Constitution of the Republic of South Africa, 1993/1994-07-22/Chapter 9

Powers, privileges and immunities of provincial legislatures and benefits of members

135. (1) A provincial legislature shall have full power to control, regulate and dispose of its internal affairs and shall have all such other powers, privileges and immunities as may, subject to this Constitution, be prescribed by a law of such legislature.

(2) Subject to the rules and orders of a provincial legislature there shall be freedom of speech and debate in or before such legislature and any committee thereof, and such freedom shall not be impeached or questioned in any court.

(3) A member of a provincial legislature shall not be liable to any civil or criminal proceedings, arrest, imprisonment or damages by reason of anything which he or she has said, produced or submitted in or before or to such legislature or any committee thereof or by reason of anything which may have been revealed as a result of what he or she has said, produced or submitted in or before or to such legislature or any committee thereof.

(4) There shall, subject to section 207(2), be paid out of and as a charge on the Provincial Revenue Fund of a province to a member of the legislature of that province such remuneration and allowances as may be prescribed by or determined under a law of the provincial legislature.

Executive Councils

149. (1) The Executive Council of a province shall consist 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 Executive Council, shall be entitled to be allocated one or more of the Executive Council portfolios in proportion to the number of seats held by it in the provincial legislature relative to the number of seats held by the other participating parties.

(3) Executive Council portfolios shall for the purposes of subsection (2) be allocated mutatis mutandis in accordance with the formula set out in paragraphs (a) to (e) of section 88(3), to the respective participating parties.

(4) The Premier of a province shall after consultation with the leaders of the participating parties—

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); 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; if it becomes necessary for the purposes of this Constitution or in the interest of good government, vary any determination under paragraph (a), subject to subsection (3); terminate any appointment under paragraph (b)—

if he or she is requested to do so by the leader of the party of which the relevant member of the Executive Council is a member; or if it becomes necessary for the purposes of this Constitution or in the interest of good government; or

fill when necessary, subject to paragraph (b), a vacancy in the office of a member of the Executive Council.

(5) Subsection (4) shall be implemented in the spirit underlying the concept of a government of national unity, and the Premier and the other functionaries concerned shall for the purposes of subsection (4) endeavour to achieve consensus at all times: Provided that if consensus cannot be achieved on—

the exercise of a power referred to in paragraph (a), (c) or (d)(ii) of that subsection, the Premier’s decision shall prevail; 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 shall prevail; and 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 shall prevail.

(6) If any determination of portfolio allocations is varied under subsection (4)(c), the affected members of the Executive Council shall vacate their portfolios but shall be eligible, where applicable, for re-appointment to other portfolios allocated to their respective parties in terms of the varied determination.

(7) The Premier or a member of the Executive Council shall, before formally assuming office, make and subscribe an oath or solemn affirmation in the terms set out in Schedule 3 before a judge of the Supreme Court designated by the Chief Justice for this purpose.

(8) No member of an Executive Council may take up any other paid employment, engage in activities inconsistent with his or her membership of the Executive Council, or expose himself or herself to any situation which carries with it the risk of a conflict between his or her responsibilities as a member of the Executive Council and his or her private interests.

(9) No member of the Executive Council shall use his or her position as such, or directly or indirectly use information entrusted confidentially to him or her in such capacity, to enrich himself or herself or any other person.

(10) There shall, subject to section 207(2), be paid out of and as a charge on the Provincial Revenue Fund of a province to the Premier and to a member of an Executive Council of such province such remuneration and allowances as may be prescribed by or determined under a law of the provincial legislature.