Constitution of the Republic of South Africa, 1993/1994-11-23/Chapter 15

Rationalisation of public administration

237. (1) (a) All institutions referred to in section 236(1), excluding military forces referred to in section 224(2), shall as soon as is possible after the commencement of this Constitution be rationalised with a view to establishing within the public service contemplated in section 212(1)—

an effective administration at the national level of government to deal with matters within the jurisdiction of the national government referred to in section 235(5)(a); and an effective administration for each province to deal with matters within the jurisdiction of each provincial government referred to in section 235(5)(b).

(b) All military forces referred to in section 224(2) shall be rationalised for the purposes of the National Defence Force.

(2) (a) The responsibility for the rationalisation of—

institutions referred to in section 236(1), excluding military forces, shall primarily but not exclusively rest with the national government, which shall exercise such responsibility in co-operation with the provincial governments and the Commission on Provincial Government, and with due regard to the advice of the Public Service Commission: Provided that in the case of policing services, the national government shall exercise such responsibility in co-operation with the committee referred to in section 220(1) and the Board of Commissioners referred to in section 220(2); and military forces shall rest with the national government.

(aA) In anticipation of the adoption of the Act of Parliament contemplated in section 214—

the National Commissioner and Provincial Commissioners of the South African Police Service contemplated in section 214(2)(a) may be appointed; a meeting of the National Commissioner and the Provincial Commissioners or their nominees shall be deemed to be a meeting of the Board of Commissioners contemplated in section 220(2) and any decision taken at such a meeting shall be deemed to be a decision of the Board; the existing police forces, deemed in terms of section 236(7) to constitute the South African Police Service contemplated in section 214, may be rationalised in accordance with this section; and proclamations to regulate such rationalisation may be issued in terms of subsection (3).

(b) Subject to section 235(6), (7), (8) and (9), the responsibility for the internal rationalisation of an administration referred to in subsection (1)(a)(ii) shall primarily rest with the relevant provincial government, with due regard to the advice of the Public Service Commission and any relevant provincial service commission: Provided that the rationalisation of all police forces shall be dealt with in accordance with paragraph (a)(i).

(3) (a) The President may, subject to subsection (2) (a), by proclamation in the Gazette take such steps as he or she considers necessary in order to achieve the aim mentioned in subsection (1).

(b) Without derogating from the generality of paragraph (a), the steps referred to in that paragraph may include—

the amendment, repeal or replacement of any law regulating the establishment, functions and other matters relating to an institution referred to in section 236(1), or of any law referred to in section 236(2), or of any law which deals with any of the aforegoing matters in a consequential manner: Provided that if a law referred to in section 236(2) is repealed, provision shall be made for the application of any law of general application regulating the employment of persons or any class of persons in the employment of the state, to the persons or class of persons affected by such repeal; and measures relating to the transfer or secondment of personnel, or the allocation of property, funds, rights and obligations, including administrative records, in order to establish the administrations referred to in subsection (2) and rationalise the South African Police Service and the National Defence Force.

(c) A copy of a proclamation under paragraph (a), shall be submitted to Parliament within 14 days after the publication thereof.

(d) If Parliament disapproves of any such proclamation or any provision thereof, such proclamation or provision shall thereafter cease to be of force and effect to the extent to which it is so disapproved, but without prejudice to the validity of anything done in terms of such proclamation up to the date upon which it so ceased to be of force and effect, or to any right, privilege, obligation or liability acquired, accrued or incurred as at the said date under and by virtue of such proclamation.

(4) (a) The labour appeal court established by section 17A of the Labour Relations Act, 1956 (Act No. 28 of 1956), sitting as a special tribunal in terms of an Act to be passed by Parliament, shall be competent to determine any claim or dispute of right in terms of a law regulating as at 1 November 1993 employment in an institution referred to in section 236(1) and arising out of the implementation of this section and section 236.

(b) The Act of Parliament contemplated in paragraph (a) shall prescribe expeditious procedures for the adjudication of claims and disputes contemplated in this section, including the granting of interim and final relief.

(c) Notwithstanding the provisions of any law the procedures contemplated in paragraph (b) shall be the only procedures to be followed in such court.

(d) A decision of the court on any such claim or dispute shall be final and binding.

(e) This subsection and the Act of Parliament contemplated in paragraph (a) shall lapse one year from the commencement of this Constitution, save that any matter properly before the court referred to in paragraph (a) on that date shall be heard and determined as if this subsection and the said Act had not lapsed.

Transitional arrangements: Local government

245. (1) Until elections have been held in terms of the Local Government Transition Act, 1993, local government shall not be restructured otherwise than in accordance with that Act.

(2) Restructuring of local government which takes place as a result of legislation enacted by a competent authority after the elections referred to in subsection (1) have been held, shall be effected in accordance with the principles embodied in Chapter 10 and the Constitution as a whole.

(3) (a) For the purposes of the first election of members of a local government after the commencement of this Constitution, the area of jurisdiction of such local government shall be divided into wards in accordance with the Act referred to in subsection (1).

(b) Forty per cent of the members of the local government shall be elected according to the system of proportional representation applicable to an election of the National Assembly and regulated specifically by or under the Act referred to in subsection (1), and sixty per cent of the members shall be elected on the basis that each such member shall represent a ward as contemplated in paragraph (a): Provided that, notwithstanding anything to the contrary contained in this Constitution, where the area of jurisdiction of the local government includes—

the area of jurisdiction of any institution or body as was referred to in section 84(1)(f) of the Provincial Government Act, 1961 (Act No. 32 of 1961); and any other area not falling within the area of jurisdiction of the institution or body referred to in subparagraph (i),

no area referred to in subparagraph (i) or (ii) shall be allocated less than half of the total number of wards of the local government concerned: Provided further that an area referred to in subparagraph (i) shall be deemed not to include any area for which a local government body referred to in paragraphs (a), (b) and (c) of the definition of “local government body” in section 1(1) of the Act referred to in subsection (1) of this section (as that Act exists at the commencement of this Constitution), has been established.