Constitution of the Republic of South Africa, 1993/1995-09-20/Chapter 9

CHAPTER 9

Provincial Government

Establishment of provinces

124. (1) The following provinces are hereby established, which for the purposes of this Constitution, but subject to subsection (2), shall be recognised as the provinces of the Republic:

Eastern Cape; Mpumalanga;

KwaZulu/Natal;

Northern Cape; Northern Province;

North-West; Free State;

Gauteng; and

Western Cape:

Provided that Parliament shall at the request of a provincial legislature alter the name of a province in accordance with the request of such legislature.

(2) The areas of the respective provinces shall be as defined in Part 1 of Schedule 1: Provided that the establishment of the Northern Cape as a separate province, the establishment in the area of the Eastern Cape of one province, and the inclusion of the areas specified in paragraphs (a) to (f) and (i) to (n) of Part 2 of Schedule 1 within the provinces as defined in Part 1 of Schedule 1, shall be subject to alteration in accordance with this section.

(3) (a) A referendum may be held in terms of this section in each of the areas specified in paragraphs (a) to (n) of Part 2 of Schedule 1 (hereinafter referred to as an affected area) to determine the views of the voters ordinarily resident in such area regarding an issue referred to in subsection (5) or (6).

(b) A referendum referred to in paragraph (a) shall be held in an affected area within three months of the lodging with the Secretary to Parliament of a petition signed by persons entitled to vote and ordinarily resident in such area.

(c) The number of signatures on such a petition shall be at least equal in number to such percentage of the votes recorded in terms of subsection (4) in respect of the affected area in question, as may be determined by the Independent Electoral Commission.

(d) The Independent Electoral Commission shall not be dissolved in terms of the Independent Electoral Commission Act, 1993 (Act No. 150 of 1993), after the first election held under this Constitution until it has made a determination in terms of paragraph (c) in respect of all the affected areas.

(e) Such a petition shall be lodged with the Secretary to Parliament within a period of six months of the commencement of this Constitution or a period referred to in subsection (10), whichever period expires first.

(4) In the first election of the National Assembly and the provincial legislatures held under this Constitution, votes cast in each of the affected areas shall be counted separately and recorded for use for the purposes of this section.

(5) Subject to subsection (7), the object of a referendum in respect of an area referred to in paragraph (e), (f), (g) or (h) of Part 2 of Schedule 1, shall be the determination of the views of voters ordinarily resident in such an area, concerning, as the case may be—

the continued inclusion of the area referred to in the said paragraph (e) in the provincial territory of the Eastern Cape, or its inclusion in the provincial territory of KwaZulu/Natal;

the continued inclusion of the area referred to in the said paragraph (f) in the provincial territory of Gauteng, or its inclusion in the provincial territory of Mpumalanga;

the continued existence of the area referred to in the said paragraph (g) as one province, or its division into two separate provinces on either side of the line forming the eastern boundaries of the districts of Venterstad, Steynsburg, Hofmeyr, Tarka, Fort Beaufort, Albany and Bathurst; or the continued existence of the area referred to in the said paragraph (h) as a separate province, or its discontinuance as a separate province, in which event those districts of the said area north of the Orange River shall be included in the provincial territory of the North-West, and those districts south of the Orange River shall be included in the provincial territory of the Western Cape:

Provided that in the case of a referendum regarding an issue referred to in—

paragraphs (a) and (b) of this subsection, a majority of votes cast shall be required to sanction the inclusion of the areas in question in the provincial territories of KwaZulu/Natal or Mpumalanga, as the case may be;

paragraph (c) of this subsection, a majority of at least 60 per cent of the votes cast in either of the two blocks mentioned in paragraph (g) of Part 2 of Schedule 1 shall be required to sanction the division of the said area into two separate provinces; and paragraph (d) of this subsection, a majority of at least 60 per cent of the votes cast shall be required to sanction the discontinuance of the Northern Cape as a separate province.

(6) Subject to subsection (7), the object of a referendum in respect of an area referred to in paragraph (a), (b), (c), (d), (i), (j), (k), (l), (m) or (n) of Part 2 of Schedule 1, shall be the determination of the views of the majority of the voters ordinarily resident in such an area, concerning—

in the case of the area referred to in the said paragraph (a), the continued inclusion of such area in the provincial territory of the Northern Province, or its inclusion in the provincial territory of Mpumalanga;

in the case of the area referred to in the said paragraph (b), the continued inclusion of such area in the provincial territory of the Northern Cape, or its inclusion in the provincial territory of the Western Cape; in the case of the area referred to in the said paragraph (c), the continued inclusion of such area in the provincial territory of Mpumalanga, or its inclusion in the provincial territory of the Northern Province;

in the case of the area referred to in the said paragraph (d), the continued inclusion of such area in the provincial territory of the Eastern Cape, or its inclusion in the provincial territory of KwaZulu/Natal;

in the case of the area referred to in the said paragraph (i), the continued inclusion of such area in the provincial territory of Mpumalanga, or its inclusion in the provincial territory of Gauteng;

in the case of the area referred to in the said paragraph (j), the continued inclusion of such area in the provincial territory of the Free State, or its inclusion in the provincial territory of Gauteng;

in the case of the area referred to in the said paragraph (k), the continued inclusion of such area in the provincial territory of the Western Cape, or its inclusion in the provincial territory of the Northern Cape; in the case of the area referred to in the said paragraph (l), the continued inclusion of such area in the provincial territory of KwaZulu/Natal, or its inclusion in the provincial territory of the Eastern Cape;

in the case of the area referred to in the said paragraph (m), the continued inclusion of such area in the provincial territory of the Northern Cape, or its inclusion in the provincial territory of the North-West; or in the case of the area referred to in the said paragraph (n), the continued inclusion of such area in the provincial territory of the North-West, or its inclusion in the provincial territory of Gauteng.

(7) (a) The Independent Electoral Commission shall be competent to make regulations or give directions concerning the implementation of this section, including—

the formulation of the question to be put before the electorate in any particular referendum; the determination of the sequence of referendums with reference to a province in respect of which more than one petition contemplated in subsection (3)(e) or (10) is received; the drawing up and registering of party lists for an affected area; the identification of persons entitled to vote in a referendum or election held in terms of this section; procedures relating to the drawing up of petitions for the purposes of this section; and any other matters which it considers necessary for such implementation.

(b) This subsection shall come into operation on the date of promulgation of this Constitution.

(8) A party or parties representing a majority of voters in an affected area may within a period of one month of the date of the first election under this Constitution of members of the provincial legislature of the province within which such area falls in terms of Part 1 of Schedule 1, petition the Independent Electoral Commission to publish a notice in terms of subsection (9).

(9) If a petition is lodged with the Independent Electoral Commission in terms of subsection (8), requesting that an affected area be altered as contemplated in subsection (5) or (6), and the Independent Electoral Commission is satisfied that the petition has the support of a party or parties representing a majority of voters in that affected area, it shall forthwith cause to be published in the Gazette, notice of the fact that it has received such a petition.

(10) Within five months of the date of publication of a notice referred to in subsection (9) a petition may be lodged with the Secretary to Parliament, calling for a referendum contemplated in subsection (3) to be held in the area in respect of which such notice was published.

(11) If a petition for a referendum as provided for in subsection (10) is lodged with the Secretary to Parliament, the petition lodged with the Independent Electoral Commission under subsection (8) will lapse, and the result of the referendum in respect of such area will be decisive.

(12) If a petition for a referendum as provided for in subsection (10) is not lodged with the Secretary to Parliament within the period referred to in that subsection, the Independent Electoral Commission shall, upon the expiry of that prescribed period, forthwith cause to be published in the Gazette, notice of that fact, and the alteration contemplated in the notice published in terms of subsection (9) shall thereupon be implemented in accordance with subsection (13).

(13) (a) For the purpose of implementing an alteration in terms of subsection (12), or an alteration pursuant to a referendum held in terms of subsection (3), the Independent Electoral Commission shall, if it considers it necessary to do so as a result of an alteration to be made, give directions concerning—

the establishment of a new provincial legislature or the reconstitution of an existing provincial legislature; the holding of an election of a new or reconstituted provincial legislature; the allocation of seats within such new or reconstituted provincial legislature; and the names of the persons who will become or remain members of such provincial legislature.

(b) The Independent Electoral Commission shall for the purposes of any directions under paragraph (a) have regard to—

representations made to it by political parties who will or may be affected by any such directions; party lists compiled by parties for the purpose of the election of the provincial legislatures which will be dissolved or reconstituted; party lists compiled pursuant to any regulation made or directions given by it in terms of subsection (7); the provisions of Schedule 2 (without necessarily being bound thereby in regard to the sequence in which seats are to be awarded or forfeited); and all other factors which in its opinion are relevant to such directions:

Provided that if it is of the opinion that any particular alteration does not require an existing provincial legislature to be reconstituted, it may direct that notwithstanding such alteration, such provincial legislature shall not be reconstituted.

(c) If a Premier, member of the Executive Council of a province, senator or other officer has been elected, appointed or nominated in terms of this Constitution by the members of any provincial legislature affected by directions given by the Independent Electoral Commission in terms of paragraph (a), the Independent Electoral Commission may also give directions that new elections, appointments or nominations be made, in which event such elections, appointments or nominations shall be carried out in accordance with this Constitution, and within such times as the Independent Electoral Commission may prescribe.

(14) The President shall by proclamation in the Gazette, to take effect on such date as may be determined by the Independent Electoral Commission, amend subsection (1) and Schedule 1 to give effect to any alteration made in terms of this section.

(15) Notwithstanding the provisions of section 62, Parliament may by a majority of votes in each House, effect consequential amendments to this Constitution arising out of any alterations to provinces or provincial boundaries, or directions given by the Independent Electoral Commission in terms of this section.

Administration of provincial legislatures

143. (1) For the purposes of setting up a provisional administration of a provincial legislature, the Transitional Executive Council shall as soon as possible after the commencement of this Constitution appoint for each provincial legislature a provisional secretary, who shall hold office as Secretary until an appointment is made in terms of subsection (2).

(2) (a) A provincial legislature shall appoint a Secretary and such other staff as may be necessary for the discharge of the work of such legislature.

(b) Except in so far as may be otherwise determined by resolution of the provincial legislature concerned, any person who was prior to the date of commencement of the Constitution of the Republic of South Africa Second Amendment Act, 1995, appointed to the staff, or as the Secretary, of a provincial legislature, and who is at such commencement still serving as such, shall be deemed to have been appointed in accordance with paragraph (a).

(3) Persons appointed under this section shall be remunerated out of and as a charge on the Provincial Revenue Fund of the province.

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 determined by the President.