Constitution of the Republic of South Africa, 1993/1995-09-20/Chapter 15

Definitions

233. (1) In this Constitution, unless the context otherwise indicates—

“Chief Justice” means the Chief Justice of the Supreme Court of South Africa referred to in section 97(1); “Commission on Provincial Government” means the Commission established by section 163; “Financial and Fiscal Commission” means the Commission established by section 198; “House”, in relation to Parliament, means the National Assembly or the Senate; “Independent Electoral Commission” means the Commission established by section 4 of the Independent Electoral Commission Act, 1993 (Act No. 150 of 1993); “South African National Defence Force” means the Defence Force established by section 224(1);

“National Revenue Fund” means the Revenue Fund established by section 185; “new constitutional text” means the text of a new Constitution contemplated in Chapter 5; “organ of state” includes any statutory body or functionary; “previous Constitution” means the Republic of South Africa Constitution Act, 1983 (Act No. 110 of 1983); “Provincial Revenue Fund” means the Revenue Fund of a province established by section 159(1); “Public Service Commission” means the Commission established by section 209; “Republic” means the Republic of South Africa referred to in section 1; “Transitional Executive Council” means the Council established by section 2 of the Transitional Executive Council Act, 1993 (Act No. 151 of 1993).

(2) A reference in this Constitution to rules and orders shall according to the context be construed as a reference to the rules and orders of the National Assembly or the Senate, or the joint rules and orders of the National Assembly and the Senate, or the rules and orders of the Constitutional Assembly, or the rules and orders of a provincial legislature.

(3) Where in this Constitution any functionary is required to take a decision in consultation with another functionary, such decision shall require the concurrence of such other functionary: Provided that if such other functionary is a body of persons it shall express its concurrence in accordance with its own decision-making procedures.

(4) Where in this Constitution any functionary is required to take a decision after consultation with another functionary, such decision shall be taken in good faith after consulting and giving serious consideration to the views of such other functionary.

Transitional arrangements: Public administration

236. (1) A public service, department of state (including a police force), administration, military force as defined in section 224(2)(a) or (b) or other institution (excluding any local government) which immediately before the commencement of this Constitution performed governmental functions under the control of an authority referred to in section 235(1)(a), (b) or (c), shall, subject to subsection (7), continue to function as such in accordance with the laws applicable to it until it is, as the case may be, abolished or incorporated or integrated into any appropriate institution or is rationalised as contemplated in any other Chapter, consolidated with any other institution or otherwise rationalised as contemplated in section 237, as the case may be: Provided that a military force referred to in this subsection shall not be employed for service referred to in section 227(1)(a), (b) or (e) otherwise than by the President and shall only be used for such service by the authority referred to in section 225 in accordance with section 227(2).

(2) A person who immediately before the commencement of this Constitution was employed by an institution referred to in subsection (1) shall continue in such employment subject to and in accordance with this Constitution and other applicable laws regulating such employment.

(3) Subject to subsections (1) and (2), all powers, directions, orders, instructions or delegations which were in force in respect of an institution which immediately before the commencement of this Constitution performed governmental functions as contemplated in subsection (1) shall, after the said commencement, continue in force for the purpose of the continued functioning within the contemplation of subsection (1) of any such institution, until cancelled or otherwise no longer in force in law.

(4) Subject to this Constitution and subsection (5), the terms and conditions of employment applicable to a person employed by an institution referred to in subsection (1) immediately before the commencement of this Constitution, shall continue to apply to him or her until amended by or under any law, including any law enacted in order to establish uniformity of the terms and conditions of employment in accordance with those generally prevailing at such commencement.

(5) Subject to any law relating to unfitness or incapacity of a person to carry out his or her duties efficiently, the pensionable salary or pensionable salary scale of a person referred to in subsection (2) shall not be reduced below that applicable to such person immediately before the commencement of this Constitution.

(6) Notwithstanding the provisions of this section, 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 employed at any time during the said period by an institution referred to in subsection (1), or any class of such persons, may, at the instance of a Minister or a member of the Executive Council of a province, within one year and three months of the commencement of this Constitution be referred to a commission appointed by the President and presided over by a judge, for review, and if not proper or justifiable in the circumstances of the case, the commission may reverse or alter the contract, appointment, promotion or award before 31 December 1995.

(7) (a) At the commencement of this Constitution the South African Police existing in terms of the Police Act, 1958 (Act No. 7 of 1958), and all other police forces established by law shall be deemed to constitute the South African Police Service referred to in section 214, and any reference to the South African Police or any such force in the said Act or law shall be deemed to be a reference to the said Service.

(b) Any reference in any law to the South African Police or any other police force (excluding a municipal police service) shall, unless the context indicates otherwise, be construed as a reference to the said South African Police Service.

(8) (a) The South African National Defence Force referred to in section 224 shall, subject to this Constitution and any Act of Parliament, mutatis mutandis be governed by the Defence Act, 1957 (Act No. 44 of 1957).

(b) Any reference in any law to a defence force referred to in section 224(2)(a) or (b), shall be deemed to be a reference to the South African National Defence Force.

(c) If the number of the members of the South African National Defence Force exceeds the personnel strength determined in respect of the force design and structure for the Force, any member of the Force who, due to integration, consolidation and rationalisation of the South African National Defence Force is not accommodated in such force design and structure, shall be dealt with in accordance with a law.

(d) The continuance of membership of members of the South African National Defence Force referred to in section 224(2)(c) shall be subject to such members entering into an agreement for temporary or permanent appointment with the South African National Defence Force within a reasonable time: Provided that such agreements shall be in accordance with normal employment policies and terms and conditions of service.

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 South African 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 South African 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—

in respect of the South African National Defence Force, on 31 December 1998; and

in respect of any other institution, two years from the commencement of this Constitution,

save that any matter properly before the court referred to in paragraph (a) on the dates contemplated in subparagraphs (i) and (ii), respectively, shall be heard and determined as if this subsection and the said Act had not lapsed.

Transitional arrangements: Assets and liabilities

239. (1) All assets, including funds and administrative records, which immediately before the commencement of this Constitution vested in an authority referred to in section 235(1)(a), (b) or (c), or in a government, administration or force under the control of such an authority, shall be allocated as follows:

Where any asset is applied or intended to be applied for or in connection with a matter which—

does not fall within a functional area specified in Schedule 6; or does fall within such a functional area but is a matter referred to in paragraphs (a) to (e) of section 126(3) (which shall be deemed to include a police asset),

such asset shall vest in the national government. Where any asset is applied or intended to be applied for or in connection with a matter which is not a matter referred to in paragraphs (a) to (e) of section 126(3), such asset shall, subject to paragraph (c), vest in the relevant provincial government. Where any asset referred to in paragraph (b) is applied or intended to be applied for or in connection with the administration of a particular law or the performance of a particular function in a particular area, such asset shall vest in the government to which the administration of that law is assigned, or is assigned in that particular area, in terms of section 235(6), (8) or (9), or to which the performance of that function is entrusted, or entrusted in the particular area, in terms of section 237. Where any asset cannot in terms of the aforegoing rules be classified with reference to a particular matter, law or function, or where there is disagreement between two or more governments, the advice of the Commission on Provincial Government shall be obtained, and any dispute shall be resolved with due regard to such advice. Parliament shall be competent to enact a law to facilitate the application of this section and to prescribe guidelines for the resolution of disputes arising from such application. All assets under the control of a police force shall vest in the South African Police Service.

(2) (a) A registrar of deeds shall upon the production of a certificate by a competent authority that immovable property described in the certificate is vested in a particular government in terms of this section, make such entries or endorsements in or on any relevant register, title deed or other document to register such immovable property in the name of such government.

(b) No duty, fee or other charge shall be payable in respect of a registration in terms of paragraph (a).

(3) (a) All debts and liabilities which immediately before the commencement of this Constitution vested in an authority referred to in section 235(1)(a), (b) or (c), or in a government, administration or force under the control of such authority shall be assumed by the national government.

(b) The debts and liabilities referred to in paragraph (a), shall be deemed to be State debt as defined in section 1 of the Exchequer Act, 1975 (Act No. 66 of 1975).

(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 South African National Defence Force.

(5) Anything done in terms of this section shall be subject to audit by the Auditor-General.

Transitional arrangements: Local government

245. (1) Until 31 March 1996, local government shall not be restructured otherwise than in accordance with the Local Government Transition Act, 1993 (Act No. 209 of 1993).

(2) Restructuring of local government which takes place as a result of legislation enacted by a competent authority after 31 March 1996 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 transitional local council or a transitional metropolitan substructure as referred to in the Local Government Transition Act, 1993, after the commencement of this Constitution, the area of jurisdiction of such transitional local council and transitional metropolitan substructure shall be divided into wards in accordance with that Act.

(b) Forty per cent of the members of a transitional local council and a transitional metropolitan substructure 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 Local Government Transition Act, 1993, and sixty per cent of the members shall be elected to represent wards as contemplated in paragraph (a): Provided that—

if such wards are represented by more than one member, all such wards shall be represented by the same number of members; and notwithstanding anything to the contrary contained in this Constitution, where the area of jurisdiction of the transitional local council or transitional metropolitan substructure 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 item (aa),

no area referred to in items (aa) or (bb) shall be allocated less than half of the total number of wards of the transitional local council or transitional metropolitan substructure concerned: Provided further that an area referred to in item (aa) 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 Local Government Transition Act, 1993 (as that Act exists at the commencement of this Constitution), has been established.