Article 190 of the Constitution of South Africa

(b) by inserting the following definition after the definition of “national list”: “‘new Constitution’ means the Constitution of the Republic of South Africa, 1996;” . 16. The deletion of item 26. Annexure A 160ANNEXURE B Government of National Unity: National Sphere 1. Section 84 of the new Constitution is deemed to contain the following additional subsection: “(3) The President must consult the Executive Deputy Presidents— (a) in the development and execution of the policies of the national government; (b) in all matters relating to the management of the Cabinet and the performance of Cabinet business; (c) in the assignment of functions to the Executive Deputy Presidents; (d) before making any appointment under the Constitution or any legislation, including the appointment of ambassadors or other diplomatic representatives; (e) before appointing commissions of inquiry; (f) before calling a referendum; and (g) before pardoning or reprieving offenders. ” . 2. Section 89 of the new Constitution is deemed to contain the following additional subsection: “(3) Subsections (1) and (2) apply also to an Executive Deputy President. ” . 3. Paragraph (a) of section 90(1) of the new Constitution is deemed to read as follows: “(a) an Executive Deputy President designated by the President;” . 4. Section 91 of the new Constitution is deemed to read as follows: “Cabinet 91. (1) The Cabinet consists of the President, the Executive Deputy Presidents and— (a) not more than 27 Ministers who are members of the National Assembly and appointed in terms of subsections (8) to (12); and (b) not more than one Minister who is not a member of the 175 National Assembly and appointed in terms of subsection (13), provided the President, acting in consultation with the Executive Deputy Presidents and the leaders of the participating parties, deems the appointment of such a Minister expedient. Annexure B 161 (2) Each party holding at least 80 seats in the National Assembly is entitled to designate an Executive Deputy President from among the members of the Assembly. (3) If no party or only one party holds 80 or more seats in the Assembly, the party holding the largest number of seats and the party holding the second largest number of seats are each entitled to designate one Executive Deputy President from among the members of the Assembly. (4) On being designated, an Executive Deputy President may elect to remain or cease to be a member of the Assembly. (5) An Executive Deputy President may exercise the powers and must perform the functions vested in the office of Executive Deputy President by the Constitution or assigned to that office by the President. (6) An Executive Deputy President holds office— (a) until 30 April 1999 unless replaced or recalled by the party entitled to make the designation in terms of subsections (2) and (3); or (b) until the person elected President after any election of the National Assembly held before 30 April 1999, assumes office. (7) A vacancy in the office of an Executive Deputy President may be filled by the party which designated that Deputy President. (8) A party holding at least 20 seats in the National Assembly and which has decided to participate in the government of national unity, is entitled to be allocated one or more of the Cabinet portfolios in respect of which Ministers referred to in subsection (1)(a) are to be appointed, in proportion to the number of seats held by it in the National Assembly relative to the number of seats held by the other participating parties. (9) Cabinet portfolios must be allocated to the respective participating parties in accordance with the following formula: (a) A quota of seats per portfolio must be determined by dividing the total number of seats in the National Assembly held jointly by the participating parties by the number of portfolios in respect of which Ministers referred to in subsection (1)(a) are to be appointed, plus one. (b) The result, disregarding third and subsequent decimals, if any, is the quota of seats per portfolio. Annexure B 162(c) The number of portfolios to be allocated to a participating party is determined by dividing the total number of seats held by that party in the National Assembly by the quota referred to in paragraph (b). (d) The result, subject to paragraph (e), indicates the number of portfolios to be allocated to that party. (e) Where the application of the above formula yields a surplus not absorbed by the number of portfolios allocated to a party, the surplus competes with other similar surpluses accruing to another party or parties, and any portfolio or portfolios which remain unallocated must be allocated to the party or parties concerned in sequence of the highest surplus. (10) The President after consultation with the Executive Deputy Presidents and the leaders of the participating parties must— (a) determine the specific portfolios to be allocated to the respective participating parties in accordance with the number of portfolios allocated to them in terms of subsection (9); (b) appoint in respect of each such portfolio a member of the National Assembly who is a member of the party to which that portfolio was allocated under paragraph (a), as the Minister responsible for that portfolio; (c) if it becomes necessary for the purposes of the Constitution or in the interest of good government, vary any determination under paragraph (a), subject to subsection (9); (d) terminate any appointment under paragraph (b)— (i) if the President is requested to do so by the leader of the party of which the Minister in question is a member; or (ii) if it becomes necessary for the purposes of the Constitution or in the interest of good government; or (e) fill, when necessary, subject to paragraph (b), a vacancy in the office of Minister. (11) Subsection (10) must be implemented in the spirit embodied in the concept of a government of national unity, and the President and the other functionaries concerned must in the implementation of that subsection seek to achieve consensus at all times: Provided that if consensus cannot be achieved on— (a) the exercise of a power referred to in paragraph (a), (c) or (d)(ii) of that subsection, the President’s decision prevails; Annexure B 163 (b) the exercise of a power referred to in paragraph (b), (d)(i) or (e) of that subsection affecting a person who is not a member of the President’s party, the decision of the leader of the party of which that person is a member prevails; and (c) the exercise of a power referred to in paragraph (b) or (e) of that subsection affecting a person who is a member of the President’s party, the President’s decision prevails. (12) If any determination of portfolio allocations is varied under subsection (10) (c), the affected Ministers must vacate their portfolios but are eligible, where applicable, for reappointment to other portfolios allocated to their respective parties in terms of the varied determination. (13) The President— (a) in consultation with the Executive Deputy Presidents and the leaders of the participating parties, must— (i) determine a specific portfolio for a Minister referred to in subsection (1) (b) should it become necessary pursuant to a decision of the President under that subsection; (ii) appoint in respect of that portfolio a person who is not a member of the National Assembly, as the Minister responsible for that portfolio; and (iii) fill, if necessary, a vacancy in respect of that portfolio; or (b) after consultation with the Executive Deputy Presidents and the leaders of the participating parties, must terminate any appointment under paragraph (a) if it becomes necessary for the purposes of the Constitution or in the interest of good government. (14) Meetings of the Cabinet must be presided over by the President, or, if the President so instructs, by an Executive Deputy President: Provided that the Executive Deputy Presidents preside over meetings of the Cabinet in turn unless the exigencies of government and the spirit embodied in the concept of a government of national unity otherwise demand. (15) The Cabinet must function in a manner which gives consideration to the consensus-seeking spirit embodied in the concept of a government of national unity as well as the need for effective government. ” . Annexure B 1645. Section 93 of the new Constitution is deemed to read as follows: “Appointment of Deputy Ministers 93. (1) The President may, after consultation with the Executive Deputy Presidents and the leaders of the parties participating in the Cabinet, establish deputy ministerial posts. (2) A party is entitled to be allocated one or more of the deputy ministerial posts in the same proportion and according to the same formula that portfolios in the Cabinet are allocated. (3) The provisions of section 91(10) to (12) apply, with the necessary changes, in respect of Deputy Ministers, and in such application a reference in that section to a Minister or a portfolio must be read as a reference to a Deputy Minister or a deputy ministerial post, respectively. (4) If a person is appointed as the Deputy Minister of any portfolio entrusted to a Minister— (a) that Deputy Minister must exercise and perform on behalf of the relevant Minister any of the powers and functions assigned to that Minister in terms of any legislation or otherwise which may, subject to the directions of the President, be assigned to that Deputy Minister by that Minister; and (b) any reference in any legislation to that Minister must be construed as including a reference to the Deputy Minister acting in terms of an assignment under paragraph (a) by the Minister for whom that Deputy Minister acts. (5) Whenever a Deputy Minister is absent or for any reason unable to exercise or perform any of the powers or functions of office, the President may appoint any other Deputy Minister or any other person to act in the said Deputy Minister’s stead, either generally or in the exercise or performance of any specific power or function. ” . 6. Section 96 of the new Constitution is deemed to contain the following additional subsections: “(3) Ministers are accountable individually to the President and to the National Assembly for the administration of their portfolios, and all members of the Cabinet are correspondingly accountable collectively for the performance of the functions of the national government and for its policies. Annexure B 165 (4) Ministers must administer their portfolios in accordance with the policy determined by the Cabinet. (5) If a Minister fails to administer the portfolio in accordance with the policy of the Cabinet, the President may require the Minister concerned to bring the administration of the portfolio into conformity with that policy. (6) If the Minister concerned fails to comply with a requirement of the President under subsection (5), the President may remove the Minister from office— (a) if it is a Minister referred to in section 91(1)(a), after consultation with the Minister and, if the Minister is not a member of the President’s party or is not the leader of a participating party, also after consultation with the leader of that Minister’s party; or (b) if it is a Minister referred to in section 91(1)(b), after consultation with the Executive Deputy Presidents and the leaders of the participating parties. ” . Annexure B 166ANNEXURE C Government of National Unity: Provincial Sphere 1. Section 132 of the new Constitution is deemed to read as follows: “Executive Councils 132. (1) The Executive Council of a province consists of the Premier and not more than 10 members appointed by the Premier in accordance with this section. (2) A party holding at least 10 per cent of the seats in a provincial legislature and which has decided to participate in the government of national unity, is entitled to be allocated one or more of the Executive Council portfolios in proportion to the number of seats held by it in the legislature relative to the number of seats held by the other participating parties. (3) Executive Council portfolios must be allocated to the respective participating parties according to the same formula set out in section 91(9), and in applying that formula a reference in that section to— (a) the Cabinet, must be read as a reference to an Executive Council; (b) a Minister, must be read as a reference to a member of an Executive Council; and (c) the National Assembly, must be read as a reference to the provincial legislature. (4) The Premier of a province after consultation with the leaders of the participating parties must— (a) determine the specific portfolios to be allocated to the respective participating parties in accordance with the number of portfolios allocated to them in terms of subsection (3); (b) appoint in respect of each such portfolio a member of the provincial legislature who is a member of the party to which that portfolio was allocated under paragraph (a), as the member of the Executive Council responsible for that portfolio; (c) if it becomes necessary for the purposes of the Constitution or in the interest of good government, vary any determination under paragraph (a), subject to subsection (3); (d) terminate any appointment under paragraph (b)— (i) if the Premier is requested to do so by the leader of the party of which the Executive Council member in question is a member; or Annexure C 167 (ii) if it becomes necessary for the purposes of the Constitution or in the interest of good government; or (e) fill, when necessary, subject to paragraph (b), a vacancy in the office of a member of the Executive Council. (5) Subsection (4) must be implemented in the spirit embodied in the concept of a government of national unity, and the Premier and the other functionaries concerned must in the implementation of that subsection seek to achieve consensus at all times: Provided that if consensus cannot be achieved on— (a) the exercise of a power referred to in paragraph (a), (c) or ( d)(ii) of that subsection, the Premier’s decision prevails; (b) the exercise of a power referred to in paragraph (b), (d)(i) or (e) of that subsection affecting a person who is not a member of the Premier’s party, the decision of the leader of the party of which such person is a member prevails; and (c) the exercise of a power referred to in paragraph (b) or (e) of that subsection affecting a person who is a member of the Premier’s party, the Premier’s decision prevails. (6) If any determination of portfolio allocations is varied under subsection (4) (c), the affected members must vacate their portfolios but are eligible, where applicable, for reappointment to other portfolios allocated to their respective parties in terms of the varied determination. (7) Meetings of an Executive Council must be presided over by the Premier of the province. (8) An Executive Council must function in a manner which gives consideration to the consensus-seeking spirit embodied in the concept of a government of national unity, as well as the need f or effective government. ” . 2. Section 136 of the new Constitution is deemed to contain the following additional subsections: “(3) Members of Executive Councils are accountable individually to the Premier and to the provincial legislature for the administration of their portfolios, and all members of the Executive Council are correspondingly accountable collectively for the performance of the functions of the provincial government and for its policies. (4) Members of Executive Councils must administer their portfolios in accordance with the policy determined by the Council. Annexure C 168(5) If a member of an Executive Council fails to administer the portfolio in accordance with the policy of the Council, the Premier may require the member concerned to bring the administration of the portfolio into conformity with that policy. (6) If the member concerned fails to comply with a requirement of the Premier under subsection (5), the Premier may remove the member from office after consultation with the member, and if the member is not a member of the Premier’s party or is not the leader of a participating party, also after consultation with the leader of that member’s party. ” . Annexure C 169 ANNEXURE D Public Administration and Security Services: Amendments to Sections of the Previous Constitution 1. The amendment of section 218 of the previous Constitution— (a) by replacing in subsection (1) the words preceding paragraph (a) with the following words: “(1) Subject to the directions of the Minister of Safety and Security, the National Commissioner shall be responsible for—”; (b) by replacing paragraph (b) of subsection (1) with the following paragraph: “(b) the appointment of provincial commissioners;”; (c) by replacing paragraph (d) of subsection (1) with the following paragraph: “(d) the investigation and prevention of organised crime or crime which requires national investigation and prevention or specialised skills;”; and (d) by replacing paragraph (k) of subsection (1) with the following paragraph: “(k) the establishment and maintenance of a national public order policing unit to be deployed in support of and at the request of the Provincial Commissioner;” . 2. The amendment of section 219 of the previous Constitution by replacing in subsection (1) the words preceding paragraph (a) with the following words: “(1) Subject to section 218(1), a Provincial Commissioner shall be responsible for—” . 3. The amendment of section 224 of the previous Constitution by replacing the proviso to subsection (2) with the following proviso: “Provided that this subsection shall also apply to members of any armed force which submitted its personnel list after the commencement of the Constitution of the Republic of South Africa, 993 (Act 200 of 1993), but before the adoption of the new constitutional text as envisaged in section 73 of that Constitution, if the political organisation under whose authority and control it stands or with which it is associated and whose objectives it promotes did participate in the Transitional Executive Council or did take part in the first election of the National Assembly and the provincial legislatures under the said Constitution. ” . Annexure D 1704. The amendment of section 227 of the previous Constitution by replacing subsection (2) with the following subsection: “(2) The National Defence Force shall exercise its powers and perform its functions solely in the national interest in terms of Chapter 11 of the Constitution of the Republic of South Africa, 1996. ” . 5. The amendment of section 236 of the previous Constitution— (a) by replacing subsection (1) with the following subsection— “(1) A public service, department of state, administration or security service which immediately before the commencement of the Constitution of the Republic of South Africa, 1996 (hereinafter referred to as “the new Constitu - tion”), performed governmental functions, continues to function in terms of the legislation applicable to it until it is abolished or incorporated or integrated into any appropriate institution or is rationalised or consolidated with any other institution. ”; (b) by replacing subsection (6) with the following subsection: “(6) (a) The President may appoint a commission to review the conclusion or amendment of a contract, the appointment or promotion, or the award of a term or condition of service or other benefit, which occurred between 27 April 1993 and 30 September 1994 in respect of any person referred to in subsection (2) or any class of such persons. (b) The commission may reverse or alter a contract, appointment, promotion or award if not proper or justifiable in the circumstances of the case. ”; and (c) by replacing “this Constitution” , wherever this occurs in section 236, with “the new Constitution” . 6. The amendment of section 237 of the previous Constitution— (a) by replacing paragraph (a) of subsection (1) with the following paragraph: “(a) The rationalisation of all institutions referred to in section 236(1), excluding military forces referred to in section 224(2), shall after the commencement of the Constitution of the Republic of South Africa, 1996, continue, with a view to establishing— (i) an effective administration in the national sphere of government to deal with matters within the jurisdiction of the national sphere; and (ii) an effective administration for each province to deal with matters within the jurisdiction of each provincial government. ”; and Annexure D 171 (b) by replacing subparagraph (i) of subsection (2)(a) with the following subparagraph: “(i) institutions referred to in section 236(1), excluding military forces, shall rest with the national government, which shall exercise such responsibility in co-operation with the provincial governments;” . 7. The amendment of section 239 of the previous Constitution by replacing subsection (4) with the following subsection: “(4) Subject to and in accordance with any applicable law, the assets, rights, duties and liabilities of all forces referred to in section 224(2) shall devolve upon the National Defence Force in accordance with the directions of the Minister of Defence. ” . Annexure D 172SCHEDULE 6A [Schedule 6A inserted by s. 6 of Constitution Tenth Amendment Act of 2003 and repealed by s. 6 of the Constitution Fourteenth Amendment Act of 2008.] Schedule 6A 173 SCHEDULE 6B [Schedule 6B, previously Schedule 6A, inserted by s. 2 of the Constitution Eighth Amendment Act of 2002, amended by s. 5 of the Constitution Tenth Amendment Act of 2003, renumbered by s. 6 of the Constitution Tenth Amendment Act of 2003 and repealed by s. 5 of the Constitution Fifteenth Amendment Act of 2008.]Schedule 6B 174SCHEDULE 7 LAWS REPEALED NUMBER AND YEAR OF LAWTITLE Act No. 200 of 1993 Constitution of the Republic of South Africa, 1993 Act No. 2 of 1994 Constitution of the Republic of South Africa Amendment Act, 1994 Act No. 3 of 1994 Constitution of the Republic of South Africa Second Amendment Act, 1994 Act No. 13 of 1994 Constitution of the Republic of South Africa Third Amendment Act, 1994 Act No. 14 of 1994 Constitution of the Republic of South Africa Fourth Amendment Act, 1994 Act No. 24 of 1994 Constitution of the Republic of South Africa Sixth Amendment Act, 1994 Act No. 29 of 1994 Constitution of the Republic of South Africa Fifth Amendment Act, 1994 Act No. 20 of 1995 Constitution of the Republic of South Africa Amendment Act, 1995 Act No. 44 of 1995 Constitution of the Republic of South Africa Second Amendment Act, 1995 Act No. 7 of 1996 Constitution of the Republic of South Africa Amendment Act, 1996 Act No. 26 of 1996 Constitution of the Republic of South Africa Third Amendment Act, 1996 Schedule 7 175 INDEX (Please note: the figures after the entries refer to section numbers) Anthem, 4 Auditor-General, 181, 188 Bill of Rights— Access to courts, 34 Access to information, 32 Application, 8 Arrested, detained and accused persons, 35 Assembly, demonstration, picket and petition, 17 Children, 28 Citizenship, 20 Cultural, religious and linguistic communities, 31 Education, 29 Enforcement of rights, 38 Environment, 24 Equality, 9 Freedom and security of the person, 12 Freedom of association, 18 Freedom of expression, 16 Freedom of movement and residence, 21 Freedom of religion, belief and opinion, 15 Freedom of trade, occupation and profession, 22 Health care, food, water and social security, 27 Housing, 26 Human Dignity, 10 Interpretation, 39 Just administrative action, 33 Labour relations, 23 Language and culture, 30Index 176Life, 11 Limitation of rights, 36 Political rights, 19 Privacy, 14 Property, 25 Slavery, servitude and forced labour, 13 States of emergency, 37 Broadcasting, Independent Authority to Regulate, 181, 192 Budget, 215 Central Bank, 223 - 225 Co-operative Government, 41 Citizenship, 3 Cabinet, 91 - 99, 101, 102 Commission for Gender Equality, 181, 187 Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, 181, 185, 186 Conflicting Laws, 146 - 150 Courts— Constitutional Court, 167 Court procedures, 171 High Court of South Africa, 169 Inherent power, 173 Other courts, 170 Powers of courts in constitutional matters, 172 Supreme Court of Appeal, 168 Defence, 200 - 204 Electoral Commission, 181, 190, 191 Election procedures for Constitutional office-bearers, Schedule 3, Part A Executive authority— The Provinces, 125 The Republic, 85 Executive Councils, Provincial, 132 -141 Index 177 Finance, National, 213, 214, 216, 217 Finance, Provincial and local, 226 - 230 Financial and Fiscal Commission, 220 - 222 Flag, 5 Funding for political parties, 236 South African Human Rights Commission, 181, 184 Independent Authority to Regulate Broadcasting, 192 Intelligence, 209, 210 International Law, 231 - 233 Judicial Authority, 165 Judicial officers, 174 - 177 Judicial Service Commission, 178 Judicial system, 166 Languages, 6 Law-making, 73 - 82 Legislative Authority, 43, 44 Local government, 152, 163 Municipalities, 151 - 164 National Assembly— Composition and election, 46 Decision, 53 Evidence or information before National Assembly, 56 Powers, 55 Public access, 59 National Council of Provinces— Allocation of delegates, 61 Composition, 60 Decisions, 65 Evidence or information before National Council, 69 Participation by local government representatives, 67 Party participation in provincial delegations, Schedule 3, Part B Permanent delegates, 62 Index Powers, 68 Public access, 72 Parliament, 42 Police, 205 - 208 Premiers, 127 - 130 President, 83 - 89 Prosecuting authority, 179 Provinces, 103 Provincial Constitutions, 142 - 145 Provincial Legislatures, 104 - 121 Application by members to Constitutional Court, 122 Permanent delegates’ rights, 113 Public access, 118 Public Administration, 195 Public Service Commission, 196 Public Service, 197 Public Protector, 181, 182 Security Services, 198, 199 Self-determination, 235 Supremacy of the Constitution, 2 Traditional leaders, 211, 212 Index