Constitution of the Republic of South Africa, 1993/1994-09-19/Chapter 6

Cabinet

88. (1) The Cabinet shall consist of the President, the Executive Deputy Presidents and—

not more than 27 Ministers who are members of Parliament and appointed in terms of subsections (2) to (6); and not more than one Minister who is not a member of Parliament and appointed in terms of subsection (6A), 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.

(2) A party holding at least 20 seats in the National Assembly and which has decided to participate in the government of national unity, shall be entitled to be allocated one or more of the Cabinet portfolios in 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.

(3) Cabinet portfolios shall for the purposes of subsection (2) be allocated to the respective participating parties in accordance with the following formula:

A quota of seats per portfolio shall be determined by dividing the total number of seats in the National Assembly held jointly by the participating parties by the number of portfolios in respect of which Ministers referred to in subsection (1)(a) are to be appointed, plus one.

The result, disregarding third and subsequent decimals, if any, shall be the quota of seats per portfolio. The number of portfolios to be allocated to a participating party shall be determined by dividing the total number of seats held by such party in the National Assembly by the quota referred to in paragraph (b). The result shall, subject to paragraph (e), indicate the number of portfolios to be allocated to such party. Where the application of the above formula yields a surplus not absorbed by the number of portfolios allocated to a party, such surplus shall compete with other similar surpluses accruing to another party or parties, and any portfolio or portfolios which remain unallocated shall be allocated to the party or parties concerned in sequence of the highest surplus.

(4) The President shall after consultation with the Executive Deputy Presidents and the leaders of the participating parties—

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 Parliament who is a member of the party to which that portfolio was allocated under paragraph (a), as the Minister 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 Minister in question 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 Minister.

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

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

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

(6A) The President shall—

in consultation with the Executive Deputy Presidents and the leaders of the participating parties—

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; appoint in respect of such a portfolio a person who is not a member of Parliament, as the Minister responsible for that portfolio; fill, if necessary, a vacancy in respect of that portfolio; or

after consultation with the Executive Deputy Presidents and the leaders of the participating parties terminate any appointment under paragraph (a) if it becomes necessary for the purposes of this Constitution or in the interest of good government.

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

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

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

(10) There shall, subject to section 207(2), be paid out of and as a charge on the National Revenue Fund to an Executive Deputy President and to a Minister such remuneration and allowances as may be prescribed by or determined under an Act of Parliament.

Accountability of Ministers and Cabinet

92. (1) A Minister shall be accountable individually both to the President and to Parliament for the administration of the portfolio entrusted to him or her, and all members of the Cabinet shall correspondingly be accountable collectively for the performance of the functions of the national government and for its policies.

(2) A Minister shall administer his or her portfolio in accordance with the policy determined by the Cabinet.

(3) If a Minister fails to administer his or her portfolio in accordance with the policy of the Cabinet, the President may require the Minister concerned to bring the administration of the portfolio into conformity with such policy.

(4) If the Minister concerned fails to comply with a requirement of the President under subsection (3), the President may—

in the case of a Minister referred to in section 88(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 such Minister’s party; in the case of a Minister referred to in section 88(1)(b), after consultation with the Executive Deputy Presidents and the leaders of the participating parties,

remove the Minister from office.

Appointment of Deputy Ministers

94. (1) The President may, after consultation with the Executive Deputy Presidents and the leaders of the parties serving in the Cabinet, establish deputy ministerial posts.

(2) A party shall be entitled to be allocated one or more of the deputy ministerial posts in the same proportion and according to the same formula as that in which the portfolios in the Cabinet are allocated to it.

(3) The provisions of section 88(4) to (6) and (7) to (10) shall apply mutatis mutandis in respect of Deputy Ministers, and in such application a reference to—

a Minister or portfolio shall be construed as a reference to a Deputy Minister and a deputy ministerial post, respectively; and subsection (3) of section 88 shall be construed as a reference to subsection (2) of this section.

(4) If a person is appointed as the Deputy Minister of any portfolio entrusted to a Minister—

such Deputy Minister shall exercise and perform on behalf of the relevant Minister any of the powers and functions assigned to such Minister in terms of any law or otherwise which may, subject to the directions of the President, be assigned to him or her by such Minister; and any reference in any law to such a Minister shall be construed as including a reference to the Deputy Minister acting in pursuance of an assignment under paragraph (a) by the Minister for whom he or she acts.

(5) Whenever a Deputy Minister is absent or for any reason unable to exercise or perform any of the powers or functions of his or her office, the President may appoint any other Deputy Minister or any other person to act in the said Deputy Minister’s stead, either generally or in the exercise or performance of any specific power or function.