Republic of South Africa Constitution Act, 1961/1981-01-01

as amended by

Provincial Executive Committees Act, No. 28 of 1962

Constitution Amendment Act, No. 65 of 1962

Constitution Amendment Act, No. 9 of 1963

Provincial Councils and Executive Committees Act, No. 22 of 1963

Coloured Persons Education Act, No. 47 of 1963

Provincial Executive Committees Act, No. 64 of 1963

Indians Education Act, No. 61 of 1965

Constitution Amendment Act, No. 83 of 1965

Pension Laws Amendment Act, No. 102 of 1965

Constitution Amendment Act, No. 37 of 1966

Second Finance Act, No. 58 of 1966

Constitution Amendment Act, No. 9 of 1967

Separate Representation of Voters Amendment Act, No. 50 of 1968

Pension Laws Amendment Act, No. 79 of 1968

Powers and Privileges of Provincial Councils Amendment Act, No. 37 of 1969

General Law Amendment Act, No. 101 of 1969

Constitution Amendment Act, No. 1 of 1971

Pension Laws Amendment Act, No. 93 of 1971

Provincial Finance and Audit Act, No. 18 of 1972

Provincial Affairs Act, No. 61 of 1972

General Law Amendment Act, No. 102 of 1972

Constitution and Elections Amendment Act, No. 79 of 1973

General Law Amendment Act, No. 62 of 1973

Parliamentary Service Act, No. 33 of 1974

Constitution Amendment Act, No. 48 of 1974

Second Pension Laws Amendment Act, No. 77 of 1974

Exchequer and Audit Act, No. 66 of 1975

Constitution Amendment Act, No. 60 of 1976

Financial Relations Act, No. 65 of 1976

Constitution Amendment Act, No. 30 of 1977

Proclamation No. R. 249 of 1977

Second Black Laws Amendment Act, No. 102 of 1978

Constitution Amendment Act, No. 99 of 1979

Pension Laws Amendment Act, No. 100 of 1979

Republic of South Africa Constitution Third Amendment Act, No. 28 of 1980

Republic of South Africa Constitution Second Amendment Act, No. 31 of 1980

Railways and Harbours Acts Amendment Act, No. 67 of 1980

Republic of South Africa Constitution Amendment Act, No. 70 of 1980

Republic of South Africa Constitution Fourth Amendment Act, No. 74 of 1980

Republic of South Africa Constitution Fifth Amendment Act, No. 101 of 1980

THE STATE PRESIDENT AND THE VICE STATE PRESIDENT.

7. (1) The head of the Republic shall be the State President.

(2) The command-in-chief of the South African Defence Force is vested in the State President.

(3) He shall, subject to the provisions of this Act, have power―

with due regard to the provisions of this Act to dissolve the House of Assembly;

in accordance with the provisions of sections twenty and twenty-one to appoint Ministers and deputies to Ministers; to confer honours; to appoint and to accredit, to receive and to recognize ambassadors, plenipotentiaries, diplomatic representatives and other diplomatic officers, consuls and consular officers; with due regard to the provisions of this Act to appoint the times for the holding of sessions of the House of Assembly and to prorogue the House of Assembly;

to pardon or reprieve offenders, either unconditionally or subject to such conditions as he may deem fit, and to remit any fines, penalties or forfeitures; to enter into and ratify international conventions, treaties and agreements; to proclaim and terminate martial law; to declare war and make peace; to make such appointments as he may deem fit under powers conferred upon him by any law, and to exercise such powers and perform such functions as may be conferred or assigned to him under this Act or any other law.

(4) The State President shall in addition as head of the State have such powers and functions as were immediately prior to the commencement of this Act possessed by the Queen by way of prerogative.

(5) The constitutional conventions which existed immediately prior to the commencement of this Act shall not be affected by the provisions of this Act.

8. (1) The State President shall be elected by an electoral college consisting of the members of the House of Assembly, at a meeting to be called in accordance with the provisions of this section and presided over by the Chief Justice of South Africa or a judge of appeal designated by him.

(2) The election of a State President shall be held at a time and place to be fixed by the Speaker or (in his absence) the Secretary to Parliament and made known by notice in the Gazette not less than fourteen days before such election.

(3) The date so fixed shall in respect of the first such election be a date before the thirty-first day of May, 1961, and in the case of any subsequent such election a date not less than one month and not more than three months before the termination of the period of office of the State President then holding office: Provided that if the State President dies or for any other reason vacates his office before the expiration of his period of office and his successor has then not yet been elected, a date within three months after the office became vacant shall be so fixed: Provided further that if the State President intimates in his resignation lodged with the Speaker of the House of Assembly in terms of section 10 (3) that he will vacate his office on a day not less than one month after the date of the lodging of his resignation, a date which is earlier than the day on which the office becomes vacant, may be so fixed.

(4) No person may be elected or serve as State President unless he is qualified to be nominated or elected and to take his seat as a member of the House of Assembly.

(5) Any person holding any public office in respect of which he receives any remuneration or allowance out of public funds, who is elected as State President, shall vacate such office with effect from the date on which he is elected.

10. (1) (a) The State President shall hold office for a period of seven years from the date upon which he takes the oath prescribed in section twelve, and shall not on termination of his period of office be eligible for re-election, unless it is expressly otherwise decided by the electoral college.

(b) He shall cease to hold office on a resolution passed by the House of Assembly declaring him to be removed from office on the ground of misconduct or inability to perform efficiently the duties of his office.

(2) (a) No resolution shall be taken under paragraph (b) of sub-section (1), except after consideration of a report of a committee of the House of Assembly appointed in pursuance of a resolution of the House of Assembly.

(b) The House of Assembly shall not adopt a resolution that such a committee be appointed, unless there has previously been submitted to the Speaker of the House of Assembly a petition signed by not less than thirty members of the House of Assembly and requesting that such a committee be appointed.

(c) In connection with any resolution contemplated in paragraph (b) no debate shall be allowed in the House of Assembly.

(3) The State President may resign by lodging his resignation in writing with the Speaker of the House of Assembly, who shall forthwith advise the Prime Minister of such resignation.

(4) The State President shall not be absent from the Republic except with the prior consent of the Executive Council.

20. (1) The State President may appoint persons not exceeding twenty in number to administer such departments of State of the Republic as the State President may establish.

(2) Persons appointed under sub-section (1) shall hold office during the pleasure of the State President and shall be the Ministers of the Republic.

(3) No Minister shall hold office for a longer period than twelve months unless he is or becomes a member of the House of Assembly, and a person who was a Minister without being a member of the House of Assembly shall not again be appointed as a Minister unless he is such a member.

(4) Whenever a Minister is from any cause whatever unable to perform any of the functions of his office, the State President may appoint any other member of the Executive Council to act in the said Minister’s stead, either generally or in the performance of any particular function.

(5) A Minister shall before assuming his duties as such or as a member of the Executive Council make and subscribe an oath before the State President or a person designated by him, in the following form: I, A.B., do hereby swear to be faithful to the Republic of South Africa and undertake before God to honour this oath; to hold my office as Minister and as a member of the Executive Council with honour and dignity; to respect and uphold the Constitution and all other Law of the Republic; to be a true and faithful counsellor; not to divulge directly or indirectly any matters brought before the Executive Council which are entrusted to me under secrecy; and to perform the duties of my office conscientiously and to the best of my ability.

So help me God. (6) Any department of State established under section fourteen of the South Africa Act, 1909, and in existence immediately prior to the commencement of this Act, shall be deemed to have been duly established under this section, and any officer appointed under sub-section (1) of the first-mentioned section to administer any such department and holding office immediately prior to such commencement, shall be deemed to have been duly appointed under this section to administer that department, but shall make and subscribe the oath prescribed in sub-section (5) before assuming his duties.

21. (1) (a) The State President may appoint any person to hold office during his pleasure as Deputy Minister of any specified Department of State or Deputy Minister of such other description as the State President may determine, and to exercise or perform on behalf of a Minister any of the powers, functions and duties entrusted to such Minister under any law or otherwise which may, subject to the directions of the State President, be assigned to him from time to time by the said Minister.

(b) Not more than six persons may be appointed under this sub-section.

(c) Any reference in any law to a deputy to a Minister shall be construed as including a reference to a Deputy Minister appointed under this sub-section, and any such reference to a Minister shall be construed as including a reference to a Deputy Minister acting in pursuance of an assignment under paragraph (a) by the Minister for whom he acts.

(2) Any person appointed under this section shall before assuming the duties of his office make and subscribe before the State President or a person designated by him for the purpose, an oath in such form as the State President may determine.

(3) No person appointed under this section shall hold office for a longer period than three months unless he is or becomes a member of the House of Assembly.

(4) Any person appointed under sub-section (3) of section fourteen of the South Africa Act, 1909, and holding office immediately prior to the commencement of this Act, shall be deemed to have been duly appointed under this section, and may, subject to the provisions of this section, continue to exercise or perform any powers, duties and functions which immediately prior to such commencement could be exercised or performed by him by virtue of a determination under sub-section (3) of the first-mentioned section, as if he were authorized to exercise such powers or perform such duties or functions in pursuance of a determination made by the Minister concerned in terms of this section, but shall make and subscribe the oath required under sub-section (2) before assuming the duties of his office.

PARLIAMENT.

24. The legislative power of the Republic is vested in the Parliament of the Republic, which consists of the State President and a House of Assembly.

25. The State President may appoint such times for holding the sessions of the House of Assembly as he thinks fit, and may also from time to time, by proclamation in the Gazette or otherwise, prorogue the House of Assembly.

26. There shall be a session of the House of Assembly at least once in every year, so that a period of 12 months shall not intervene between the last sitting of the House of Assembly in one session and its first sitting in the next session.

52. Every member of the House of Assembly shall, before taking his seat, make and subscribe before the State President, or some person authorized by him, an oath in the following form: I, A.B., do swear to be faithful to the Republic of South Africa and solemnly promise to perform my duties as a member of the House of Assembly to the best of my ability.

So help me God.

53. Notwithstanding any dissolution of the House of Assembly under this Act, whether by effluxion of time or otherwise―

every person who at the date of the dissolution is a member of the House of Assembly shall remain a member thereof; the House of Assembly shall remain competent to perform its functions; and the State President shall have power to summon the House of Assembly for the dispatch of business.

during the period following such dissolution up to and including the day immediately preceding the polling day for the election held in pursuance of such dissolution, in the same manner in all respects as if the dissolution had not occurred.

54. (1) A member of the President’s Council who is elected or nominated as a member of the House of Assembly or a provincial council shall vacate his seat as a member of the President’s Council with effect from the date on which he becomes a member of the House of Assembly or such provincial council.

(2) A member of the House of Assembly who is appointed as a member of the President’s Council, shall vacate his seat as a member of the House of Assembly with effect from the date on which he becomes a member of the President’s Council.

(3) A member of the House of Assembly who is elected as a member of a provincial council shall cease to be a member of the House of Assembly with effect from the date upon which he becomes a member of that provincial council.

(4) A Minister who is not a member of the House of Assembly shall have the right to sit and to speak in the House of Assembly, but shall not vote therein.

55. No person shall be capable of being elected or nominated or of sitting as a member of the House of Assembly, if he―

has at any time been convicted of any offence for which he has been sentenced to imprisonment without the option of a fine for a period of not less than twelve months, unless he has received a grant of amnesty or a free pardon, or unless such imprisonment has expired at least five years before the date of his election or nomination; or is an unrehabilitated insolvent; or is of unsound mind, and has been so declared by a competent court; or holds any office of profit under the Republic: Provided that the following persons shall not be deemed to hold an office of profit under the Republic for the purposes of this paragraph, namely―

a Minister of the Republic, or any person holding office as deputy to any Minister; a person in receipt of a pension from the Republic; an officer or member of the South African Defence Force on retired or half-pay, or an officer or member of the South African Defence Force whose services are not wholly employed by the Republic; any person who has been appointed or has become a justice of the peace under section two of the Justices of the Peace and Oaths Act, 1914 (Act No. 16 of 1914); any person appointed as appraiser under section 6 of the Administration of Estates Act, 1965 (Act No. 66 of 1965), or deemed to have been so appointed;

any person who, while the Republic is at war, is an officer or member of the South African Defence Force or any other force or service established by or under the Defence Act, 1957 (Act No. 44 of 1957); a member of any council, committee, board or similar body established by or under any law, who receives no payment in respect of his services on such council, committee, board or body in excess of an allowance at a rate not exceeding the amount determined by the Minister of Finance by notice in the Gazette from time to time for each day on which he renders such services, any reimbursement of travelling expenses incurred by him in the course of such services and an allowance in respect of entertaining by him in connection with such services.

a member of a commission of inquiry or a committee of inquiry appointed by the State President or the Administrator of a province, or a member of a Select Committee of the House of Assembly or a provincial council.

56. A member of the House of Assembly shall vacate his seat, if he―

becomes subject to any of the disabilites mentioned in section 55; or ceases to be qualified as required by law; or fails for a whole ordinary session to attend without the special leave of the House of Assembly, unless his absence is due to his serving, while the Republic is at war, with the South African Defence Force or any other force or service established by or under the Defence Act, 1957 (Act No. 44 of 1957).

57. Any person who is by law incapable of sitting as a member of the House of Assembly, and who while so incapable and knowing or having reasonable grounds for knowing that he is so incapable, sits or votes as a member of the House of Assembly, shall be liable to a penalty of two hundred rand for each day on which he so sits or votes, to be recovered on behalf of the Treasury of the Republic by action in any division of the Supreme Court of South Africa.

58. The House of Assembly may make rules and orders with respect to the order and conduct of its business and proceedings.

64. (1) When a Bill is presented to the State President for his assent, he shall declare according to his discretion, but subject to the provisions of this Act, that he assents thereto or that he withholds assent.

(2) The State President may return to the House of Assembly any Bill so presented to him and may transmit therewith any amendments which he may recommend, and the House of Assembly may deal with the recommendation.

THE PROVINCES.

Administrators.

66. (1) In each province there shall be a chief executive officer appointed by the State President who shall be known as the administrator of the province, and in whose name all executive acts relating to provincial affairs therein shall be done.

(2) In the appointment of the administrator of any province, the State President shall as far as practicable give preference to persons resident in such province.

(3) An administrator shall hold office for a period of five years and shall not be removed from office before the expiration thereof except by the State President for cause assigned which shall be communicated by message to the House of Assembly within one week after the removal, if Parliament is in session, or, if Parliament is not in session, within one week after the commencement of the next ensuing session.

(4) The State President may from time to time appoint a deputy-administrator to execute the office and functions of the administrator during his absence or illness or whenever for any reason he is unable to perform the duties of his office, or while the appointment of an administrator for the province concerned is pending.

(5) If any person has during any period before or after the commencement of this subsection executed the office and functions of an administrator in any of the circumstances referred to in subsection (4) without having been or before having been appointed as deputy administrator, the State President may appoint him as deputy administrator under the lastmentioned subsection with retrospective effect for the said period or for a period including the said period.

70. (1) The provisions of sections fifty-five, fifty-six and fifty-seven, relative to members of the House of Assembly, shall mutatis mutandis apply to members of the provincial councils.

(2) Any member of a provincial council who becomes a member of the President’s Council or the House of Assembly, shall cease to be a member of such provincial council.

71. (1) (a) Subject to the provisions of paragraph (b) a provincial council shall continue for five years from the date of its first meeting, but the State President may at any time by proclamation in the Gazette dissolve all provincial councils with effect from the same date.

(b) Should a provincial council dissolve by effluxion of time on a date during the existence of the House of Assembly, the State President may by proclamation in the Gazette extend the duration of that provincial council by a period not exceeding eighteen months: Provided that if the House of Assembly is dissolved on a date before the expiration of the said period, that provincial council may be dissolved by the State President by proclamation in the Gazette on the last-mentioned date.

(2) The provisions of section 53 relating to the tenure of office of the members and the functioning of the House of Assembly upon a dissolution thereof, and to the summoning of the House of Assembly after it has been dissolved, shall mutatis mutandis apply with reference to a dissolution and summoning of any provincial council.

76. (1) Each provincial council shall at its first meeting after any general election elect from among its members, or otherwise, four persons to form with the administrator, who shall be chairman, an executive committee for the province.

(2) The members of the executive committee other than the administrator shall hold office until the election of their successors in the same manner.

(3) (a) The members so elected shall receive such remuneration as the State President shall determine.

(b) There shall be no differentiation as regards the remuneration determined under paragraph (a) in respect of the members of the various executive committees except to the extent that the remuneration of such members who in the opinion of the State President perform full time service may differ from the remuneration of such members who in his opinion do not perform full time service.

(4) (a) A member of the provincial council shall not forfeit his seat by reason of his having been elected as a member of the executive committee.

(b) A member of the executive committee shall not be disqualified from being elected or nominated as a member of the House of Assembly or the provincial council.

(c) A member of the executive committee who becomes a member of the House of Assembly shall cease to be a member of the executive committee with effect from the date on which he becomes a member of the House of Assembly.

(d) A member of the executive committee shall not be disqualified from being appointed as deputy-administrator under sub-section (4) of section sixty-six and any such member so appointed shall as from the termination of the appointment resume his office and functions as a member of such executive committee unless his successor has in the meantime been elected under the provisions of sub-section (1) of this section.

(5) Any casual vacancy arising in the executive committee shall be filled by election by the provincial council if in session, or, if the council is not in session, by a person appointed by the executive committee to hold office temporarily pending an election by the council.

84. (1) Subject to the provisions of this Act, the Financial Relations Consolidation and Amendment Act, 1945 (Act No. 38 of 1945), and the assent of the State President as hereinafter provided, a provincial council may make ordinances in relation to matters coming within the following classes of subjects, namely―

direct taxation within the province in order to raise revenue for provincial purposes; the borrowing of money on the sole credit of the province with the consent of the State President and in accordance with regulations framed by the House of Assembly;

education, other than higher education, education for Coloured persons as defined in section one of the Coloured Persons Education Act, 1963, education for Indians as defined in section one of the Indians Education Act, 1965, and Black education, until Parliament otherwise provides;

agriculture to the extent and subject to the conditions defined by Parliament; the establishment, maintenance and management of hospitals and charitable institutions; municipal institutions, divisional councils and other local institutions of a similar nature; any institutions or bodies other than such institutions as are referred to in sub-paragraph (i), which have in respect of any one or more areas (whether contiguous or not) situated outside the area of jurisdiction of any such institution as is referred to in sub-paragraph (i), authority and functions similar to the authority and functions of such institutions as are referred to in the said sub-paragraph, or authority and functions in respect of the preservation of public health in any such area or areas, including any such body as is referred to in section seven of the Public Health Act, 1919 (Act No. 36 of 1919);

the assistance which a province may, with the approval of the State President, render to any other state, territory, province or the territory of South West Africa or to any institution or body contemplated in paragraph (f) and established in any other province;

the assistance which any institution or body contemplated in paragraph (f) may, with the approval of the State President, render to any other state, territory, province or the territory of South West Africa;

the assistance regarding civil defence which any institution or body contemplated in paragraph (f) may, with the approval of the administrator concerned, render to any such institution or body established in any other province;

local works and undertakings within the province, other than railways and harbours, and other than such works as extend beyond the borders of the province and subject to the power of the House of Assembly to declare any work a national work and to provide for its construction by arrangement with the provincial council or otherwise;

roads, outspans, ponts and bridges, other than bridges connecting two provinces; markets and pounds; fish and game preservation, subject to the provisions of section fourteen of the Sea Fisheries Act, 1940 (Act No. 10 of 1940); the imposition of punishment by fine or imprisonment for enforcing any law or any ordinance of the province made in relation to any matter coming within any of the classes of subjects enumerated in this section; generally all matters which, in the opinion of the State President are of a merely local or private nature in the province; all other subjects in respect of which Parliament may by law delegate the power of making ordinances to the provincial council.

(2) An ordinance passed by a provincial council in relation to any matter referred to in paragraph (f) of sub-section (1), may provide for the appointment by the administrator of the province concerned, or any specified authority, of the members or any number of the members of any institution or body referred to in the said paragraph.

117. (1) References in any law―

to any House or the Houses of Parliament, shall be construed as references to the House of Assembly;

to Parliament or the Senate or a member thereof or to the Senate and the House of Assembly or to both Houses of Parliament shall, unless inconsistent with the context, be construed as references to the House of Assembly or a member thereof, as the case may be;}}

to the Clerk or the Clerk-Assistant of the Senate or the House of Assembly, or to the Secretary or the Deputy Secretary to the Senate or the House of Assembly, shall be construed as references to the Secretary or the Deputy Secretary, respectively, to Parliament.

118. (1) Parliament may by law repeal or amend any provision of this Act: Provided that no repeal or amendment of the provisions of this section or of section 108 or of any corresponding provisions of any law substituted therefor, shall be valid unless the bill embodying such repeal or amendment has been agreed to by not less than two-thirds of the total number of members of the House of Assembly.

(2) A provision of a law which is in conflict with a provision of subsection (1), is hereby repealed.