Indexed passage in the Constitution of South Africa

97 (a) are South African citizens; (b) are fit and proper persons to hold the particular office; and (c) comply with any other requirements prescribed by national legislation. (2) The need for a Commission established by this Chapter to reflect broadly the race and gender composition of South Africa must be considered when members are appointed. (3) The Auditor-General must be a woman or a man who is a South African citizen and a fit and proper person to hold that office. Specialised knowledge of, or experience in, auditing, state finances and public administration must be given due regard in appointing the Auditor-General. (4) The President, on the recommendation of the National Assembly, must appoint the Public Protector, the Auditor-General and the members of— (a) the South African Human Rights Commission; (b) the Commission for Gender Equality; and (c) the Electoral Commission. (5) The National Assembly must recommend persons— (a) nominated by a committee of the Assembly proportionally composed of members of all parties represented in the Assembly; and (b) approved by the Assembly by a resolution adopted with a supporting vote— (i) of at least 60 per cent of the members of the Assembly, if the recommendation concerns the appointment of the Public Protector or the Auditor-General; or (ii) of a majority of the members of the Assembly, if the recommendation concerns the appointment of a member of a Commission. (6) The involvement of civil society in the recommendation process may be provided for as envisaged in section 59(1)(a). Removal from office 194. (1) The Public Protector, the Auditor-General or a member of a Commission established by this Chapter may be removed from office only on— (a) the ground of misconduct, incapacity or incompetence; (b) a finding to that effect by a committee of the National Assembly; and (c) the adoption by the Assembly of a resolution calling for that person’s removal from office. Chapter 9: State Institutions supporting Constitutional Democracy 98 (2) A resolution of the National Assembly concerning the removal from office of— (a) the Public Protector or the Auditor-General must be adopted with a supporting vote of at least two thirds of the members of the Assembly; or (b) a member of a Commission must be adopted with a supporting vote of a majority of the members of the Assembly. (3) The President— (a) may suspend a person from office at any time after the start of the proceedings of a committee of the National Assembly for the removal of that person; and (b) must remove a person from office upon adoption by the Assembly of the resolution calling for that person’s removal. Chapter 9: State Institutions supporting Constitutional Democracy 99 CHAPTER 10 PUBLIC ADMINISTRATION Basic values and principles governing public administration 195. (1) Public administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles: (a) A high standard of professional ethics must be promoted and maintained. (b) Efficient, economic and effective use of resources must be promoted. (c) Public administration must be development-oriented. (d) Services must be provided impartially, fairly, equitably and without bias. (e) People’s needs must be responded to, and the public must be encouraged to participate in policy-making. (f) Public administration must be accountable. (g) Transparency must be fostered by providing the public with timely, accessible and accurate information. (h) Good human-resource management and career-development practices, to maximise human potential, must be cultivated. (i) Public administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness, and the need to redress the imbalances of the past to achieve broad representation. (2) The above principles apply to— (a) administration in every sphere of government; (b) organs of state; and (c) public enterprises. (3) National legislation must ensure the promotion of the values and principles listed in subsection (1). (4) The appointment in public administration of a number of persons on policy considerations is not precluded, but national legislation must regulate these appointments in the public service. (5) Legislation regulating public administration may differentiate between different sectors, administrations or institutions. Chapter 10: Public Administration 100 (6) The nature and functions of different sectors, administrations or institutions of public administration are relevant factors to be taken into account in legislation regulating public administration. Public Service Commission 196. (1) There is a single Public Service Commission for the Republic. (2) The Commission is independent and must be impartial, and must exercise its powers and perform its functions without fear, favour or prejudice in the interest of the maintenance of effective and efficient public administration and a high standard of professional ethics in the public service. The Commission must be regulated by national legislation. (3) Other organs of state, through legislative and other measures, must assist and protect the Commission to ensure the independence, impartiality, dignity and effectiveness of the Commission. No person or organ of state may interfere with the functioning of the Commission. (4) The powers and functions of the Commission are— (a) to promote the values and principles set out in section 195, throughout the public service; (b) to investigate, monitor and evaluate the organisation and administration, and the personnel practices, of the public service; (c) to propose measures to ensure effective and efficient performance within the public service; (d) to give directions aimed at ensuring that personnel procedures relating to recruitment, transfers, promotions and dismissals comply with the values and principles set out in section 195; (e) to report in respect of its activities and the performance of its functions, including any finding it may make and directions and advice it may give, and to provide an evaluation of the extent to which the values and principles set out in section 195 are complied with; and (f) either of its own accord or on receipt of any complaint— (i) to investigate and evaluate the application of personnel and public administration practices, and to report to the relevant executive authority and legislature; (ii) to investigate grievances of employees in the public service concerning official acts or omissions, and recommend appropriate remedies; Chapter 10: Public Administration 101 (iii) to monitor and investigate adherence to applicable procedures in the public service; and (iv) to advise national and provincial organs of state regarding personnel practices in the public service, including those relating to the recruitment, appointment, transfer, discharge and other aspects of the careers of employees in the public service; and (g) to exercise or perform the additional powers or functions prescribed by an Act of Parliament. [Para. (g) added by s. 3 of the Constitution Second Amendment Act of 1998.] (5) The Commission is accountable to the National Assembly. (6) The Commission must report at least once a year in terms of subsection (4)(e)— (a) to the National Assembly; and (b) in respect of its activities in a province, to the legislature of that province. (7) The Commission has the following 14 commissioners appointed by the President: (a) Five commissioners approved by the National Assembly in accordance with subsection (8)(a); and (b) one commissioner for each province nominated by the Premier of the province in accordance with subsection (8)(b). (8) (a) A commissioner appointed in terms of subsection (7)(a) must be— (i) recommended by a committee of the National Assembly that is proportionally composed of members of all parties represented in the Assembly; and (ii) approved by the Assembly by a resolution adopted with a supporting vote of a majority of its members. (b) A commissioner nominated by the Premier of a province must be— (i) recommended by a committee of the provincial legislature that is proportionally composed of members of all parties represented in the legislature; and (ii) approved by the legislature by a resolution adopted with a supporting vote of a majority of its members. (9) An Act of Parliament must regulate the procedure for the appointment of commissioners. (10) A commissioner is appointed for a term of five years, which is renewable for one additional term only, and must be a woman or a man who is—Chapter 10: Public Administration 102(a) a South African citizen; and (b) a fit and proper person with knowledge of, or experience in, administration, management or the provision of public services. (11) A commissioner may be removed from office only on— (a) the ground of misconduct, incapacity or incompetence; (b) a finding to that effect by a committee of the National Assembly or, in the case of a commissioner nominated by the Premier of a province, by a committee of the legislature of that province; and (c) the adoption by the Assembly or the provincial legislature concerned, of a resolution with a supporting vote of a majority of its members calling for the commissioner’s removal from office. (12) The President must remove the relevant commissioner from office upon— (a) the adoption by the Assembly of a resolution calling for that commissioner’s removal; or (b) written notification by the Premier that the provincial legislature has adopted a resolution calling for that commissioner’s removal. (13) Commissioners referred to in subsection (7)(b) may exercise the powers and perform the functions of the Commission in their provinces as prescribed by national legislation. Public Service 197. (1) Within public administration there is a public service for the Republic, which must function, and be structured, in terms of national legislation, and which must loyally execute the lawful policies of the government of the day. (2) The terms and conditions of employment in the public service must be regulated by national legislation. Employees are entitled to a fair pension as regulated by national legislation. (3) No employee of the public service may be favoured or prejudiced only because that person supports a particular political party or cause. (4) Provincial governments are responsible for the recruitment, appointment, promotion, transfer and dismissal of members of the public service in their administrations within a framework of uniform norms and standards applying to the public service. Chapter 10: Public Administration 103 CHAPTER 11 SECURITY SERVICES Governing principles 198. The following principles govern national security in the Republic: (a) National security must reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life. (b) The resolve to live in peace and harmony precludes any South African citizen from participating in armed conflict, nationally or internationally, except as provided for in terms of the Constitution or national legislation. (c) National security must be pursued in compliance with the law, including international law. (d) National security is subject to the authority of Parliament and the national executive. Establishment, structuring and conduct of security services 199. (1) The security services of the Republic consist of a single defence force, a single police service and any intelligence services established in terms of the Constitution. (2) The defence force is the only lawful military force in the Republic. (3) Other than the security services established in terms of the Constitution, armed organisations or services may be established only in terms of national legislation. (4) The security services must be structured and regulated by national legislation. (5) The security services must act, and must teach and require their members to act, in accordance with the Constitution and the law, including customary international law and international agreements binding on the Republic. (6) No member of any security service may obey a manifestly illegal order. (7) Neither the security services, nor any of their members, may, in the performance of their functions— (a) prejudice a political party interest that is legitimate in terms of the Constitution; or (b) further, in a partisan manner, any interest of a political party. Chapter 11: Security Services 104 (8) To give effect to the principles of transparency and accountability, multi-party parliamentary committees must have oversight of all security services in a manner determined by national legislation or the rules and orders of Parliament. Defence Defence force 200. (1) The defence force must be structured and managed as a disciplined military force. (2) The primary object of the defence force is to defend and protect the Republic, its territorial integrity and its people in accordance with the Constitution and the principles of international law regulating the use of force. Political responsibility 201. (1) A member of the Cabinet must be responsible for defence. (2) Only the President, as head of the national executive, may authorise the employment of the defence force— (a) in co-operation with the police service; (b) in defence of the Republic; or (c) in fulfilment of an international obligation. (3) When the defence force is employed for any purpose mentioned in subsection (2), the President must inform Parliament, promptly and in appropriate detail, of— (a) the reasons for the employment of the defence force; (b) any place where the force is being employed; (c) the number of people involved; and (d) the period for which the force is expected to be employed. (4) If Parliament does not sit during the first seven days after the defence force is employed as envisaged in subsection (2), the President must provide the information required in subsection (3) to the appropriate oversight committee. Command of defence force 202. (1) The President as head of the national executive is Commander-in-Chief of the defence force, and must appoint the Military Command of the defence force. Chapter 11: Security Services 105 (2) Command of the defence force must be exercised in accordance with the directions of the Cabinet member responsible for defence, under the authority of the President. State of national defence 203. (1) The President as head of the national executive may declare a state of national defence, and must inform Parliament promptly and in appropriate detail of— (a) the reasons for the declaration; (b) any place where the defence force is being employed; and (c) the number of people involved. (2) If Parliament is not sitting when a state of national defence is declared, the President must summon Parliament to an extraordinary sitting within seven days of the declaration. (3) A declaration of a state of national defence lapses unless it is approved by Parliament within seven days of the declaration. Defence civilian secretariat 204. A civilian secretariat for defence must be established by national legislation to function under the direction of the Cabinet member responsible for defence. Police Police service 205. (1) The national police service must be structured to function in the national, provincial and, where appropriate, local spheres of government. (2) National legislation must establish the powers and functions of the police service and must enable the police service to discharge its responsibilities effectively, taking into account the requirements of the provinces. (3) The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law. Chapter 11: Security Services 106Political responsibility 206. (1) A member of the Cabinet must be responsible for policing and must determine national policing policy after consulting the provincial governments and taking into account the policing needs and priorities of the provinces as determined by the provincial executives. (2) The national policing policy may make provision for different policies in respect of different provinces after taking into account the policing needs and priorities of these provinces. (3) Each province is entitled— (a) to monitor police conduct; (b) to oversee the effectiveness and efficiency of the police service, including receiving reports on the police service; (c) to promote good relations between the police and the community; (d) to assess the effectiveness of visible policing; and (e) to liaise with the Cabinet member responsible for policing with respect to crime and policing in the province. (4) A provincial executive is responsible for policing functions— (a) vested in it by this Chapter; (b) assigned to it in terms of national legislation; and (c) allocated to it in the national policing policy. (5) In order to perform the functions set out in subsection (3), a province— (a) may investigate, or appoint a commission of inquiry into, any complaints of police inefficiency or a breakdown in relations between the police and any community; and (b) must make recommendations to the Cabinet member responsible for policing. (6) On receipt of a complaint lodged by a provincial executive, an independent police complaints body established by national legislation must investigate any alleged misconduct of, or offence committed by, a member of the police service in the province. (7) National legislation must provide a framework for the establishment, powers, functions and control of municipal police services. (8) A committee composed of the Cabinet member and the members of the Executive Councils responsible for policing must be established to ensure effective co- ordination of the police service and effective co-operation among the spheres of government. Chapter 11: Security Services 107 (9) A provincial legislature may require the provincial commissioner of the province to appear before it or any of its committees to answer questions. Control of police service 207. (1) The President as head of the national executive must appoint a woman or a man as the National Commissioner of the police service, to control and manage the police service. (2) The National Commissioner must exercise control over and manage the police service in accordance with the national policing policy and the directions of the Cabinet member responsible for policing. (3) The National Commissioner, with the concurrence of the provincial executive, must appoint a woman or a man as the provincial commissioner for that province, but if the National Commissioner and the provincial executive are unable to agree on the appointment, the Cabinet member responsible for policing must mediate between the parties. (4) The provincial commissioners are responsible for policing in their respective provinces— (a) as prescribed by national legislation; and (b) subject to the power of the National Commissioner to exercise control over and manage the police service in terms of subsection (2). (5) The provincial commissioner must report to the provincial legislature annually on policing in the province, and must send a copy of the report to the National Commissioner. (6) If the provincial commissioner has lost the confidence of the provincial executive, that executive may institute appropriate proceedings for the removal or transfer of, or disciplinary action against, that commissioner, in accordance with national legislation. Police civilian secretariat 208. A civilian secretariat for the police service must be established by national legislation to function under the direction of the Cabinet member responsible for policing. Chapter 11: Security Services 108Intelligence Establishment and control of intelligence services 209. (1) Any intelligence service, other than any intelligence division of the defence force or police service, may be established only by the President, as head of the national executive, and only in terms of national legislation. (2) The President as head of the national executive must appoint a woman or a man as head of each intelligence service established in terms of subsection (1), and must either assume political responsibility for the control and direction of any of those services, or designate a member of the Cabinet to assume that responsibility. Powers, functions and monitoring 210. National legislation must regulate the objects, powers and functions of the intelligence services, including any intelligence division of the defence force or police service, and must provide for— (a) the co-ordination of all intelligence services; and (b) civilian monitoring of the activities of those services by an inspector appointed by the President, as head of the national executive, and approved by a resolution adopted by the National Assembly with a supporting vote of at least two thirds of its members. Chapter 11: Security Services 109 CHAPTER 12 TRADITIONAL LEADERS Recognition 211. (1) The institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution. (2) A traditional authority that observes a system of customary law may function subject to any applicable legislation and customs, which includes amendments to, or repeal of, that legislation or those customs. (3) The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law. Role of traditional leaders 212. (1) National legislation may provide for a role for traditional leadership as an institution at local level on matters affecting local communities. (2) To deal with matters relating to traditional leadership, the role of traditional leaders, customary law and the customs of communities observing a system of customary law— (a) national or provincial legislation may provide for the establishment of houses of traditional leaders; and (b) national legislation may establish a council of traditional leaders. Chapter 12: Traditional Leaders 110CHAPTER 13 FINANCE General Financial Matters National Revenue Fund 213. (1) There is a National Revenue Fund into which all money received by the national government must be paid, except money reasonably excluded by an Act of Parliament. (2) Money may be withdrawn from the National Revenue Fund only— (a) in terms of an appropriation by an Act of Parliament; or (b) as a direct charge against the National Revenue Fund, when it is provided for in the Constitution or an Act of Parliament. (3) A province’s equitable share of revenue raised nationally is a direct charge against the National Revenue Fund. [Date of commencement of s. 213: 1 January 1998] Equitable shares and allocations of revenue 214. (1) An Act of Parliament must provide for— (a) the equitable division of revenue raised nationally among the national, provincial and local spheres of government; (b) the determination of each province’s equitable share of the provincial share of that revenue; and (c) any other allocations to provinces, local government or municipalities from the national government’s share of that revenue, and any conditions on which those allocations may be made. (2) The Act referred to in subsection (1) may be enacted only after the provincial governments, organised local government and the Financial and Fiscal Commission have been consulted, and any recommendations of the Commission have been considered, and must take into account— (a) the national interest; (b) any provision that must be made in respect of the national debt and other national obligations; Chapter 13: Finance 111 (c) the needs and interests of the national government, determined by objective criteria; (d) the need to ensure that the provinces and municipalities are able to provide basic services and perform the functions allocated to them; (e) the fiscal capacity and efficiency of the provinces and municipalities; (f) developmental and other needs of provinces, local government and municipalities; (g) economic disparities within and among the provinces; (h) obligations of the provinces and municipalities in terms of national legislation; (i) the desirability of stable and predictable allocations of revenue shares; and (j) the need for flexibility in responding to emergencies or other temporary needs, and other factors based on similar objective criteria. [Date of commencement of s. 214: 1 January 1998] National, provincial and municipal budgets 215. (1) National, provincial and municipal budgets and budgetary processes must promote transparency, accountability and the effective financial management of the economy, debt and the public sector. (2) National legislation must prescribe— (a) the form of national, provincial and municipal budgets; (b) when national and provincial budgets must be tabled; and (c) that budgets in each sphere of government must show the sources of revenue and the way in which proposed expenditure will comply with national legislation. (3) Budgets in each sphere of government must contain— (a) estimates of revenue and expenditure, differentiating between capital and current expenditure; (b) proposals for financing any anticipated deficit for the period to which they apply; and (c) an indication of intentions regarding borrowing and other forms of public liability that will increase public debt during the ensuing year. [Date of commencement of s. 215: 1 January 1998.]Chapter 13: Finance 112Treasury control 216. (1) National legislation must establish a national treasury and prescribe measures to ensure both transparency and expenditure control in each sphere of government, by introducing— (a) generally recognised accounting practice; (b) uniform expenditure classifications; and (c) uniform treasury norms and standards. (2) The national treasury must enforce compliance with the measures established in terms of subsection (1), and may stop the transfer of funds to an organ of state if that organ of state commits a serious or persistent material breach of those measures. [Sub-s. (2) substituted by s. 5 (a) of the Constitution Seventh Amendment Act of 2001.] (3) A decision to stop the transfer of funds due to a province in terms of section 214(1) (b) may be taken only in the circumstances mentioned in subsection (2) and— (a) may not stop the transfer of funds for more than 120 days; and (b) may be enforced immediately, but will lapse retrospectively unless Parliament approves it following a process substantially the same as that established in terms of section 76(1) and prescribed by the joint rules and orders of Parliament. This process must be completed within 30 days of the decision by the national treasury. [Sub-s. (3) amended by s. 5 (b) of the Constitution Seventh Amendment Act of 2001.] (4) Parliament may renew a decision to stop the transfer of funds for no more than 120 days at a time, following the process established in terms of subsection (3). (5) Before Parliament may approve or renew a decision to stop the transfer of funds to a province— (a) the Auditor-General must report to Parliament; and (b) the province must be given an opportunity to answer the allegations against it, and to state its case, before a committee. Procurement 217. (1) When an organ of state in the national, provincial or local sphere of government, or any other institution identified in national legislation, contracts for goods or services, it must do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective. Chapter 13: Finance 113 (2) Subsection (1) does not prevent the organs of state or institutions referred to in that subsection from implementing a procurement policy providing for— (a) categories of preference in the allocation of contracts; and (b) the protection or advancement of persons, or categories of persons, disadvantaged by unfair discrimination. (3) National legislation must prescribe a framework within which the policy referred to in subsection (2) must be implemented. [Sub-s. (3) substituted by s. 6 of the Constitution Seventh Amendment Act of 2001.] Government guarantees 218. (1) The national government, a provincial government or a municipality may guarantee a loan only if the guarantee complies with any conditions set out in national legislation. (2) National legislation referred to in subsection (1) may be enacted only after any recommendations of the Financial and Fiscal Commission have been considered. (3) Each year, every government must publish a report on the guarantees it has granted. [Date of commencement of S. 218: 1 January 1998.] Remuneration of persons holding public office 219. (1) An Act of Parliament must establish a framework for determining— (a) the salaries, allowances and benefits of members of the National Assembly, permanent delegates to the National Council of Provinces, members of the Cabinet, Deputy Ministers, traditional leaders and members of any councils of traditional leaders; and (b) the upper limit of salaries, allowances or benefits of members of provincial legislatures, members of Executive Councils and members of Municipal Councils of the different categories. (2) National legislation must establish an independent commission to make recommendations concerning the salaries, allowances and benefits referred to in subsection (1). (3) Parliament may pass the legislation referred to in subsection (1) only after considering any recommendations of the commission established in terms of subsection (2). Chapter 13: Finance 114 (4) The national executive, a provincial executive, a municipality or any other relevant authority may implement the national legislation referred to in subsection (1) only after considering any recommendations of the commission established in terms of subsection (2). (5) National legislation must establish frameworks for determining the salaries, allowances and benefits of judges, the Public Protector, the Auditor-General, and members of any commission provided for in the Constitution, including the broadcasting authority referred to in section 192. Financial and Fiscal Commission Establishment and functions 220. (1) There is a Financial and Fiscal Commission for the Republic which makes recommendations envisaged in this Chapter, or in national legislation, to Parliament, provincial legislatures and any other authorities determined by national legislation. (2) The Commission is independent and subject only to the Constitution and the law, and must be impartial. (3) The Commission must function in terms of an Act of Parliament and, in performing its functions, must consider all relevant factors, including those listed in section 214(2). Appointment and tenure of members 221. (1) The Commission consists of the following women and men appointed by the President, as head of the national executive: (a) A chairperson and a deputy chairperson; (b) three persons selected, after consulting the Premiers, from a list compiled in accordance with a process prescribed by national legislation; (c) two persons selected, after consulting organised local government, from a list compiled in accordance with a process prescribed by national legislation; and (d) two other persons. [Sub-s (1) substituted by s. 2 of the Constitution Fifth Amendment Act of 1999] and substituted by s. 7(a) of the Constitution Seventh Amendment Act of 2001.]Chapter 13: Finance 115 (1A) National legislation referred to in subsection (1) must provide for the participation of— (a) the Premiers in the compilation of a list envisaged in subsection (1) (b); and (b) organised local government in the compilation of a list envisaged in subsection (1) (c). [Sub-s. (1A) inserted by s. 7(b) of the Constitution Seventh Amendment Act of 2001. ] (2) Members of the Commission must have appropriate expertise. (3) Members serve for a term established in terms of national legislation. The President may remove a member from office on the ground of misconduct, incapacity or incompetence. Reports 222. The Commission must report regularly both to Parliament and to the provincial legislatures. Central Bank Establishment 223. The South African Reserve Bank is the central bank of the Republic and is regulated in terms of an Act of Parliament. Primary object 224. (1) The primary object of the South African Reserve Bank is to protect the value of the currency in the interest of balanced and sustainable economic growth in the Republic. (2) The South African Reserve Bank, in pursuit of its primary object, must perform its functions independently and without fear, favour or prejudice, but there must be regular consultation between the Bank and the Cabinet member responsible for national financial matters. Chapter 13: Finance 116Powers and functions 225. The powers and functions of the South African Reserve Bank are those customarily exercised and performed by central banks, which powers and functions must be determined by an Act of Parliament and must be exercised or performed subject to the conditions prescribed in terms of that Act. Provincial and Local Financial Matters Provincial Revenue Funds 226. (1) There is a Provincial Revenue Fund for each province into which all money received by the provincial government must be paid, except money reasonably excluded by an Act of Parliament. (2) Money may be withdrawn from a Provincial Revenue Fund only— (a) in terms of an appropriation by a provincial Act; or (b) as a direct charge against the Provincial Revenue Fund, when it is provided for in the Constitution or a provincial Act. (3) Revenue allocated through a province to local government in that province in terms of section 214(1), is a direct charge against that province’s Revenue Fund. (4) National legislation may determine a framework within which— (a) a provincial Act may in terms of subsection (2)(b) authorise the withdrawal of money as a direct charge against a Provincial Revenue Fund; and (b) revenue allocated through a province to local government in that province in terms of subsection (3) must be paid to municipalities in the province. [Sub-s. (4) added by s. 8 of the Constitution Seventh Amendment Act of 2001.] [Date of commencement of s. 226: 1 January 1998] National sources of provincial and local government funding 227. (1) Local government and each province— (a) is entitled to an equitable share of revenue raised nationally to enable it to provide basic services and perform the functions allocated to it; and (b) may receive other allocations from national government revenue, either conditionally or unconditionally. (2) Additional revenue raised by provinces or municipalities may not be deducted from their share of revenue raised nationally, or from other allocations made to them Chapter 13: Finance 117 out of national government revenue. Equally, there is no obligation on the national government to compensate provinces or municipalities that do not raise revenue commensurate with their fiscal capacity and tax base. (3) A province’s equitable share of revenue raised nationally must be transferred to the province promptly and without deduction, except when the transfer has been stopped in terms of section 216. (4) A province must provide for itself any resources that it requires, in terms of a provision of its provincial constitution, that are additional to its requirements envisaged in the Constitution. [Date of commencement of s. 227: 1 January 1998] Provincial taxes 228. (1) A provincial legislature may impose— (a) taxes, levies and duties other than income tax, value-added tax, general sales tax, rates on property or customs duties; and (b) flat-rate surcharges on any tax, levy or duty that is imposed by national legislation, other than on corporate income tax, value-added tax, rates on property or customs duties. [Para. (b) substituted by s. 9 of the Constitution Seventh Amendment Act of 2001.] (2) The power of a provincial legislature to impose taxes, levies, duties and surcharges— (a) may not be exercised in a way that materially and unreasonably prejudices national economic policies, economic activities across provincial boundaries, or the national mobility of goods, services, capital or labour; and (b) must be regulated in terms of an Act of Parliament, which may be enacted only after any recommendations of the Financial and Fiscal Commission have been considered. [Date of commencement of s. 228: 1 January 1998] Municipal fiscal powers and functions 229. (1) Subject to subsections (2), (3) and (4), a municipality may impose— (a) rates on property and surcharges on fees for services provided by or on behalf of the municipality; and Chapter 13: Finance 118(b) if authorised by national legislation, other taxes, levies and duties appropriate to local government or to the category of local government into which that municipality falls, but no municipality may impose income tax, value-added tax, general sales tax or customs duty. (2) The power of a municipality to impose rates on property, surcharges on fees for services provided by or on behalf of the municipality, or other taxes, levies or duties— (a) may not be exercised in a way that materially and unreasonably prejudices national economic policies, economic activities across municipal boundaries, or the national mobility of goods, services, capital or labour; and (b) may be regulated by national legislation. (3) When two municipalities have the same fiscal powers and functions with regard to the same area, an appropriate division of those powers and functions must be made in terms of national legislation. The division may be made only after taking into account at least the following criteria: (a) The need to comply with sound principles of taxation. (b) The powers and functions performed by each municipality. (c) The fiscal capacity of each municipality. (d) The effectiveness and efficiency of raising taxes, levies and duties. (e) Equity. (4) Nothing in this section precludes the sharing of revenue raised in terms of this section between municipalities that have fiscal power and functions in the same area. (5) National legislation envisaged in this section may be enacted only after organised local government and the Financial and Fiscal Commission have been consulted, and any recommendations of the Commission have been considered. [Date of commencement of s. 229: 1 January 1998]Chapter 13: Finance 119 Provincial loans 230. (1) A province may raise loans for capital or current expenditure in accordance with national legislation, but loans for current expenditure may be raised only when necessary for bridging purposes during a fiscal year. (2) National legislation referred to in subsection (1) may be enacted only after any recommendations of the Financial and Fiscal Commission have been considered. [S. 230 substituted by s. 10 of the Constitution Seventh Amendment Act of 2001.] Municipal loans 230A. (1) A Municipal Council may, in accordance with national legislation— (a) raise loans for capital or current expenditure for the municipality, but loans for current expenditure may be raised only when necessary for bridging purposes during a fiscal year; and (b) bind itself and a future Council in the exercise of its legislative and executive authority to secure loans or investments for the municipality. (2) National legislation referred to in subsection (1) may be enacted only after any recommendations of the Financial and Fiscal Commission have been considered. [S. 230A inserted by s. 17 of the Constitution Sixth Amendment Act of 2001.] Chapter 13: Finance 120CHAPTER 14 GENERAL PROVISIONS International Law International agreements 231. (1) The negotiating and signing of all international agreements is the responsibility of the national executive. (2) An international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces, unless it is an agreement referred to in subsection (3). (3) An international agreement of a technical, administrative or executive nature, or an agreement which does not require either ratification or accession, entered into by the national executive, binds the Republic without approval by the National Assembly and the National Council of Provinces, but must be tabled in the Assembly and the Council within a reasonable time. (4) Any international agreement becomes law in the Republic when it is enacted into law by national legislation; but a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament. (5) The Republic is bound by international agreements which were binding on the Republic when this Constitution took effect. Customary international law 232. Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament. Application of international law 233. When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law. Chapter 14: General Provisions 121 Other Matters Charters of Rights 234. In order to deepen the culture of democracy established by the Constitution, Parliament may adopt Charters of Rights consistent with the provisions of the Constitution. Self-determination 235. The right of the South African people as a whole to self-determination, as manifested in this Constitution, does not preclude, within the framework of this right, recognition of the notion of the right of self-determination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way, determined by national legislation. Funding for political parties 236. To enhance multi-party democracy, national legislation must provide for the funding of political parties participating in national and provincial legislatures on an equitable and proportional basis. Diligent performance of obligations 237. All constitutional obligations must be performed diligently and without delay. Agency and delegation 238. An executive organ of state in any sphere of government may— (a) delegate any power or function that is to be exercised or performed in terms of legislation to any other executive organ of state, provided the delegation is consistent with the legislation in terms of which the power is exercised or the function is performed; or (b) exercise any power or perform any function for any other executive organ of state on an agency or delegation basis. Chapter 14: General Provisions 122Definitions 239. In the Constitution, unless the context indicates otherwise— “national legislation” includes— (a) subordinate legislation made in terms of an Act of Parliament; and (b) legislation that was in force when the Constitution took effect and that is administered by the national government; “organ of state” means— (a) any department of state or administration in the national, provincial or local sphere of government; or (b) any other functionary or institution— (i) exercising a power or performing a function in terms of the Constitution or a provincial constitution; or (ii) exercising a public power or performing a public function in terms of any legislation, but does not include a court or a judicial officer; “provincial legislation” includes— (a) subordinate legislation made in terms of a provincial Act; and (b) legislation that was in force when the Constitution took effect and that is administered by a provincial government. Inconsistencies between different texts 240. In the event of an inconsistency between different texts of the Constitution, the English text prevails. Transitional arrangements 241. Schedule 6 applies to the transition to the new constitutional order established by this Constitution, and any matter incidental to that transition. Repeal of laws 242. The laws mentioned in Schedule 7 are repealed, subject to section 243 and Schedule 6. Chapter 14: General Provisions 123 Short title and commencement 243. (1) This Act is called the Constitution of the Republic of South Africa, 1996, and comes into effect as soon as possible on a date set by the President by proclamation, which may not be a date later than 1 July 1997. (2) The President may set different dates before the date mentioned in subsection (1) in respect of different provisions of the Constitution. (3) Unless the context otherwise indicates, a reference in a provision of the Constitution to a time when the Constitution took effect must be construed as a reference to the time when that provision took effect. (4) If a different date is set for any particular provision of the Constitution in terms of subsection (2), any corresponding provision of the Constitution of the Republic of South Africa, 1993 (Act 200 of 1993), mentioned in the proclamation, is repealed with effect from the same date. (5) Sections 213, 214, 215, 216, 218, 226, 227, 228, 229 and 230 come into effect on 1 January 1998, but this does not preclude the enactment in terms of this Constitution of legislation envisaged in any of these provisions before that date. Until that date any corresponding and incidental provisions of the Constitution of the Republic of South Africa, 1993, remain in force. Chapter 14: General Provisions 124SCHEDULE 1 National Flag (1) The national flag is rectangular; it is one and a half times longer than it is wide. (2) It is black, gold, green, white, chilli red and blue. (3) It has a green Y-shaped band that is one fifth as wide as the flag. The centre lines of the band start in the top and bottom corners next to the flag post, converge in the centre of the flag, and continue horizontally to the middle of the free edge. (4) The green band is edged, above and below in white, and towards the flag post end, in gold. Each edging is one fifteenth as wide as the flag. (5) The triangle next to the flag post is black. (6) The upper horizontal band is chilli red and the lower horizontal band is blue. These bands are each one third as wide as the flag. Schedule 1: National Flag 125 SCHEDULE 1A Geographical Areas of Provinces [Schedule 1A inserted by s. 4 of the Constitution Twelfth Amendment Act of 2005 and amended by s. 1 of the Constitution Thirteenth Amendment Act of 2007 and by the Constitution Sixteenth Amendment Act of 2009.] The Province of the Eastern Cape [Demarcation of the Province of the Eastern Cape substituted by the Constitution Thirteenth Amend - ment Act of 2007.] Map No. 3 of Schedule 1 to Notice 1998 of 2005 Map No. 6 of Schedule 2 to Notice 1998 of 2005 Map No. 7 of Schedule 2 to Notice 1998 of 2005 Map No. 8 of Schedule 2 to Notice 1998 of 2005 Map No. 9 of Schedule 2 to Notice 1998 of 2005 Map No. 10 of Schedule 2 to Notice 1998 of 2005 Map No. 11 of Schedule 2 to Notice 1998 of 2005 The Province of the Free State Map No. 12 of Schedule 2 to Notice 1998 of 2005 Map No. 13 of Schedule 2 to Notice 1998 of 2005 Map No. 14 of Schedule 2 to Notice 1998 of 2005 Map No. 15 of Schedule 2 to Notice 1998 of 2005 Map No. 16 of Schedule 2 to Notice 1998 of 2005 The Province of Gauteng [Demarcation of the Province of Gauteng amended by the Constitution Sixteenth Amendment Act of 2009.] Map No. 4 in Notice 1490 of 2008 [Reference to Map No. 4 substituted by s. 1(a) of the Constitution Sixteenth Amendment Act of 2009.] Map No. 17 of Schedule 2 to Notice 1998 of 2005 Map No. 18 of Schedule 2 to Notice 1998 of 2005Schedule 1A: Geographical Areas of Provinces 126Map No. 19 of Schedule 2 to Notice 1998 of 2005 Map No. 20 of Schedule 2 to Notice 1998 of 2005 Map No. 21 of Schedule 2 to Notice 1998 of 2005 The Province of KwaZulu-Natal [Demarcation of the Province of KwaZulu-Natal substituted by the Constitution Thirteenth Amend - ment Act of 2007.] Map No. 22 of Schedule 2 to Notice 1998 of 2005 Map No. 23 of Schedule 2 to Notice 1998 of 2005 Map No. 24 of Schedule 2 to Notice 1998 of 2005 Map No. 25 of Schedule 2 to Notice 1998 of 2005 Map No. 26 of Schedule 2 to Notice 1998 of 2005 Map No. 27 of Schedule 2 to Notice 1998 of 2005 Map No. 28 of Schedule 2 to Notice 1998 of 2005 Map No. 29 of Schedule 2 to Notice 1998 of 2005 Map No. 30 of Schedule 2 to Notice 1998 of 2005 Map No. 31 of Schedule 2 to Notice 1998 of 2005 Map No. 32 of Schedule 2 to Notice 1998 of 2005 The Province of Limpopo Map No. 33 of Schedule 2 to Notice 1998 of 2005 Map No. 34 of Schedule 2 to Notice 1998 of 2005 Map No. 35 of Schedule 2 to Notice 1998 of 2005 Map No. 36 of Schedule 2 to Notice 1998 of 2005 Map No. 37 of Schedule 2 to Notice 1998 of 2005 The Province of Mpumalanga Map No. 38 of Schedule 2 to Notice 1998 of 2005 Map No. 39 of Schedule 2 to Notice 1998 of 2005 Map No. 40 of Schedule 2 to Notice 1998 of 2005Schedule 1A: Geographical Areas of Provinces 127 The Province of the Northern Cape Map No. 41 of Schedule 2 to Notice 1998 of 2005 Map No. 42 of Schedule 2 to Notice 1998 of 2005 Map No. 43 of Schedule 2 to Notice 1998 of 2005 Map No. 44 of Schedule 2 to Notice 1998 of 2005 Map No. 45 of Schedule 2 to Notice 1998 of 2005 The Province of North West [Demarcation of the Province of North West amended by the Constitution Sixteenth Amendment Act of 2009.] Map No. 5 in Notice 1490 of 2008 [Reference to Map No. 5 substituted by s. 1(b) of the Constitution Sixteenth Amendment Act of 2009.] Map No. 46 of Schedule 2 to Notice 1998 of 2005 Map No. 47 of Schedule 2 to Notice 1998 of 2005 Map No. 48 of Schedule 2 to Notice 1998 of 2005 The Province of the Western Cape Map No. 49 of Schedule 2 to Notice 1998 of 2005 Map No. 50 of Schedule 2 to Notice 1998 of 2005 Map No. 51 of Schedule 2 to Notice 1998 of 2005 Map No. 52 of Schedule 2 to Notice 1998 of 2005 Map No. 53 of Schedule 2 to Notice 1998 of 2005 Map No. 54 of Schedule 2 to Notice 1998 of 2005Schedule 1A: Geographical Areas of Provinces 128SCHEDULE 2 Oaths and Solemn Affirmations [Schedule 2 amended by s. 2 of Constitution First Amendment Act of 1997 (Eng text only) and substituted by s. 18 of Constitution Sixth Amendment Act of 2001.] Oath or solemn affirmation of President and Acting President 1. The President or Acting President, before the Chief Justice, or another judge designated by the Chief Justice, must swear/affirm as follows: In the presence of everyone assembled here, and in full realisation of the high calling I assume as President/Acting President of the Republic of South Africa, I, A.B., swear/ solemnly affirm that I will be faithful to the Republic of South Africa, and will obey, observe, uphold and maintain the Constitution and all other law of the Republic; and I solemnly and sincerely promise that I will always— • promote all that will advance the Republic, and oppose all that may harm it; • protect and promote the rights of all South Africans; • discharge my duties with all my strength and talents to the best of my knowledge and ability and true to the dictates of my conscience; • do justice to all; and • devote myself to the well-being of the Republic and all of its people. (In the case of an oath: So help me God.) Oath or solemn affirmation of Deputy President 2. The Deputy President, before the Chief Justice or another judge designated by the Chief Justice, must swear/affirm as follows: In the presence of everyone assembled here, and in full realisation of the high calling I assume as Deputy President of the Republic of South Africa, I, A.B., swear/solemnly affirm that I will be faithful to the Republic of South Africa and will obey, observe, uphold and maintain the Constitution and all other law of the Republic; and I solemnly and sincerely promise that I will always—Schedule 2: Oaths and Solemn Affirmations 129 • promote all that will advance the Republic, and oppose all that may harm it; • be a true and faithful counsellor; • discharge my duties with all my strength and talents to the best of my knowledge and ability and true to the dictates of my conscience; • do justice to all; and • devote myself to the well-being of the Republic and all of its people. (In the case of an oath: So help me God.) Oath or solemn affirmation of Ministers and Deputy Ministers 3. Each Minister and Deputy Minister, before the Chief Justice or another judge designated by the Chief Justice, must swear/affirm as follows: I, A.B., swear/solemnly affirm that I will be faithful to the Republic of South Africa and will obey, respect and uphold the Constitution and all other law of the Republic; and I undertake to hold my office as Minister/Deputy Minister with honour and dignity; to be a true and faithful counsellor; not to divulge directly or indirectly any secret matter entrusted to me; and to perform the functions of my office conscientiously and to the best of my ability. (In the case of an oath: So help me God.) Oath or solemn affirmation of members of the National Assembly, permanent delegates to the National Council of Provinces and members of the provincial legislatures 4. (1) Members of the National Assembly, permanent delegates to the National Council of Provinces and members of provincial legislatures, before the Chief Justice or a judge designated by the Chief Justice, must swear or affirm as follows: I, A.B., swear/solemnly affirm that I will be faithful to the: Republic of South Africa and will obey, respect and uphold the Constitution and all other law of the Republic; and I solemnly promise to perform my functions as a member of the National Assembly/permanent delegate to the National Council of Provinces/member of the legislature of the province of C.D. to the best of my ability. (In the case of an oath: So help me God.) Schedule 2: Oaths and Solemn Affirmations 130 (2) Persons filling a vacancy in the National Assembly, a permanent delegation to the National Council of Provinces or a provincial legislature may swear or affirm in terms of subitem (1) before the presiding officer of the Assembly, Council or legislature, as the case may be. Oath or solemn affirmation of Premiers, Acting Premiers and members of provincial Executive Councils 5. The Premier or Acting Premier of a province, and each member of the Executive Council of a province, before the Chief Justice or a judge designated by the Chief Justice, must swear/ affirm as follows: I, A.B., swear/solemnly affirm that I will be faithful to the Republic of South Africa and will obey, respect and uphold the Constitution and all other law of the Republic; and I undertake to hold my office as Premier/Acting Premier/member of the Executive Council of the province of C.D. with honour and dignity; to be a true and faithful counsellor; not to divulge directly or indirectly any secret matter entrusted to me; and to perform the functions of my office conscientiously and to the best of my ability. (In the case of an oath: So help me God.) Oath or solemn affirmation of Judicial Officers 6. (1) Each judge or acting judge, before the Chief Justice or another judge designated by the Chief Justice, must swear or affirm as follows: I, A.B., swear/solemnly affirm that, as a Judge of the Constitutional Court/Supreme Court of Appeal/High Court/ E.F . Court, I will be faithful to the Republic of South Africa, will uphold and protect the Constitution and the human rights entrenched in it, and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law. (In the case of an oath: So help me God.) (2) A person appointed to the office of Chief Justice who is not already a judge at the time of that appointment must swear or affirm before the Deputy Chief Justice, or failing that judge, the next most senior available judge of the Constitutional Court. (3) Judicial officers, and acting judicial officers, other than judges, must swear/affirm in terms of national legislation. Schedule 2: Oaths and Solemn Affirmations 131 SCHEDULE 3 Election Procedures [Schedule 3 amended by s. 2 of the Constitution Fourth Amendment Act of 1999, by s. 19 of the Constitution Sixth Amendment Act of 2001, by s. 3 of the Constitution Ninth Amendment Act of 2002 and by s. 5 of the Constitution Fourteenth Amendment Act of 2008.] Part A Election Procedures for Constitutional Office-Bearers Application 1. The procedure set out in this Schedule applies whenever— (a) the National Assembly meets to elect the President, or the Speaker or Deputy Speaker of the Assembly; (b) the National Council of Provinces meets to elect its Chairperson or a Deputy Chairperson; or (c) a provincial legislature meets to elect the Premier of the province or the Speaker or Deputy Speaker of the legislature. Nominations 2. The person presiding at a meeting to which this Schedule applies must call for the nomination of candidates at the meeting. Formal requirements 3. (1) A nomination must be made on the form prescribed by the rules mentioned in item 9. (2) The form on which a nomination is made must be signed— (a) by two members of the National Assembly, if the President or the Speaker or Deputy Speaker of the Assembly is to be elected; (b) on behalf of two provincial delegations, if the Chairperson or a Deputy Chairperson of the National Council of Provinces is to be elected; or (c) by two members of the relevant provincial legislature, if the Premier of the province or the Speaker or Deputy Speaker of the legislature is to be elected. Schedule 3: Election Procedures 132 (3) A person who is nominated must indicate acceptance of the nomination by signing either the nomination form or any other form of written confirmation. Announcement of names of candidates 4. At a meeting to which this Schedule applies, the person presiding must announce the names of the persons who have been nominated as candidates, but may not permit any debate. Single candidate 5. If only one candidate is nominated, the person presiding must declare that candidate elected. Election procedure 6. If more than one candidate is nominated— (a) a vote must be taken at the meeting by secret ballot; (b) each member present, or if it is a meeting of the National Council of Provinces, each province represented, at the meeting may cast one vote; and (c) the person presiding must declare elected the candidate who receives a majority of the votes. Elimination procedure 7. (1) If no candidate receives a majority of the votes, the candidate who receives the lowest number of votes must be eliminated and a further vote taken on the remaining candidates in accordance with item 6. This procedure must be repeated until a candidate receives a majority of the votes. (2) When applying subitem (1), if two or more candidates each have the lowest number of votes, a separate vote must be taken on those candidates, and repeated as often as may be necessary to determine which candidate is to be eliminated. Further meetings 8. (1) If only two candidates are nominated, or if only two candidates remain after an elimination procedure has been applied, and those two candidates receive the same number of votes, a further meeting must be held within seven days, at a time determined by the person presiding. Schedule 3: Election Procedures 133 (2) If a further meeting is held in terms of subitem (1), the procedure prescribed in this Schedule must be applied at that meeting as if it were the first meeting for the election in question. Rules 9. (1) The Chief Justice must make rules prescribing— (a) the procedure for meetings to which this Schedule applies; (b) the duties of any person presiding at a meeting, and of any person assisting the person presiding; (c) the form on which nominations must be submitted; and (d) the manner in which voting is to be conducted. (2) These rules must be made known in the way that the Chief Justice determines. Part B Formula to Determine Party Participation in Provincial Delegations to the National Council of Provinces 1. The number of delegates in a provincial delegation to the National Council of Provinces to which a party is entitled, must be determined by multiplying the number of seats the party holds in the provincial legislature by ten and dividing the result by the number of seats in the legislature plus one. 2. If a calculation in terms of item 1 yields a surplus not absorbed by the delegates allocated to a party in terms of that item, the surplus must compete with similar surpluses accruing to any other party or parties, and any undistributed delegates in the delegation must be allocated to the party or parties in the sequence of the highest surplus. 3. If the competing surpluses envisaged in item 2 are equal, the undistributed delegates in the delegation must be allocated to the party or parties with the same surplus in the sequence from the highest to the lowest number of votes that have been recorded for those parties during the last election for the provincial legislature concerned. [Item 3 added by s. 2 of the Constitution Fourth Amendment Act of 1999 and substituted by s. 3 of the Constitution Ninth Amendment Act of 2002 and by s. 5(a) of the Constitution Fourteenth Amendment Act of 2008.]Schedule 3: Election Procedures 1344. If more than one party with the same surplus recorded the same number of votes during the last election for the provincial legislature concerned, the legislature concerned must allocate the undistributed delegates in the delegation to the party with the same surplus in a manner which is consistent with democracy. [Item 4 added by s. 5(b) of the Constitution Fourteenth Amendment Act of 2008.]Schedule 3: Election Procedures 135 SCHEDULE 4 Functional Areas of Concurrent National and Provincial Legislative Competence Part A • Administration of indigenous forests • Agriculture • Airports other than international and national airports • Animal control and diseases • Casinos, racing, gambling and wagering, excluding lotteries and sports pools • Consumer protection • Cultural matters • Disaster management • Education at all levels, excluding tertiary education • Environment • Health services • Housing • Indigenous law and customary law, subject to Chapter 12 of the Constitution • Industrial promotion • Language policy and the regulation of official languages to the extent that the provisions of section 6 of the Constitution expressly confer upon the provincial legislatures legislative competence • Media services directly controlled or provided by the provincial government, subject to section 192 • Nature conservation, excluding national parks, national botanical gardens and marine resources • Police to the extent that the provisions of Chapter 11 of the Constitution confer upon the provincial legislatures legislative competence • Pollution control • Population development • Property transfer fees Schedule 4: Functional Areas of Concurrent National and Provincial Legislative Competence 136• Provincial public enterprises in respect of the functional areas in this Schedule and Schedule 5 • Public transport • Public works only in respect of the needs of provincial government departments in the discharge of their responsibilities to administer functions specifically assigned to them in terms of the Constitution or any other law • Regional planning and development • Road traffic regulation • Soil conservation • Tourism • Trade • Traditional leadership, subject to Chapter 12 of the Constitution • Urban and rural development • Vehicle licensing • Welfare services Part B The following local government matters to the extent set out in section 155(6) (a) and (7): • Air pollution • Building regulations • Child care facilities • Electricity and gas reticulation • Firefighting services • Local tourism • Municipal airports • Municipal planning • Municipal health services • Municipal public transport • Municipal public works only in respect of the needs of municipalities in the discharge of their responsibilities to administer functions specifically assigned to them under this Constitution or any other law • Pontoons, ferries, jetties, piers and harbours, excluding the regulation of international and national shipping and matters related thereto Schedule 4: Functional Areas of Concurrent National and Provincial Legislative Competence 137 • Stormwater management systems in built-up areas • Trading regulations • Water and sanitation services limited to potable water supply systems and domestic waste- water and sewage disposal systems Schedule 4: Functional Areas of Concurrent National and Provincial Legislative Competence 138SCHEDULE 5 Functional Areas of Exclusive Provincial Legislative Competence Part A • Abattoirs • Ambulance services • Archives other than national archives • Libraries other than national libraries • Liquor licences • Museums other than national museums • Provincial planning • Provincial cultural matters • Provincial recreation and amenities • Provincial sport • Provincial roads and traffic • Veterinary services, excluding regulation of the profession Part B The following local government matters to the extent set out for provinces in section 155(6) (a) and (7): • Beaches and amusement facilities • Billboards and the display of advertisements in public places • Cemeteries, funeral parlours and crematoria • Cleansing • Control of public nuisances • Control of undertakings that sell liquor to the public • Facilities for the accommodation, care and burial of animals • Fencing and fences • Licensing of dogs • Licensing and control of undertakings that sell food to the public Schedule 5: Functional Areas of Exclusive Provincial Legislative Competence 139 • Local amenities • Local sport facilities • Markets • Municipal abattoirs • Municipal parks and recreation • Municipal roads • Noise pollution • Pounds • Public places • Refuse removal, refuse dumps and solid waste disposal • Street trading • Street lighting • Traffic and parking Schedule 5: Functional Areas of Exclusive Provincial Legislative Competence 140SCHEDULE 6 Transitional Arrangements [Schedule 6 amended by s. 3 of Constitution First Amendment Act of 1997, by s. 5 of Constitution Second Amendment Act of 1998 and by s. 20 of Constitution Sixth Amendment Act of 2001.] Definitions 1. In this Schedule, unless inconsistent with the context— “homeland” means a part of the Republic which, before the previous Constitution took effect, was dealt with in South African legislation as an independent or a self-governing territory; “new Constitution” means the Constitution of the Republic of South Africa, 1996; “old order legislation” means legislation enacted before the previous Constitution took effect; “previous Constitution” means the Constitution of the Republic of South Africa, 1993 (Act 200 of 1993). Continuation of existing law 2. (1) All law that was in force when the new Constitution took effect, continues in force, subject to— (a) any amendment or repeal; and (b) consistency with the new Constitution. (2) Old order legislation that continues in force in terms of subitem (1)— (a) does not have a wider application, territorially or otherwise, than it had before the previous Constitution took effect unless subsequently amended to have a wider application; and (b) continues to be administered by the authorities that administered it when the new Constitution took effect, subject to the new Constitution. Schedule 6: Transitional Arrangements 141 Interpretation of existing legislation 3. (1) Unless inconsistent with the context or clearly inappropriate, a reference in any legislation that existed when the new Constitution took effect— (a) to the Republic of South Africa or a homeland (except when it refers to a territorial area), must be construed as a reference to the Republic of South Africa under the new Constitution; (b) to Parliament, the National Assembly or the Senate, must be construed as a reference to Parliament, the National Assembly or the National Council of Provinces under the new Constitution; (c) to the President, an Executive Deputy President, a Minister, a Deputy Minister or the Cabinet, must be construed as a reference to the President, the Deputy President, a Minister, a Deputy Minister or the Cabinet under the new Constitution, subject to item 9 of this Schedule; (d) to the President of the Senate, must be construed as a reference to the Chairperson of the National Council of Provinces; (e) to a provincial legislature, Premier, Executive Council or member of an Executive Council of a province, must be construed as a reference to a provincial legislature, Premier, Executive Council or member of an Executive Council under the new Constitution, subject to item 12 of this Schedule; or (f) to an official language or languages, must be construed as a reference to any of the official languages under the new Constitution. (2) Unless inconsistent with the context or clearly inappropriate, a reference in any remaining old order legislation— (a) to a Parliament, a House of a Parliament or a legislative assembly or body of the Republic or of a homeland, must be construed as a reference to— (i) Parliament under the new Constitution, if the administration of that legislation has been allocated or assigned in terms of the previous Constitution or this Schedule to the national executive; or (ii) the provincial legislature of a province, if the administration of that legislation has been allocated or assigned in terms of the previous Constitution or this Schedule to a provincial executive; or (b) to a State President, Chief Minister, Administrator or other chief executive, Cabinet, Ministers’ Council or executive council of the Republic or of a homeland, must be construed as a reference to—Schedule 6: Transitional Arrangements 142(i) the President under the new Constitution, if the administration of that legislation has been allocated or assigned in terms of the previous Constitution or this Schedule to the national executive; or (ii) the Premier of a province under the new Constitution, if the administration of that legislation has been allocated or assigned in terms of the previous Constitution or this Schedule to a provincial executive. National Assembly 4. (1) Anyone who was a member or office-bearer of the National Assembly when the new Constitution took effect, becomes a member or office-bearer of the National Assembly under the new Constitution, and holds office as a member or office-bearer in terms of the new Constitution. (2) The National Assembly as constituted in terms of subitem (1) must be regarded as having been elected under the new Constitution for a term that expires on 30 April 1999. (3) The National Assembly consists of 400 members for the duration of its term that expires on 30 April 1999, subject to section 49(4) of the new Constitution. (4) The rules and orders of the National Assembly in force when the new Constitution took effect, continue in force, subject to any amendment or repeal. Unfinished business before Parliament 5. (1) Any unfinished business before the National Assembly when the new Constitution takes effect must be proceeded with in terms of the new Constitution. (2) Any unfinished business before the Senate when the new Constitution takes effect must be referred to the National Council of Provinces, and the Council must proceed with that business in terms of the new Constitution. Elections of National Assembly 6. (1) No election of the National Assembly may be held before 30 April 1999 unless the Assembly is dissolved in terms of section 50(2) after a motion of no confidence in the President in terms of section 102(2) of the new Constitution. (2) Section 50(1) of the new Constitution is suspended until 30 April 1999. Schedule 6: Transitional Arrangements 143 (3) Despite the repeal of the previous Constitution, Schedule 2 to that Constitution, as amended by Annexure A to this Schedule, applies— (a) to the first election of the National Assembly under the new Constitution; (b) to the loss of membership of the Assembly in circumstances other than those provided for in section 47(3) of the new Constitution; and (c) to the filling of vacancies in the Assembly, and the supplementation, review and use of party lists for the filling of vacancies, until the second election of the Assembly under the new Constitution. (4) Section 47(4) of the new Constitution is suspended until the second election of the National Assembly under the new Constitution. National Council of Provinces 7. (1) For the period which ends immediately before the first sitting of a provincial legislature held after its first election under the new Constitution— (a) the proportion of party representation in the province’s delegation to the National Council of Provinces must be the same as the proportion in which the province’s 10 senators were nominated in terms of section 48 of the previous Constitution; and (b) the allocation of permanent delegates and special delegates to the parties represented in the provincial legislature, is as follows: PROVINCE PERMANENT DELEGATES SPECIAL DELEGATES 1. Eastern Cape ANC 5 NP 1 ANC 4 2. Free State ANC 4 FF 1 NP 1 ANC 4 3. Gauteng ANC 3 DP 1 FF 1 NP 1 ANC 3 NP 1 Schedule 6: Transitional Arrangements 144PROVINCE PERMANENT DELEGATES SPECIAL DELEGATES 4. KwaZulu-Natal ANC 1 DP 1 IFP 3 NP 1 ANC 2 IFP 2 5. Mpumalanga ANC 4 FF 1 NP 1 ANC 4 6. Northern Cape ANC 3 FF 1 NP 2 ANC 2 NP 2 7. Northern Province ANC 6 ANC 4 8. North West ANC 4 FF 1 NP 1 ANC 4 9. Western Cape ANC 2 DP 1 NP 3 ANC 1 NP 3 (2) A party represented in a provincial legislature— (a) must nominate its permanent delegates from among the persons who were senators when the new Constitution took effect and are available to serve as permanent delegates; and (b) may nominate other persons as permanent delegates only if none or an insufficient number of its former senators are available. (3) A provincial legislature must appoint its permanent delegates in accordance with the nominations of the parties. (4) Subitems (2) and (3) apply only to the first appointment of permanent delegates to the National Council of Provinces. (5) Section 62(1) of the new Constitution does not apply to the nomination and appointment of former senators as permanent delegates in terms of this item. Schedule 6: Transitional Arrangements 145 (6) The rules and orders of the Senate in force when the new Constitution took effect, must be applied in respect of the business of the National Council to the extent that they can be applied, subject to any amendment or repeal. Former senators 8. (1) A former senator who is not appointed as a permanent delegate to the National Council of Provinces is entitled to become a full voting member of the legislature of the province from which that person was nominated as a senator in terms of section 48 of the previous Constitution. (2) If a former senator elects not to become a member of a provincial legislature that person is regarded as having resigned as a senator the day before the new Constitution took effect. (3) The salary, allowances and benefits of a former senator appointed as a permanent delegate or as a member of a provincial legislature may not be reduced by reason only of that appointment. National executive 9. (1) Anyone who was the President, an Executive Deputy President, a Minister or a Deputy Minister under the previous Constitution when the new Constitution took effect, continues in and holds that office in terms of the new Constitution, but subject to subitem (2). (2) Until 30 April 1999, sections 84, 89, 90, 91, 93 and 96 of the new Constitution must be regarded to read as set out in Annexure B to this Schedule. (3) Subitem (2) does not prevent a Minister who was a senator when the new Constitution took effect, from continuing as a Minister referred to in section 91(1)(a) of the new Constitution, as that section reads in Annexure B. Provincial legislatures 10. (1) Anyone who was a member or office-bearer of a province’s legislature when the new Constitution took effect, becomes a member or office-bearer of the legislature for that province under the new Constitution, and holds office as a member or office-bearer in terms of the new Constitution and any provincial constitution that may be enacted. Schedule 6: Transitional Arrangements 146 (2) A provincial legislature as constituted in terms of subitem (1) must be regarded as having been elected under the new Constitution for a term that expires on 30 April 1999. (3) For the duration of its term that expires on 30 April 1999, and subject to section 108(4), a provincial legislature consists of the number of members determined for that legislature under the previous Constitution plus the number of former senators who became members of the legislature in terms of item 8 of this Schedule. (4) The rules and orders of a provincial legislature in force when the new Constitution took effect, continue in force, subject to any amendment or repeal. Elections of provincial legislatures 11. (1) Despite the repeal of the previous Constitution, Schedule 2 to that Constitution, as amended by Annexure A to this Schedule, applies— (a) to the first election of a provincial legislature under the new Constitution; (b) to the loss of membership of a legislature in circumstances other than those provided for in section 106(3) of the new Constitution; and (c) to the filling of vacancies in a legislature, and the supplementation, review and use of party lists for the filling of vacancies, until the second election of the legislature under the new Constitution. (2) Section 106(4) of the new Constitution is suspended in respect of a provincial legislature until the second election of the legislature under the new Constitution. Provincial executives 12. (1) Anyone who was the Premier or a member of the Executive Council of a province when the new Constitution took effect, continues in and holds that office in terms of the new Constitution and any provincial constitution that may be enacted, but subject to subitem (2). (2) Until the Premier elected after the first election of a province’s legislature under the new Constitution assumes office, or the province enacts its constitution, whichever occurs first, sections 132 and 136 of the new Constitution must be regarded to read as set out in Annexure C to this Schedule. Schedule 6: Transitional Arrangements 147 Provincial constitutions 13. A provincial constitution passed before the new Constitution took effect must comply with