Constitution of the Republic of South Africa, 1993/1997-02-04

as amended by

Constitution of the Republic of South Africa Amendment Act, No. 2 of 1994 Constitution of the Republic of South Africa Second Amendment Act, No. 3 of 1994 Constitution of the Republic of South Africa Third Amendment Act, No. 13 of 1994 Constitution of the Republic of South Africa Fourth Amendment Act, No. 14 of 1994 Constitution of the Republic of South Africa Fifth Amendment Act, No. 29 of 1994 Constitution of the Republic of South Africa Sixth Amendment Act, No. 24 of 1994 Constitution of the Republic of South Africa Amendment Act, No. 20 of 1995 Constitution of the Republic of South Africa Second Amendment Act, No. 44 of 1995 Constitution of the Republic of South Africa Amendment Act, No. 7 of 1996 Constitution of the Republic of South Africa Third Amendment Act, No. 26 of 1996 Constitution of the Republic of South Africa, 1996

CHAPTER 6

The National Executive

Powers and functions of President

82. (4) (b) The President may—

with the approval of Parliament, declare a state of national defence; employ the South African National Defence Force in accordance with and subject to sections 227 and 228; and confer upon members of the South African National Defence Force permanent commissions and cancel such commissions.

CHAPTER 7

The Judicial Authority and the Administration of Justice

Attorneys-General

108. (1) The authority to institute criminal prosecutions on behalf of the state shall vest in the attorneys-general of the Republic.

(2) The area of jurisdiction, powers and functions of an attorney-general shall be as prescribed by or under law.

(3) No person shall be appointed as an attorney-general unless he or she is appropriately qualified in terms of a law regulating the appointment of attorneys-general in the Republic.

CHAPTER 9

Provincial Government

CHAPTER 10

Local Government

Administration and finance

178. (2) A local government shall, subject to such conditions as may be prescribed by law of a competent legislature after taking into consideration any recommendations of the Financial and Fiscal Commission, be competent to levy and recover such property rates, levies, fees, taxes and tariffs as may be necessary to exercise its powers and perform its functions: Provided that within each local government such rates, levies, fees, taxes and tariffs shall be based on a uniform structure for its area of jurisdiction.

(3) A local government shall be entitled to an equitable allocation by the provincial government of funds, and the Financial and Fiscal Commission shall make recommendations regarding criteria for such allocations, taking into account the different categories of local government referred to in section 174  (2).

 CHAPTER 11A

Volkstaat Council

Provision for establishment of Volkstaat Council

184A. (1) The establishment of a Volkstaat Council is hereby authorised.

(2) The Council shall consist of 20 members elected by members of Parliament who support the establishment of a Volkstaat for those who want it.

(3) The Council shall conduct its affairs according to rules made by the Council.

 Functions of Council

184B. (1) The Council shall serve as a constitutional mechanism to enable proponents of the idea of a Volkstaat to constitutionally pursue the establishment of such a Volkstaat, and shall for this purpose be competent—

to gather, process and make available information with regard to possible boundaries, powers and functions and legislative, executive and other structures of such a Volkstaat, its suggested constitutional relationship with government at national and provincial level, and any other matter directly relevant to the establishment of such a Volkstaat; to make feasibility and other relevant studies with regard to the matters referred to in paragraph (a); to perform such other functions as may be prescribed by an Act of Parliament.



Objects and functions

199. (1) The objects and functions of the Commission shall be to apprise itself of all financial and fiscal information relevant to national, provincial and local government, administration and development and, on the basis of such information, to render advice and make recommendations to the relevant legislative authorities in terms of this Constitution regarding the financial and fiscal requirements of the national, provincial and local governments, including—

financial and fiscal policies; equitable financial and fiscal allocations to the national, provincial and local governments from revenue collected at national level; taxes, levies, imposts and surcharges that a provincial government intends to levy; the raising of loans by a provincial or local government and the financial norms applicable thereto; criteria for the allocation of financial and fiscal resources; and any other matter assigned to the Commission by this Constitution or any other law.

Constitution, expertise and impartiality

200. (1) The Commission shall consist of—

a chairperson and deputy chairperson, appointed by the President in consultation with the Cabinet; a person designated by each of the various Executive Councils of the provinces, who shall be appointed by the President; and seven members appointed by the President on the advice of the Cabinet, at least one of whom shall have expertise in local government finance.

(3) No person shall be qualified to be appointed to the Commission unless he or she—

is a South African citizen; and is a person who, by reason of his or her training and experience, has expertise in economics, public finance, public administration, taxation, management or accountancy.

(5) Vacancies in the Commission shall be filled in accordance with the relevant provisions of this section under which the former member concerned was appointed.

(6) The chairperson and the deputy chairperson shall be appointed for a period of five years, and the other members of the Commission for a period of two years, but shall be eligible for re-appointment.

(7) A member of the Commission shall perform his or her duties fairly, impartially and independently.

(8) The chairperson and deputy chairperson shall not perform or commit himself or herself to perform remunerative work outside his or her official duties.

(9) A member of the Commission shall not hold office in any political party or political organisation.

(10) It shall be an offence to influence or attempt to influence a member of the Commission to act otherwise than in accordance with the provisions of subsection (7).

(11) The chairperson and deputy chairperson—

shall be the only full-time members of the Commission; shall be the chief executive officer and deputy chief executive officer, respectively, of the Commission.

CHAPTER 14

Police and Defence

SOUTH AFRICAN POLICE SERVICE

Responsibilities of National Commissioner

218. (1) Subject to the directions of the Minister of Safety and Security, the National Commissioner shall be responsible for—

the maintenance of an impartial, accountable, transparent and efficient police service; the appointment of provincial commissioners; the preservation of the internal security in the Republic; the investigation and prevention of organised crime or crime which requires national investigation and prevention or specialised skills; international police liaison; the keeping and provision of crime intelligence data, criminal records and statistics; the training of members of the Service, including any municipal or metropolitan police services to be established; the recruitment, appointment, promotion and transfer of all members of the Service; the provision of forensic laboratory services; such functions relating to border control and the import and export of goods as may be assigned to the Service by law; the establishment and maintenance of a national public order policing unit to be deployed in support of and at the request of the Provincial Commissioner; national protection services; the establishment of a special task force for high risk operations which require specialised skills; and subject to section 219, such other functions as—

are necessary to achieve the objectives referred to in section 215; and

are appropriate for the National Commissioner to take responsibility for.

Provincial Commissioners

219. (1) Subject to section 218(1), a Provincial Commissioner shall be responsible for—

the investigation and prevention of crime; the development of community-policing services; the maintenance of public order; the provision in general of all other visible policing services, including—

the establishment and maintenance of police stations; crime reaction units; and patrolling services;

protection services in regard to provincial institutions and personnel; transfers within the province of members of the Service performing functions in terms of this section; and the promotion, up to the rank of lieutenant-colonel, of members of the Service performing functions in terms of this section.

Establishment of South African National Defence Force

224. (1) The South African National Defence Force is hereby established as the only defence force for the Republic.

(2) The South African National Defence Force shall at its establishment consist of all members of—

the South African Defence Force; any defence force of any area forming part of the national territory; and any armed force as defined in section 1 of the Transitional Executive Council Act, 1993 (Act No. 151 of 1993),

and whose names, at the commencement of this Constitution, are included in a certified personnel register referred to in section 16(3) or (9) of the said Act: Provided that this subsection shall also apply to members of any armed force which submitted its personnel list after the commencement of the Constitution of the Republic of South Africa, 1993 (Act 200 of 1993), but before the adoption of the new constitutional text as envisaged in section 73 of that Constitution, if the political organisation under whose authority and control it stands or with which it is associated and whose objectives it promotes did participate in the Transitional Executive Council or did take part in the first election of the National Assembly and the provincial legislatures under the said Constitution.

(3) Save for the South African National Defence Force, no other armed force or military force or armed organisation or service may be established in or for the Republic other than—

as provided for in this Constitution; a force established by or under an Act of Parliament for the protection of public property or the environment; or a service established by or under law for the protection of persons or property.

Functions of South African National Defence Force

227. (1) The South African National Defence Force may, subject to this Constitution, be employed—

for service in the defence of the Republic, for the protection of its sovereignty and territorial integrity; for service in compliance with the international obligations of the Republic with regard to international bodies and other states; for service in the preservation of life, health or property; for service in the provision or maintenance of essential services; for service in the upholding of law and order in the Republic in co-operation with the South African Police Service under circumstances set out in a law where the said Police Service is unable to maintain law and order on its own; and for service in support of any department of state for the purpose of socio-economic upliftment.

(2) The National Defence Force shall exercise its powers and perform its functions solely in the national interest in terms of Chapter 11 of the Constitution of the Republic of South Africa, 1996.

(3) The employment for service, training, organisation and deployment of the South African National Defence Force shall be effected in accordance with the requirements of subsection (2).

CHAPTER 15

General and Transitional Provisions

Transitional arrangements: Public administration

236. (1) A public service, department of state, administration or security service which immediately before the commencement of the Constitution of the Republic of South Africa, 1996 (hereinafter referred to as “the new Constitution”), performed governmental functions, continues to function in terms of the legislation applicable to it until it is abolished or incorporated or integrated into any appropriate institution or is rationalised or consolidated with any other institution.

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

(6) (a) The President may appoint a commission to review 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 referred to in subsection (2) or any class of such persons.

(b) The commission may reverse or alter a contract, appointment, promotion or award if not proper or justifiable in the circumstances of the case.

(7) (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 the new 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) The rationalisation of all institutions referred to in section 236(1), excluding military forces referred to in section 224(2), shall after the commencement of the Constitution of the Republic of South Africa, 1996, continue, with a view to establishing—

an effective administration in the national sphere of government to deal with matters within the jurisdiction of the national sphere; and an effective administration for each province to deal with matters within the jurisdiction of each provincial government.

(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 rest with the national government, which shall exercise such responsibility in co-operation with the provincial governments;

military forces shall rest with the national government.

Transitional arrangements: Assets and liabilities

239. (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 National Defence Force in accordance with the directions of the Minister of Defence.

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

Transitional arrangements: Local government

245. (4) Until a period of not less than three years has elapsed from the date on which the members of a district council, a metropolitan substructure, a transitional council, a transitional representative council or a transitional rural council as contemplated in the Local Government Transition Act, 1993, have been elected in terms of that Act, such council or substructure, as the case may be, shall not be disestablished and no change shall be made to the powers, area of jurisdiction, wards or number of seats thereof except in accordance with an Act of Parliament further regulating the local government transition process or by way of proclamation in the Provincial Gazette by the Premier of a province acting in consultation with the Minister for Provincial Affairs and Constitutional Development.

SCHEDULE 2

System for Election of National Assembly and Provincial Legislatures

Election of National Assembly

Parties registered in terms of national legislation and contesting an election of the National Assembly, shall nominate candidates for such election on lists of candidates prepared in accordance with this Schedule and national legislation.

The seats in the National Assembly as determined in terms of section 46 of the new Constitution, shall be filled as follows:

One half of the seats from regional lists submitted by the respective parties, with a fixed number of seats reserved for each region as determined by the Commission for the next election of the Assembly, taking into account available scientifically based data in respect of voters, and representations by interested parties. The other half of the seats from national lists submitted by the respective parties, or from regional lists where national lists were not submitted.

The lists of candidates submitted by a party, shall in total contain the names of not more than a number of candidates equal to the number of seats in the National Assembly, and each such list shall denote such names in such fixed order of preference as the party may determine.

The seats referred to in item 2(a) shall be allocated per region to the parties contesting an election, as follows:

A quota of votes per seat shall be determined in respect of each region by dividing the total number of votes cast in a region by the number of seats, plus one, reserved for such region under item 2(a). The result plus one, disregarding fractions, shall be the quota of votes per seat in respect of a particular region. The number of seats to be awarded for the purposes of paragraph (e) in respect of such region to a party, shall, subject to paragraph (d), be determined by dividing the total number of votes cast in favour of such party in a region by the quota of votes per seat indicated by paragraph (b) for that region. Where the result of the calculation referred to in paragraph (c) yields a surplus not absorbed by the number of seats awarded to a party concerned, such surplus shall compete with other similar surpluses accruing to any other party or parties in respect of the relevant region, and any seat or seats in respect of that region not awarded in terms of paragraph (c), shall be awarded to the party or parties concerned in sequence of the highest surplus. The aggregate of a party’s awards in terms of paragraphs (c) and (d) in respect of a particular region shall indicate that party’s provisional allocation of the seats reserved under item 2(a) for that region. The aggregate of a party’s provisional allocations for the various regions in terms of paragraph (e), shall indicate its provisional allocation of the seats referred to in item 2(a). If no recalculation of provisional allocations is required in terms of item 7 in respect of the seats referred to in item 2(a), the provisional allocation of such seats in terms of paragraphs (e) and (f) shall become the final allocation of such seats to the various parties, and if such a recalculation is required the provisional allocation of such seats, as adjusted in terms of item 7, shall become the final allocation of such seats to the various parties.

The seats referred to in item 2(b) shall be allocated to the parties contesting an election, as follows:

A quota of votes per seat shall be determined by dividing the total number of votes cast nationally by the number of seats in the National Assembly, plus one, and the result plus one, disregarding fractions, shall be the quota of votes per seat. The number of seats to be awarded to a party for the purposes of paragraph (d) shall, subject to paragraph (c), be determined by dividing the total number of votes cast nationally in favour of such party by the quota of votes per seat determined in terms of paragraph (a). Where the result of the calculation in terms of paragraph (b) yields a surplus not absorbed by the number of seats awarded to a party concerned, such surplus shall compete with other similar surpluses accruing to any other party or parties, and any seat or seats not awarded in terms of paragraph (b), shall be awarded to the party or parties concerned in sequence of the highest surplus, up to a maximum of five seats so awarded: Provided that subsequent awards of seats still remaining unawarded shall be made in sequence to those parties having the highest average number of votes per seat already awarded in terms of paragraph (b) and this paragraph. The aggregate of a party’s awards in terms of paragraphs (b) and (c) shall be reduced by the number of seats provisionally allocated to it in terms of item 5(f) and the result shall indicate that party’s provisional allocation of the seats referred to in item 2(b). If no recalculation of provisional allocations is required in terms of item 7 in respect of the seats referred to in item 2(b), the provisional allocation of such seats in terms of paragraph (d) shall become the final allocation of such seats to the various parties, and if such a recalculation is required, the provisional allocation of such seats, as adjusted in terms of item 7, shall become the final allocation of such seats to the various parties.

(1) If a party has submitted a national or a regional list containing fewer names than the number of its provisional allocation of seats which would have been filled from such list in terms of item 8 or 9 had such provisional allocation been the final allocation, it shall forfeit a number of seats equal to the deficit.

(2) In the event of any forfeiture of seats in terms of subitem (1) affecting the provisional allocation of seats in respect of any particular region in terms of item 5(e), such allocation shall be recalculated as follows:

The party forfeiting seats shall be disregarded in such recalculation, and its provisional allocation of seats in terms of item 5(e) for the region in question, minus the number of seats forfeited by it in respect of its list for such region, shall become its final allocation in respect of the seats reserved for such region in terms of item 2(a). An amended quota of votes per seat shall be determined in respect of such region by dividing the total number of votes cast in the region, minus the number of votes cast in such region in favour of the party referred to in paragraph (a), by the number of seats, plus one, reserved for such region under item 2(a), minus the number of seats finally allocated to the said party in terms of paragraph (a). The result plus one, disregarding fractions, shall be the amended quota of votes per seat in respect of such region for purposes of the said recalculation. The number of seats to be awarded for the purposes of paragraph (f) in respect of such region to a party participating in the recalculation, shall, subject to paragraph (e), be determined by dividing the total number of votes cast in favour of such party in such region by the amended quota of votes per seat indicated by paragraph (c) for such region. Where the result of the recalculation in terms of paragraph (d) yields a surplus not absorbed by the number of seats awarded to a party concerned, such surplus shall compete with other similar surpluses accruing to any other party or parties participating in the recalculation in respect of the said region, and any seat or seats in respect of such region not awarded in terms of paragraph (d), shall be awarded to the party or parties concerned in sequence of the highest surplus. The aggregate of a party’s awards in terms of paragraphs (d) and (e) in respect of such region shall, subject to subitem (4), indicate that party’s final allocation of the seats reserved under item 2(a) for that region.

(3) In the event of any forfeiture of seats in terms of subitem (1) affecting the provisional allocation of seats in terms of item 6(d), such allocation shall be recalculated as follows:

The party forfeiting seats shall be disregarded in such recalculation, and its provisional allocation of seats in terms of item 6(d), minus the number of such seats forfeited by it, shall become its final allocation of the seats referred to in item 2(b). An amended quota of votes per seat shall be determined by dividing the total number of votes cast nationally, minus the number of votes cast nationally in favour of the party referred to in paragraph (a), by the number of seats in the Assembly, plus one, minus the number of seats finally allocated to the said party in terms of paragraph (a).

The result plus one, disregarding fractions, shall be the amended quota of votes per seat for the purposes of the said recalculation. The number of seats to be awarded for the purposes of paragraph (f) to a party participating in the recalculation shall, subject to paragraph (e), be determined by dividing the total number of votes cast nationally in favour of such party by the amended quota of votes per seat indicated by paragraph (c). Where the result of the recalculation in terms of paragraph (d) yields a surplus not absorbed by the number of seats awarded to a party concerned, such surplus shall compete with other similar surpluses accruing to any other party or parties participating in the recalculation, and any seat or seats not awarded in terms of paragraph (d), shall be awarded to the party or parties concerned in sequence of the highest surplus, up to a maximum of five seats so awarded: Provided that subsequent awards of seats still remaining unawarded shall be made in sequence to those parties having the highest average number of votes per seat already awarded in terms of paragraph (d) and this paragraph. The aggregate of such a party’s awards in terms of paragraphs (d) and (e) shall be reduced by the number of seats finally allocated to it in terms of item 5(g), and the result shall, subject to subitem (4), indicate that party’s final allocation of the seats referred to in item 2(b).

(4) In the event of a party being allocated an additional number of seats in terms of this item, and its list in question then does not contain the names of a sufficient number of candidates as set out in subitem (1), the procedure provided for in this item shall mutatis mutandis be repeated until all seats have been allocated.

The number of seats in each provincial legislature shall be as determined in terms of section 105 of the new Constitution.

Parties registered in terms of national legislation and contesting an election of a provincial legislature, shall nominate candidates for election to such provincial legislature on provincial lists prepared in accordance with this Schedule and national legislation.

(1) After the counting of votes has been concluded, the number of representatives of each party has been determined and the election result has been declared in terms of section 190 of the new Constitution, the Commission shall, within two days after such declaration, designate from each list of candidates, published in terms of national legislation, the representatives of each party in the legislature.

(2) Following the designation in terms of subitem (1), if a candidate’s name appears on more than one list for the National Assembly or on lists for both the National Assembly and a provincial legislature (if an election of the Assembly and a provincial legislature is held at the same time), and such candidate is due for designation as a representative in more than one case, the party which submitted such lists shall, within two days after the said declaration, indicate to the Commission from which list such candidate will be designated or in which legislature the candidate will serve, as the case may be, in which event the candidate’s name shall be deleted from the other lists.

(3) The Commission shall forthwith publish the list of names of representatives in the legislature or legislatures.

Lists of candidates may, after the designation of representatives in terms of item 16 has been concluded, be supplemented by the addition of an equal number of names at the end of the applicable list, if—

a representative is elected as the President or to any other executive office as a result of which he or she resigns as a representative of a legislature; a representative is appointed as a permanent delegate to the National Council of Provinces;

a name is deleted from a list in terms of item 16(2); or a vacancy has occurred and the appropriate list of candidates of the party concerned is depleted.

Lists of candidates of a party referred to in item 16(1) may be supplemented on one occasion only at any time during the first 12 months following the date on which the designation of representatives in terms of item 16 has been concluded, in order to fill casual vacancies: Provided that any such supplementation shall be made at the end of the list.

(1) In the event of a vacancy in a legislature to which this Schedule applies, the party which nominated the vacating member shall fill the vacancy by nominating a person—

whose name appears on the list of candidates from which the vacating member was originally nominated; and who is the next qualified and available person on the list.

(2) A nomination to fill a vacancy shall be submitted to the Speaker in writing.

(3) If a party represented in a legislature dissolves or ceases to exist and the members in question vacate their seats in consequence of item 23A(1), the seats in question shall be allocated to the remaining parties mutatis mutandis as if such seats were forfeited seats in terms of item 7 or 14, as the case may be.



(1) A person loses membership of a legislature to which this Schedule applies if that person ceases to be a member of the party which nominated that person as a member of the legislature.

(2) Despite subitem (1) any existing political party may at any time change its name.

(3) An Act of Parliament may, within a reasonable period after the new Constitution took effect, be passed in accordance with section 76(1) of the new Constitution to amend this item and item 23 to provide for the manner in which it will be possible for a member of a legislature who ceases to be a member of the party which nominated that member, to retain membership of such legislature.

(4) An Act of Parliament referred to in subitem (3) may also provide for—

any existing party to merge with another party; or any party to subdivide into more than one party.



In this Schedule—

“Commission” means the Electoral Commission referred to in section 190 of the new Constitution;

“national list” means a list of candidates prepared by a party for an election of the National Assembly to reflect that party’s order of preference of candidates in respect of the allocation of seats on a national basis;

“new Constitution” means the Constitution of the Republic of South Africa, 1996;

“provincial list” means a list of candidates prepared by a party for an election of a provincial legislature;

“region” means the territorial area of a province;

“regional list” means a list of candidates in respect of a region prepared by a party for an election of the National Assembly to reflect that party’s order of preference of candidates in respect of the allocation of seats in respect of such region.

“votes” means—

where it occurs in items 5, 6, 7 and 9, votes cast in the election for the National Assembly; where it occurs in items 13 and 14, votes cast in the election for the provincial legislature of a province concerned; and where it occurs in item 16, votes cast in the election for the National Assembly and the provincial legislatures.