may exercise the powers
and shall perform the functions vested in the office of Speaker.
(7) The Speaker, the Deputy Speaker or any other member of the
National Assembly designated for that purpose in terms of the rules
and orders, shall preside over sittings of the National Assembly.
(8) While presiding at a sitting of the National Assembly, the
Speaker, Deputy Speaker or other member presiding shall not have a
deliberative vote, but shall have and exercise a casting vote in
the case of an equality of votes.
(9) The Speaker or Deputy Speaker shall vacate his or her
office if he or she ceases to be a member of the National Assembly,
and may be removed from office by resolution of the National
Assembly, and may resign by lodging his or her resignation in
writing with the Secretary to Parliament.
(10) If the office of Speaker or Deputy Speaker becomes
vacant, the National Assembly, under the chairpersonship of the
Chief Justice or a judge as provided in subsection (1), shall elect
a member to fill the vacancy: Provided that the Speaker shall in
such event preside at the election of the Deputy Speaker.
42 Qualification for membership of National Assembly
(1) No person shall become or remain a member of the National
Assembly unless he or she is a South African citizen and is and
remains qualified in terms of section 6 to vote in an election of
the National Assembly, or if he or she-
(a) at the time of the first election of the National
Assembly held under this Constitution is serving a sentence of
imprisonment of more than 12 months without the option of a fine;
(b) at any time after the promulgation of this
Constitution is convicted of an offence in the Republic, or outside
the Republic if the conduct constituting such offence would have
constituted an offence in the Republic, and for which he or she has
been sentenced to imprisonment of more than 12 months without the
option of a fine, unless he or she has received a pardon;
(c) is an unrehabilitated insolvent;
(d) is of unsound mind and has been so declared by a
competent court; or
(e) holds any office of profit under the Republic:
Provided that the following persons shall be deemed not to hold an
office of profit under the Republic for the purpose of this
paragraph, namely-
(i) an Executive Deputy President, a Minister or a
Deputy Minister;
(ii) a person in receipt of a pension paid from
public funds or from a pension fund aided by public funds;
(iii)a justice of the peace or appraiser; or
(iv) a member of any council, board, committee,
commission or similar body established by or under law or a
committee of the National Assembly who receives remuneration not in
excess of an amount equal to his or her salary as a member of the
National Assembly.
(2) For the purposes of subsection (1) (b) no person shall be
deemed as having been convicted of an offence until any appeal
against the conviction or sentence has been determined, or, if no
appeal against the conviction or sentence has been noted, the time
for noting such an appeal has expired.
43 Vacation of seats
A member of the National Assembly shall vacate his or her seat
if he or she-
(a) ceases to be eligible to be a member of the National
Assembly in terms of section 42;
(b) ceases to be a member of the party which nominated
him or her as a member of the National Assembly;
(c) resigns his or her seat by submitting his or her
resignation in writing to the Secretary to Parliament;
(d) without having obtained leave in accordance with the
rules and orders, absents himself or herself voluntarily from
sittings of the National Assembly or any other parliamentary forum
of which he or she is a member, for 15 consecutive days on which
the National Assembly or any such forum sat; or
(e) becomes a member of the Senate, a provincial
legislature or a local government.
44 Filling of vacancies
(1) If a member of the National Assembly vacates his or her
seat, the vacancy shall be filled by a person nominated in terms of
subsection (2) by the party which nominated the vacating member.
(2) The party entitled in terms of subsection (1) to fill a
vacancy shall nominate a person-
(a) whose name appears on that list of candidates of
that party, compiled in terms of Schedule 2, from which the
vacating member was nominated to the National Assembly; and
(b) who according to the order of preference of the
candidates on such list is the next qualified and available person
entitled in terms of Schedule 2 to represent that party in the
National Assembly.
(3) A nomination in terms of this section shall be submitted
in writing to the Speaker.
45 Oath or affirmation by members of National Assembly
Every member of the National Assembly, before taking his or
her seat, shall 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 member nominated under section 44,
before the Speaker.
46 Sittings of National Assembly
(1) The National Assembly shall sit at the Houses of
Parliament in Cape Town, unless the Speaker, in accordance with the
rules and orders and in consultation with the President of the
Senate, directs otherwise on the grounds of public interest,
security or convenience.
(2) The Chief Justice shall convene the National Assembly
within 10 days after an election of the National Assembly.
(3) The National Assembly shall sit during such periods and on
such days and during such hours as it may determine: Provided that
the President may at any time by proclamation in the Gazette summon
the National Assembly to an extraordinary sitting for the despatch
of urgent business.
47 Quorum
The presence of at least one third or, when a vote is taken on
a Bill, of at least one half of all the members of the National
Assembly, other than the Speaker or other presiding member, shall
be necessary to constitute a meeting of the National Assembly.
The Senate (ss. 48-54)
48 Composition of Senate
(1) The Senate shall be composed of 10 senators for each
province, nominated by the parties represented in a provincial
legislature within 10 days of-
(a) the first sitting of such legislature after an
election of the legislature; or
(b) an election of the National Assembly held in
pursuance of a dissolution of Parliament.
(2) Each party represented in a provincial legislature shall
be entitled to nominate a senator or senators for the relevant
province in accordance with the principle of proportional
representation as determined by the following formula:
(a) The number of senators each party shall be entitled
to nominate, shallsubject to paragraph (b) be determined by
multiplying the number of seats such party holds in the provincial
legislature by 10 and dividing the result by the total number of
seats in the legislature plus one.
(b) If the application of paragraph (a) yields a surplus
not absorbed by the number of senators allocated to that party,
such surplus shall compete with similar surpluses accruing to any
other party or parties, and any undistributed senatorial seat or
seats shall be allocated to the party or parties concerned in
sequence of the highest surplus.
(3) A member of a provincial legislature or local government
nominated as a senator in terms of this section, shall vacate his
or her seat in the provincial legislature or local government upon
his or her acceptance of such nomination.
49 President and Deputy President of Senate
(1) At its first sitting after it has been convened under
section 53 (2), and before proceeding to dispatch any other
business, the Senate, with the Chief Justice or a judge of the
Supreme Court designated by him or her acting as the chairperson,
shall elect one of its members to be the President of the Senate,
and shall thereafter elect another of its members to be the Deputy
President of the Senate.
(2) The provisions of Schedule 5 shall apply mutatis mutandis
to the election of the President and the Deputy President of the
Senate.
(3) The President of the Senate shall be vested with all the
powers and functions assigned to him or her by this Constitution,
an Act of Parliament and the rules and orders.
(4) If the President of the Senate is absent or for any reason
unable to exercise and perform the powers and functions vested in
the office of President of the Senate, or when the office of
President of the Senate is vacant, the Deputy President of the
Senate shall act as President of the Senate during the absence or
inability of the President of the Senate or until a President of
the Senate is elected.
(5) If any of the circumstances described in subsection (4)
applies with reference to both the President and the Deputy
President of the Senate, a senator designated in terms of the rules
and orders shall act as President of the Senate while the said
circumstances prevail.
(6) The Deputy President of the Senate or the senator
designated under subsection (5), while acting as President of the
Senate, may exercise the powers and shall perform the functions
vested in the office of President of the Senate.
(7) The President or Deputy President of the Senate or any
other senator designated for that purpose in terms of the rules and
orders shall preside over sittings of the Senate.
(8) While presiding at a sitting of the Senate, the President
or Deputy President of the Senate or other senator presiding shall
not have a deliberative vote, but shall have and exercise a casting
vote in the case of an equality of votes.
(9) The President or Deputy President of the Senate shall
vacate his or her office if he or she ceases to be a senator, and
may be removed from office by resolution of the Senate, and may
resign by lodging his or her resignation in writing with the
Secretary to Parliament.
(10) If the office of President or Deputy President of the
Senate becomes vacant, the Senate, under the chairpersonship of the
Chief Justice or a judge as provided in subsection (1), shall elect
a member to fill the vacancy: Provided that the President of the
Senate shall in such event preside at the election of the Deputy
President of the Senate.
50 Qualification for membership of Senate
No person shall be qualified to become or remain a senator
unless he or she is or remains qualified to become a member of the
National Assembly.
51 Vacation of seats by senators and filling of vacancies
(1) A senator shall vacate his or her seat if he or she-
(a) ceases to qualify to be a senator in terms of
section 50;
(b) ceases to be a member of the party which nominated
him or her as a senator in terms of section 48;
(c) resigns his or her seat by submitting his or her
resignation in writing to the Secretary to Parliament;
(d) without having obtained leave in accordance with the
rules and orders, absents himself or herself voluntarily from
sittings of the Senate or any other parliamentary forum of which he
or she is a member, for 15 consecutive days on which the Senate or
any such forum sat; or
(e) becomes a member of the National Assembly, a
provincial legislature or a local government.
(2) (a) If a senator vacates his or her seat, the vacancy
shall be filled by a person nominated by the party which nominated
the vacating senator and who is qualified and available to fill the
vacancy.
(b) A nomination in terms of this subsection shall be
submitted in writing to the President of the Senate.
(3) If a provincial legislature is dissolved, the senators
from the province in question shall vacate their seats in the
Senate with effect from the date of the first sitting of such
legislature after the election of such legislature held in
pursuance of such dissolution, whereupon the vacancies shall be
filled in terms of section 48 (1) (a).
52 Oath or affirmation by senators
Every senator, before taking his or her seat, shall 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 senator nominated under section 51 (2), before the
President of the Senate.
53 Sittings of Senate
(1) The Senate shall sit at the Houses of Parliament in Cape
Town, unless the President of the Senate, in accordance with the
rules and orders and in consultation with the Speaker, directs
otherwise on the grounds of public interest, security or
convenience.
(2) The Chief Justice shall after an election of the National
Assembly convene the Senate as soon as is practically possible, but
not later than 30 days after such election.
(3) The Senate shall sit during such periods and on such days
and during such hours as it may determine: Provided that the
President may at any time by proclamation in the Gazette summon the
Senate to an extraordinary sitting for the dispatch of urgent
business.
54 Quorum
The presence of at least one third or, when a vote is taken on
a Bill, of at least one half of all the senators, other than the
President of the Senate or other presiding senator, shall be
necessary to constitute a meeting of the Senate.
The National Assembly and the Senate (ss. 55-67)
55 Powers, privileges and immunities of Parliament and benefits
of members
(1) Parliament shall have full power to control, regulate and
dispose of its internal affairs, and shall have all such other
powers, privileges and immunities as may, subject to this
Constitution, be prescribed by an Act of Parliament.
(2) Subject to the rules and orders there shall be freedom of
speech and debate in or before Parliament and any committee
thereof, and such freedom shall not be impeached or questioned in
any court.
(3) A member of Parliament shall not be liable to any civil or
criminal proceedings, arrest, imprisonment or damages by reason of
anything which he or she has said, produced or submitted in or
before or to Parliament or any committee thereof or by reason of
anything which may have been revealed as a result of what he or she
has said, produced or submitted in or before or to Parliament or
any committee thereof.
(4) There shall be paid out of and as a charge on the National
Revenue Fund to a member of the National Assembly or the Senate
such salary and allowances, and upon his or her retirement, or to
his or her widow or widower upon his or her death, such pension and
pension benefits as may be prescribed by an Act of Parliament.
56 Penalty for sitting or voting when disqualified by law
Any person who in terms of this Constitution is disqualified
to sit as a member of a House and who, while so disqualified and
knowing that he or she is so disqualified, sits or votes as a
member of a House in question, shall be liable to a penalty
determined by the rules and orders for each day on which he or she
so sits or votes, which may be recovered for credit of the National
Revenue Fund by action in a court of law.
57 Joint sittings of Houses
(1) Whenever necessary the National Assembly and the Senate
shall convene in a joint sitting, which shall be presided over by
the Speaker, the President of the Senate or any other member of the
National Assembly or the Senate as may be determined by the rules
and orders.
(2) While presiding at a joint sitting the Speaker, the
President of the Senate or the other member presiding, shall not
have a deliberative vote, but shall have and exercise a casting
vote in the case of an equality of votes.
(3) Without derogating from the power of Parliament to
regulate its business and proceedings, the President of the
Republic may, whenever he or she deems it desirable, request by
message to the Speaker and the President of the Senate that a joint
sitting of the National Assembly and the Senate be convened.
58 Rules and orders
(1) The National Assembly or the Senate may make rules and
orders in connection with the conduct of its business and
proceedings, and the National Assembly and the Senate may make
joint rules and orders in connection with the conduct of their
joint business and proceedings, including rules and orders
regulating-
(a) the establishment, constitution, powers and
functions, procedures and duration of committees of Parliament;
(b) restrictions on access to such committees;
(c) the competency of any such committee to perform or
dispose of its business and proceedings at venues other than the
Houses of Parliament; and
(d) the designation of members of the National Assembly
and the Senate as presiding officers to preside over sittings of
the National Assembly or the Senate or joint sittings of the
National Assembly and the Senate, as the case may be, as and when
the Speaker or the President of the Senate so requires.
(2) For the purposes of exercising its powers and performing
its functions, any committee established under subsection (1) (a)
shall have the power to summon persons to appear before it to give
evidence on oath or affirmation and to produce any documents
required by it, and to receive representations from interested
persons.
59 Ordinary Bills
(1) An ordinary Bill may be introduced in either the National
Assembly or the Senate and shall for its passing by Parliament,
subject to subsection (2), be required to be adopted by each House.
(2) An ordinary Bill passed by one House and rejected by the
other shall be referred to a joint committee consisting of members
of both Houses and of all the parties represented in Parliament and
willing to participate in the joint committee, to consider and
report on any proposed amendments to the Bill, whereafter the Bill
shall be referred to a joint sitting of both Houses, at which it
may be passed with or without amendment by a majority of the total
number of members of both Houses.
(3) All Bills, except the new constitutional text and those
referred to in sections 60 (1), 61 and 62, shall for the purposes
of this Constitution be considered to be ordinary Bills.
60 Money Bills
(1) Bills appropriating revenue or moneys or imposing taxation
shall be introduced in the National Assembly only.
(2) Bills appropriating revenue or moneys for services
provided by the national government shall deal with such
appropriation only.
(3) The National Assembly shall not consider any Bill
appropriating revenue or moneys unless such Bill was initiated by
the Minister responsible for national financial matters, or by any
other Minister acting with the concurrence of the said Minister.
(4) The National Assembly shall not pass a Bill referred to in
subsection (1) unless it has been considered and reported on by a
joint committee of both Houses and, in so far as it may be required
in terms of this Constitution, by the Financial and Fiscal
Commission.
(5) A Bill shall not be deemed to appropriate revenue or
moneys or to impose taxation by reason only of its containing
provisions for the imposition or appropriation of fines or other
pecuniary penalties.
(6) The Senate may not amend any Bill in so far as it
appropriates revenue or moneys or imposes taxation.
(7) If the National Assembly passes a Bill imposing taxation
or dealing with the appropriation of revenue or moneys and the
Senate rejects it or proposes amendments to it or fails to pass it
within 30 days after it has been passed by the National Assembly,
the Bill shall be referred back to the National Assembly for
reconsideration.
(8) The National Assembly may pass a Bill referred to in
subsection (7), with or without amendment, and if passed by the
National Assembly such Bill shall be deemed to have been passed by
Parliament.
61 Bills affecting certain provincial matters
Bills affecting the boundaries or the exercise or performance
of the powers and functions of the provinces shall be deemed not to
be passed by Parliament unless passed separately by both Houses
and, in the case of a Bill, other than a Bill referred to in
section 62, affecting the boundaries or the exercise or performance
of the powers or functions of a particular province or provinces
only, unless also approved by a majority of the senators of the
province or provinces in question in the Senate.
62 Bills amending Constitution
(1) Subject to subsection (2) and section 74, a Bill amending
this Constitution shall, for its passing by Parliament, be required
to be 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.
(2) No amendment of sections 126 and 144 shall be of any force
and effect unless passed separately by both Houses by a majority of
at least two-thirds of all the members in each House: Provided that
the boundaries and legislative and executive competences of a
province shall not be amended without the consent of a relevant
provincial legislature.
63 Requisite majorities
Save where otherwise required in this Constitution, all
questions before the National Assembly or the Senate or before the
National Assembly and the Senate in a joint sitting, shall be
determined by a majority of votes cast.
64 Assent to Bills
(1) A Bill duly passed by Parliament in accordance with this
Constitution shall be assented to by the President subject to
section 82 (1) (b).
(2) A Bill referred to in subsection (1) to which the
President has assented and a copy of which he or she has signed,
shall upon its promulgation be an Act of Parliament.
65 Signature and enrolment of Acts
(1) An Act of Parliament referred to in section 64 (2) shall
be enrolled of record in the office of the Registrar of the
Appellate Division of the Supreme Court in such official South
African languages as may be required in terms of section 3, and
copies of the Act so enrolled shall be conclusive evidence of the
provisions of the Act.
(2) In the case of a conflict between copies of an Act
enrolled in terms of subsection (1), the copy signed by the
President shall prevail.
(3) The public shall have the right of access to copies of an
Act so enrolled, subject to such laws as may be passed by
Parliament to protect the safety and durability of the said copies
and with due regard to the convenience of the Registrar's staff.
66 Rights and duties of President, Executive Deputy Presidents,
Ministers and Deputy Ministers in Houses
The President, an Executive Deputy President, a Minister and
a Deputy Minister shall be entitled to sit and to speak in any
House and at a joint sitting of the Houses, but may not vote in the
House of which he or she is not a member.
67 Public access to Parliament
Sittings of the National Assembly or the Senate and joint
sittings of the National Assembly and the Senate shall be held in
public, and the public, including the media, shall have access to
such sittings: Provided that reasonable measures may be taken to
regulate such access and to provide for the search and, where
appropriate, the refusal of entry or the removal of any person.
CHAPTER 5
THE ADOPTION OF THE NEW CONSTITUTION (ss. 68-74)
68 Constitution-making Body
(1) The National Assembly and the Senate, sitting jointly for
the purposes of this Chapter, shall be the Constitutional Assembly.
(2) The Constitutional Assembly shall draft and adopt a new
constitutional text in accordance with this Chapter.
(3) (a) The first sitting of the Constitutional Assembly shall
be convened by the President of the Senate not later than seven
days as from the first sitting of the Senate under this Constitu
tion.
(b) Any subsequent sittings of the Constitutional Assembly
shall be convened by the Chairperson of the Constitutional Assembly
after consultation with the Speaker and the President of the
Senate.
(4) Subject to the rules and orders contemplated in section 70
and save where clearly inappropriate, sections 55 and 56 and the
provisions of this Constitution with regard to joint sittings of
the National Assembly and the Senate shall apply mutatis mutandis
in respect of the Constitutional Assembly.
69 Chairperson and Deputy Chairperson
(1) At its first sitting and before proceeding to dispatch any
other business, the Constitutional Assembly, with the President of
the Senate presiding, shall elect one of the members of the
Constitutional Assembly to be the Chairperson and another of its
members to be the Deputy Chairperson of the Constitutional
Assembly.
(2) The provisions of Schedule 5 shall apply mutatis mutandis
in respect of the election of the Chairperson and the Deputy
Chairperson of the Constitutional Assembly.
(3) The Chairperson shall be vested with all powers and
functions assigned to him or her under this Constitution, an Act of
Parliament and the rules and orders.
(4) Section 49 (4) to (10) shall apply mutatis mutandis in
respect of the Chairperson and Deputy Chairperson of the
Constitutional Assembly, and in any such application references in
the said sections to the Senate and a senator shall be construed as
references to the Constitutional Assembly and a member of the
Constitutional Assembly, respectively.
70 Rules and orders
(1) The Constitutional Assembly may make rules and orders in
connection with the conduct of its business and proceedings.
(2) The provisions of section 58 shall apply mutatis mutandis
in respect of the Constitutional Assembly.
71 Constitutional Principles and certification
(1) A new constitutional text shall-
(a) comply with the Constitutional Principles contained
in Schedule 4; and
(b) be passed by the Constitutional Assembly in
accordance with this Chapter.
(2) The new constitutional text passed by the Constitutional
Assembly, or any provision thereof, shall not be of any force and
effect unless the Constitutional Court has certified that all the
provisions of such text comply with the Constitutional Principles
referred to in subsection (1) (a).
(3) A decision of the Constitutional Court in terms of
subsection (2) certifying that the provisions of the new
constitutional text comply with the Constitutional Principles,
shall be final and binding, and no court of law shall have
jurisdiction to enquire into or pronounce upon the validity of such
text or any provision thereof.
(4) During the course of the proceedings of the Constitutional
Assembly any proposed draft of the constitutional text before the
Constitutional Assembly, or any part or provision of such text,
shall be referred to the Constitutional Court by the Chairperson if
petitioned to do so by at least one fifth of all the members of the
Constitutional Assembly, in order to obtain an opinion from the
Court as to whether such proposed text, or part or provision
thereof, would, if passed by the Constitutional Assembly, comply
with the Constitutional Principles.
72 Appointment of commissions, committees and bodies
(1) The Constitutional Assembly shall, in addition to
appointing committees of its members, be competent to appoint any
commissions, technical committees and other advisory bodies to
assist it in the performance of its functions.
(2) The Constitutional Assembly shall, subject to subsection
(3), appoint an independent panel of five South African citizens
being recognised constitutional experts, not being members of
Parliament or any other legislature and not holding office in any
political party, to advise it, or the Chairperson, on matters
pertaining to its functions, and to perform such other tasks as are
provided for in this Constitution.
(3) A majority of at least two-thirds of all the members of
the Constitutional Assembly shall be required for the appointment
of the panel of constitutional experts, and, in the event of such
majority not being achieved, a panel of constitutional experts
complying with the requirements mentioned in subsection (2) and
consisting of a nominee of each party which holds at least 40 seats
in the Constitutional Assembly and wishes to make such a
nomination, shall be appointed.
73 Adoption of new constitutional text
(1) The Constitutional Assembly shall pass the new constitu
tional text within two years as from the date of the first sitting
of the National Assembly under this Constitution.
(2) For the passing of the new constitutional text by the
Constitutional Assembly, a majority of at least two-thirds of all
the members of the Constitutional Assembly shall be required:
Provided that provisions of such text relating to the boundaries,
powers and functions of provinces shall not be considered passed by
the Constitutional Assembly unless approved also by a majority of
two-thirds of all the members of the Senate.
(3) If the Constitutional Assembly fails to pass a proposed
draft of the new constitutional text in accordance with subsection
(2), but such draft is supported by a majority of all its members,
such proposed draft shall be referred by the Chairperson to the
panel of constitutional experts referred to in section 72 (2) for
its advice, to be given within 30 days of such referral, on
amendments to the proposed draft, within the framework of the
Constitutional Principles, which might secure the support required
in terms of subsection (2).
(4) An amended draft text unanimously recommended by the panel
of constitutional experts and submitted to the Constitutional
Assembly within the said period of 30 days, shall be considered by
the Constitutional Assembly, and if passed in accordance with
subsection (2), it shall become the Constitution of the Republic of
South Africa.
(5) Should the panel of constitutional experts fail to submit
within the said period of 30 days to the Constitutional Assembly an
amended draft text which is unanimously recommended by the panel,
or should such an amended draft text not be passed by the
Constitutional Assembly in accordance with subsection (2), any
proposed draft text before the Constitutional Assembly may be
approved by it by resolution of a majority of its members for the
purposes of subsection (6).
(6) A text approved under subsection (5) shall, after it has
been certified by the Constitutional Court in terms of section 71
(2), be referred by the President for a decision by the electorate
by way of a national referendum.
(7) The question put before the electorate in the referendum
shall be the acceptance or rejection of the text approved under
subsection (5).
(8) The text presented to the electorate in the referendum
shall, if approved by a majority of at least 60 per cent of the
votes cast in the referendum and subject to subsection (13), become
the Constitution of the Republic of South Africa.
(9) If the relevant text is not approved in the referendum in
accordance with subsection (8), or if a new constitutional text is
not passed in terms of this Chapter within the period of two years
referred to in subsection (1), the President shall dissolve
Parliament by proclamation in the Gazette within 14 days after the
referendum or the expiry of the said period, whereupon an election
contemplated in section 39 (1) (a) shall be held.
(10) The Constitutional Assembly as constituted after such an
election, shall pass the new constitutional text within a period of
one year as from the date of its first sitting after such election.
(11) For the passing of the new constitutional text referred
to in subsection (10) by the Constitutional Assembly, a majority of
at least 60 per cent of all the members of the Constitutional
Assembly shall be required: Provided that provisions of such text
relating to the boundaries, powers and functions of provinces shall
not be considered passed by the Constitutional Assembly unless
approved also by a majority of at least 60 per cent of all the
members of the Senate.
(12) The provisions of subsections (3) to (9) of this section
and the other sections of this Chapter shall apply mutatis mutandis
in respect of the Constitutional Assembly referred to in subsection
(10) of this section.
(13) A new constitutional text adopted in terms of this
Chapter shall be assented to by the President and shall upon its
promulgation be the Constitution of the Republic of South Africa.
74 Amendments relating to this Chapter and Schedule 4
(1) No amendment or repeal of-
(a) this section or the Constitutional Principles set
out in Schedule 4; or
(b) any other provision of this Chapter in so far as it
relates to-
(i) the Constitutional Principles; or
(ii) the requirement that the new constitutional
text shall comply with the Constitutional Principles, or that such
text shall be certified by the Constitutional Court as being in
compliance therewith,
shall be permissible.
(2) The other provisions of this Chapter may be amended by the
Constitutional Assembly by resolution of a majority of at least
two-thirds of all its members.
CHAPTER 6
THE NATIONAL EXECUTIVE (ss. 75-95)
75 Executive authority of the Republic
The executive authority of the Republic with regard to all
matters falling within the legislative competence of Parliament
shall vest in the President, who shall exercise and perform his or
her powers and functions subject to and in accordance with this
Constitution.
76 Head of State
The President shall be the Head of State.
77 Election of President
(1) (a) The National Assembly shall at its first sitting after
it has been convened in terms of section 46 (2) elect one of its
members as the President.
(b) The National Assembly and the Senate shall thereafter, as
often as it again becomes necessary to elect a President, elect at
a joint sitting one of the members of the National Assembly as the
President.
(2) (a) The Chief Justice, or a judge of the Supreme Court
designated by the Chief Justice for this purpose, shall preside
over any sitting at which an election referred to in subsection (1)
takes place.
(b) An election referred to in subsection (1) shall be
conducted in accordance with Schedule 5.
(3) The election of a President in terms of subsection (1) (b)
shall take place at a time and on a date fixed by the Chief
Justice: Provided that-
(a) if such an election of a President is occasioned by
reason of a dissolution of Parliament, it shall take place within
10 days after the Senate was convened after the election of the
National Assembly held in pursuance of such dissolution; or
(b) if such an election of a President is occasioned by
reason of a vacancy in the office of President, it shall take place
within 30 days after the vacancy arose.
(4) On being elected, the President shall vacate his or her
seat in the National Assembly.
(5) During the period in which the President continues in
office in terms of section 80 (1) (b), he or she shall for the
purposes of section 42 (1)(e) be deemed not to hold an office of
profit under the Republic.
78 Oath or affirmation
The President-elect shall, before formally assuming office,
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.
79 Remuneration of President
There shall be paid to the President out of and as a charge on
the National Revenue Fund and apart from any privilege which he or
she may enjoy, such remuneration and allowances, and upon his or
her retirement, or to his or her widow or widower on his or her
death, such pension and pension benefits, as may be determined from
time to time by resolution of Parliament.
80 Tenure of office of President
(1) The President elected in terms of section 77 (1) (a)
shall, subject to sections 87 and 93 (2), hold office-
(a) for the period terminating on a date five years as
from the date of the first sitting of the National Assembly under
this Constitution; or
(b) if Parliament is dissolved during such period, for
the period until a President has been elected in terms of section
77 (1) (b) after such dissolution and has assumed office.
(2) A President elected in terms of section 77 (1) (b) shall,
subject to subsection (1) (b) of this section and sections 87 and
93 (2), hold office for the unexpired part of the period referred
to in subsection (1) (a) of this section.
81 Responsibilities of President
(1) The President shall be responsible for the observance of
the provisions of this Constitution by the executive and shall as
head of state defend and uphold the Constitution as the supreme law
of the land.
(2) The President shall with dignity provide executive
leadership in the interest of national unity in accordance with
this Constitution and the law of the Republic.
(3) The President shall not hold any other public office and
shall not perform remunerative work outside the duties of his or
her office.
82 Powers and functions of President
(1) The President shall be competent to exercise and perform
the following powers and functions, namely-
(a) to assent to, sign and promulgate Bills duly passed
by Parliament;
(b) in the event of a procedural shortcoming in the
legislative process, to refer a Bill passed by Parliament back for
further consideration by Parliament;
(c) to convene meetings of the Cabinet;
(d) to refer disputes of a constitutional nature between
parties represented in Parliament or between organs of state at any
level of government to the Constitutional Court or other
appropriate institution, commission or body for resolution;
(e) to confer honours;
(f) to appoint, accredit, receive and recognise
ambassadors, plenipotentiaries, diplomatic representatives and
other diplomatic officers, consuls and consular officers;
(g) to appoint commissions of enquiry;
(h) to make such appointments as may be necessary under
powers conferred upon him or her by this Constitution or any other
law;
(i) to negotiate and sign international agreements;
(j) to proclaim referenda and plebiscites in terms of
this Constitution or an Act of Parliament; and
(k) to pardon or reprieve offenders, either uncondition
ally or subject to such conditions as he or she may deem fit, and
to remit any fines, penalties or forfeitures.
(2) The President shall consult the Executive Deputy
Presidents-
(a) in the development and execution of the policies of
the national government;
(b) in all matters relating to the management of the
Cabinet and the performance of Cabinet business;
(c) in the assignment and allocation of functions
contemplated in section 84 (5) to an Executive Deputy President;
(d) regarding appointments under subsection (1) (f); and
(e) before exercising any of the competences referred to
in subsection (1) (g) to (k).
(3) The President shall exercise and perform all powers and
functions assigned to him or her by this Constitution or any other
law, except those specified in subsections (1) and (2) or where
otherwise expressly or by implication provided in this Constitu
tion, in consultation with the Cabinet: Provided that the Cabinet
may delegate its consultation function in terms of this subsection,
with reference to any particular power or function of the
President, to any Minister or Ministers.
(4) (a) The President shall be the Commander-in-Chief of the
National Defence Force.
(b) The President may-
(i) with the approval of Parliament, declare a state of
national defence;
(ii) employ the National Defence Force in accordance with
and subject to sections 227 and 228; and
(iii) confer upon members of the National Defence
Force permanent commissions and cancel such commissions.
83 Confirmation of executive acts of President
(1) Decisions of the President taken in terms of section 82
shall be expressed in writing under his or her signature.
(2) Any instrument signed by the President in the exercise or
performance of a power or function referred to in section 82 (3)
shall be countersigned by a Minister.
(3) The signature of the President on any instrument shall be
confirmed by the seal of the Republic.
84 Executive Deputy Presidents
(1) Every party holding at least 80 seats in the National
Assembly shall be entitled to designate an Executive Deputy
President from among the members of the National Assembly.
(2) Should no party or only one party hold 80 or more seats in
the National Assembly, the party holding the largest number of
seats and the party holding the second largest number of seats
shall each be entitled to designate one Executive Deputy President
from among the members of the National Assembly.
(3) On being designated as such, an Executive Deputy President
may elect to vacate or not to vacate his or her seat in the
National Assembly.
(4) Section 81 shall apply mutatis mutandis to an Executive
Deputy President.
(5) An Executive Deputy President may exercise the powers and
shall perform the functions vested in the office of Executive
Deputy President by this Constitution or assigned to him or her by
the President.
(6) An Executive Deputy President shall, before formally
assuming office, 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.
85 Tenure of office of Executive Deputy Presidents and filling of
vacancies
(1) An Executive Deputy President shall, subject to section
87, hold office-
(a) for the period terminating on a date five years as
from the date of the first sitting of the National Assembly under
this Constitution, unless he or she is before the expiry of such
period replaced as Executive Deputy President by the party which
designated him or her; or
(b) if Parliament is dissolved during such period, for
the period until a President has been elected in terms of section
77 (1) (b) after such dissolution and has assumed office.
(2) If an Executive Deputy President vacates his or her
office, section 84 (1) or (2) shall apply mutatis mutandis in
respect of the filling of the vacancy.
(3) An Executive Deputy President designated to fill a vacancy
shall, subject to subsection (1) (b) of this section and section
87, hold office for the unexpired part of the period referred to in
subsection (1) (a) of this section.
86 Acting President
(1) The President shall appoint one of the Executive Deputy
Presidents, or if no Executive Deputy President is available, a
Minister, to act as President during his or her absence or
temporary incapacity.
(2) In designating an Acting President under subsection (1),
the President shall take into consideration the exigencies of
government and the spirit underlying the concept of a government of
national unity.
(3) Should it be necessary that an Acting President be
appointed and the President is absent or unable to make such an
appointment, or if the office of President is vacant, the other
members of the Cabinet shall make such appointment, taking into
consideration the exigencies of government and the spirit
underlying the concept of a government of national unity.
(4) An Acting President shall while acting as President have
all the powers and functions vested in the office of President.
87 Removal from office of President or Executive Deputy President
The President or an Executive Deputy President shall cease to
hold office on a 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 the Houses and
impeaching the President or such Executive Deputy President on the
ground of a serious violation of this Constitution or the other
laws of the Republic, or of misconduct or inability rendering him
or her unfit to exercise and perform his or her powers and
functions in accordance with section 81 or 84 (4), as the case may
be.
88 Cabinet
(1) The Cabinet shall consist of the President, the Executive
Deputy Presidents and not more than 27 Ministers appointed by the
President in accordance with this section.
(2) A party holding at least 20 seats in the National Assembly
and which has decided to participate in the government of national
unity, shall be entitled to be allocated one or more of the Cabinet
portfolios in proportion to the number of seats held by it in the
National Assembly relative to the number of seats held by the other
participating parties.
(3) Cabinet portfolios shall for the purposes of subsection
(2) be allocated to the respective participating parties in
accordance with the following formula:
(a) A quota of seats per portfolio shall be determined
by dividing the total number of seats in the National Assembly held
jointly by the participating parties by the number of portfolios
plus one.
(b) The result, disregarding third and subsequent
decimals, if any, shall be the quota of seats per portfolio.
(c) The number of portfolios to be allocated to a
participating party shall be determined by dividing the total
number of seats held by such party in the National Assembly by the
quota referred to in paragraph (b).
(d) The result shall, subject to paragraph (e), indicate
the number of portfolios to be allocated to such party.
(e) Where the application of the above formula yields a
surplus not absorbed by the number of portfolios allocated to a
party, such surplus shall compete with other similar surpluses
accruing to another party or parties, and any portfolio or
portfolios which remain unallocated shall be allocated to the party
or parties concerned in sequence of the highest surplus.
(4) The President shall after consultation with the Executive
Deputy Presidents and the leaders of the participating parties-
(a) determine the specific portfolios to be allocated to
the respective participating parties in accordance with the number
of portfolios allocated to them in terms of subsection (3);
(b) appoint in respect of each such portfolio a member
of Parliament who is a member of the party to which that portfolio
was allocated under paragraph (a), as the Minister responsible for
that portfolio;
(c) if it becomes necessary for the purposes of this
Constitution or in the interest of good government, vary any
determination under paragraph (a) subject to subsection (3);
(d) terminate any appointment under paragraph (b)-
(i) if he or she is requested to do so by the
leader of the party of which the Minister in question is a member;
or
(ii) if it becomes necessary for the purposes of
this Constitution or in the interest of good government; or
(e) fill, when necessary, subject to paragraph (b), a
vacancy in the office of Minister.
(5) Subsection (4) shall be implemented in the spirit
underlying the concept of a government of national unity, and the
President and the other functionaries concerned shall in the
implementation of that subsection endeavour to achieve consensus at
all times: Provided that if consensus cannot be achieved on-
(a) the exercise of a power referred to in paragraph
(a), (c) or (d) (ii) of that subsection, the President's decision
shall prevail;
(b) the exercise of a power referred to in paragraph
(b), (d) (i) or (e) of that subsection affecting a person who is
not a member of the President's party, the decision of the leader
of the party of which such person is a member shall prevail; and
(c) the exercise of a power referred to in paragraph (b)
or (e) of that subsection affecting a person who is a member of the
President's party, the President's decision shall prevail.
(6) If any determination of portfolio allocations is varied
under subsection (4) (c), the affected Ministers shall vacate their
portfolios but shall be eligible, where applicable, for
re-appointment to other portfolios allocated to their respective
parties in terms of the varied determination.
(7) A Minister shall, before formally assuming office, 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.
(8) No member of the Cabinet may take up any other paid
employment, engage in activities inconsistent with his or her
membership of the Cabinet, or expose himself or herself to any
situation which carries with it the risk of a conflict between his
or her responsibilities as a member of the Cabinet and his or her
private interests.
(9) No member of the Cabinet shall use his or her position as
such, or directly or indirectly use information entrusted
confidentially to him or her in such capacity, to enrich himself or
herself or any other person.
(10) There shall be paid out of and as a charge on the
National Revenue Fund to an Executive Deputy President or a
Minister such remuneration and allowances, and upon his or her
retirement, or to his or her widow or widower upon his or her
death, such pension and pension benefits, as may be prescribed by
an Act of Parliament.
89 Cabinet procedure
(1) Meetings of the Cabinet shall be presided over by the
President, or, if the President so instructs, by an Executive
Deputy President: Provided that the Executive Deputy Presidents
shall preside over meetings of the Cabinet in turn unless the
exigencies of government and the spirit underlying the concept of
a government of national unity otherwise dictate.
(2) The Cabinet shall function in a manner which gives
consideration to the consensus-seeking spirit underlying the
concept of a government of national unity as well as the need for
effective government.
(3) Where an Executive Deputy President presides over a
meeting of the Cabinet otherwise than in the capacity of Acting
President, a decision in the Cabinet on any matter shall be
submitted to the President before its implementation and shall upon
its ratification by the President be deemed to be a decision taken
in consultation with the Cabinet in accordance with section 82 (3).
90 Temporary assignment of Minister's powers and functions to
another Minister
Whenever a Minister is absent or for any reason unable to
exercise and perform any of the powers and functions assigned to
him or her, or whenever a Minister has vacated his or her office
and a successor has not yet been appointed, the President may
appoint any other Minister to act in the said Minister's stead,
either generally or in the exercise or performance of any specific
power or function.
91 Transfer of Minister's powers and functions to another
Minister
(1) The President may assign the administration of a law which
is entrusted to any particular Minister or which entrusts to any
particular Minister any power or function, to any other Minister.
(2) Any reference in such a law to a particular Minister as
the Minister to whom the administration of such law is entrusted,
shall upon the assignment under subsection (1) of its
administration to another Minister, be construed as a reference to
the latter.
92 Accountability of Ministers and Cabinet
(1) A Minister shall be accountable individually both to the
President and to Parliament for the administration of the portfolio
entrusted to him or her, and all members of the Cabinet shall
correspondingly be accountable collectively for the performance of
the functions of the national government and for its policies.
(2) A Minister shall administer his or her portfolio in
accordance with the policy determined by the Cabinet.
(3) If a Minister fails to administer his or her portfolio in
accordance with the policy of the Cabinet, the President may
require the Minister concerned to bring the administration of the
portfolio into conformity with such policy.
(4) If the Minister concerned fails to comply with a
requirement of the President under subsection (3), the President
may, after consultation with the Minister and, if the Minister is
not a member of the President's party, or is not the leader of a
participating party, also after consultation with the leader of
such Minister's party, remove the Minister from office.
93 Votes of no confidence
(1) If Parliament passes a vote of no confidence in the
Cabinet, including the President, the President shall, unless he or
she resigns, dissolve Parliament and call an election in accordance
with section 39.
(2) If Parliament passes a vote of no confidence in the
President, but not in the other members of the Cabinet, the
President shall resign.
(3) If Parliament passes a vote of no confidence in the
Cabinet, excluding the President, the President may-
(a) resign;
(b) reconstitute the Cabinet in accordance with section
88 (4); or
(c) dissolve Parliament and call an election in
accordance with section 39.
(4) The President shall where required, or where he or she
elects, to do so in terms of this section, dissolve Parliament by
proclamation in the Gazette within 14 days of the relevant vote of
no confidence.
94 Appointment of Deputy Ministers
(1) The President may, after consultation with the Executive
Deputy Presidents and the leaders of the parties serving in the
Cabinet, establish deputy ministerial posts.
(2) A party shall be entitled to be allocated one or more of
the deputy ministerial posts in the same proportion and according
to the same formula as that in which the portfolios in the Cabinet
are allocated to it.
(3) The provisions of section 88 (4) to (10) shall apply
mutatis mutandis in respect of Deputy Ministers, and in such
application a reference to-
(a) a Minister or portfolio shall be construed as a
reference to a Deputy Minister and a deputy ministerial post,
respectively; and
(b) subsection (3) of section 88 shall be construed as
a reference to subsection (2) of this section.
(4) If a person is appointed as the Deputy Minister of any
portfolio entrusted to a Minister-
(a) such Deputy Minister shall exercise and perform on
behalf of the relevant Minister any of the powers and functions
assigned to such Minister in terms of any law or otherwise which
may, subject to the directions of the President, be assigned to him
or her by such Minister; and
(b) any reference in any law to such a Minister shall be
construed as including a reference to the Deputy Minister acting in
pursuance of an assignment under paragraph (a) by the Minister for
whom he or she acts.
(5) Whenever a Deputy Minister is absent or for any reason
unable to exercise or perform any of the powers or functions of his
or her office, the President may appoint any other Deputy Minister
or any other person to act in the said Deputy Minister's stead,
either generally or in the exercise or performance of any specific
power or function.
95 Composition and functioning of Cabinet in event of non-par-
ticipation by parties
(1) If every party entitled to designate an Executive Deputy
President, other than the President's party, fails to do so, the
Executive Deputy President of the President's party shall exercise
and perform the powers and functions of the Executive Deputy
Presidents.
(2) If any party entitled to Cabinet portfolios declines to
serve in the Cabinet, such party shall be disregarded in the
determination of portfolio allocations in terms of section 88.
(3) If all parties entitled to Cabinet portfolios, other than
the President's party, decline to serve in the Cabinet,
appointments to the Cabinet shall be made at the discretion of the
President.
CHAPTER 7
THE JUDICIAL AUTHORITY AND THE ADMINISTRATION OF JUSTICE (ss.
96-109)
96 Judicial authority
(1) The judicial authority of the Republic shall vest in the
courts established by this Constitution and any other law.
(2) The judiciary shall be independent, impartial and subject
only to this Constitution and the law.
(3) No person and no organ of state shall interfere with
judicial officers in the performance of their functions.
97 Appointment of Chief Justice and President of Constitutional
Court
(1) There shall be a Chief Justice of the Supreme Court of
South Africa, who shall, subject to section 104, be appointed by
the President in consultation with the Cabinet and after
consultation with the Judicial Service Commission.
(2) (a) There shall be a President of the Constitutional
Court, who shall, subject to section 99, be appointed by the
President in consultation with the Cabinet and after consultation
with the Chief Justice.
(b) Unless the new constitutional text provides otherwise, the
President of the Constitutional Court shall hold office for a
non-renewable period of seven years.
98 Constitutional Court and its jurisdiction
(1) There shall be a Constitutional Court consisting of a
President and 10 other judges appointed in terms of section 99.
(2) The Constitutional Court shall have jurisdiction in the
Republic as the court of final instance over all matters relating
to the interpretation, protection and enforcement of the provisions
of this Constitution, including-
(a) any alleged violation or threatened violation of any
fundamental right entrenched in Chapter 3;
(b) any dispute over the constitutionality of any
executive or administrative act or conduct or threatened executive
or administrative act or conduct of any organ of state;
(c) any inquiry into the constitutionality of any law,
including an Act of Parliament, irrespective of whether such law
was passed or made before or after the commencement of this
Constitution;
(d) any dispute over the constitutionality of any Bill
before Parliament or a provincial legislature, subject to
subsection (9);
(e) any dispute of a constitutional nature between
organs of state at any level of government;
(f) the determination of questions whether any matter
falls within its jurisdiction; and
(g) the determination of any other matters as may be
entrusted to it by this Constitution or any other law.
(3) The Constitutional Court shall be the only court having
jurisdiction over a matter referred to in subsection (2), save
where otherwise provided in section 101 (3) and (6).
(4) A decision of the Constitutional Court shall bind all
persons and all legislative, executive and judicial organs of
state.
(5) In the event of the Constitutional Court finding that any
law or any provision thereof is inconsistent with this Constitu
tion, it shall declare such law or provision invalid to the extent
of its inconsistency: Provided that the Constitutional Court may,
in the interests of justice and good government, require Parliament
or any other competent authority, within a period specified by the
Court, to correct the defect in the law or provision, which shall
then remain in force pending correction or the expiry of the period
so specified.
(6) Unless the Constitutional Court in the interests of
justice and good government orders otherwise, and save to the
extent that it so orders, the declaration of invalidity of a law or
a provision thereof-
(a) existing at the commencement of this Constitution,
shall not invalidate anything done or permitted in terms thereof
before the coming into effect of such declaration of invalidity; or
(b) passed after such commencement, shall invalidate
everything done or permitted in terms thereof.
(7) In the event of the Constitutional Court declaring an
executive or administrative act or conduct or threatened executive
or administrative act or conduct of an organ of state to be
unconstitutional, it may order the relevant organ of state to
refrain from such act or conduct, or, subject to such conditions
and within such time as may be specified by it, to correct such act
or conduct in accordance with this Constitution.
(8) The Constitutional Court may in respect of the proceedings
before it make such order as to costs as it may deem just and
equitable in the circumstances.
(9) The Constitutional Court shall exercise jurisdiction in
any dispute referred to in subsection (2) (d) only at the request
of the Speaker of the National Assembly, the President of the
Senate or the Speaker of a provincial legislature, who shall make
such a request to the Court upon receipt of a petition by at least
one-third of all the members of the National Assembly, the Senate
or such provincial legislature, as the case may be, requiring him
or her to do so.
99 Composition of Constitutional Court and appointment of judges
of Constitutional Court
(1) Unless the new constitutional text provides otherwise, the
judges of the Constitutional Court shall be appointed by the
President for a non-renewable period of seven years.
(2) No person shall be qualified to be appointed President or
a judge of the Constitutional Court unless he or she-
(a) is a South African citizen; and
(b) is a fit and proper person to be a judge of the
Constitutional Court; and
(c) (i) is a judge of the Supreme Court or is qualified
to be admitted as an advocate or attorney and has, for a cumulative
period of at least 10 years after having so qualified, practised as
an advocate or an attorney or lectured in law at a university; or
(ii) is a person who, by reason of his or her
training and experience, has expertise in the field of constitu
tional law relevant to the application of this Constitution and the
law of the Republic.
(3) Four judges of the Constitutional Court shall be appointed
from among the judges of the Supreme Court by the President in
consultation with the Cabinet and with the Chief Justice.
(4) Subject to subsection (5), six judges of the Constitu
tional Court shall be appointed by the President in consultation
with the Cabinet and after consultation with the President of the
Constitutional Court: Provided that not more than two persons may
be appointed from the category of persons referred to in subsection
(2) (c) (ii).
(5) (a) Subject to subsection (6), an appointment or
appointments under section 97 (2) or subsection (4) or (7) of this
section shall only be made from the recommendations of the Judicial
Service Commission, and with due regard to its reasons for such
recommendations, of not more than three nominees in excess of the
number of persons required to be appointed: Provided that in
respect of the first appointment after the commencement of this
Constitution of the six judges referred to in subsection (4), the
Judicial Service Commission shall submit a list of ten nominees.
(b) If the appointing authorities decide not to accept any or
some of such recommendations, the Judicial Service Commission shall
be informed thereof and be furnished with the reasons therefor.
(c) After having been informed in terms of paragraph (b), the
Judicial Service Commission shall, in accordance with paragraph
(a), submit further recommendations, whereafter the appointing
authorities shall make the appointment or appointments from the
recommendations as supplemented in terms of this paragraph.
(d) In submitting its recommendations to the appointing
authorities in terms of paragraphs (a) and (c) the Judicial Service
Commission shall have regard to the need to constitute a court
which is independent and competent and representative in respect of
race and gender.
(6) Subsection (5) shall not apply to the first appointment
after the commencement of this Constitution of the President of the
Constitutional Court under section 97 (2).
(7) Vacancies in the Constitutional Court shall be filled-
(a) in the case of a vacancy in the office of a judge
appointed under subsection (3), in accordance with that subsection;
and
(b) in the case of a vacancy in the office of a judge
appointed under subsection (4), in accordance with that subsection.
100 Engaging the Constitutional Court
(1) The conditions upon which the Constitutional Court may be
seized of any matter within its jurisdiction, and all matters
relating to the proceedings of and before the Court, shall be
regulated by rules prescribed by the President of the Constitu
tional Court in consultation with the Chief Justice, which rules
shall be published in the Gazette.
(2) The rules of the Constitutional Court may make provision
for direct access to the Court where it is in the interest of
justice to do so in respect of any matter over which it has
jurisdiction.
101 Supreme Court
(1) There shall be a Supreme Court of South Africa, which
shall consist of an Appellate Division and such provincial and
local divisions, and with such areas of jurisdiction, as may be
prescribed by law.
(2) Subject to this Constitution, the Supreme Court shall have
the jurisdiction, including the inherent jurisdiction, vested in
the Supreme Court immediately before the commencement of this
Constitution, and any further jurisdiction conferred upon it by
this Constitution or by any law.
(3) Subject to this Constitution, a provincial or local
division of the Supreme Court shall, within its area of jurisdic
tion, have jurisdiction in respect of the following additional
matters, namely-
(a) any alleged violation or threatened violation of any
fundamental right entrenched in Chapter 3;
(b) any dispute over the constitutionality of any
executive or administrative act or conduct or threatened executive
or administrative act or conduct of any organ of state;
(c) any inquiry into the constitutionality of any law
applicable within its area of jurisdiction, other than an Act of
Parliament, irrespective of whether such law was passed or made
before or after the commencement of this Constitution;
(d) any dispute of a constitutional nature between local
governments or between a local and a provincial government;
(e) any dispute over the constitutional