Article 75 — An Act of Parliament must provide for a procedure to amend money Bills

before Parliament. [S. 77 substituted by s. 2 of the Constitution Seventh Amendment Act 2001.] Mediation Committee 78. (1) The Mediation Committee consists of— (a) nine members of the National Assembly elected by the Assembly in accordance with a procedure that is prescribed by the rules and orders of the Assembly and results in the representation of parties in substantially the same proportion that the parties are represented in the Assembly; and (b) one delegate from each provincial delegation in the National Council of Provinces, designated by the delegation. (2) The Mediation Committee has agreed on a version of a Bill, or decided a question, when that version, or one side of the question, is supported by— (a) at least five of the representatives of the National Assembly; and (b) at least five of the representatives of the National Council of Provinces. Assent to Bills 79. (1) The President must either assent to and sign a Bill passed in terms of this Chapter or, if the President has reservations about the constitutionality of the Bill, refer it back to the National Assembly for reconsideration. (2) The joint rules and orders must provide for the procedure for the reconsideration of a Bill by the National Assembly and the participation of the National Council of Provinces in the process. (3) The National Council of Provinces must participate in the reconsideration of a Bill that the President has referred back to the National Assembly if— (a) the President’s reservations about the constitutionality of the Bill relate to a procedural matter that involves the Council; or (b) section 74(1), (2) or (3)(b) or 76 was applicable in the passing of the Bill. (4) If, after reconsideration, a Bill fully accommodates the President’s reservations, the President must assent to and sign the Bill; if not, the President must either—Chapter 4: Parliament 45 (a) assent to and sign the Bill; or (b) refer it to the Constitutional Court for a decision on its constitutionality. (5) If the Constitutional Court decides that the Bill is constitutional, the President must assent to and sign it. Application by members of National Assembly to Constitutional Court 80. (1) Members of the National Assembly may apply to the Constitutional Court for an order declaring that all or part of an Act of Parliament is unconstitutional. (2) An application— (a) must be supported by at least one third of the members of the National Assembly; and (b) must be made within 30 days of the date on which the President assented to and signed the Act. (3) The Constitutional Court may order that all or part of an Act that is the subject of an application in terms of subsection (1) has no force until the Court has decided the application if— (a) the interests of justice require this; and (b) the application has a reasonable prospect of success. (4) If an application is unsuccessful, and did not have a reasonable prospect of success, the Constitutional Court may order the applicants to pay costs. Publication of Acts 81. A Bill assented to and signed by the President becomes an Act of Parliament, must be published promptly, and takes effect when published or on a date determined in terms of the Act. Safekeeping of Acts of Parliament 82. The signed copy of an Act of Parliament is conclusive evidence of the provisions of that Act and, after publication, must be entrusted to the Constitutional Court for safekeeping. Chapter 4: Parliament 46CHAPTER 5 THE PRESIDENT AND NATIONAL EXECUTIVE The President 83. The President— (a) is the Head of State and head of the national executive; (b) must uphold, defend and respect the Constitution as the supreme law of the Republic; and (c) promotes the unity of the nation and that which will advance the Republic. Powers and functions of President 84. (1) The President has the powers entrusted by the Constitution and legislation, including those necessary to perform the functions of Head of State and head of the national executive. (2) The President is responsible for— (a) assenting to and signing Bills; (b) referring a Bill back to the National Assembly for reconsideration of the Bill’s constitutionality; (c) referring a Bill to the Constitutional Court for a decision on the Bill’s constitutionality; (d) summoning the National Assembly, the National Council of Provinces or Parliament to an extraordinary sitting to conduct special business; (e) making any appointments that the Constitution or legislation requires the President to make, other than as head of the national executive; (f) appointing commissions of inquiry; (g) calling a national referendum in terms of an Act of Parliament; (h) receiving and recognising foreign diplomatic and consular representatives; (i) appointing ambassadors, plenipotentiaries, and diplomatic and consular representatives; (j) pardoning or reprieving offenders and remitting any fines, penalties or forfeitures; and (k) conferring honours. [General Note: Honourable tributes instituted in Government Gazette 24155 of 6 December, 2002 and Government Gazette 25213 of 25 July, 2003.]Chapter 5: The President and National Executive 47 Executive authority of the Republic 85. (1) The executive authority of the Republic is vested in the President. (2) The President exercises the executive authority, together with the other members of the Cabinet, by— (a) implementing national legislation except where the Constitution or an Act of Parliament provides otherwise; (b) developing and implementing national policy; (c) co-ordinating the functions of state departments and administrations; (d) preparing and initiating legislation; and (e) performing any other executive function provided for in the Constitution or in national legislation. Election of President 86. (1) At its first sitting after its election, and whenever necessary to fill a vacancy, the National Assembly must elect a woman or a man from among its members to be the President. (2) The Chief Justice must preside over the election of the President, or designate another judge to do so. The procedure set out in Part A of Schedule 3 applies to the election of the President. [Sub-s. (2) substituted by s. 6 of the Constitution Sixth Amendment Act of 2001.] (3) An election to fill a vacancy in the office of President must be held at a time and on a date determined by the Chief Justice, but not more than 30 days after the vacancy occurs. [Sub-s. (3) substituted by s. 6 of the Constitution Sixth Amendment Act of 2001.] Assumption of office by President 87. When elected President, a person ceases to be a member of the National Assembly and, within five days, must assume office by swearing or affirming faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2. Term of office of President 88. (1) The President’s term of office begins on assuming office and ends upon a vacancy occurring or when the person next elected President assumes office. Chapter 5: The President and National Executive 48 (2) No person may hold office as President for more than two terms, but when a person is elected to fill a vacancy in the office of President, the period between that election and the next election of a President is not regarded as a term. Removal of President 89. (1) The National Assembly, by a resolution adopted with a supporting vote of at least two thirds of its members, may remove the President from office only on the grounds of— (a) a serious violation of the Constitution or the law; (b) serious misconduct; or (c) inability to perform the functions of office. (2) Anyone who has been removed from the office of President in terms of subsection (1)(a) or (b) may not receive any benefits of that office, and may not serve in any public office. Acting President 90. (1) When the President is absent from the Republic or otherwise unable to fulfil the duties of President, or during a vacancy in the office of President, an office-bearer in the order below acts as President: (a) The Deputy President. (b) A Minister designated by the President. (c) A Minister designated by the other members of the Cabinet. (d) The Speaker, until the National Assembly designates one of its other members. (2) An Acting President has the responsibilities, powers and functions of the President. (3) Before assuming the responsibilities, powers and functions of the President, the Acting President must swear or affirm faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2. (4) A person who as Acting President has sworn or affirmed faithfulness to the Republic need not repeat the swearing or affirming procedure for any subsequent term as Acting President during the period ending when the person next elected President assumes office. [Sub-s. (4) added by s. 1 of the Constitution First Amendment Act of 1997 ]Chapter 5: The President and National Executive 49 Cabinet 91. (1) The Cabinet consists of the President, as head of the Cabinet, a Deputy President and Ministers. (2) The President appoints the Deputy President and Ministers, assigns their powers and functions, and may dismiss them. (3) The President— (a) must select the Deputy President from among the members of the National Assembly; (b) may select any number of Ministers from among the members of the Assembly; and (c) may select no more than two Ministers from outside the Assembly. (4) The President must appoint a member of the Cabinet to be the leader of government business in the National Assembly. (5) The Deputy President must assist the President in the execution of the functions of government. Accountability and responsibilities 92. (1) The Deputy President and Ministers are responsible for the powers and functions of the executive assigned to them by the President. (2) Members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions. (3) Members of the Cabinet must— (a) act in accordance with the Constitution; and (b) provide Parliament with full and regular reports concerning matters under their control. Deputy Ministers 93. (1) The President may appoint— (a) any number of Deputy Ministers from among the members of the National Assembly; and (b) no more than two Deputy Ministers from outside the Assembly, to assist the members of the Cabinet, and may dismiss them. (2) Deputy Ministers appointed in terms of subsection (1) (b) are accountable to Parliament for the exercise of their powers and the performance of their functions. [S. 93 substituted by s. 7 of the Constitution Sixth Amendment Act of 2001.] Chapter 5: The President and National Executive 50Continuation of Cabinet after elections 94. When an election of the National Assembly is held, the Cabinet, the Deputy President, Ministers and any Deputy Ministers remain competent to function until the person elected President by the next Assembly assumes office. Oath or affirmation 95. Before the Deputy President, Ministers and any Deputy Ministers begin to perform their functions, they must swear or affirm faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2. Conduct of Cabinet members and Deputy Ministers 96. (1) Members of the Cabinet and Deputy Ministers must act in accordance with a code of ethics prescribed by national legislation. (2) Members of the Cabinet and Deputy Ministers may not— (a) undertake any other paid work; (b) act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or (c) use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person. Transfer of functions 97. The President by proclamation may transfer to a member of the Cabinet— (a) the administration of any legislation entrusted to another member; or (b) any power or function entrusted by legislation to another member. Temporary assignment of functions 98. The President may assign to a Cabinet member any power or function of another member who is absent from office or is unable to exercise that power or perform that function. Assignment of functions 99. A Cabinet member may assign any power or function that is to be exercised or performed in terms of an Act of Parliament to a member of a provincial Executive Council or to a Municipal Council. An assignment—Chapter 5: The President and National Executive 51 (a) must be in terms of an agreement between the relevant Cabinet member and the Executive Council member or Municipal Council; (b) must be consistent with the Act of Parliament in terms of which the relevant power or function is exercised or performed; and (c) takes effect upon proclamation by the President. National intervention in provincial administration [Heading amended by s. 2(a) the Constitution Eleventh Amendment Act of 2003.] 100. (1) When a province cannot or does not fulfil an executive obligation in terms of the Constitution or legislation, the national executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation, including— (a) issuing a directive to the provincial executive, describing the extent of the failure to fulfil its obligations and stating any steps required to meet its obligations; and (b) assuming responsibility for the relevant obligation in that province to the extent necessary to— (i) maintain essential national standards or meet established minimum standards for the rendering of a service; (ii) maintain economic unity; (iii) maintain national security; or (iv) prevent that province from taking unreasonable action that is prejudicial to the interests of another province or to the country as a whole. [Sub-s. (1) amended by s. 2(b) of the Constitution Eleventh Amendment Act of 2003.] (2) If the national executive intervenes in a province in terms of subsection (1)(b)— (a) it must submit a written notice of the intervention to the National Council of Provinces within 14 days after the intervention began; (b) the intervention must end if the Council disapproves the intervention within 180 days after the intervention began or by the end of that period has not approved the intervention; and (c) the Council must, while the intervention continues, review the intervention regularly and may make any appropriate recommendations to the national executive. [Sub-s. (2) substituted by s. 2(c) of the Constitution Eleventh Amendment Act of 2003.] Chapter 5: The President and National Executive 52 (3) National legislation may regulate the process established by this section. [S. 100 amended by s. 2 of the Constitution Eleventh Amendment Act of 2003.] Executive decisions 101. (1) A decision by the President must be in writing if it— (a) is taken in terms of legislation; or (b) has legal consequences. (2) A written decision by the President must be countersigned by another Cabinet member if that decision concerns a function assigned to that other Cabinet member. (3) Proclamations, regulations and other instruments of subordinate legislation must be accessible to the public. (4) National legislation may specify the manner in which, and the extent to which, instruments mentioned in subsection (3) must be— (a) tabled in Parliament; and (b) approved by Parliament. Motions of no confidence 102. (1) If the National Assembly, by a vote supported by a majority of its members, passes a motion of no confidence in the Cabinet excluding the President, the President must reconstitute the Cabinet. (2) If the National Assembly, by a vote supported by a majority of its members, passes a motion of no confidence in the President, the President and the other members of the Cabinet and any Deputy Ministers must resign. Chapter 5: The President and National Executive 53 CHAPTER 6 PROVINCES Provinces 103. (1) The Republic has the following provinces: (a) Eastern Cape; (b) Free State; (c) Gauteng; (d) KwaZulu-Natal; (e) Limpopo; (f) Mpumalanga; (g) Northern Cape; (h) North West; (i) Western Cape. [Sub-s. (1) substituted by s. 3 of the Constitution Eleventh Amendment Act of 2003 and substituted by s. 1 of the Constitution Twelfth Amendment Act of 2005] (2) The geographical areas of the respective provinces comprise the sum of the indicated geographical areas reflected in the various maps referred to in the Notice listed in Schedule 1A. [Sub-s. (2) substituted by s. 1 of the Constitution Twelfth Amendment Act of 2005.] (3) (a) Whenever the geographical area of a province is re-determined by an amendment to the Constitution, an Act of Parliament may provide for measures to regulate, within a reasonable time, the legal, practical and any other consequences of the re-determination. (b) An Act of Parliament envisaged in paragraph (a) may be enacted and implemented before such amendment to the Constitution takes effect, but any provincial functions, assets, rights, obligations, duties or liabilities may only be transferred in terms of that Act after that amendment to the Constitution takes effect. [S.103 substituted by s. 1 of the Constitution Twelfth Amendment Act of 2005.]Chapter 6: Provinces 54Provincial Legislatures Legislative authority of provinces 104. (1) The legislative authority of a province is vested in its provincial legislature, and confers on the provincial legislature the power— (a) to pass a constitution for its province or to amend any constitution passed by it in terms of sections 142 and 143; (b) to pass legislation for its province with regard to— (i) any matter within a functional area listed in Schedule 4; (ii) any matter within a functional area listed in Schedule 5; (iii) any matter outside those functional areas, and that is expressly assigned to the province by national legislation; and (iv) any matter for which a provision of the Constitution envisages the enactment of provincial legislation; and (c) to assign any of its legislative powers to a Municipal Council in that province. (2) The legislature of a province, by a resolution adopted with a supporting vote of at least two thirds of its members, may request Parliament to change the name of that province. (3) A provincial legislature is bound only by the Constitution and, if it has passed a constitution for its province, also by that constitution, and must act in accordance with, and within the limits of, the Constitution and that provincial constitution. (4) Provincial legislation with regard to a matter that is reasonably necessary for, or incidental to, the effective exercise of a power concerning any matter listed in Schedule 4, is for all purposes legislation with regard to a matter listed in Schedule 4. (5) A provincial legislature may recommend to the National Assembly legislation concerning any matter outside the authority of that legislature, or in respect of which an Act of Parliament prevails over a provincial law. Composition and election of provincial legislatures 105. (1) A a provincial legislature consists of women and men elected as members in terms of an electoral system that— (a) is prescribed by national legislation; (b) is based on that province’s segment of the national common voters roll; Chapter 6: Provinces 55 (c) provides for a minimum voting age of 18 years; and (d) results, in general, in proportional representation. [Sub-s. (1) amended by s. 3 of the Constitution Tenth Amendment Act of 2003 and by s. 3 of the Constitution Fourteenth Amendment Act of 2008.] (2) A provincial legislature consists of between 30 and 80 members. The number of members, which may differ among the provinces, must be determined in terms of a formula prescribed by national legislation. Membership 106. (1) Every citizen who is qualified to vote for the National Assembly is eligible to be a member of a provincial legislature, except— (a) anyone who is appointed by, or is in the service of, the state and receives remuneration for that appointment or service, other than— (i) the Premier and other members of the Executive Council of a province; and (ii) other office-bearers whose functions are compatible with the functions of a member of a provincial legislature, and have been declared compatible with those functions by national legislation; (b) members of the National Assembly, permanent delegates to the National Council of Provinces or members of a Municipal Council; (c) unrehabilitated insolvents; (d) anyone declared to be of unsound mind by a court of the Republic; or (e) anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 months’ imprisonment without the option of a fine, either in the Republic, or outside the Republic if the conduct constituting the offence would have been an offence in the Republic, but no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired. A disqualification under this paragraph ends five years after the sentence has been completed. (2) A person who is not eligible to be a member of a provincial legislature in terms of subsection (1)(a) or (b) may be a candidate for the legislature, subject to any limits or conditions established by national legislation. Chapter 6: Provinces 56 (3) A person loses membership of a provincial legislature if that person— (a) ceases to be eligible; (b) is absent from the legislature without permission in circumstances for which the rules and orders of the legislature prescribe loss of membership; or (c) ceases to be a member of the party that nominated that person as a member of the legislature. [Sub-s. (3) substituted by s. 4 of the Constitution Tenth Amendment Act of 2003 and by s. 4 of the Constitution Fourteenth Amendment Act of 2008.] (4) Vacancies in a provincial legislature must be filled in terms of national legislation. Oath or affirmation 107. Before members of a provincial legislature begin to perform their functions in the legislature, they must swear or affirm faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2. Duration of provincial legislatures 108. (1) A provincial legislature is elected for a term of five years. (2) If a provincial legislature is dissolved in terms of section 109, or when its term expires, the Premier of the province, by proclamation, must call and set dates for an election, which must be held within 90 days of the date the legislature was dissolved or its term expired. A proclamation calling and setting dates for an election may be issued before or after the expiry of the term of a provincial legislature. [Sub-s. (2) substituted by s. 1 of the Constitution Fourth Amendment Act of 1999.] (3) If the result of an election of a provincial legislature is not declared within the period referred to in section 190, or if an election is set aside by a court, the President, by proclamation, must call and set dates for another election, which must be held within 90 days of the expiry of that period or of the date on which the election was set aside. (4) A provincial legislature remains competent to function from the time it is dissolved or its term expires, until the day before the first day of polling for the next legislature. Chapter 6: Provinces 57 Dissolution of provincial legislatures before expiry of term 109. (1) The Premier of a province must dissolve the provincial legislature if— (a) the legislature has adopted a resolution to dissolve with a supporting vote of a majority of its members; and (b) three years have passed since the legislature was elected. (2) An Acting Premier must dissolve the provincial legislature if— (a) there is a vacancy in the office of Premier; and (b) the legislature fails to elect a new Premier within 30 days after the vacancy occurred. Sittings and recess periods 110. (1) After an election, the first sitting of a provincial legislature must take place at a time and on a date determined by a judge designated by the Chief Justice, but not more than 14 days after the election result has been declared. A provincial legislature may determine the time and duration of its other sittings and its recess periods. [Sub-s. (1) substituted by s. 8 of the Constitution Sixth Amendment Act of 2001.] (2) The Premier of a province may summon the provincial legislature to an extraordinary sitting at any time to conduct special business. (3) A provincial legislature may determine where it ordinarily will sit. Speakers and Deputy Speakers 111. (1) At the first sitting after its election, or when necessary to fill a vacancy, a provincial legislature must elect a Speaker and a Deputy Speaker from among its members. (2) A judge designated by the Chief Justice must preside over the election of a Speaker. The Speaker presides over the election of a Deputy Speaker. [Sub-s. (2) substituted by s. 9 of the Constitution Sixth Amendment Act of 2001.] (3) The procedure set out in Part A of Schedule 3 applies to the election of Speakers and Deputy Speakers. (4) A provincial legislature may remove its Speaker or Deputy Speaker from office by resolution. A majority of the members of the legislature must be present when the resolution is adopted. (5) In terms of its rules and orders, a provincial legislature may elect from among its members other presiding officers to assist the Speaker and the Deputy Speaker. Chapter 6: Provinces 58Decisions 112. (1) Except where the Constitution provides otherwise— (a) a majority of the members of a provincial legislature must be present before a vote may be taken on a Bill or an amendment to a Bill; (b) at least one third of the members must be present before a vote may be taken on any other question before the legislature; and (c) all questions before a provincial legislature are decided by a majority of the votes cast. (2) The member presiding at a meeting of a provincial legislature has no deliberative vote, but— (a) must cast a deciding vote when there is an equal number of votes on each side of a question; and (b) may cast a deliberative vote when a question must be decided with a supporting vote of at least two thirds of the members of the legislature. Permanent delegates’ rights in provincial legislatures 113. A province’s permanent delegates to the National Council of Provinces may attend, and may speak in, their provincial legislature and its committees, but may not vote. The legislature may require a permanent delegate to attend the legislature or its committees. Powers of provincial legislatures 114. (1) In exercising its legislative power, a provincial legislature may— (a) consider, pass, amend or reject any Bill before the legislature; and (b) initiate or prepare legislation, except money Bills. (2) A provincial legislature must provide for mechanisms— (a) to ensure that all provincial executive organs of state in the province are accountable to it; and (b) to maintain oversight of— (i) the exercise of provincial executive authority in the province, including the implementation of legislation; and (ii) any provincial organ of state. Chapter 6: Provinces 59 Evidence or information before provincial legislatures 115. A provincial legislature or any of its committees may— (a) summon any person to appear before it to give evidence on oath or affirmation, or to produce documents; (b) require any person or provincial institution to report to it; (c) compel, in terms of provincial legislation or the rules and orders, any person or institution to comply with a summons or requirement in terms of paragraph (a) or (b); and (d) receive petitions, representations or submissions from any interested persons or institutions. Internal arrangements, proceedings and procedures of provincial legislatures 116. (1) A provincial legislature may— (a) determine and control its internal arrangements, proceedings and procedures; and (b) make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement. (2) The rules and orders of a provincial legislature must provide for— (a) the establishment, composition, powers, functions, procedures and duration of its committees; (b) the participation in the proceedings of the legislature and its committees of minority parties represented in the legislature, in a manner consistent with democracy; (c) financial and administrative assistance to each party represented in the legislature, in proportion to its representation, to enable the party and its leader to perform their functions in the legislature effectively; and (d) the recognition of the leader of the largest opposition party in the legislature, as the Leader of the Opposition. Chapter 6: Provinces 60Privilege 117. (1) Members of a provincial legislature and the province’s permanent delegates to the National Council of Provinces— (a) have freedom of speech in the legislature and in its committees, subject to its rules and orders; and (b) are not liable to civil or criminal proceedings, arrest, imprisonment or damages for— (i) anything that they have said in, produced before or submitted to the legislature or any of its committees; or (ii) anything revealed as a result of anything that they have said in, produced before or submitted to the legislature or any of its committees. (2) Other privileges and immunities of a provincial legislature and its members may be prescribed by national legislation. (3) Salaries, allowances and benefits payable to members of a provincial legislature are a direct charge against the Provincial Revenue Fund. Public access to and involvement in provincial legislatures 118. (1) A provincial legislature must— (a) facilitate public involvement in the legislative and other processes of the legislature and its committees; and (b) conduct its business in an open manner, and hold its sittings, and those of its committees, in public, but reasonable measures may be taken— (i) to regulate public access, including access of the media, to the legislature and its committees; and (ii) to provide for the searching of any person and, where appropriate, the refusal of entry to, or the removal of, any person. (2) A provincial legislature may not exclude the public, including the media, from a sitting of a committee unless it is reasonable and justifiable to do so in an open and democratic society. Introduction of Bills 119. Only members of the Executive Council of a province or a committee or member of a provincial legislature may introduce a Bill in the legislature; but only the member of the Executive Council who is responsible for financial matters in the province may introduce a money Bill in the legislature. Chapter 6: Provinces 61 Money Bills 120. (1) A Bill is a money Bill if it— (a) appropriates money; (b) imposes provincial taxes, levies, duties or surcharges; (c) abolishes or reduces, or grants exemptions from, any provincial taxes, levies, duties or surcharges; or (d) authorises direct charges against a Provincial Revenue Fund. (2) A money Bill may not deal with any other matter except— (a) a subordinate matter incidental to the appropriation of money; (b) the imposition, abolition or reduction of provincial taxes, levies, duties or surcharges; (c) the granting of exemption from provincial taxes, levies, duties or surcharges; or (d) the authorisation of direct charges against a Provincial Revenue Fund. (3) A provincial Act must provide for a procedure by which the province’s legislature may amend a money Bill. [S. 120 substituted by s. 3 of the Constitution Seventh Amendment Act of 2001.] Assent to Bills 121. (1) The Premier of a province must either assent to and sign a Bill passed by the provincial legislature in terms of this Chapter or, if the Premier has reservations about the constitutionality of the Bill, refer it back to the legislature for reconsideration. (2) If, after reconsideration, a Bill fully accommodates the Premier’s reservations, the Premier must assent to and sign the Bill; if not, the Premier must either— (a) assent to and sign the Bill; or (b) refer it to the Constitutional Court for a decision on its constitutionality. (3) If the Constitutional Court decides that the Bill is constitutional, the Premier must assent to and sign it. Application by members to Constitutional Court 122. (1) Members of a provincial legislature may apply to the Constitutional Court for an order declaring that all or part of a provincial Act is unconstitutional. Chapter 6: Provinces 62 (2) An application— (a) must be supported by at least 20 per cent of the members of the legislature; and (b) must be made within 30 days of the date on which the Premier assented to and signed the Act. (3) The Constitutional Court may order that all or part of an Act that is the subject of an application in terms of subsection (1) has no force until the Court has decided the application if— (a) the interests of justice require this; and (b) the application has a reasonable prospect of success. (4) If an application is unsuccessful, and did not have a reasonable prospect of success, the Constitutional Court may order the applicants to pay costs. Publication of provincial Acts 123. A Bill assented to and signed by the Premier of a province becomes a provincial Act, must be published promptly and takes effect when published or on a date determined in terms of the Act. Safekeeping of provincial Acts 124. The signed copy of a provincial Act is conclusive evidence of the provisions of that Act and, after publication, must be entrusted to the Constitutional Court for safekeeping. Provincial Executives Executive authority of provinces 125. (1) The executive authority of a province is vested in the Premier of that province. (2) The Premier exercises the executive authority, together with the other members of the Executive Council, by— (a) implementing provincial legislation in the province; (b) implementing all national legislation within the functional areas listed in Schedule 4 or 5 except where the Constitution or an Act of Parliament provides otherwise; Chapter 6: Provinces 63 (c) administering in the province, national legislation outside the functional areas listed in Schedules 4 and 5, the administration of which has been assigned to the provincial executive in terms of an Act of Parliament; (d) developing and implementing provincial policy; (e) co-ordinating the functions of the provincial administration and its departments; (f) preparing and initiating provincial legislation; and (g) performing any other function assigned to the provincial executive in terms of the Constitution or an Act of Parliament. (3) A province has executive authority in terms of subsection (2)(b) only to the extent that the province has the administrative capacity to assume effective responsibility. The national government, by legislative and other measures, must assist provinces to develop the administrative capacity required for the effective exercise of their powers and performance of their functions referred to in subsection (2). (4) Any dispute concerning the administrative capacity of a province in regard to any function must be referred to the National Council of Provinces for resolution within 30 days of the date of the referral to the Council. (5) Subject to section 100, the implementation of provincial legislation in a province is an exclusive provincial executive power. (6) The provincial executive must act in accordance with— (a) the Constitution; and (b) the provincial constitution, if a constitution has been passed for the province. Assignment of functions 126. A member of the Executive Council of a province may assign any power or function that is to be exercised or performed in terms of an Act of Parliament or a provincial Act, to a Municipal Council. An assignment— (a) must be in terms of an agreement between the relevant Executive Council member and the Municipal Council; (b) must be consistent with the Act in terms of which the relevant power or function is exercised or performed; and (c) takes effect upon proclamation by the Premier. Chapter 6: Provinces 64Powers and functions of Premiers 127. (1) The Premier of a province has the powers and functions entrusted to that office by the Constitution and any legislation. (2) The Premier of a province is responsible for— (a) assenting to and signing Bills; (b) referring a Bill back to the provincial legislature for reconsideration of the Bill’s constitutionality; (c) referring a Bill to the Constitutional Court for a decision on the Bill’s constitutionality; (d) summoning the legislature to an extraordinary sitting to conduct special business; (e) appointing commissions of inquiry; and (f) calling a referendum in the province in accordance with national legislation. Election of Premiers 128. (1) At its first sitting after its election, and whenever necessary to fill a vacancy, a provincial legislature must elect a woman or a man from among its members to be the Premier of the province. (2) A judge designated by the Chief Justice must preside over the election of the Premier. The procedure set out in Part A of Schedule 3 applies to the election of the Premier. [Sub-s. (2) substituted by s. 10 of the Constitution Sixth Amendment Act of 2001.] (3) An election to fill a vacancy in the office of Premier must be held at a time and on a date determined by the Chief Justice, but not later than 30 days after the vacancy occurs. [Sub-s. (3) substituted by s. 10 of the Constitution Sixth Amendment Act of 2001.] Assumption of office by Premiers 129. A Premier-elect must assume office within five days of being elected, by swearing or affirming faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2. Chapter 6: Provinces 65 Term of office and removal of Premiers 130. (1) A Premier’s term of office begins when the Premier assumes office and ends upon a vacancy occurring or when the person next elected Premier assumes office. (2) No person may hold office as Premier for more than two terms, but when a person is elected to fill a vacancy in the office of Premier, the period between that election and the next election of a Premier is not regarded as a term. (3) The legislature of a province, by a resolution adopted with a supporting vote of at least two thirds of its members, may remove the Premier from office only on the grounds of— (a) a serious violation of the Constitution or the law; (b) serious misconduct; or (c) inability to perform the functions of office. (4) Anyone who has been removed from the office of Premier in terms of subsection (3) (a) or (b) may not receive any benefits of that office, and may not serve in any public office. Acting Premiers 131. (1) When the Premier is absent or otherwise unable to fulfil the duties of the office of Premier, or during a vacancy in the office of Premier, an office-bearer in the order below acts as the Premier: (a) A member of the Executive Council designated by the Premier. (b) A member of the Executive Council designated by the other members of the Council. (c) The Speaker, until the legislature designates one of its other members. (2) An Acting Premier has the responsibilities, powers and functions of the Premier. (3) Before assuming the responsibilities, powers and functions of the Premier, the Acting Premier must swear or affirm faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2. Executive Councils 132. (1) The Executive Council of a province consists of the Premier, as head of the Council, and no fewer than five and no more than ten members appointed by the Premier from among the members of the provincial legislature. Chapter 6: Provinces 66 (2) The Premier of a province appoints the members of the Executive Council, assigns their powers and functions, and may dismiss them. Accountability and responsibilities 133. (1) The members of the Executive Council of a province are responsible for the functions of the executive assigned to them by the Premier. (2) Members of the Executive Council of a province are accountable collectively and individually to the legislature for the exercise of their powers and the performance of their functions. (3) Members of the Executive Council of a province must— (a) act in accordance with the Constitution and, if a provincial constitution has been passed for the province, also that constitution; and (b) provide the legislature with full and regular reports concerning matters under their control. Continuation of Executive Councils after elections 134. When an election of a provincial legislature is held, the Executive Council and its members remain competent to function until the person elected Premier by the next legislature assumes office. Oath or affirmation 135. Before members of the Executive Council of a province begin to perform their functions, they must swear or affirm faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2. Conduct of members of Executive Councils 136. (1) Members of the Executive Council of a province must act in accordance with a code of ethics prescribed by national legislation. (2) Members of the Executive Council of a province may not— (a) undertake any other paid work; (b) act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or Chapter 6: Provinces 67 (c) use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person. Transfer of functions 137. The Premier by proclamation may transfer to a member of the Executive Council— (a) the administration of any legislation entrusted to another member; or (b) any power or function entrusted by legislation to another member. Temporary assignment of functions 138. The Premier of a province may assign to a member of the Executive Council any power or function of another member who is absent from office or is unable to exercise that power or perform that function. Provincial intervention in local government 139. (1) When a municipality cannot or does not fulfil an executive obligation in terms of the Constitution or legislation, the relevant provincial executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation, including— (a) issuing a directive to the Municipal Council, describing the extent of the failure to fulfil its obligations and stating any steps required to meet its obligations; (b) assuming responsibility for the relevant obligation in that municipality to the extent necessary to — (i) maintain essential national standards or meet established minimum standards for the rendering of a service; (ii) prevent that Municipal Council from taking unreasonable action that is prejudicial to the interests of another municipality or to the province as a whole; or (iii) maintain economic unity; or (c) dissolving the Municipal Council and appointing an administrator until a newly elected Municipal Council has been declared elected, if exceptional circumstances warrant such a step. (2) If a provincial executive intervenes in a municipality in terms of subsection (1)(b)— (a) it must submit a written notice of the intervention to— (i) the Cabinet member responsible for local government affairs; and (ii) the relevant provincial legislature and the National Council of Provinces, within 14 days after the intervention began; Chapter 6: Provinces 68(b) the intervention must end if— (i) the Cabinet member responsible for local government affairs disapproves the intervention within 28 days after the intervention began or by the end of that period has not approved the intervention; or (ii) the Council disapproves the intervention within 180 days after the intervention began or by the end of that period has not approved the intervention; and (c) the Council must, while the intervention continues, review the intervention regularly and may make any appropriate recommendations to the provincial executive. (3) If a Municipal Council is dissolved in terms of subsection (1)(c)— (a) the provincial executive must immediately submit a written notice of the dissolution to— (i) the Cabinet member responsible for local government affairs; and (ii) the relevant provincial legislature and the National Council of Provinces; and (b) the dissolution takes effect 14 days from the date of receipt of the notice by the Council unless set aside by that Cabinet member or the Council before the expiry of those 14 days. (4) If a municipality cannot or does not fulfil an obligation in terms of the Constitution or legislation to approve a budget or any revenue-raising measures necessary to give effect to the budget, the relevant provincial executive must intervene by taking any appropriate steps to ensure that the budget or those revenue-raising measures are approved, including dissolving the Municipal Council and— (a) appointing an administrator until a newly elected Municipal Council has been declared elected; and (b) approving a temporary budget or revenue-raising measures to provide for the continued functioning of the municipality. (5) If a municipality, as a result of a crisis in its financial affairs, is in serious or persistent material breach of its obligations to provide basic services or to meet its financial commitments, or admits that it is unable to meet its obligations or financial commitments, the relevant provincial executive must— (a) impose a recovery plan aimed at securing the municipality’s ability to meet its obligations to provide basic services or its financial commitments, which— (i) is to be prepared in accordance with national legislation; andChapter 6: Provinces 69 (ii) binds the municipality in the exercise of its legislative and executive authority, but only to the extent necessary to solve the crisis in its financial affairs; and (b) dissolve the Municipal Council, if the municipality cannot or does not approve legislative measures, including a budget or any revenue-raising measures, necessary to give effect to the recovery plan, and— (i) appoint an administrator until a newly elected Municipal Council has been declared elected; and (ii) approve a temporary budget or revenue-raising measures or any other measures giving effect to the recovery plan to provide for the continued functioning of the municipality; or (c) if the Municipal Council is not dissolved in terms of paragraph (b), assume responsibility for the implementation of the recovery plan to the extent that the municipality cannot or does not otherwise implement the recovery plan. (6) If a provincial executive intervenes in a municipality in terms of subsection (4) or (5), it must submit a written notice of the intervention to— (a) the Cabinet member responsible for local government affairs; and (b) the relevant provincial legislature and the National Council of Provinces, within seven days after the intervention began. (7) If a provincial executive cannot or does not or does not adequately exercise the powers or perform the functions referred to in subsection (4) or (5), the national executive must intervene in terms of subsection (4) or (5) in the stead of the relevant provincial executive. (8) National legislation may regulate the implementation of this section, including the processes established by this section. [S. 139 substituted by s. 4 of the Constitution Eleventh Amendment Act of 2003.] Executive decisions 140. (1) A decision by the Premier of a province must be in writing if it— (a) is taken in terms of legislation; or (b) has legal consequences. (2) A written decision by the Premier must be countersigned by another Executive Council member if that decision concerns a function assigned to that other member. Chapter 6: Provinces 70 (3) Proclamations, regulations and other instruments of subordinate legislation of a province must be accessible to the public. (4) Provincial legislation may specify the manner in which, and the extent to which, instruments mentioned in subsection (3) must be— (a) tabled in the provincial legislature; and (b) approved by the provincial legislature. Motions of no confidence 141. (1) If a provincial legislature, by a vote supported by a majority of its members, passes a motion of no confidence in the province’s Executive Council excluding the Premier, the Premier must reconstitute the Council. (2) If a provincial legislature, by a vote supported by a majority of its members, passes a motion of no confidence in the Premier, the Premier and the other members of the Executive Council must resign. Provincial Constitutions Adoption of provincial constitutions 142. A provincial legislature may pass a constitution for the province or, where applicable, amend its constitution, if at least two thirds of its members vote in favour of the Bill. Contents of provincial constitutions 143. (1) A provincial constitution, or constitutional amendment, must not be inconsistent with this Constitution, but may provide for— (a) provincial legislative or executive structures and procedures that differ from those provided for in this Chapter; or (b) the institution, role, authority and status of a traditional monarch, where applicable. (2) Provisions included in a provincial constitution or constitutional amendment in terms of paragraphs (a) or (b) of subsection (1)— (a) must comply with the values in section 1 and with Chapter 3; and (b) may not confer on the province any power or function that falls— (i) outside the area of provincial competence in terms of Schedules 4 and 5; or Chapter 6: Provinces 71 (ii) outside the powers and functions conferred on the province by other sections of the Constitution. Certification of provincial constitutions 144. (1) If a provincial legislature has passed or amended a constitution, the Speaker of the legislature must submit the text of the constitution or constitutional amendment to the Constitutional Court for certification. (2) No text of a provincial constitution or constitutional amendment becomes law until the Constitutional Court has certified— (a) that the text has been passed in accordance with section 142; and (b) that the whole text complies with section 143. Signing, publication and safekeeping of provincial constitutions 145. (1) The Premier of a province must assent to and sign the text of a provincial constitution or constitutional amendment that has been certified by the Constitutional Court. (2) The text assented to and signed by the Premier must be published in the national Government Gazette and takes effect on publication or on a later date determined in terms of that constitution or amendment. (3) The signed text of a provincial constitution or constitutional amendment is conclusive evidence of its provisions and, after publication, must be entrusted to the Constitutional Court for safekeeping. Conflicting Laws Conflicts between national and provincial legislation 146. (1) This section applies to a conflict between national legislation and provincial legislation falling within a functional area listed in Schedule 4. (2) National legislation that applies uniformly with regard to the country as a whole prevails over provincial legislation if any of the following conditions is met: (a) The national legislation deals with a matter that cannot be regulated effectively by legislation enacted by the respective provinces individually. Chapter 6: Provinces 72(b) The national legislation deals with a matter that, to be dealt with effectively, requires uniformity across the nation, and the national legislation provides that uniformity by establishing— (i) norms and standards; (ii) frameworks; or (iii) national policies. (c) The national legislation is necessary for— (i) the maintenance of national security; (ii) the maintenance of economic unity; (iii) the protection of the common market in respect of the mobility of goods, services, capital and labour; (iv) the promotion of economic activities across provincial boundaries; (v) the promotion of equal opportunity or equal access to government services; or (vi) the protection of the environment. (3) National legislation prevails over provincial legislation if the national legislation is aimed at preventing unreasonable action by a province that— (a) is prejudicial to the economic, health or security interests of another province or the country as a whole; or (b) impedes the implementation of national economic policy. (4) When there is a dispute concerning whether national legislation is necessary for a purpose set out in subsection (2)(c) and that dispute comes before a court for resolution, the court must have due regard to the approval or the rejection of the legislation by the National Council of Provinces. (5) Provincial legislation prevails over national legislation if subsection (2) or (3) does not apply. (6) A law made in terms of an Act of Parliament or a provincial Act can prevail only if that law has been approved by the National Council of Provinces. (7) If the National Council of Provinces does not reach a decision within 30 days of its first sitting after a law was referred to it, that law must be considered for all purposes to have been approved by the Council. (8) If the National Council of Provinces does not approve a law referred to in subsection (6), it must, within 30 days of its decision, forward reasons for not approving the law to the authority that referred the law to it. Chapter 6: Provinces 73 Other conflicts 147. (1) If there is a conflict between national legislation and a provision of a provincial constitution with regard to— (a) a matter concerning which this Constitution specifically requires or envisages the enactment of national legislation, the national legislation prevails over the affected provision of the provincial constitution; (b) national legislative intervention in terms of section 44 (2), the national legislation prevails over the provision of the provincial constitution; or (c) a matter within a functional area listed in Schedule 4, section 146 applies as if the affected provision of the provincial constitution were provincial legislation referred to in that section. (2) National legislation referred to in section 44(2) prevails over provincial legislation in respect of matters within the functional areas listed in Schedule 5. Conflicts that cannot be resolved 148. If a dispute concerning a conflict cannot be resolved by a court, the national legislation prevails over the provincial legislation or provincial constitution. Status of legislation that does not prevail 149. A decision by a court that legislation prevails over other legislation does not invalidate that other legislation, but that other legislation becomes inoperative for as long as the conflict remains. Interpretation of conflicts 150. When considering an apparent conflict between national and provincial legislation, or between national legislation and a provincial constitution, every court must prefer any reasonable interpretation of the legislation or constitution that avoids a conflict, over any alternative interpretation that results in a conflict. Chapter 6: Provinces 74CHAPTER 7 LOCAL GOVERNMENT Status of municipalities 151. (1) The local sphere of government consists of municipalities, which must be established for the whole of the territory of the Republic. (2) The executive and legislative authority of a municipality is vested in its Municipal Council. (3) A municipality has the right to govern, on its own initiative, the local government affairs of its community, subject to national and provincial legislation, as provided for in the Constitution. (4) The national or a provincial government may not compromise or impede a municipality’s ability or right to exercise its powers or perform its functions. Objects of local government 152. (1) The objects of local government are— (a) to provide democratic and accountable government for local communities; (b) to ensure the provision of services to communities in a sustainable manner; (c) to promote social and economic development; (d) to promote a safe and healthy environment; and (e) to encourage the involvement of communities and community organisations in the matters of local government. (2) A municipality must strive, within its financial and administrative capacity, to achieve the objects set out in subsection (1). Developmental duties of municipalities 153. A municipality must— (a) structure and manage its administration and budgeting and planning processes to give priority to the basic needs of the community, and to promote the social and economic development of the community; and (b) participate in national and provincial development programmes. Chapter 7: Local Government 75 Municipalities in co-operative government 154. (1) The national government and provincial governments, by legislative and other measures, must support and strengthen the capacity of municipalities to manage their own affairs, to exercise their powers and to perform their functions. (2) Draft national or provincial legislation that affects the status, institutions, powers or functions of local government must be published for public comment before it is introduced in Parliament or a provincial legislature, in a manner that allows organised local government, municipalities and other interested persons an opportunity to make representations with regard to the draft legislation. Establishment of municipalities 155. (1) There are the following categories of municipality: (a) Category A: A municipality that has exclusive municipal executive and legislative authority in its area. (b) Category B: A municipality that shares municipal executive and legislative authority in its area with a category C municipality within whose area it falls. (c) Category C: A municipality that has municipal executive and legislative authority in an area that includes more than one municipality. (2) National legislation must define the different types of municipality that may be established within each category. (3) National legislation must— (a) establish the criteria for determining when an area should have a single category A municipality or when it should have municipalities of both category B and category C; (b) establish criteria and procedures for the determination of municipal boundaries by an independent authority; and (c) subject to section 229, make provision for an appropriate division of powers and functions between municipalities when an area has municipalities of both category B and category C. A division of powers and functions between a category B municipality and a category C municipality may differ from the division of powers and functions between another category B municipality and that category C municipality. (4) The legislation referred to in subsection (3) must take into account the need to provide municipal services in an equitable and sustainable manner. Chapter 7: Local Government 76 (5) Provincial legislation must determine the different types of municipality to be established in the province. (6) Each provincial government must establish municipalities in its province in a manner consistent with the legislation enacted in terms of subsections (2) and (3) and, by legislative or other measures, must— (a) provide for the monitoring and support of local government in the province; and (b) promote the development of local government capacity to enable municipalities to perform their functions and manage their own affairs. (6A) ...... [Sub-s. (6A) inserted by s. 1 of the Constitution Third Amendment Act of 1998 and deleted by s. 2 of the Constitution Twelfth Amendment Act of 2005.] (7) The national government, subject to section 44, and the provincial governments have the legislative and executive authority to see to the effective performance by municipalities of their functions in respect of matters listed in Schedules 4 and 5, by regulating the exercise by municipalities of their executive authority referred to in section 156(1). Powers and functions of municipalities 156. (1) A municipality has executive authority in respect of, and has the right to administer— (a) the local government matters listed in Part B of Schedule 4 and Part B of Schedule 5; and (b) any other matter assigned to it by national or provincial legislation. (2) A municipality may make and administer by-laws for the effective administration of the matters which it has the right to administer. (3) Subject to section 151(4), a by-law that conflicts with national or provincial legislation is invalid. If there is a conflict between a bylaw and national or provincial legislation that is inoperative because of a conflict referred to in section 149, the by-law must be regarded as valid for as long as that legislation is inoperative. (4) The national government and provincial governments must assign to a municipality, by agreement and subject to any conditions, the administration of a matter listed in Part A of Schedule 4 or Part A of Schedule 5 which necessarily relates to local government, if—Chapter 7: Local Government 77 (a) that matter would most effectively be administered locally; and (b) the municipality has the capacity to administer it. (5) A municipality has the right to exercise any power concerning a matter reasonably necessary for, or incidental to, the effective performance of its functions. Composition and election of Municipal Councils 157. (1) A Municipal Council consists of— (a) members elected in accordance with subsections (2) and (3); or (b) if provided for by national legislation— (i) members appointed by other Municipal Councils to represent those other Councils; or (ii) both members elected in accordance with paragraph (a) and members appointed in accordance with subparagraph (i) of this paragraph. [Sub-s. (1) substituted by s. 1 (a) of the Constitution Eighth Amendment Act of 2002 and by s. 3 of the Constitution Fifteenth Amendment Act of 2008.] (2) The election of members to a Municipal Council as anticipated in subsection (1)(a) must be in accordance with national legislation, which must prescribe a system— (a) of proportional representation based on that municipality’s segment of the national common voters roll, and which provides for the election of members from lists of party candidates drawn up in a party’s order of preference; or (b) of proportional representation as described in paragraph (a) combined with a system of ward representation based on that municipality’s segment of the national common voters roll. (3) An electoral system in terms of subsection (2) must result, in general, in proportional representation. [Sub-s. (3) substituted by s. 1(b) of the Constitution Eighth Amendment Act of 2002.] (4) (a) If the electoral system includes ward representation, the delimitation of wards must be done by an independent authority appointed in terms of, and operating according to, procedures and criteria prescribed by national legislation. (b) …… [Para. (b) deleted by s. 3 of the Constitution Twelfth Amendment Act of 2005.] [Sub-s. (4) substituted by s. 2 of the Constitution Third Amendment Act of 1998.] Chapter 7: Local Government 78 (5) A person may vote in a municipality only if that person is registered on that municipality’s segment of the national common voters roll. (6) The national legislation referred to in subsection (1)(b) must establish a system that allows for parties and interests reflected within the Municipal Council making the appointment, to be fairly represented in the Municipal Council to which the appointment is made. Membership of Municipal Councils 158. (1) Every citizen who is qualified to vote for a Municipal Council is eligible to be a member of that Council, except— (a) anyone who is appointed by, or is in the service of, the municipality and receives remuneration for that appointment or service, and who has not been exempted from this disqualification in terms of national legislation; (b) anyone who is appointed by, or is in the service of, the state in another sphere, and receives remuneration for that appointment or service, and who has been disqualified from membership of a Municipal Council in terms of national legislation; (c) anyone who is disqualified from voting for the National Assembly or is disqualified in terms of section 47(1)(c), (d) or (e) from being a member of the Assembly; (d) a member of the National Assembly, a delegate to the National Council of Provinces or a member of a provincial legislature; but this disqualification does not apply to a member of a Municipal Council representing local government in the National Council; or (e) a member of another Municipal Council; but this disqualification does not apply to a member of a Municipal Council representing that Council in another Municipal Council of a different category. (2) A person who is not eligible to be a member of a Municipal Council in terms of subsection (1)(a), (b), (d) or (e) may be a candidate for the Council, subject to any limits or conditions established by national legislation. (3) Vacancies in a Municipal Council must be filled in terms of national legislation. [Sub-s. (3) added by s. 4 of the Constitution Fifteenth Amendment Act of 2008.]Chapter 7: Local Government 79 Terms of Municipal Councils 159. (1) The term of a Municipal Council may be no more than five years, as determined by national legislation. (2) If a Municipal Council is dissolved in terms of national legislation, or when its term expires, an election must be held within 90 days of the date that Council was dissolved or its term expired. (3) A Municipal Council, other than a Council that has been dissolved following an intervention in terms of section 139, remains competent to function from the time it is dissolved or its term expires, until the newly elected Council has been declared elected. [S. 159 substituted by s. 1 of the Constitution Second Amendment Act of 1998.] Internal procedures 160. (1) A Municipal Council— (a) makes decisions concerning the exercise of all the powers and the performance of all the functions of the municipality; (b) must elect its chairperson; (c) may elect an executive committee and other committees, subject to national legislation; and (d) may employ personnel that are necessary for the effective performance of its functions. (2) The following functions may not be delegated by a Municipal Council: (a) The passing of by-laws; (b) the approval of budgets; (c) the imposition of rates and other taxes, levies and duties; and (d) the raising of loans. (3) (a) A majority of the members of a Municipal Council must be present before a vote may be taken on any matter. (b) All questions concerning matters mentioned in subsection (2) are determined by a decision taken by a Municipal Council with a supporting vote of a majority of its members. (c) All other questions before a Municipal Council are decided by a majority of the votes cast. Chapter 7: Local Government 80 (4) No by-law may be passed by a Municipal Council unless— (a) all the members of the Council have been given reasonable notice; and (b) the proposed by-law has been published for public comment. (5) National legislation may provide criteria for determining— (a) the size of a Municipal Council; (b) whether Municipal Councils may elect an executive committee or any other committee; or (c) the size of the executive committee or any other committee of a Municipal Council. (6) A Municipal Council may make by-laws which prescribe rules and orders for— (a) its internal arrangements; (b) its business and proceedings; and (c) the establishment, composition, procedures, powers and functions of its committees. (7) A Municipal Council must conduct its business in an open manner, and may close its sittings, or those of its committees, only when it is reasonable to do so having regard to the nature of the business being transacted. (8) Members of a Municipal Council are entitled to participate in its proceedings and those of its committees in a manner that— (a) allows parties and interests reflected within the Council to be fairly represented; (b) is consistent with democracy; and (c) may be regulated by national legislation. Privilege 161. Provincial legislation within the framework of national legislation may provide for privileges and immunities of Municipal Councils and their members. Publication of municipal by-laws 162. (1) A municipal by-law may be enforced only after it has been published in the official gazette of the relevant province. (2) A provincial official gazette must publish a municipal by-law upon request by the municipality. (3) Municipal by-laws must be accessible to the public. Chapter 7: Local Government 81 Organised local government 163. An Act of Parliament enacted in accordance with the procedure established by section 76 must— (a) provide for the recognition of national and provincial organisations representing municipalities; and (b) determine procedures by which local government may— (i) consult with the national or a provincial government; (ii) designate representatives to participate in the National Council of Provinces; and (iii) participate in the process prescribed in the national legislation envisaged in section 221(1)(c). [S. 163(b) substituted by s. 4 of the Constitution Seventh Amendment Act of 2001.] Other matters 164. Any matter concerning local government not dealt with in the Constitution may be prescribed by national legislation or by provincial legislation within the framework of national legislation. Chapter 7: Local Government 82CHAPTER 8 COURTS AND ADMINISTRATION OF JUSTICE Judicial authority 165. (1) The judicial authority of the Republic is vested in the courts. (2) The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. (3) No person or organ of state may interfere with the functioning of the courts. (4) Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts. (5) An order or decision issued by a court binds all persons to whom and organs of state to which it applies. (6) The Chief Justice is the head of the judiciary and exercises responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts. [Sub-s (6) added by s. 1 of the Constitution Seventeenth Amendment Act of 2012.] Judicial system 166. The courts are— (a) the Constitutional Court; (b) the Supreme Court of Appeal; (c) the High Court of South Africa, and any high court of appeal that may be established by an Act of Parliament to hear appeals from any court of a status similar to the High Court of South Africa; (d) the Magistrates’ Courts; and (e) any other court established or recognised in terms of an Act of Parliament, including any court of a status similar to either the High Court of South Africa or the Magistrates’ Courts. [Sub-s (c) and (e) substituted by s. 2 of the Constitution Seventeenth Amendment Act of 2012.] Chapter 8: Courts and Administration of Justice 83 Constitutional Court 167. (1) The Constitutional Court consists of the Chief Justice of South Africa, the Deputy Chief Justice and nine other judges. [Sub-s. (1) substituted by s. 11 of the Constitution Sixth Amendment Act of 2001.] (2) A matter before the Constitutional Court must be heard by at least eight judges. (3) The Constitutional Court— (a) is the highest court of the Republic; and (b) may decide— (i) constitutional matters; and (ii) any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by that Court, and (c) makes the final decision whether a matter is within its jurisdiction. [Sub-s (3) substituted by s. 3 of the Constitution Seventeenth Amendment Act of 2012.] (4) Only the Constitutional Court may— (a) decide disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of state; (b) decide on the constitutionality of any parliamentary or provincial Bill, but may do so only in the circumstances anticipated in section 79 or 121; (c) decide applications envisaged in section 80 or 122; (d) decide on the constitutionality of any amendment to the Constitution; (e) decide that Parliament or the President has failed to fulfil a constitutional obligation; or (f) certify a provincial constitution in terms of section 144. (5) The Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, the High Court of South Africa, or a court of similar status, before that order has any force. [Sub-s (5) substituted by s. 3 of the Constitution Seventeenth Amendment Act of 2012.] (6) National legislation or the rules of the Constitutional Court must allow a person, when it is in the interests of justice and with leave of the Constitutional Court—Chapter 8: Courts and Administration of Justice 84(a) to bring a matter directly to the Constitutional Court; or (b) to appeal directly to the Constitutional Court from any other court. (7) A constitutional matter includes any issue involving the interpretation, protection or enforcement of the Constitution. Supreme Court of Appeal 168. (1) The Supreme Court of Appeal consists of a President, a Deputy President and the number of judges of appeal determined in terms of an Act of Parliament. [Sub-s. (1) substituted by s. 12 of the Constitution Sixth Amendment Act of 2001.] (2) A matter before the Supreme Court of Appeal must be decided by the number of judges determined in terms of an Act of Parliament. [Sub-s. (2) substituted by s. 12 of the Constitution Sixth Amendment Act of 2001.] (3) (a) The Supreme Court of Appeal may decide appeals in any matter arising from the High Court of South Africa or a court of a status similar to the High Court of South Africa, except in respect of labour or competition matters to such an extent as may be determined by an Act of Parliament. (b) The Supreme Court of Appeal may decide only— (i) appeals; (ii) issues connected with appeals; and (iii) any other matter that may be referred to it in circumstances defined by an Act of Parliament. [Sub-s (3) substituted by s. 4 of the Constitution Seventeenth Amendment Act of 2012.] High Court of South Africa 169. (1) The High Court of South Africa may decide— (a) any constitutional matter except a matter that— (i) the Constitutional Court has agreed to hear directly in terms of section 167(6)(a); or (ii) is assigned by an Act of Parliament to another court of a status similar to the High Court of South Africa; and (b) any other matter not assigned to another court by an Act of Parliament. Chapter 8: Courts and Administration of Justice 85 (2) The High Court of South Africa consists of the Divisions determined by an Act of Parliament, which Act must provide for— (a) the establishing of Divisions, with one or two more seats in a Division; and (b) the assigning of jurisdiction to a Division or a seat with a Division. (3) Each Division of the High Court of South Africa— (a) has a Judge President; (b) may have one or more Deputy Judges President; and (c) has the number of other judges determined in terms of national legislation. [S. 169 substituted by s. 5 of the Constitution Seventeenth Amendment Act of 2012.] Other courts 170. All courts other than those referred to in sections 167, 168 and 169 may decide any matter determined by an Act of Parliament, but a court of a status lower than the High Court of South Africa may not enquire into or rule on the constitutionality of any legislation or any conduct of the President. [S. 170 substituted by s. 6 of the Constitution Seventeenth Amendment Act of 2012.] Court procedures 171. All courts function in terms of national legislation, and their rules and procedures must be provided for in terms of national legislation. Powers of courts in constitutional matters 172. (1) When deciding a constitutional matter within its power, a court— (a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and (b) may make any order that is just and equitable, including— (i) an order limiting the retrospective effect of the declaration of invalidity; and (ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect. (2) (a) The Supreme Court of Appeal, the High Court of South Africa or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President, but an Chapter 8: Courts and Administration of Justice 86order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court. [Par (a) substituted by s. 7 of the Constitution Seventeenth Amendment Act of 2012.] (b) A court which makes an order of constitutional invalidity may grant a temporary interdict or other temporary relief to a party, or may adjourn the proceedings, pending a decision of the Constitutional Court on the validity of that Act or conduct. (c) National legislation must provide for the referral of an order of constitutional invalidity to the Constitutional Court. (d) Any person or organ of state with a sufficient interest may appeal, or apply, directly to the Constitutional Court to confirm or vary an order of constitutional invalidity by a court in terms of this subsection. Inherent power 173. The Constitutional Court, the Supreme Court of Appeal and the High Court of South Africa each has the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice. [S. 173 substituted by s. 8 of the Constitution Seventeenth Amendment Act of 2012.] Appointment of judicial officers 174. (1) Any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer. Any person to be appointed to the Constitutional Court must also be a South African citizen. (2) The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed. (3) The President as head of the national executive, after consulting the Judicial Service Commission and the leaders of parties represented in the National Assembly, appoints the Chief Justice and the Deputy Chief Justice and, after consulting the Judicial Service Commission, appoints the President and Deputy President of the Supreme Court of Appeal. [Sub-s. (3) substituted by s. 13 of the Constitution Sixth Amendment Act of 2001.] Chapter 8: Courts and Administration of Justice 87 (4) The other judges of the Constitutional Court are appointed by the President, as head of the national executive, after consulting the Chief Justice and the leaders of parties represented in the National Assembly, in accordance with the following procedure: (a) The Judicial Service Commission must prepare a list of nominees with three names more than the number of appointments to be made, and submit the list to the President. (b) The President may make appointments from the list, and must advise the Judicial Service Commission, with reasons, if any of the nominees are unacceptable and any appointment remains to be made. (c) The Judicial Service Commission must supplement the list with further nominees and the President must make the remaining appointments from the supplemented list. [Sub-s. (4) substituted by s. 13 of the Constitution Sixth Amendment Act of 2001.] (5) At all times, at least four members of the Constitutional Court must be persons who were judges at the time they were appointed to the Constitutional Court. (6) The President must appoint the judges of all other courts on the advice of the Judicial Service Commission. (7) Other judicial officers must be appointed in terms of an Act of Parliament which must ensure that the appointment, promotion, transfer or dismissal of, or disciplinary steps against, these judicial officers take place without favour or prejudice. (8) Before judicial officers begin to perform their functions, they must take an oath or affirm, in accordance with Schedule 2, that they will uphold and protect the Constitution. Appointment of acting judges 175. (1) The President may appoint a woman or a man to serve as an acting Deputy Chief Justice or judge of the Constitutional Court if there is a vacancy in any of those offices , or if the person holding such an office is absent. The appointment must be made on the recommendation of the Cabinet member responsible for the administration of justice acting with the concurrence of the Chief Justice, and an appointment as acting Deputy Chief Justice must be made from the ranks of the judges who had been appointed to the Constitutional Court in terms of section 174(4). Chapter 8: Courts and Administration of Justice 88 (2) The Cabinet member responsible for the administration of justice must appoint acting judges to other courts after consulting the senior judge of the court on which the acting judge will serve. [S. 175 substituted by s. 9 of the Constitution Seventeenth Amendment Act of 2012.] Terms of office and remuneration 176. (1) A Constitutional Court judge holds office for a non-renewable term of 12 years, or until he or she attains the age of 70, whichever occurs first, except where an Act of Parliament extends the term of office of a Constitutional Court judge. [Sub-s. (1) substituted by s. 15 of the Constitution Sixth Amendment Act of 2001.] (2) Other judges hold office until they are discharged from active service in terms of an Act of Parliament. (3) The salaries, allowances and benefits of judges may not be reduced. Removal 177. (1) A judge may be removed from office only if— (a) the Judicial Service Commission finds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct; and (b) the National Assembly calls for that judge to be removed, by a resolution adopted with a supporting vote of at least two thirds of its members. (2) The President must remove a judge from office upon adoption of a resolution calling for that judge to be removed. (3) The President, on the advice of the Judicial Service Commission, may suspend a judge who is the subject of a procedure in terms of subsection (1). Judicial Service Commission 178. (1) There is a Judicial Service Commission consisting of— (a) the Chief Justice, who presides at meetings of the Commission; (b) the President of the Supreme Court of Appeal; [Para. (b) substituted by s. 16(a) of the Constitution Sixth Amendment Act of 2001.] (c) one Judge President designated by the Judges President; (d) the Cabinet member responsible for the administration of justice, or an alternate designated by that Cabinet member; Chapter 8: Courts and Administration of Justice 89 (e) two practising advocates nominated from within the advocates’ profession to represent the profession as a whole, and appointed by the President; (f) two practising attorneys nominated from within the attorneys’ profession to represent the profession as a whole, and appointed by the President; (g) one teacher of law designated by teachers of law at South African universities; (h) six persons designated by the National Assembly from among its members, at least three of whom must be members of opposition parties represented in the Assembly; (i) four permanent delegates to the National Council of Provinces designated together by the Council with a supporting vote of at least six provinces; (j) four persons designated by the President as head of the national executive, after consulting the leaders of all the parties in the National Assembly; and (k) when considering matters relating to a specific Division of the High Court of South Africa, the Judge President of that Division and the Premier of the province concerned, or an alternate designated by each of them. [Para. (k) substituted by s. 2(a) of the Constitution Second Amendment Act of 1998, by s. 16(b) of the Constitution Sixth Amendment Act of 2001 and by s. 10 of the Constitution Seventeenth Amendment Act of 2012.] (2) If the number of persons nominated from within the advocates’ or attorneys’ profession in terms of subsection (1)(e) or (f) equals the number of vacancies to be filled, the President must appoint them. If the number of persons nominated exceeds the number of vacancies to be filled, the President, after consulting the relevant profession, must appoint sufficient of the nominees to fill the vacancies, taking into account the need to ensure that those appointed represent the profession as a whole. (3) Members of the Commission designated by the National Council of Provinces serve until they are replaced together, or until any vacancy occurs in their number. Other members who were designated or nominated to the Commission serve until they are replaced by those who designated or nominated them. (4) The Judicial Service Commission has the powers and functions assigned to it in the Constitution and national legislation. (5) The Judicial Service Commission may advise the national government on any matter relating to the judiciary or the administration of justice, but when it considers Chapter 8: Courts and Administration of Justice 90any matter except the appointment of a judge, it must sit without the members designated in terms of subsection (1)(h) and (i). (6) The Judicial Service Commission may determine its own procedure, but decisions of the Commission must be supported by a majority of its members. (7) If the Chief Justice or the President of the Supreme Court of Appeal is temporarily unable to serve on the Commission, the Deputy Chief Justice or the Deputy President of the Supreme Court of Appeal, as the case may be, acts as his or her alternate on the Commission. [Sub-s. (7) added by s. 2(b) of the Constitution Second Amendment Act of 1998 and substituted by s. 16 (c) of Constitution Sixth Amendment Act of 2001.] (8) The President and the persons who appoint, nominate or designate the members of the Commission in terms of subsection (1)(c), (e), (f) and (g), may, in the same manner appoint, nominate or designate an alternate for each of those members, to serve on the Commission whenever the member concerned is temporarily unable to do so by reason of his or her incapacity or absence from the Republic or for any other sufficient reason. [Sub-s. (8) added by s. 2(b) of the Constitution Second Amendment Act of 1998. ] Prosecuting authority 179. (1) There is a single national prosecuting authority in the Republic, structured in terms of an Act of Parliament, and consisting of— (a) a National Director of Public Prosecutions, who is the head of the prosecuting authority, and is appointed by the President, as head of the national executive; and (b) Directors of Public Prosecutions and prosecutors as determined by an Act of Parliament. (2) The prosecuting authority has the power to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings. (3) National legislation must ensure that the Directors of Public Prosecutions— (a) are appropriately qualified; and (b) are responsible for prosecutions in specific jurisdictions, subject to subsection (5). Chapter 8: Courts and Administration of Justice 91 (4) National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice. (5) The National Director of Public Prosecutions— (a) must determine, with the concurrence of the Cabinet member responsible for the administration of justice, and after consulting the Directors of Public Prosecutions, prosecution policy, which must be observed in the prosecution process; (b) must issue policy directives which must be observed in the prosecution process; (c) may intervene in the prosecution process when policy directives are not complied with; and (d) may review a decision to prosecute or not to prosecute, after consulting the relevant Director of Public Prosecutions and after taking representations within a period specified by the National Director of Public Prosecutions, from the following: (i) The accused person. (ii) The complainant. (iii) Any other person or party whom the National Director considers to be relevant. (6) The Cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority. (7) All other matters concerning the prosecuting authority must be determined by national legislation. Other matters concerning administration of justice 180. National legislation may provide for any matter concerning the administration of justice that is not dealt with in the Constitution, including— (a) training programmes for judicial officers; (b) procedures for dealing with complaints about judicial officers; and (c) the participation of people other than judicial officers in court decisions. Chapter 8: Courts and Administration of Justice 92CHAPTER 9 STATE INSTITUTIONS SUPPORTING CONSTITUTIONAL DEMOCRACY Establishment and governing principles 181. (1) The following state institutions strengthen constitutional democracy in the Republic: (a) The Public Protector. (b) The South African Human Rights Commission. (c) The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities. (d) The Commission for Gender Equality. (e) The Auditor-General. (f) The Electoral Commission. (2) These institutions are independent, and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice. (3) Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions. (4) No person or organ of state may interfere with the functioning of these institutions. (5) These institutions are accountable to the National Assembly, and must report on their activities and the performance of their functions to the Assembly at least once a year. Public Protector Functions of Public Protector 182. (1) The Public Protector has the power, as regulated by national legislation— (a) to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice; Chapter 9: State Institutions supporting Constitutional Democracy 93 (b) to report on that conduct; and (c) to take appropriate remedial action. (2) The Public Protector has the additional powers and functions prescribed by national legislation. (3) The Public Protector may not investigate court decisions. (4) The Public Protector must be accessible to all persons and communities. (5) Any report issued by the Public Protector must be open to the public unless exceptional circumstances, to be determined in terms of national legislation, require that a report be kept confidential. Tenure 183. The Public Protector is appointed for a non-renewable period of seven years. South African Human Rights Commission Functions of South African Human Rights Commission 184. (1) The South African Human Rights Commission must— (a) promote respect for human rights and a culture of human rights; (b) promote the protection, development and attainment of human rights; and (c) monitor and assess the observance of human rights in the Republic. (2) The South African Human Rights Commission has the powers, as regulated by national legislation, necessary to perform its functions, including the power— (a) to investigate and to report on the observance of human rights; (b) to take steps to secure appropriate redress where human rights have been violated; (c) to carry out research; and (d) to educate. (3) Each year, the South African Human Rights Commission must require relevant organs of state to provide the Commission with information on the measures that they have taken towards the realisation of the rights in the Bill of Rights concerning housing, health care, food, water, social security, education and the environment. (4) The South African Human Rights Commission has the additional powers and functions prescribed by national legislation. Chapter 9: State Institutions supporting Constitutional Democracy 94Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Functions of Commission 185. (1) The primary objects of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities are— (a) to promote respect for the rights of cultural, religious and linguistic communities; (b) to promote and develop peace, friendship, humanity, tolerance and national unity among cultural, religious and linguistic communities, on the basis of equality, non-discrimination and free association; and (c) to recommend the establishment or recognition, in accordance with national legislation, of a cultural or other council or councils for a community or communities in South Africa. (2) The Commission has the power, as regulated by national legislation, necessary to achieve its primary objects, including the power to monitor, investigate, research, educate, lobby, advise and report on issues concerning the rights of cultural, religious and linguistic communities. (3) The Commission may report any matter which falls within its powers and functions to the South African Human Rights Commission for investigation. (4) The Commission has the additional powers and functions prescribed by national legislation. Composition of Commission 186. (1) The number of members of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities and their appointment and terms of office must be prescribed by national legislation. (2) The composition of the Commission must— (a) be broadly representative of the main cultural, religious and linguistic communities in South Africa; and (b) broadly reflect the gender composition of South Africa. Chapter 9: State Institutions supporting Constitutional Democracy 95 Commission for Gender Equality Functions of Commission for Gender Equality 187. (1) The Commission for Gender Equality must promote respect for gender equality and the protection, development and attainment of gender equality. (2) The Commission for Gender Equality has the power, as regulated by national legislation, necessary to perform its functions, including the power to monitor, investigate, research, educate, lobby, advise and report on issues concerning gender equality. (3) The Commission for Gender Equality has the additional powers and functions prescribed by national legislation. Auditor-General Functions of Auditor-General 188. (1) The Auditor-General must audit and report on the accounts, financial statements and financial management of— (a) all national and provincial state departments and administrations; (b) all municipalities; and (c) any other institution or accounting entity required by national or provincial legislation to be audited by the Auditor-General. (2) In addition to the duties prescribed in subsection (1), and subject to any legislation, the Auditor-General may audit and report on the accounts, financial statements and financial management of— (a) any institution funded from the National Revenue Fund or a Provincial Revenue Fund or by a municipality; or (b) any institution that is authorised in terms of any law to receive money for a public purpose. (3) The Auditor-General must submit audit reports to any legislature that has a direct interest in the audit, and to any other authority prescribed by national legislation. All reports must be made public. (4) The Auditor-General has the additional powers and functions prescribed by national legislation. Chapter 9: State Institutions supporting Constitutional Democracy 96Tenure 189. The Auditor-General must be appointed for a fixed, non-renewable term of between five and ten years. Electoral Commission Functions of Electoral Commission 190. (1) The Electoral Commission must— (a) manage elections of national, provincial and municipal legislative bodies in accordance with national legislation; (b) ensure that those elections are free and fair; and (c) declare the results of those elections within a period that must be prescribed by national legislation and that is as short as reasonably possible. (2) The Electoral Commission has the additional powers and functions prescribed by national legislation. Composition of Electoral Commission 191. The Electoral Commission must be composed of at least three persons. The number of members and their terms of office must be prescribed by national legislation. Independent Authority to Regulate Broadcasting Broadcasting Authority 192. National legislation must establish an independent authority to regulate broadcasting in the public interest, and to ensure fairness and a diversity of views broadly representing South African society. General Provisions Appointments 193. (1) The Public Protector and the members of any Commission established by this