USAF CONSTITUTION (draft)




What is a constitution?

A constitution of a country sets out:

 A constitution is the highest law in the land and must be respected by all government bodies. It is higher than parliament and it can override any law that parliament makes if the law goes against the constitution. No law can go against the Constitution, whether it is a Customary law or a law that parliament makes. It says how the government should rule the country and it includes a Bill of Rights.


What is a democracy?

Democracy means that everyone has a say about how the country is run. In a democracy, the government is put into power by its citizens. The adult citizens of a democracy elect their government.

 

The relationship between the Constitution and law

The Constitution is a law passed by parliament and it is the highest law in the land. All other laws must follow it. Other laws are divided into statutes (laws or acts) and common law: Statutes are laws or acts which are made by government. Laws made by the national parliament are called acts of parliament, laws made by state legislatures are called ordinances, and laws made by municipal councils are called by-laws. Common law means laws that have not been made by parliament or any other government. They are unwritten laws. Common law is based on Roman Dutch law. The courts used these laws and developed them when they made decisions (or set precedents).

 

USAF (United Southern African Federation)

The USAF Tiered Democracy is a highly de-centralised concept of devolution of power, local autonomy, and participatory democratic system in which the power of those who govern is limited by safeguards that ensure that citizens can prevent their elected leaders from abuse of power.

 USAF, the federal government, links the component states into one unified country, the federal government controls only those affairs which are of interest to all the states. These matters of common interest include foreign policy, national defence, legislature, postal and telecommunications, customs, monetary policy, environmental policy and citizenship.

Other issues, visa vi, education, labour, economic and welfare policies, culture, health care and so on – are determined by the governments of each state. Each state has its own parliament, executive councils and constitution and may differ substantially from one another.

Each state government is democratically elected by the citizen’s resident within their areas of jurisdiction, through a process of tiered democracy (TD) headed by a single federal representative (Premier Head of State).  

Each state is a self-determined community sharing common cultural and language heritage, within it’s defined territory.

The federal government is made up of State Federal Representatives, in a cabinet (the national executive). A president is elected by members of the national executive every year, with a maximum term in office of 10 years.


The Tiered Democratic System (TD)

Tiered Democracy PDF Click Here

Each individual over the age of 18 is eligible to vote within their tier at state level, provided that they can satisfy the voting criteria of being economically active. Voting is conducted and managed by the Federal Electoral Commission.

The Tiered Democratic system (TD) selects the custodians of governance on a tier-by-tier basis. The citizens elect their neighbourhood representative to constitute the first tier. The neighbourhood representatives elect the district representative to constitute the second tier. The district representatives elect the representatives of the next tier. This process continues, tier-by-tier, until the final tier of government State Federal Representative (Head of State) is selected. The number of tiers would depend on how each jurisdiction wants to govern itself.

Each tier provides an important communications link to the tier below and the tier above. Any citizen can provide a question, suggestion, insight, perspective, or idea which can then travel to the highest tiers, via the various representatives.

The ultimate responsibility, authority, and decision-making rest with the highest tier. However, this tier can delegate some of its responsibility to the lower tiers, or it may keep control of certain aspects of governance if it feels best. Likewise, intermediate tiers may delegate some of their control, which was granted to them from a higher level, to a lower level.

Finance

The federal government has the sole right to coin money, issue bank notes, determine the monetary system and regulate exchange controls.

The USAF National Bank, is independent of state interference. It is opposed to financing public deficits, and maintains a slow rate of growth in the money supply. By federal law, bank notes issued must be covered by gold and/or silver and short-term securities.

Taxation and Spending

The federal government does not levy any direct taxation, a system of transaction levy is implemented on all financial transactions within the federation and collected through the USAF National Bank (The Federal Revenue Fund), both for business and personal transactions. Unlike other types of democracy, this eliminates the need for a reserve bank, ministry of finance and a revenue collection services.


FOUNDING PROVISIONS

United Southern African Federation

1.The United Southern African Federation is one, sovereign, democratic federation of states founded on the following values:

(a)Human dignity, the achievement of equality and the advancement of human rights and freedoms.

(b)Non-racialism and non-sexism.

(c)Supremacy of the constitution and the rule of law.

(d)Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.

Supremacy of Constitution

2.This Constitution is the supreme law of the Federation; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.

Citizenship

3.(1) There is a common USAF citizenship.

(2)All citizens are—

(a)equally entitled to the rights, privileges and benefits of citizenship; and

(b)equally subject to the duties and responsibilities of citizenship.

(3)National legislation must provide for the acquisition, loss and restoration of citizenship.

Languages

4.(a) The official languages of the Federation are Afrikaans and English.

 (b)States must take into account the language usage and preferences of their residents.



BILL OF RIGHTS

(1) This Bill of Rights is a cornerstone of USAF democracy. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.

(2)The state must respect, protect, promote and fulfil the rights in the Bill of Rights.

Application

(1) The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.

(2)A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.

(3)When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court—

(a)in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and

(b)may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36(1).

(4)A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person.

Equality

The following rights apply to anyone in the country, with the exception of the right to vote, the right to work and the right to enter the country, which apply only to citizens. They also apply to juristic persons to the extent that they are applicable, taking into account the nature of the right.

The rights are:

  1. Everyone is equal before the law and has right to equal protection and the benefit of the law. Prohibited grounds of discrimination include race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
  2. The right to human dignity.
  3. The right to bear arms, facilitating a natural right of self-defence.
  4. The right to life, which has been held to prohibit capital punishment, but does not prohibit abortion.
  5. The right to freedom and security of the person, including protection against arbitrary detention and detention without trial, the right to be protected against violence, freedom from torture, freedom from cruel, inhuman or degrading punishment, the right to bodily integrity, and reproductive rights.
  6. Freedom from slavery, servitude or forced labour.
  7. The right to privacy, including protection against search and seizure, and the privacy of correspondence.
  8. Freedom of thought and freedom of religion.
  9. Freedom of speech and expression, including freedom of the press academic freedom. Explicitly excluded are propaganda for war, to violence and hate speach.
  10. Freedom of assembly and the right to protest.
  11. Freedom of association.
  12. The right to vote and universal adult suffrage; the right to stand for public office; the right to free, fair and regular elections; and the right to form, join and campaign for a political party.
  13. No citizen may be deprived of citizenship.
  14. Freedom of movement, including the right to leave USAF, the right of citizens to a passport and the right to enter USAF.
  15. The right to choose a trade, occupation or profession, although these may be regulated by law.
  16. The right to a healthy environment and the right to have the environment protected.
  17. The right to property, limited in that property may only be expropriated under a law of general application (not arbitrarily), for a public purpose.
  18. The right to housing, including the right to due process with regard to court-ordered eviction and demolition.
  19. The rights to food, water, health care and social assistance, which the state must progressively realise within the limits of its resources.
  20. Children's rights, including the right to a name and nationality, the right to family or parental care, the right to a basic standard of living, the right to be protected from maltreatment and abuse, the protection from inappropriate child labour, the right not to be detained; except as a last resort, the paramountcy of the best interests of the child and the right to an independent lawyer in court cases involving the child, and the prohibition of the military use of children.
  21. The right to education, including a universal right to basic education.
  22. The right to use the language of one's choice and to participate in the cultural life of one's choice.
  23. The right of cultural, religious or linguistic communities to enjoy their culture, practise their religion and use their language.
  24. The right of access to information, including all information held by the government.
  25. The right to justice in administrative action by the government.
  26. The right of access to the courts.
  27. The rights of arrested, detained and accused people, including the right to silence, protection against self-incrimination, the right to counsel legal aid, the right to a fair trial, the presumption of innocence and the prohibition of double jeopardy and ex post facto crimes.

Safety and Security

Governing principles

1.The following principles govern national security within the Federation:

(a)National security must reflect the resolve of USAF, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life.

(b)The resolve to live in peace and harmony precludes any USAF citizen from participating in armed conflict, nationally or internationally, except as provided for in terms of the Constitution or national legislation.

(c)National security must be pursued in compliance with the law, including international law.

(d)National security is subject to the authority of the national executive.

Establishment, structuring and conduct of security services

2.(1) The security services of the Federation consist of a single defence force, a single police service and any intelligence services established in terms of the Constitution.

(2)The USAF National defence force is the only lawful military force in the Federation.

(3)Other than the security services established in terms of the Constitution, armed organisations or services may be established only in terms of national legislation.

(4)The security services must be structured and regulated by national legislation.

(5)The security services must act, and must teach and require their members to act, in accordance with the Constitution and the law, including international agreements binding on the Federation.

(6)No member of any security service may obey a manifestly illegal order.

(7)Neither the security services, nor any of their members, may, in the performance of their functions—

(a)prejudice a political party interest that is legitimate in terms of the Constitution; or

(b)further, in a partisan manner, any interest of a political party.

 (8)To give effect to the principles of transparency and accountability, multi-party parliamentary committees must have oversight of all security services in a manner determined by national legislation or the rules and orders of Parliament.

Police service

3.(1) The national police service must be structured to function in the national, state and, where appropriate, local spheres of government.

(2)National legislation must establish the powers and functions of the police service and must enable the police service to discharge its responsibilities effectively, taking into account the requirements of the states.

(3)The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Federation and their property, and to uphold and enforce the law.

Political responsibility

4.(1) A member of the Cabinet must be responsible for policing and must determine national policing policy after consulting the state governments and taking into account the policing needs and priorities of the states as determined by the executives.

(2)The national policing policy may make provision for different policies in respect of different states after taking into account the policing needs and priorities of these states.

(3)Each state is entitled—

(a)to monitor police conduct;

(b)to oversee the effectiveness and efficiency of the police service, including receiving reports on the police service;

(c)to promote good relations between the police and the community;

(d)to assess the effectiveness of visible policing; and

(e)to liaise with the Cabinet member responsible for policing with respect to crime and policing in the state.

(4)A state executive is responsible for policing functions—

(a)vested in it by this Chapter;

(b)assigned to it in terms of national legislation; and

(c)allocated to it in the national policing policy.

(5)In order to perform the functions set out in subsection (3), a state—

(a)may investigate, or appoint a commission of inquiry into, any complaints of police inefficiency or a breakdown in relations between the police and any community; and

(b)must make recommendations to the Cabinet member responsible for policing.

(6)On receipt of a complaint lodged by a  state executive, an independent police complaints body established by national legislation must investigate any alleged misconduct of, or offence committed by, a member of the police service in the state.

(7)National legislation must provide a framework for the establishment, powers, functions and control of state police services.

(8)A committee composed of the Cabinet member and the members of the Executive Councils responsible for policing must be established to ensure effective co- ordination of the police service and effective co-operation among the spheres of government.

 (9)A state legislature may require the state commissioner of the state to appear before it or any of its committees to answer questions.

Control of police service

207.(1) The President as head of the national executive must appoint a woman or a man as the National Commissioner of the police service, to control and manage the police service.

(2)The National Commissioner must exercise control over and manage the police service in accordance with the national policing policy and the directions of the Cabinet member responsible for policing.

(3)The National Commissioner, with the concurrence of the state executive, must appoint a woman or a man as the state commissioner for that state, but if the National Commissioner and the state executive are unable to agree on the appointment, the Cabinet member responsible for policing must mediate between the parties.

(4)The  state commissioners are responsible for policing in their respective states—

(a)as prescribed by national legislation; and

(b)subject to the power of the National Commissioner to exercise control over and manage the police service in terms of subsection (2).

(5)The state commissioner must report to the state legislature annually on policing in the state, and must send a copy of the report to the National Commissioner.

(6)If the state commissioner has lost the confidence of the state executive, that executive may institute appropriate proceedings for the removal or transfer of, or disciplinary action against, that commissioner, in accordance with national legislation.

Police civilian secretariat

5.A civilian secretariat for the police service must be established by national legislation to function under the direction of the Cabinet member responsible for policing.

 

Intelligence

Establishment and control of intelligence services

6.(1) Any intelligence service, other than any intelligence division of the defence force or police service, may be established only by the President, as head of the national executive, and only in terms of national legislation.

(2)The President as head of the national executive must appoint a woman or a man as head of each intelligence service established in terms of subsection (1), and must either assume political responsibility for the control and direction of any of those services, or designate a member of the Cabinet to assume that responsibility.

Powers, functions and monitoring

7.National legislation must regulate the objects, powers and functions of the intelligence services, including any intelligence division of the defence force or police service, and must provide for—

(a)the co-ordination of all intelligence services; and

(b)civilian monitoring of the activities of those services by an inspector appointed by the President, as head of the national executive, and approved by a resolution adopted by the National Assembly with a supporting vote of at least two thirds of its members.

 

USAF Defence force

8.(1) The defence force must be structured and managed as a disciplined military force.

(2)The primary object of the defence force is to defend and protect the Federation, its territorial integrity and its people in accordance with the Constitution and the principles of international law regulating the use of force.

Political responsibility

9.(1) A member of the Cabinet must be responsible for defence.

(2)Only the President, as head of the national executive, may authorise the employment of the defence force—

(a)in co-operation with the police service;

(b)in defence of the Federation; or

(c)in fulfilment of an international obligation.

(3)When the defence force is employed for any purpose mentioned in subsection (2), the President must inform Parliament, promptly and in appropriate detail, of—

(a)the reasons for the employment of the defence force;

(b)any place where the force is being employed;

(c)the number of people involved; and

(d)the period for which the force is expected to be employed.

(4)If Parliament does not sit during the first seven days after the defence force is employed as envisaged in subsection (2), the President must provide the

information required in subsection (3) to the appropriate oversight committee.

Command of defence force

10.(1) The President as head of the national executive is Commander-in-Chief of the defence force, and must appoint the Military Command of the defence force.

 (2)Command of the defence force must be exercised in accordance with the directions of the Cabinet member responsible for defence, under the authority of the President.

State of national defence

11.(1) The President as head of the national executive may declare a state of

national defence, and must inform Parliament promptly and in appropriate detail of—

(a)the reasons for the declaration;

(b)any place where the defence force is being employed; and

(c)the number of people involved.

(2)If Parliament is not sitting when a state of national defence is declared, the President must summon Parliament to an extraordinary sitting within seven days of the declaration.

(3)A declaration of a state of national defence lapses unless it is approved by Parliament within seven days of the declaration.

Defence civilian secretariat

12.A civilian secretariat for defence must be established by national legislation to function under the direction of the Cabinet member responsible for defence.

 

COURTS AND ADMINISTRATION OF JUSTICE

Judicial authority

13.(1) The judicial authority of the Federation is vested in the courts.

(2)The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.

(3)No person or organ of state may interfere with the functioning of the courts.

(4)Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.

(5)An order or decision issued by a court binds all persons to whom and organs of state to which it applies.

(6)The Chief Justice is the head of the judiciary and exercises responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts.

 

Judicial system

14.The courts are—

(a)the Constitutional Court;

(b)the Supreme Court of Appeal;

(c)the High Court of USAF, and any high court of appeal that may be established by an Act of Parliament to hear appeals from any court of a status similar to the High Court of USAF;

(d)the Magistrates’ Courts; and

(e)any other court established or recognised in terms of an Act of Parliament, including any court of a status similar to either the High Court of USAF or the Magistrates’ Courts.

 

Constitutional Court

15.(1) The Constitutional Court consists of the Chief Justice of USAF, the Deputy Chief Justice and nine other judges.

 (2)A matter before the Constitutional Court must be heard by at least eight judges.

(3)The Constitutional Court—

(a)is the highest court of the Federation; and

(b)may decide—

(i)constitutional matters; and

(ii) any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by that Court, and

(c) makes the final decision whether a matter is within its jurisdiction.

 (4)Only the Constitutional Court may—

(a)decide disputes between organs of state in the national or state sphere concerning the constitutional status, powers or functions of any of those organs of state;

(b)decide on the constitutionality of any parliamentary or state Bill

 (d)decide on the constitutionality of any amendment to the Constitution;

(e)decide that Parliament or the President has failed to fulfil a constitutional obligation; or

(f)certify a state constitution.

(5)The Constitutional Court makes the final decision whether an Act of Parliament, a state Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, the High Court of USAF, or a court of similar status, before that order has any force.

 (6)National legislation or the rules of the Constitutional Court must allow a person, when it is in the interests of justice and with leave of the Constitutional Court—

(a)to bring a matter directly to the Constitutional Court; or

(b)to appeal directly to the Constitutional Court from any other court.

(7)A constitutional matter includes any issue involving the interpretation, protection or enforcement of the Constitution.

Supreme Court of Appeal

16.(1) The Supreme Court of Appeal consists of a President, a Deputy President and the number of judges of appeal determined in terms of an Act of Parliament.

 (2)A matter before the Supreme Court of Appeal must be decided by the number of judges determined in terms of an Act of Parliament.

 (3)(a) The Supreme Court of Appeal may decide appeals in any matter arising from the High Court of USAF or a court of a status similar to the High Court of USAF, except in respect of labour or competition matters to such an extent as may be determined by an Act of Parliament.

(b)The Supreme Court of Appeal may decide only—

(i)appeals;

(ii)issues connected with appeals; and

(iii)any other matter that may be referred to it in circumstances defined by an Act of Parliament.

High Court of USAF

17.(1) The High Court of USAF may decide—

(a)any constitutional matter except a matter that—

(i)the Constitutional Court has agreed to hear directly; or

(ii)is assigned by an Act of Parliament to another court of a status similar to the High Court of USAF; and

(b)any other matter not assigned to another court by an Act of Parliament.

 (2)The High Court of USAF consists of the Divisions determined by an Act of Parliament, which Act must provide for—

(a)the establishing of Divisions, with one or two more seats in a Division; and

(b)the assigning of jurisdiction to a Division or a seat with a Division.

(3)Each Division of the High Court of USAF—

(a)has a Judge President;

(b)may have one or more Deputy Judges President; and

(c)has the number of other judges determined in terms of national legislation.

 

Prosecuting authority

18.(1) There is a single national prosecuting authority in the Federation, structured in terms of an Act of Parliament, and consisting of—

(a)a National Director of Public Prosecutions, who is the head of the prosecuting authority, and is appointed by the President, as head of the national executive; and

(b)Directors of Public Prosecutions and prosecutors as determined by an Act of Parliament.

(2)The prosecuting authority has the power to institute criminal proceedings on behalf of the federation, and to carry out any necessary functions incidental to instituting criminal proceedings.

(3)National legislation must ensure that the Directors of Public Prosecutions—

(a)are appropriately qualified; and

(b)are responsible for prosecutions in specific jurisdictions

(4)National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice.

(5)The National Director of Public Prosecutions—

(a)must determine, with the concurrence of the Cabinet member responsible for the administration of justice, and after consulting the Directors of Public Prosecutions, prosecution policy, which must be observed in the prosecution process;

(b)must issue policy directives which must be observed in the prosecution process;

(c)may intervene in the prosecution process when policy directives are not complied with; and

(d)may review a decision to prosecute or not to prosecute, after consulting the relevant Director of Public Prosecutions and after taking representations within a period specified by the National Director of Public Prosecutions, from the following:

(i)The accused person.

(ii)The complainant.

(iii)Any other person or party whom the National Director considers to be relevant.

(6)The Cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority.

(7)All other matters concerning the prosecuting authority must be determined by national legislation.

Other matters concerning administration of justice

19.National legislation may provide for any matter concerning the administration of justice that is not dealt with in the Constitution, including—

(a)training programmes for judicial officers;

(b)procedures for dealing with complaints about judicial officers; and

(c)the participation of people other than judicial officers in court decisions.

 

 

PUBLIC ADMINISTRATION

Basic values and principles governing public administration

20.(1) Public administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles:

(a)A high standard of professional ethics must be promoted and maintained.

(b)Efficient, economic and effective use of resources must be promoted.

(c)Public administration must be development-oriented.

(d)Services must be provided impartially, fairly, equitably and without bias.

(e)People’s needs must be responded to, and the public must be encouraged to participate in policy-making.

(f)Public administration must be accountable.

(g)Transparency must be fostered by providing the public with timely, accessible and accurate information.

(h)Good human-resource management and career-development practices, to maximise human potential, must be cultivated.

 (2)The above principles apply to—

(a)administration in every sphere of government;

(b)organs of state; and

(c)public enterprises.

 (6)The nature and functions of different sectors, administrations or institutions of public administration are relevant factors to be taken into account in legislation regulating public administration.

 

 

THE PRESIDENT AND NATIONAL EXECUTIVE

The President

21.The President—

(a)is the Head of Federation and head of the national executive;

(b)must uphold, defend and respect the Constitution as the supreme law of the Federation; and

(c)promotes the unity of the nation and that which will advance the Federation.

Powers and functions of President

22.(1) The President has the powers entrusted by the Constitution and legislation, including those necessary to perform the functions of Head of Federation and head of the national executive.

(2)The President is responsible for—

(a)assenting to and signing Bills;

(b)referring a Bill back to the National Assembly for reconsideration of the Bill’s constitutionality;

(c)referring a Bill to the Constitutional Court for a decision on the Bill’s constitutionality;

(d)summoning the National Assembly, the National Council of States or Parliament to an extraordinary sitting to conduct special business;

(e)making any appointments that the Constitution or legislation requires the President to make, other than as head of the national executive;

(f)appointing commissions of inquiry;

(g)calling a national referendum in terms of an Act of Parliament;

(h)receiving and recognising foreign diplomatic and consular representatives;

(i)appointing ambassadors, plenipotentiaries, and diplomatic and consular representatives;

(j)pardoning or reprieving offenders and remitting any fines, penalties or forfeitures; and

(k)conferring honours.

 

Executive authority of the Federation

23.(1) The executive authority of the Federation is vested in the President.

(2)The President exercises the executive authority, together with the other members of the Cabinet, by—

(a)implementing national legislation except where the Constitution or an Act of Parliament provides otherwise;

(b)developing and implementing national policy;

(c)co-ordinating the functions of state departments and administrations;

(d)preparing and initiating legislation; and

(e)performing any other executive function provided for in the Constitution or in national legislation.

 

Cabinet

24.(1) The Cabinet consists of the President, as head of the Cabinet, a Deputy President and Ministers.

(2)The President appoints the Deputy President and Ministers, assigns their powers and functions, and may dismiss them.

(3)The President—

(a)must select the Deputy President from among the members of the National Assembly;

(b)may select any number of Ministers from among the members of the Assembly; and

(c)may select no more than two Ministers from outside the Assembly.

(4)The President must appoint a member of the Cabinet to be the leader of government business in the National Assembly.

(5)The Deputy President must assist the President in the execution of the functions of government.

Accountability and responsibilities

25.(1) The Deputy President and Ministers are responsible for the powers and functions of the executive assigned to them by the President.

(2)Members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions.

(3)Members of the Cabinet must—

(a)act in accordance with the Constitution; and

(b)provide Parliament with full and regular reports concerning matters under their control.

 

Continuation of Cabinet after elections

26.When an election of the National Assembly is held, the Cabinet, the Deputy President, Ministers and any Deputy Ministers remain competent to function until the person elected President by the next Assembly assumes office.

Oath or affirmation

27.Before the Deputy President, Ministers and any Deputy Ministers begin to perform their functions, they must swear or affirm faithfulness to the Federation and obedience to the Constitution.

Conduct of Cabinet members and Deputy Ministers

28.(1) Members of the Cabinet and Deputy Ministers must act in accordance with a code of ethics prescribed by national legislation.

(2)Members of the Cabinet and Deputy Ministers may not—

(a)undertake any other paid work;

(b)act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or

(c)use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person.

 

 

STATES

The Federation is made up of the following States:

(a)

(b)

(c)

(d)

(f)

(h)

 (2)The geographical areas of the respective States comprise the sum of the indicated geographical areas reflected in the various maps referred to in the Notice listed in Schedule 1A.

 (3)(a) Whenever the geographical area of a state is re-determined by an amendment to the Constitution, an Act of Parliament may provide for measures to regulate, within a reasonable time, the legal, practical and any other consequences of the re-determination.

(b)An Act of Parliament envisaged in paragraph (a) may be enacted and implemented before such amendment to the Constitution takes effect, but any state functions, assets, rights, obligations, duties or liabilities may only be transferred in terms of that Act after that amendment to the Constitution takes effect.

 

State Legislatures

Legislative authority of States

29.(1) The legislative authority of a state is vested in its state legislature, and confers on the state legislature the power—

(a)to pass a constitution for its state or to amend any constitution passed by it

(b)to pass legislation for its state with regard to—

(i)any matter within a functional area listed in Schedule 4;

(ii)any matter within a functional area listed in Schedule 5;

(iii)any matter outside those functional areas, and that is expressly assigned to the state by national legislation; and

(iv)any matter for which a provision of the Constitution envisages the enactment of state legislation; and

(c)to assign any of its legislative powers to a Municipal Council in that state.

(2)The legislature of a state, by a resolution adopted with a supporting vote of at least two thirds of its members, may request Parliament to change the name of that state.

(3)A state legislature is bound only by the Constitution and, if it has passed a constitution for its state, also by that constitution, and must act in accordance with, and within the limits of, the Constitution and that state constitution.

(4)State legislation with regard to a matter that is reasonably necessary for, or incidental to, the effective exercise of a power concerning any matter listed in Schedule 4, is for all purposes legislation with regard to a matter listed in Schedule 4.

(5)A state legislature may recommend to the National Assembly legislation concerning any matter outside the authority of that legislature, or in respect of which an Act of Parliament prevails over a state law.

Composition and election of state legislatures

30.(1) A a state legislature consists of women and men elected as members in terms of an electoral system that—

(a)is prescribed by national legislation;

(b)is based on that state’s segment of the national common voters roll;

 (c)provides for a minimum voting age of 18 years; and

 (2)A state legislature consists of between 30 and 80 members. The number of members, which may differ among the States, must be determined in terms of a formula prescribed by national legislation.

Membership

31.(1) Every citizen who is qualified to vote for the National Assembly is eligible to be a member of a state legislature, except—

(a)anyone who is appointed by, or is in the service of, the state and receives remuneration for that appointment or service, other than—

(i)the Premier and other members of the Executive Council of a state; and

(ii)other office-bearers whose functions are compatible with the functions of a member of a state legislature, and have been declared compatible with those functions by national legislation;

(b)members of the National Assembly, permanent delegates to the National Council of States or members of a Municipal Council;

(c)un-rehabilitated insolvents;

(d)anyone declared to be of unsound mind by a court of the Federation; or

(e)anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 months’ imprisonment without the option of a fine, either in the Federation, or outside the Federation if the conduct constituting the offence would have been an offence in the Federation, but no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired.

(2)A person who is not eligible to be a member of a state legislature in terms of subsection (1)(a) or (b) may be a candidate for the legislature, subject to any limits or conditions established by national legislation.

 (3)A person loses membership of a state legislature if that person—

(a)ceases to be eligible;

(b)is absent from the legislature without permission in circumstances for which the rules and orders of the legislature prescribe loss of membership; or

(c)ceases to be a member of the party that nominated that person as a member of the legislature.

 (4)Vacancies in a state legislature must be filled in terms of national legislation.

Oath or affirmation

32.Before members of a state legislature begin to perform their functions in the legislature, they must swear or affirm faithfulness to the Federation and obedience to the Constitution, in accordance with Schedule 2.

Duration of state legislatures

33.(1) A state legislature is elected for a term of five years.

(2)If a state legislature is dissolved in terms of section 109, or when its term expires, the Premier head of the state, by proclamation, must call and set dates for an election, which must be held within 90 days of the date the legislature was dissolved or its term expired. A proclamation calling and setting dates for an election may be issued before or after the expiry of the term of a state legislature.

 (3)If the result of an election of a state legislature is not declared within the period referred to in section 190, or if an election is set aside by a court, the President, by proclamation, must call and set dates for another election, which must be held within 90 days of the expiry of that period or of the date on which the election was set aside.

(4)A state legislature remains competent to function from the time it is dissolved or its term expires, until the day before the first day of polling for the next legislature.

 

Dissolution of state legislatures before expiry of term

34.(1) The Premier of a state must dissolve the state legislature if—

(a)the legislature has adopted a resolution to dissolve with a supporting vote of a majority of its members; and

(b)one year has passed since the legislature was elected.

(2)An Acting Premier must dissolve the state legislature if—

(a)there is a vacancy in the office of Premier; and

(b)the legislature fails to elect a new Premier within 30 days after the vacancy occurred.

Sittings and recess periods

35.(1) After an election, the first sitting of a state legislature must take place at a time and on a date determined by a judge designated by the Chief Justice, but not more than 14 days after the election result has been declared. A state legislature may determine the time and duration of its other sittings and its recess periods.

 (2)The Premier of a state may summon the state legislature to an extraordinary sitting at any time to conduct special business.

(3)A state legislature may determine where it ordinarily will sit.

Speakers and Deputy Speakers

36.(1) At the first sitting after its election, or when necessary to fill a vacancy, a state legislature must elect a Speaker and a Deputy Speaker from among its members.

(2)A judge designated by the Chief Justice must preside over the election of a Speaker. The Speaker presides over the election of a Deputy Speaker.

 (3)The procedure set out in Part A of Schedule 3 applies to the election of Speakers and Deputy Speakers.

(4)A state legislature may remove its Speaker or Deputy Speaker from office by resolution. A majority of the members of the legislature must be present when the resolution is adopted.

(5)In terms of its rules and orders, a state legislature may elect from among its members other presiding officers to assist the Speaker and the Deputy Speaker.

 

Decisions

37.(1) Except where the Constitution provides otherwise—

(a)a majority of the members of a state legislature must be present before a vote may be taken on a Bill or an amendment to a Bill;

(b)at least one third of the members must be present before a vote may be taken on any other question before the legislature; and

(c)all questions before a state legislature are decided by a majority of the votes cast.

(2)The member presiding at a meeting of a state legislature has no deliberative vote, but—

(a)must cast a deciding vote when there is an equal number of votes on each side of a question; and

(b)may cast a deliberative vote when a question must be decided with a supporting vote of at least two thirds of the members of the legislature.

Permanent delegates’ rights in state legislatures

38.A state’s permanent delegates to the National Council of States may attend, and may speak in, their state legislature and its committees, but may not vote. The legislature may require a permanent delegate to attend the legislature or its committees.

Powers of state legislatures

39.(1) In exercising its legislative power, a state legislature may—

(a)consider, pass, amend or reject any Bill before the legislature; and

(b)initiate or prepare legislation, except money Bills.

(2)A state legislature must provide for mechanisms—

(a)to ensure that all state executive organs of state in the state are accountable to it; and

(b)to maintain oversight of—

(i)the exercise of state executive authority in the state, including the implementation of legislation; and

(ii)any state organ of state.

 

Evidence or information before state legislatures

40.A state legislature or any of its committees may—

(a)summon any person to appear before it to give evidence on oath or affirmation, or to produce documents;

(b)require any person or state institution to report to it;

(c)compel, in terms of state legislation or the rules and orders, any person or institution to comply with a summons or requirement in terms of paragraph (a) or (b); and

(d)receive petitions, representations or submissions from any interested persons or institutions.

Internal arrangements, proceedings and procedures of state legislatures

41.(1) A state legislature may—

(a)determine and control its internal arrangements, proceedings and procedures; and

(b)make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement.

(2)The rules and orders of a state legislature must provide for—

(a)the establishment, composition, powers, functions, procedures and duration of its committees;

(b)the participation in the proceedings of the legislature and its committees of minority parties represented in the legislature, in a manner consistent with democracy;

(c)financial and administrative assistance to each party represented in the legislature, in proportion to its representation, to enable the party and its leader to perform their functions in the legislature effectively;

Privilege

42.(1) Members of a state legislature and the state’s permanent delegates to the National Council of States—

(a)have freedom of speech in the legislature and in its committees, subject to its rules and orders; and

(b)are not liable to civil or criminal proceedings, arrest, imprisonment or damages for—

(i)anything that they have said in, produced before or submitted to the legislature or any of its committees; or

(ii)anything revealed as a result of anything that they have said in, produced before or submitted to the legislature or any of its committees.

(2)Other privileges and immunities of a state legislature and its members may be prescribed by national legislation.

(3)Salaries, allowances and benefits payable to members of a state legislature are a direct charge against the State Revenue Fund.

Public access to and involvement in state legislatures

43.(1) A state legislature must—

(a)facilitate public involvement in the legislative and other processes of the legislature and its committees; and

(b)conduct its business in an open manner, and hold its sittings, and those of its committees, in public, but reasonable measures may be taken—

(i)to regulate public access, including access of the media, to the legislature and its committees; and

(ii)to provide for the searching of any person and, where appropriate, the refusal of entry to, or the removal of, any person.

(2)A state legislature may not exclude the public, including the media, from a sitting of a committee unless it is reasonable and justifiable to do so in an open and democratic society.

Introduction of Bills

119.Only members of the Executive Council of a state or a committee or member of a state legislature may introduce a Bill in the legislature; but only the member of the Executive Council who is responsible for financial matters in the state may introduce a money Bill in the legislature.

Money Bills

44.(1) A Bill is a money Bill if it—

(a)appropriates money;

(b)imposes state taxes, levies, duties or surcharges;

(c)abolishes or reduces, or grants exemptions from, any state taxes, levies, duties or surcharges; or

(d)authorises direct charges against a State Revenue Fund.

(2)A money Bill may not deal with any other matter except—

(a)a subordinate matter incidental to the appropriation of money;

(b)the imposition, abolition or reduction of state taxes, levies, duties or surcharges;

(c)the granting of exemption from state taxes, levies, duties or surcharges; or

(d)the authorisation of direct charges against a State Revenue Fund.

(3)A state Act must provide for a procedure by which the state’s legislature may amend a money Bill.

Assent to Bills

45.(1) The Premier of a stae must either assent to and sign a Bill passed by the state legislature in terms of this Chapter or, if the Premier has reservations about the constitutionality of the Bill, refer it back to the legislature for reconsideration.

(2)If, after reconsideration, a Bill fully accommodates the Premier’s reservations, the Premier must assent to and sign the Bill; if not, the Premier must either—

(a)assent to and sign the Bill; or

(b)refer it to the Constitutional Court for a decision on its constitutionality.

(3)If the Constitutional Court decides that the Bill is constitutional, the Premier must assent to and sign it.

Application by members to Constitutional Court

46.(1) Members of a state legislature may apply to the Constitutional Court for an order declaring that all or part of a state Act is unconstitutional.

 (2)An application—

(a)must be supported by at least 20 per cent of the members of the legislature; and

(b)must be made within 30 days of the date on which the Premier assented to and signed the Act.

(3)The Constitutional Court may order that all or part of an Act that is the subject of an application in terms of subsection (1) has no force until the Court has decided the application if—

(a)the interests of justice require this; and

(b)the application has a reasonable prospect of success.

(4)If an application is unsuccessful, and did not have a reasonable prospect of success, the Constitutional Court may order the applicants to pay costs.

Publication of state Acts

47.A Bill assented to and signed by the Premier of a state becomes a state Act, must be published promptly and takes effect when published or on a date determined in terms of the Act.

Safekeeping of state Acts

48.The signed copy of a state Act is conclusive evidence of the provisions of that Act and, after publication, must be entrusted to the Constitutional Court for safekeeping.

State Executives

Executive authority of States

49.(1) The executive authority of a state is vested in the Premier of that state.

(2)The Premier exercises the executive authority, together with the other members of the Executive Council, by—

(a)implementing state legislation in the state;

(b)implementing all national legislation within the functional areas listed in Schedule 4 or 5 except where the Constitution or an Act of Parliament provides otherwise;

 (c)administering in the state, national legislation outside the functional areas listed in Schedules 4 and 5, the administration of which has been assigned to the state executive in terms of an Act of Parliament;

(d)developing and implementing state policy;

(e)co-ordinating the functions of the state administration and its departments;

(f)preparing and initiating state legislation; and

(g)performing any other function assigned to the state executive in terms of the Constitution or an Act of Parliament.

(3)A state has executive authority in terms of subsection (2)(b) only to the extent that the state has the administrative capacity to assume effective responsibility. The national government, by legislative and other measures, must assist States to develop the administrative capacity required for the effective exercise of their powers and performance of their functions referred to in subsection (2).

(4)Any dispute concerning the administrative capacity of a state in regard to any function must be referred to the National Council of States for resolution within 30 days of the date of the referral to the Council.

(5)Subject to section 100, the implementation of state legislation in a state is an exclusive state executive power.

(6)The state executive must act in accordance with—

(a)the Constitution; and

(b)the state constitution, if a constitution has been passed for the state.

Assignment of functions

50.A member of the Executive Council of a state may assign any power or function that is to be exercised or performed in terms of an Act of Parliament or a state Act, to a Municipal Council. An assignment—

(a)must be in terms of an agreement between the relevant Executive Council member and the Municipal Council;

(b)must be consistent with the Act in terms of which the relevant power or function is exercised or performed; and

(c)takes effect upon proclamation by the Premier.

Powers and functions of Premiers

51.(1) The Premier of a state has the powers and functions entrusted to that office by the Constitution and any legislation.

(2)The Premier of a state is responsible for—

(a)assenting to and signing Bills;

(b)referring a Bill back to the state legislature for reconsideration of the Bill’s constitutionality;

(c)referring a Bill to the Constitutional Court for a decision on the Bill’s constitutionality;

(d)summoning the legislature to an extraordinary sitting to conduct special business;

(e)appointing commissions of inquiry; and

(f)calling a referendum in the state in accordance with national legislation.

Election of Premiers

52.(1) At its first sitting after its election, and whenever necessary to fill a vacancy, a state legislature must elect a woman or a man from among its members to be the Premier of the state.

(2)A judge designated by the Chief Justice must preside over the election of the Premier. The procedure set out in Part A of Schedule 3 applies to the election of the Premier.

 (3)An election to fill a vacancy in the office of Premier must be held at a time and on a date determined by the Chief Justice, but not later than 30 days after the vacancy occurs.

Assumption of office by Premiers

53.A Premier-elect must assume office within five days of being elected, by swearing or affirming faithfulness to the Federation and obedience to the Constitution, in accordance with Schedule 2.

Term of office and removal of Premiers

54.(1) A Premier’s term of office begins when the Premier assumes office and ends upon a vacancy occurring or when the person next elected Premier assumes office.

(2)No person may hold office as Premier for more than two terms, but when a person is elected to fill a vacancy in the office of Premier, the period between that election and the next election of a Premier is not regarded as a term.

(3)The legislature of a state, by a resolution adopted with a supporting vote of at least two thirds of its members, may remove the Premier from office only on the grounds of—

(a)a serious violation of the Constitution or the law;

(b)serious misconduct; or

(c)inability to perform the functions of office.

(4)Anyone who has been removed from the office of Premier in terms of subsection (3)

(a)or (b) may not receive any benefits of that office, and may not serve in any public office.

Acting Premiers

55.(1) When the Premier is absent or otherwise unable to fulfil the duties of the office of Premier, or during a vacancy in the office of Premier, an office-bearer in the order below acts as the Premier:

(a)A member of the Executive Council designated by the Premier.

(b)A member of the Executive Council designated by the other members of the Council.

(c)The Speaker, until the legislature designates one of its other members.

(2)An Acting Premier has the responsibilities, powers and functions of the Premier.

(3)Before assuming the responsibilities, powers and functions of the Premier, the Acting Premier must swear or affirm faithfulness to the Federation and obedience to the Constitution, in accordance with Schedule 2.

Executive Councils

56.(1) The Executive Council of a state consists of the Premier, as head of the Council, and no fewer than five and no more than ten members appointed by the Premier from among the members of the state legislature.

(2)The Premier of a state appoints the members of the Executive Council, assigns their powers and functions, and may dismiss them.

Accountability and responsibilities

67.(1) The members of the Executive Council of a state are responsible for the functions of the executive assigned to them by the Premier.

(2)Members of the Executive Council of a state are accountable collectively and individually to the legislature for the exercise of their powers and the performance of their functions.

(3)Members of the Executive Council of a state must—

(a)act in accordance with the Constitution and, if a state constitution has been passed for the state, also that constitution; and

(b)provide the legislature with full and regular reports concerning matters under their control.

Continuation of Executive Councils after elections

58.When an election of a state legislature is held, the Executive Council and its members remain competent to function until the person elected Premier by the next legislature assumes office.

Oath or affirmation

59.Before members of the Executive Council of a state begin to perform their functions, they must swear or affirm faithfulness to the Federation and obedience to the Constitution, in accordance with Schedule 2.

Conduct of members of Executive Councils

61.(1) Members of the Executive Council of a state must act in accordance with a code of ethics prescribed by national legislation.

(2)Members of the Executive Council of a state may not—

(a)undertake any other paid work;

(b)act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or

(c)use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person.

Transfer of functions

61.The Premier by proclamation may transfer to a member of the Executive Council—

(a)the administration of any legislation entrusted to another member; or

(b)any power or function entrusted by legislation to another member.

Temporary assignment of functions

62.The Premier of a state may assign to a member of the Executive Council any power or function of another member who is absent from office or is unable to exercise that power or perform that function.

State intervention in local government

63.(1) When a municipality cannot or does not fulfil an executive obligation in terms of the Constitution or legislation, the relevant state executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation, including—

(a)issuing a directive to the Municipal Council, describing the extent of the failure to fulfil its obligations and stating any steps required to meet its obligations;

(b)assuming responsibility for the relevant obligation in that municipality to the extent necessary to —

(i)maintain essential national standards or meet established minimum standards for the rendering of a service;

(ii)prevent that Municipal Council from taking unreasonable action that is prejudicial to the interests of another municipality or to the state as a whole; or

(iii)maintain economic unity; or

(c)dissolving the Municipal Council and appointing an administrator until a newly elected Municipal Council has been declared elected, if exceptional circumstances warrant such a step.

(2)If a state executive intervenes in a municipality in terms of subsection (1)(b)—

(a)it must submit a written notice of the intervention to—

(i)the Cabinet member responsible for local government affairs; and

(ii)the relevant state legislature and the National Council of States, within 14 days after the intervention began;

(b)the intervention must end if—

(i)the Cabinet member responsible for local government affairs disapproves the intervention within 28 days after the intervention began or by the end of that period has not approved the intervention; or

(ii)the Council disapproves the intervention within 180 days after the intervention began or by the end of that period has not approved the intervention; and

(c)the Council must, while the intervention continues, review the intervention regularly and may make any appropriate recommendations to the state executive.

(3)If a Municipal Council is dissolved in terms of subsection (1)(c)—

(a)the state executive must immediately submit a written notice of the dissolution to—

(i)the Cabinet member responsible for local government affairs; and

(ii)the relevant state legislature and the National Council of States; and

(b)the dissolution takes effect 14 days from the date of receipt of the notice by the Council unless set aside by that Cabinet member or the Council before the expiry of those 14 days.

(4)If a municipality cannot or does not fulfil an obligation in terms of the Constitution or legislation to approve a budget or any revenue-raising measures necessary to give effect to the budget, the relevant state executive must intervene by taking any appropriate steps to ensure that the budget or those revenue-raising measures are approved, including dissolving the Municipal Council and—

(a)appointing an administrator until a newly elected Municipal Council has been declared elected; and

(b)approving a temporary budget or revenue-raising measures to provide for the continued functioning of the municipality.

(5)If a municipality, as a result of a crisis in its financial affairs, is in serious or persistent material breach of its obligations to provide basic services or to meet its financial commitments, or admits that it is unable to meet its obligations or financial commitments, the relevant state executive must—

(a)impose a recovery plan aimed at securing the municipality’s ability to meet its obligations to provide basic services or its financial commitments, which—

(i)is to be prepared in accordance with national legislation; and

 (ii)binds the municipality in the exercise of its legislative and executive authority, but only to the extent necessary to solve the crisis in its financial affairs; and

(b)dissolve the Municipal Council, if the municipality cannot or does not approve legislative measures, including a budget or any revenue-raising measures, necessary to give effect to the recovery plan, and—

(i)appoint an administrator until a newly elected Municipal Council has been declared elected; and

(ii)approve a temporary budget or revenue-raising measures or any other measures giving effect to the recovery plan to provide for the continued functioning of the municipality; or

(c)if the Municipal Council is not dissolved in terms of paragraph (b), assume responsibility for the implementation of the recovery plan to the extent that the municipality cannot or does not otherwise implement the recovery plan.

(6)If a state executive intervenes in a municipality in terms of subsection (4) or (5), it must submit a written notice of the intervention to—

(a)the Cabinet member responsible for local government affairs; and

(b)the relevant state legislature and the National Council of States, within seven days after the intervention began.

(7)If a state executive cannot or does not or does not adequately exercise the powers or perform the functions referred to in subsection (4) or (5), the national executive must intervene in terms of subsection (4) or (5) in the stead of the relevant state executive.

(8)National legislation may regulate the implementation of this section, including the processes established by this section.

[S. 139 substituted by s. 4 of the Constitution Eleventh Amendment Act of 2003.]

Executive decisions

64.(1) A decision by the Premier of a state must be in writing if it—

(a)is taken in terms of legislation; or

(b)has legal consequences.

(2)A written decision by the Premier must be countersigned by another Executive Council member if that decision concerns a function assigned to that other member.

 (3)Proclamations, regulations and other instruments of subordinate legislation of a state must be accessible to the public.

(4)State legislation may specify the manner in which, and the extent to which, instruments mentioned in subsection (3) must be—

(a)tabled in the state legislature; and

(b)approved by the state legislature.

Motions of no confidence

65.(1) If a state legislature, by a vote supported by a majority of its members, passes a motion of no confidence in the state’s Executive Council excluding the Premier, the Premier must reconstitute the Council.

(2)If a state legislature, by a vote supported by a majority of its members, passes a motion of no confidence in the Premier, the Premier and the other members of the Executive Council must resign.

State Constitutions

Adoption of state constitutions

66.A state legislature may pass a constitution for the state or, where applicable, amend its constitution, if at least two thirds of its members vote in favour of the Bill.

Contents of state constitutions

67.(1) A state constitution, or constitutional amendment, must not be inconsistent with this Constitution, but may provide for—

(a)state legislative or executive structures and procedures that differ from those provided for in this Chapter; or

(b)the institution, role, authority and status of a traditional monarch, where applicable.

(2)Provisions included in a state constitution or constitutional amendment in terms of paragraphs (a) or (b) of subsection (1)—

(a)must comply with the values in section 1 and with Chapter 3; and

(b)may not confer on the state any power or function that falls—

(i)outside the area of state competence in terms of Schedules 4 and 5; or

(ii)outside the powers and functions conferred on the state by other sections of the Constitution.

Certification of state constitutions

68.(1) If a state legislature has passed or amended a constitution, the Speaker of the legislature must submit the text of the constitution or constitutional amendment to the Constitutional Court for certification.

(2)No text of a state constitution or constitutional amendment becomes law until the Constitutional Court has certified—

(a)that the text has been passed in accordance with section 142; and

(b)that the whole text complies with section 143.

Signing, publication and safekeeping of state constitutions

69.(1) The Premier of a state must assent to and sign the text of a state constitution or constitutional amendment that has been certified by the Constitutional Court.

(2)The text assented to and signed by the Premier must be published in the national Government Gazette and takes effect on publication or on a later date determined in terms of that constitution or amendment.

(3)The signed text of a state constitution or constitutional amendment is conclusive evidence of its provisions and, after publication, must be entrusted to the Constitutional Court for safekeeping.

Conflicting Laws

Conflicts between national and state legislation

70.(1) This section applies to a conflict between national legislation and state legislation falling within a functional area listed in Schedule 4.

(2)National legislation that applies uniformly with regard to the country as a whole prevails over state legislation if any of the following conditions is met:

(a)The national legislation deals with a matter that cannot be regulated effectively by legislation enacted by the respective States individually.

 (b)The national legislation deals with a matter that, to be dealt with effectively, requires uniformity across the nation, and the national legislation provides that uniformity by establishing—

(i)norms and standards;

(ii)frameworks; or

(iii)national policies.

(c)The national legislation is necessary for—

(i)the maintenance of national security;

(ii)the maintenance of economic unity;

(iii)the protection of the common market in respect of the mobility of goods, services, capital and labour;

(iv)the promotion of economic activities across state boundaries;

(v)the promotion of equal opportunity or equal access to government services; or

(vi)the protection of the environment.

(3)National legislation prevails over state legislation if the national legislation is aimed at preventing unreasonable action by a state that—

(a)is prejudicial to the economic, health or security interests of another state or the country as a whole; or

(b)impedes the implementation of national economic policy.

(4)When there is a dispute concerning whether national legislation is necessary for a purpose set out in subsection (2)(c) and that dispute comes before a court for resolution, the court must have due regard to the approval or the rejection of the legislation by the National Council of States.

(5)State legislation prevails over national legislation if subsection (2) or (3) does not apply.

(6)A law made in terms of an Act of Parliament or a state Act can prevail only if that law has been approved by the National Council of States.

(7)If the National Council of States does not reach a decision within 30 days of its first sitting after a law was referred to it, that law must be considered for all purposes to have been approved by the Council.

(8)If the National Council of States does not approve a law referred to in subsection (6), it must, within 30 days of its decision, forward reasons for not approving the law to the authority that referred the law to it.

Other conflicts

71.(1) If there is a conflict between national legislation and a provision of a state constitution with regard to—

(a)a matter concerning which this Constitution specifically requires

or envisages the enactment of national legislation, the national legislation prevails over the affected provision of the state constitution;

(b)national legislative intervention in terms of section 44 (2), the national legislation prevails over the provision of the state constitution; or

(c)a matter within a functional area listed in Schedule 4, section 146 applies as if the affected provision of the state constitution were state legislation referred to in that section.

(2)National legislation referred to in section 44(2) prevails over state legislation in respect of matters within the functional areas listed in Schedule 5.

Conflicts that cannot be resolved

72.If a dispute concerning a conflict cannot be resolved by a court, the national legislation prevails over the state legislation or state constitution.

Status of legislation that does not prevail

73.A decision by a court that legislation prevails over other legislation does not invalidate that other legislation, but that other legislation becomes inoperative for as long as the conflict remains.

Interpretation of conflicts

74.When considering an apparent conflict between national and state legislation, or between national legislation and a state constitution, every court must prefer any reasonable interpretation of the legislation or constitution that avoids a conflict, over any alternative interpretation that results in a conflict.

 

LOCAL GOVERNMENT

Status of municipalities

75.(1) The local sphere of government consists of municipalities, which must be established for the whole of the territory of the Federation.

(2)The executive and legislative authority of a municipality is vested in its Municipal Council.

(3)A municipality has the right to govern, on its own initiative, the local

government affairs of its community, subject to national and state legislation, as provided for in the Constitution.

(4)The national or a state government may not compromise or impede a municipality’s ability or right to exercise its powers or perform its functions.

Objects of local government

76.(1) The objects of local government are—

(a)to provide democratic and accountable government for local communities;

(b)to ensure the provision of services to communities in a sustainable manner;

(c)to promote social and economic development;

(d)to promote a safe and healthy environment; and

(e)to encourage the involvement of communities and community organisations in the matters of local government.

(2)A municipality must strive, within its financial and administrative capacity, to achieve the objects set out in subsection (1).

Developmental duties of municipalities

77.A municipality must—

(a)structure and manage its administration and budgeting and planning processes to give priority to the basic needs of the community, and to promote the social and economic development of the community; and

(b)participate in national and state development programmes.

 

Municipalities in co-operative government

78.(1) The national government and state governments, by legislative and other measures, must support and strengthen the capacity of municipalities to manage their own affairs, to exercise their powers and to perform their functions.

(2)Draft national or state legislation that affects the status, institutions, powers or functions of local government must be published for public comment before it is introduced in Parliament or a state legislature, in a manner that allows organised local government, municipalities and other interested persons an opportunity to make representations with regard to the draft legislation.

Establishment of municipalities

79.(1) There are the following categories of municipality:

(a)Category A: A municipality that has exclusive municipal executive and legislative authority in its area.

(b)Category B: A municipality that shares municipal executive and legislative authority in its area with a category C municipality within whose area it falls.

(c)Category C: A municipality that has municipal executive and legislative authority in an area that includes more than one municipality.

(2)National legislation must define the different types of municipality that may be established within each category.

(3)National legislation must—

(a)establish the criteria for determining when an area should have a single category A municipality or when it should have municipalities of both category B and category C;

(b)establish criteria and procedures for the determination of municipal boundaries by an independent authority; and

(c)subject to section 229, make provision for an appropriate division of powers and functions between municipalities when an area has municipalities of both category B and category C. A division of powers and functions between a category B municipality and a category C municipality may differ from the

division of powers and functions between another category B municipality and that category C municipality.

(4)The legislation referred to in subsection (3) must take into account the need to provide municipal services in an equitable and sustainable manner.

 (5)State legislation must determine the different types of municipality to be established in the state.

(6)Each state government must establish municipalities in its state in a manner consistent with the legislation enacted in terms of subsections (2) and (3) and, by legislative or other measures, must—

(a)provide for the monitoring and support of local government in the state; and

(b)promote the development of local government capacity to enable municipalities to perform their functions and manage their own affairs.

 (7)The national government, subject to section 44, and the state governments have the legislative and executive authority to see to the effective performance by municipalities of their functions in respect of matters listed in Schedules 4 and 5, by regulating the exercise by municipalities of their executive authority referred to in section 156(1).

Powers and functions of municipalities

80.(1) A municipality has executive authority in respect of, and has the right to administer—

(a)the local government matters listed in Part B of Schedule 4 and Part B of Schedule 5; and

(b)any other matter assigned to it by national or state legislation.

(2)A municipality may make and administer by-laws for the effective administration of the matters which it has the right to administer.

(3)Subject to section 151(4), a by-law that conflicts with national or state legislation is invalid. If there is a conflict between a bylaw and national or state legislation that is inoperative because of a conflict referred to in section 149, the by-law must be regarded as valid for as long as that legislation is inoperative.

(4)The national government and state governments must assign to a municipality, by agreement and subject to any conditions, the administration of a matter listed in Part A of Schedule 4 or Part A of Schedule 5 which necessarily relates to local government, if—

(a)that matter would most effectively be administered locally; and

(b)the municipality has the capacity to administer it.

(5)A municipality has the right to exercise any power concerning a matter reasonably necessary for, or incidental to, the effective performance of its functions.

Composition and election of Municipal Councils

81.(1) A Municipal Council consists of—

(a)members elected in accordance with subsections (2) and (3); or

(b)if provided for by national legislation—

(i)members appointed by other Municipal Councils to represent those other Councils; or

(ii)both members elected in accordance with paragraph (a) and members appointed in accordance with subparagraph (i) of this paragraph.

 (2)The election of members to a Municipal Council as anticipated in subsection (1)(a) must be in accordance with national legislation, which must prescribe a system—

 (5)A person may vote in a municipality only if that person is registered on that municipality’s segment of the national common voters roll.

(6)The national legislation referred to in subsection (1)(b) must establish a system that allows for parties and interests reflected within the Municipal Council making the appointment, to be fairly represented in the Municipal Council to which the appointment is made.

Membership of Municipal Councils

82.(1) Every citizen who is qualified to vote for a Municipal Council is eligible to be a member of that Council, except—

(a)anyone who is appointed by, or is in the service of, the municipality and receives remuneration for that appointment or service, and who has not been exempted from this disqualification in terms of national legislation;

(b)anyone who is appointed by, or is in the service of, the state in another sphere, and receives remuneration for that appointment or service, and who has been disqualified from membership of a Municipal Council in terms of national legislation;

(c)anyone who is disqualified from voting for the National Assembly or is disqualified in terms of section 47(1)(c), (d) or (e) from being a member of the Assembly;

(d)a member of the National Assembly, a delegate to the National Council of States or a member of a state legislature; but this disqualification does not apply to a member of a Municipal Council representing local government in the National Council; or

(e)a member of another Municipal Council; but this disqualification

does not apply to a member of a Municipal Council representing that Council in another Municipal Council of a different category.

(2)A person who is not eligible to be a member of a Municipal Council in terms of subsection (1)(a), (b), (d) or (e) may be a candidate for the Council, subject to any limits or conditions established by national legislation.

(3)Vacancies in a Municipal Council must be filled in terms of national legislation.

 

Terms of Municipal Councils

83.(1) The term of a Municipal Council may be no more than five years, as determined by national legislation.

(2)If a Municipal Council is dissolved in terms of national legislation, or when its term expires, an election must be held within 90 days of the date that Council was dissolved or its term expired.

(3)A Municipal Council, other than a Council that has been dissolved following an intervention in terms of section 139, remains competent to function from the time it is dissolved or its term expires, until the newly elected Council has been declared elected.

Internal procedures

84.(1) A Municipal Council—

(a)makes decisions concerning the exercise of all the powers and the performance of all the functions of the municipality;

(b)must elect its chairperson;

(c)may elect an executive committee and other committees, subject to national legislation; and

(d)may employ personnel that are necessary for the effective performance of its functions.

(2)The following functions may not be delegated by a Municipal Council:

(a)The passing of by-laws;

(b)the approval of budgets;

(c)the imposition of rates and other taxes, levies and duties; and

(d)the raising of loans.

(3)(a) A majority of the members of a Municipal Council must be present before a vote may be taken on any matter.

(b)All questions concerning matters mentioned in subsection (2) are determined by a decision taken by a Municipal Council with a supporting vote of a majority of its members.

(c)All other questions before a Municipal Council are decided by a majority of the votes cast.

 (4)No by-law may be passed by a Municipal Council unless—

(a)all the members of the Council have been given reasonable notice; and

(b)the proposed by-law has been published for public comment.

(5)National legislation may provide criteria for determining—

(a)the size of a Municipal Council;

(b)whether Municipal Councils may elect an executive committee or any other committee; or

(c)the size of the executive committee or any other committee of a Municipal Council.

(6)A Municipal Council may make by-laws which prescribe rules and orders for—

(a)its internal arrangements;

(b)its business and proceedings; and

(c)the establishment, composition, procedures, powers and functions of its committees.

(7)A Municipal Council must conduct its business in an open manner, and may close its sittings, or those of its committees, only when it is reasonable to do so having regard to the nature of the business being transacted.

(8)Members of a Municipal Council are entitled to participate in its proceedings and those of its committees in a manner that—

(a)allows parties and interests reflected within the Council to be fairly represented;

(b)is consistent with democracy; and

(c)may be regulated by national legislation.

Privilege

85.State legislation within the framework of national legislation may provide for privileges and immunities of Municipal Councils and their members.

Publication of municipal by-laws

86.(1) A municipal by-law may be enforced only after it has been published in the official gazette of the relevant state.

(2)A state official gazette must publish a municipal by-law upon request by the municipality.

(3)Municipal by-laws must be accessible to the public.

 

Organised local government

87.An Act of Parliament enacted in accordance with the procedure established by section 76 must—

(a)provide for the recognition of national and state organisations representing municipalities; and

(b)determine procedures by which local government may—

(i)consult with the national or a state government;

(ii)designate representatives to participate in the National Council of States; and

(iii)participate in the process prescribed in the national legislation envisaged in section

Other matters

88.Any matter concerning local government not dealt with in the Constitution may be prescribed by national legislation or by state legislation within the framework of national legislation.

 

FINANCE

General Financial Matters

National Revenue Fund

89.(1) There is a National Revenue Fund into which all money received by the national government must be paid, except money reasonably excluded by an Act of Parliament.

(2)Money may be withdrawn from the National Revenue Fund only—

(a)in terms of an appropriation by an Act of Parliament; or

(b)as a direct charge against the National Revenue Fund, when it is provided for in the Constitution or an Act of Parliament.

(3)A state’s equitable share of revenue raised nationally is a direct charge against the National Revenue Fund.

Equitable shares and allocations of revenue

90.(1) An Act of Parliament must provide for—

(a)the equitable division of revenue raised nationally among the national, state and local spheres of government;

(b)the determination of each state’s equitable share of the state share of that revenue; and

(c)any other allocations to states, local government or municipalities from the national government’s share of that revenue, and any conditions on which those allocations may be made.

(2)The Act referred to in subsection (1) may be enacted only after the state governments, organised local government and the Financial and Fiscal Commission have been consulted, and any recommendations of the Commission have been considered, and must take into account—

(a)the national interest;

(b)any provision that must be made in respect of the national debt and other national obligations;

 (c)the needs and interests of the national government, determined by objective criteria;

(d)the need to ensure that the state and municipalities are able to provide basic services and perform the functions allocated to them;

(e)the fiscal capacity and efficiency of the state and municipalities;

(f)developmental and other needs of state, local government and municipalities;

(g)economic disparities within and among the state;

(h)obligations of the state and municipalities in terms of national legislation;

(i)the desirability of stable and predictable allocations of revenue shares; and

(j)the need for flexibility in responding to emergencies or other temporary needs, and other factors based on similar objective criteria.

National, state and municipal budgets

91.(1) National, state and municipal budgets and budgetary processes must promote transparency, accountability and the effective financial management of the economy, debt and the public sector.

(2)National legislation must prescribe—

(a)the form of national, state and municipal budgets;

(b)when national and state budgets must be tabled; and

(c)that budgets in each sphere of government must show the sources of revenue and the way in which proposed expenditure will comply with national legislation.

(3)Budgets in each sphere of government must contain—

(a)estimates of revenue and expenditure, differentiating between capital and current expenditure;

(b)proposals for financing any anticipated deficit for the period to which they apply; and

(c)an indication of intentions regarding borrowing and other forms of public liability that will increase public debt during the ensuing year.

Treasury control

92.(1) National legislation must establish a national treasury and prescribe measures to ensure both transparency and expenditure control in each sphere of government, by introducing—

(a)generally recognised accounting practice;

(b)uniform expenditure classifications; and

(c)uniform treasury norms and standards.

(2)The national treasury must enforce compliance with the measures established in terms of subsection (1), and may stop the transfer of funds to an organ of state if that organ of state commits a serious or persistent material breach of those measures.

 (3)A decision to stop the transfer of funds due to a state in terms of section 214(1)

(b) may be taken only in the circumstances mentioned in subsection (2) and—

(a)may not stop the transfer of funds for more than 120 days; and

(b)may be enforced immediately, but will lapse retrospectively unless Parliament approves it following a process substantially the same as that established

in terms of section 76(1) and prescribed by the joint rules and orders of Parliament. This process must be completed within 30 days of the decision by the national treasury.

[Sub-s. (3) amended by s. 5 (b) of the Constitution Seventh Amendment Act of 2001.]

(4)Parliament may renew a decision to stop the transfer of funds for no more than 120 days at a time, following the process established in terms of subsection (3).

(5)Before Parliament may approve or renew a decision to stop the transfer of funds to a state—

(a)the Auditor-General must report to Parliament; and

(b)the state must be given an opportunity to answer the allegations against it, and to state its case, before a committee.

Procurement

93.(1) When an organ of state in the national, state or local sphere of government, or any other institution identified in national legislation, contracts for goods

or services, it must do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective.

(2)Subsection (1) does not prevent the organs of state or institutions referred to in that subsection from implementing a procurement policy providing for—

(a)categories of preference in the allocation of contracts; and

(b)the protection or advancement of persons, or categories of persons, disadvantaged by unfair discrimination.

(3)National legislation must prescribe a framework within which the policy referred to in subsection (2) must be implemented.

[Sub-s. (3) substituted by s. 6 of the Constitution Seventh Amendment Act of 2001.]

Government guarantees

94.(1) The national government, a state government or a municipality may guarantee a loan only if the guarantee complies with any conditions set out in national legislation.

(2)National legislation referred to in subsection (1) may be enacted only after any recommendations of the Financial and Fiscal Commission have been considered.

(3)Each year, every government must publish a report on the guarantees it has granted.

[Date of commencement of S. 218: 1 January 1998.]

Remuneration of persons holding public office

95.(1) An Act of Parliament must establish a framework for determining—

(a)the salaries, allowances and benefits of members of the National

Assembly, permanent delegates to the National Council of State, members of the Cabinet, Deputy Ministers, traditional leaders and members of any councils of traditional leaders; and

(b)the upper limit of salaries, allowances or benefits of members of state legislatures, members of Executive Councils and members of Municipal Councils of the different categories.

(2)National legislation must establish an independent commission to make recommendations concerning the salaries, allowances and benefits referred to in subsection (1).

(3)Parliament may pass the legislation referred to in subsection (1) only after considering any recommendations of the commission established in terms of subsection (2).

(4)The national executive, a state executive, a municipality or any other relevant authority may implement the national legislation referred to in subsection (1) only after considering any recommendations of the commission established in terms of subsection (2).

(5)National legislation must establish frameworks for determining the salaries, allowances and benefits of judges, the Public Protector, the Auditor-General, and members of any commission provided for in the Constitution, including the broadcasting authority referred to in section 192.

Financial and Fiscal Commission

Establishment and functions

96.(1) There is a Financial and Fiscal Commission for the Federation which makes recommendations envisaged in this Chapter, or in national legislation, to Parliament, state legislatures and any other authorities determined by national legislation.

(2)The Commission is independent and subject only to the Constitution and the law, and must be impartial.

(3)The Commission must function in terms of an Act of Parliament and, in

performing its functions, must consider all relevant factors, including those listed in section 214(2).

Appointment and tenure of members

97.(1) The Commission consists of the following women and men appointed by the President, as head of the national executive:

(a)A chairperson and a deputy chairperson;

(b)three persons selected, after consulting the Premiers, from a list compiled in accordance with a process prescribed by national legislation;

(c)two persons selected, after consulting organised local government, from a list compiled in accordance with a process prescribed by national legislation; and

(d)two other persons.

(1A) National legislation referred to in subsection (1) must provide for the participation of—

(a)the Premiers in the compilation of a list envisaged in subsection (1) (b); and

(b)organised local government in the compilation of a list envisaged in subsection

 (2)Members of the Commission must have appropriate expertise.

(3)Members serve for a term established in terms of national legislation. The President may remove a member from office on the ground of misconduct, incapacity or incompetence.

Reports

98.The Commission must report regularly both to Parliament and to the state legislatures.

State Revenue Funds

99.(1) There is a State Revenue Fund for each state into which all money received by the state government must be paid, except money reasonably excluded by an Act of Parliament.

(2)Money may be withdrawn from a State Revenue Fund only—

(a)in terms of an appropriation by a state Act; or

(b)as a direct charge against the State Revenue Fund, when it is provided for in the Constitution or a state Act.

(3)Revenue allocated through a state to local government in that state in terms of section 214(1), is a direct charge against that state’s Revenue Fund.

(4)National legislation may determine a framework within which—

(a)a state Act may in terms of subsection (2)(b) authorise the withdrawal of money as a direct charge against a State Revenue Fund; and

(b)revenue allocated through a state to local government in that state in terms of subsection (3) must be paid to municipalities in the state.

National sources of state and local government funding

100.(1) Local government and each state—

(a)is entitled to an equitable share of revenue raised nationally to enable it to provide basic services and perform the functions allocated to it; and

(b)may receive other allocations from national government revenue, either conditionally or unconditionally.

(2)Additional revenue raised by state or municipalities may not be deducted from their share of revenue raised nationally, or from other allocations made to them

out of national government revenue. Equally, there is no obligation on the national government to compensate state or municipalities that do not raise revenue commensurate with their fiscal capacity and tax base.

(3)A state’s equitable share of revenue raised nationally must be transferred to the state promptly and without deduction, except when the transfer has been stopped in terms of section 216.

(4)A state must provide for itself any resources that it requires, in terms of a provision of its state constitution, that are additional to its requirements envisaged in the Constitution.

State taxes

101.(1) A state legislature may impose—

(a)taxes, levies and duties other than income tax, value-added tax, general sales tax, rates on property or customs duties; and

(b)flat-rate surcharges on any tax, levy or duty that is imposed by national legislation, other than on corporate income tax, value-added tax, rates on property or customs duties.

 (2)The power of a state legislature to impose taxes, levies, duties and surcharges—

(a)may not be exercised in a way that materially and unreasonably prejudices national economic policies, economic activities across state boundaries, or the national mobility of goods, services, capital or labour; and

(b)must be regulated in terms of an Act of Parliament, which may be enacted only after any recommendations of the Financial and Fiscal Commission have been considered.

Municipal fiscal powers and functions

102.(1) Subject to subsections (2), (3) and (4), a municipality may impose—

(a)rates on property and surcharges on fees for services provided by or on behalf of the municipality; and

 (b)if authorised by national legislation, other taxes, levies and duties appropriate to local government or to the category of local government into which that municipality falls, but no municipality may impose income tax, value-added tax, general sales tax or customs duty.

(2)The power of a municipality to impose rates on property, surcharges on fees for services provided by or on behalf of the municipality, or other taxes, levies or duties—

(a)may not be exercised in a way that materially and unreasonably prejudices national economic policies, economic activities across municipal boundaries, or the national mobility of goods, services, capital or labour; and

(b)may be regulated by national legislation.

(3)When two municipalities have the same fiscal powers and functions with regard to the same area, an appropriate division of those powers and functions must be made in terms of national legislation. The division may be made only after taking into account at least the following criteria:

(a)The need to comply with sound principles of taxation.

(b)The powers and functions performed by each municipality.

(c)The fiscal capacity of each municipality.

(d)The effectiveness and efficiency of raising taxes, levies and duties.

(e)Equity.

(4)Nothing in this section precludes the sharing of revenue raised in terms of this section between municipalities that have fiscal power and functions in the same area.

(5)National legislation envisaged in this section may be enacted only after organised local government and the Financial and Fiscal Commission have been consulted, and any recommendations of the Commission have been considered.

State loans

103.(1) A state may raise loans for capital or current expenditure in accordance with national legislation, but loans for current expenditure may be raised only when necessary for bridging purposes during a fiscal year.

(2)National legislation referred to in subsection (1) may be enacted only after any recommendations of the Financial and Fiscal Commission have been considered.

Municipal loans

  1. (1) A Municipal Council may, in accordance with national legislation—

(a) raise loans for capital or current expenditure for the municipality, but loans for current expenditure may be raised only when necessary for bridging purposes during a fiscal year; and

(b) bind itself and a future Council in the exercise of its legislative and executive authority to secure loans or investments for the municipality.

(2)National legislation referred to in subsection (1) may be enacted only after any recommendations of the Financial and Fiscal Commission have been considered.

 

GENERAL PROVISIONS

International Law

International agreements

105.(1) The negotiating and signing of all international agreements is the responsibility of the national executive.

(2)An international agreement binds the Federation only after it has been approved by resolution in both the National Assembly and the National Council of State, unless it is an agreement referred to in subsection (3).

(3)An international agreement of a technical, administrative or executive nature, or an agreement which does not require either ratification or accession, entered into by the national executive, binds the Federation without approval by the National Assembly and the National Council of States, but must be tabled in the Assembly and the Council within a reasonable time.

(4)Any international agreement becomes law in the Federation when it is enacted into law by national legislation; but a self-executing provision of an agreement that has been approved by Parliament is law in the Federation unless it is inconsistent with the Constitution or an Act of Parliament.

(5)The Federation is bound by international agreements which were binding on the Federation when this Constitution took effect.

Customary international law

106.Customary international law is law in the Federation unless it is inconsistent with the Constitution or an Act of Parliament.

Application of international law

107.When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.

Other Matters

Charters of Rights

108.In order to deepen the culture of democracy established by the Constitution, Parliament may adopt Charters of Rights consistent with the provisions of the Constitution.

Self-determination

109.The right of the South African people as a whole to self-determination, as manifested in this Constitution, does not preclude, within the framework of this right, recognition of the notion of the right of self-determination of any community sharing a common cultural and language heritage, within a territorial entity in the Federation or in any other way, determined by national legislation.

 

Definitions

110.In the Constitution, unless the context indicates otherwise— “national legislation” includes—

(a)subordinate legislation made in terms of an Act of Parliament; and

(b)legislation that was in force when the Constitution took effect and that is administered by the national government;

“organ of state” means—

(a)any department of state or administration in the national, state or local sphere of government; or

(b)any other functionary or institution—

(i)exercising a power or performing a function in terms of the Constitution or a state constitution; or

(ii)exercising a public power or performing a public function in terms of any legislation, but does not include a court or a judicial officer;

“state legislation” includes—

(a)subordinate legislation made in terms of a state Act; and

(b)legislation that was in force when the Constitution took effect and that is administered by a state government.

Inconsistencies between different texts

111.In the event of an inconsistency between different texts of the Constitution, the English text prevails.

Transitional arrangements

112.Schedule 6 applies to the transition to the new constitutional order established by this Constitution, and any matter incidental to that transition.