Constitution of the Republic of South Africa
1996


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Constitution of the Republic of South Africa
1996

As adopted on 8 May 1996 and amended on 11 October 1996 by the Constitutional Assembly

Act 108 of 1996

ISBN 0-620-20214-9

EXPLANATORY MEMORANDUM

This Constitution was drafted in terms of Chapter 5 of the interim Constitution (Act 200 of 1993) and was first adopted by the Constitutional Assembly on 8 May 1996. In terms of a judgement of the Constitutional Court, delivered on 6 September 1996, the text was referred back to the Constitutional Assembly for reconsideration. The text was accordingly amended to comply with the Constitutional Principles contained in Schedule 4 of the interim Constitution. It was signed into law on 10 December 1996.

The objective in this process was to ensure that the final Constitution is legitimate, credible and accepted by all South Africans.

To this extent, the process of drafting the Constitution involved many South Africans in the largest public participation programme ever carried out in South Africa. After nearly two years of intensive consultations, political parties represented in the Constitutional Assembly negotiated the formulations contained in this text, which are an integration of ideas from ordinary citizens, civil society and political parties represented in and outside of the Constitutional Assembly.

This Constitution therefore represents the collective wisdom of the South African people and has been arrived at by general agreement.

Preamble

Chapter 1 - Founding Provisions
Chapter 2 - Bill of Rights
Chapter 3 - Co-operative Government
Chapter 4 - Parliament
Chapter 5 - The President and National Executive
Chapter 6 - Provinces
Chapter 7 - Local Government
Chapter 8 - Courts and Administration of Justice
Chapter 9 - State Institutions Supporting Constitutional Democracy
Chapter 10 - Public Administration
Chapter 11 - Security Services
Chapter 12 - Traditional Leaders
Chapter 13 - Finance
Chapter 14 - General Provisions
Schedule 1 - National Flag
Schedule 2 - Oaths and Solemn Affirmations
Schedule 3 - Election Procedures
Schedule 4 - Functional Areas of Concurrent National and Provincial Legislative Competence
Schedule 5 - Functional Areas of Exclusive Provincial Legislative Competence
Schedule 6 - Transitional Arrangements
Schedule 7 - Laws Repealed

Preamble

We, the people of South Africa,

Recognise the injustices of our past;

Honour those who suffered for justice and freedom in our land;

Respect those who have worked to build and develop our country; and

Believe that South Africa belongs to all who live in it, united in our diversity.

We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to

Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;
Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;
Improve the quality of life of all citizens and free the potential of each person; and
Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.

May God protect our people.

Nkosi Sikelel' iAfrika. Morena boloka setjhaba sa heso.

God seën Suid-Afrika. God bless South Africa.

Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.

Chapter 1
Founding Provisions

Sections

Republic of South Africa

The Republic of South Africa is one, sovereign, democratic state founded on the following values:

Human dignity, the achievement of equality and the advancement of human rights and freedoms.
Non-racialism and non-sexism.
Supremacy of the constitution and the rule of law.
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

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

Citizenship

(1) There is a common South African 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.

National anthem

The national anthem of the Republic is determined by the President by proclamation.

National flag

The national flag of the Republic is black, gold, green, white, red and blue, as described and sketched in Schedule 1.

Languages

(1) The official languages of the Republic are Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu.

(2) Recognising the historically diminished use and status of the indigenous languages of our people, the state must take practical and positive measures to elevate the status and advance the use of these languages.

(3)

a. The national government and provincial governments may use any particular official languages for the purposes of government, taking into account usage, practicality, expense, regional circumstances and the balance of the needs and preferences of the population as a whole or in the province concerned; but the national government and each provincial government must use at least two official languages.

b. Municipalities must take into account the language usage and preferences of their residents.

(4) The national government and provincial governments, by legislative and other measures, must regulate and monitor their use of official languages. Without detracting from the provisions of subsection (2), all official languages must enjoy parity of esteem and must be treated equitably.

(5) A Pan South African Language Board established by national legislation must

a. promote, and create conditions for, the development and use of

i. all official languages;

ii. the Khoi, Nama and San languages; and

iii. sign language ; and

c. promote and ensure respect for

i. all languages commonly used by communities in South Africa, including German, Greek, Gujarati, Hindi, Portuguese, Tamil, Telegu and Urdu; and

ii. Arabic, Hebrew, Sanskrit and other languages used for religious purposes in South Africa.

Chapter 2
Bill of Rights

Sections

Rights

7. (1) This Bill of Rights is a cornerstone of democracy in South Africa. 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.

(3) The rights in the Bill of Rights are subject to the limitations contained or referred to in section 36, or elsewhere in the Bill.

Application

8. (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

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
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

9. (1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

Human dignity

10. Everyone has inherent dignity and the right to have their dignity respected and protected.

Life

11. Everyone has the right to life.

Freedom and security of the person

12. (1) Everyone has the right to freedom and security of the person, which includes the right

not to be deprived of freedom arbitrarily or without just cause;
not to be detained without trial;
to be free from all forms of violence from either public or private sources;
not to be tortured in any way; and
not to be treated or punished in a cruel, inhuman or degrading way.

(2) Everyone has the right to bodily and psychological integrity, which includes the right

to make decisions concerning reproduction;
to security in and control over their body; and
not to be subjected to medical or scientific experiments without their informed consent.

Slavery, servitude and forced labour

13. No one may be subjected to slavery, servitude or forced labour.

Privacy

14. Everyone has the right to privacy, which includes the right not to have

their person or home searched;
their property searched;
their possessions seized; or
the privacy of their communications infringed.

Freedom of religion, belief and opinion

15. (1) Everyone has the right to freedom of conscience, religion, thought, belief and opinion.

(2) Religious observances may be conducted at state or state-aided institutions, provided that

those observances follow rules made by the appropriate public authorities;
they are conducted on an equitable basis; and
attendance at them is free and voluntary.

(3)

This section does not prevent legislation recognising
1. marriages concluded under any tradition, or a system of religious, personal or family law; or
2. systems of personal and family law under any tradition, or adhered to by persons professing a particular religion.
Recognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution.

Freedom of expression

16. (1) Everyone has the right to freedom of expression, which includes

freedom of the press and other media;
freedom to receive or impart information or ideas;
freedom of artistic creativity; and
academic freedom and freedom of scientific research.

(2) The right in subsection (1) does not extend to

propaganda for war;
incitement of imminent violence; or
advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

Assembly, demonstration, picket and petition

17. Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.

Freedom of association

18. Everyone has the right to freedom of association.

Political rights

19. (1) Every citizen is free to make political choices, which includes the right

to form a political party;
to participate in the activities of, or recruit members for, a political party; and
to campaign for a political party or cause.

(2) Every citizen has the right to free, fair and regular elections for any legislative body established in terms of the Constitution.

(3) Every adult citizen has the right

to vote in elections for any legislative body established in terms of the Constitution, and to do so in secret; and
to stand for public office and, if elected, to hold office.

Citizenship

20. No citizen may be deprived of citizenship.

Freedom of movement and residence

21. (1) Everyone has the right to freedom of movement.

(2) Everyone has the right to leave the Republic.

(3) Every citizen has the right to enter, to remain in and to reside anywhere in, the Republic.

(4) Every citizen has the right to a passport.

Freedom of trade, occupation and profession

22. Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law.

Labour relations

23. (1) Everyone has the right to fair labour practices.

(2) Every worker has the right

to form and join a trade union;
to participate in the activities and programmes of a trade union; and
to strike.

(3) Every employer has the right

to form and join an employers' organisation; and
to participate in the activities and programmes of an employers' organisation.

(4) Every trade union and every employers' organisation has the right

to determine its own administration, programmes and activities;
to organise; and
to form and join a federation.

(5) Every trade union, employers' organisation and employer has the right to engage in collective bargaining. National legislation may be enacted to regulate collective bargaining. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1).

(6) National legislation may recognise union security arrangements contained in collective agreements. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1).

Environment

24. Everyone has the right

to an environment that is not harmful to their health or well-being; and
to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that
1. prevent pollution and ecological degradation;
2. promote conservation; and
3. secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

Property

25. (1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.

(2) Property may be expropriated only in terms of law of general application

for a public purpose or in the public interest; and
subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.

(3) The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including

the current use of the property;
the history of the acquisition and use of the property;
the market value of the property;
the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and
the purpose of the expropriation.

(4) For the purposes of this section

the public interest includes the nation's commitment to land reform, and to reforms to bring about equitable access to all South Africa's natural resources; and
property is not limited to land.

(5) The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.

(6) A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.

(7) A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.

(8) No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1).

(9) Parliament must enact the legislation referred to in subsection (6).

Housing

26. (1) Everyone has the right to have access to adequate housing.

(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.

(3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

Health care, food, water and social security

27. (1) Everyone has the right to have access to

health care services, including reproductive health care;
sufficient food and water; and
social security, including, if they are unable to support themselves and their dependants, appropriate social assistance.

(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.

(3) No one may be refused emergency medical treatment.

Children

28. (1) Every child has the right

to a name and a nationality from birth;
to family care or parental care, or to appropriate alternative care when removed from the family environment;
to basic nutrition, shelter, basic health care services and social services;
to be protected from maltreatment, neglect, abuse or degradation;
to be protected from exploitative labour practices;
not to be required or permitted to perform work or provide services that
1. are inappropriate for a person of that child's age; or
2. place at risk the child's well-being, education, physical or mental health or spiritual, moral or social development;
not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only for the shortest appropriate period of time, and has the right to be
1. kept separately from detained persons over the age of 18 years; and
2. treated in a manner, and kept in conditions, that take account of the child's age;
to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result; and
not to be used directly in armed conflict, and to be protected in times of armed conflict.

(2) A child's best interests are of paramount importance in every matter concerning the child.

(3) In this section "child" means a person under the age of 18 years.

Education

29. (1) Everyone has the right

to a basic education, including adult basic education; and
to further education, which the state, through reasonable measures, must make progressively available and accessible.

(2) Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account

equity;
practicability; and
the need to redress the results of past racially discriminatory laws and practices.

(3) Everyone has the right to establish and maintain, at their own expense, independent educational institutions that

do not discriminate on the basis of race;
are registered with the state; and
maintain standards that are not inferior to standards at comparable public educational institutions.

(4) Subsection (3) does not preclude state subsidies for independent educational institutions.

Language and culture

30. Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.

Cultural, religious and linguistic communities

31. (1) Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community

to enjoy their culture, practise their religion and use their language; and
to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.

(2) The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.

Access to information

32. (1) Everyone has the right of access to

any information held by the state; and
any information that is held by another person and that is required for the exercise or protection of any rights.

(2) National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.

Just administrative action

33. (1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.

(2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.

(3) National legislation must be enacted to give effect to these rights, and must

provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal;
impose a duty on the state to give effect to the rights in subsections (1) and (2); and
promote an efficient administration.

Access to courts

34. Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.

Arrested, detained and accused persons

35. (1) Everyone who is arrested for allegedly committing an offence has the right

to remain silent;
to be informed promptly
1. of the right to remain silent; and
2. of the consequences of not remaining silent;
not to be compelled to make any confession or admission that could be used in evidence against that person;
to be brought before a court as soon as reasonably possible, but not later than
1. 48 hours after the arrest; or
2. the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day;
at the first court appearance after being arrested, to be charged or to be informed of the reason for the detention to continue, or to be released; and
to be released from detention if the interests of justice permit, subject to reasonable conditions.

(2) Everyone who is detained, including every sentenced prisoner, has the right

to be informed promptly of the reason for being detained;
to choose, and to consult with, a legal practitioner, and to be informed of this right promptly;
to have a legal practitioner assigned to the detained person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released;
to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment; and
to communicate with, and be visited by, that person's
1. spouse or partner;
2. next of kin;
3. chosen religious counsellor; and
4. chosen medical practitioner.

(3) Every accused person has a right to a fair trial, which includes the right

to be informed of the charge with sufficient detail to answer it;
to have adequate time and facilities to prepare a defence;
to a public trial before an ordinary court;
to have their trial begin and conclude without unreasonable delay;
to be present when being tried;
to choose, and be represented by, a legal practitioner, and to be informed of this right promptly;
to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
to be presumed innocent, to remain silent, and not to testify during the proceedings;
to adduce and challenge evidence;
not to be compelled to give self-incriminating evidence;
to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings interpreted in that language;
not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted;
not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted;
to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and
of appeal to, or review by, a higher court.

(4) Whenever this section requires information to be given to a person, that information must be given in a language that the person understands.

(5) Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.

Limitation of rights

36. (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including

the nature of the right;
the importance of the purpose of the limitation;
the nature and extent of the limitation;
the relation between the limitation and its purpose; and
less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

States of emergency

37. (1) A state of emergency may be declared only in terms of an Act of Parliament, and only when

the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and
the declaration is necessary to restore peace and order.

(2) A declaration of a state of emergency, and any legislation enacted or other action taken in consequence of that declaration, may be effective only

prospectively; and
for no more than 21 days from the date of the declaration, unless the National Assembly resolves to extend the declaration. The Assembly may extend a declaration of a state of emergency for no more than three months at a time. The first extension of the state of emergency must be by a resolution adopted with a supporting vote of a majority of the members of the Assembly. Any subsequent extension must be by a resolution adopted with a supporting vote of at least 60 per cent of the members of the Assembly. A resolution in terms of this paragraph may be adopted only following a public debate in the Assembly.

(3) Any competent court may decide on the validity of

a declaration of a state of emergency;
any extension of a declaration of a state of emergency; or
any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency.

(4) Any legislation enacted in consequence of a declaration of a state of emergency may derogate from the Bill of Rights only to the extent that

the derogation is strictly required by the emergency; and
the legislation
1. is consistent with the Republic's obligations under international law applicable to states of emergency;
2. conforms to subsection (5); and
3. is published in the national Government Gazette as soon as reasonably possible after being enacted.

(5) No Act of Parliament that authorises a declaration of a state of emergency, and no legislation enacted or other action taken in consequence of a declaration, may permit or authorise

indemnifying the state, or any person, in respect of any unlawful act;
any derogation from this section; or
any derogation from a section mentioned in column 1 of the Table of Non-Derogable Rights, to the extent indicated opposite that section in column 3 of the Table.

Table of Non-Derogable Rights

1 Section Number	2 Section Title	3 Extent to which the right is protected
9	Equality	With respect to unfair discrimination solely on the grounds of race, colour, ethnic or social origin, sex religion or language
10	Human Dignity	Entirely
11	Life	Entirely
12	Freedom and Security of the person	With respect to subsections (1)(d) and (e) and (2)(c).
13	Slavery, servitude and forced labour	With respect to slavery and servitude
28	Children	With respect to: subsection (1)(d) and (e); the rights in subparagraphs (i) and (ii) of subsection (1)(g); and subsection 1(i) in respect of children of 15 years and younger
35	Arrested, detained and accused persons	With respect to: subsections (1)(a), (b) and (c) and (2)(d); the rights in paragraphs (a) to (o) of subsection (3), excluding paragraph (d) subsection (4); and subsection (5) with respect to the exclusion of evidence if the admission of that evidence would render the trial unfair.

(6) Whenever anyone is detained without trial in consequence of a derogation of rights resulting from a declaration of a state of emergency, the following conditions must be observed:

An adult family member or friend of the detainee must be contacted as soon as reasonably possible, and informed that the person has been detained.
A notice must be published in the national Government Gazette within five days of the person being detained, stating the detainee's name and place of detention and referring to the emergency measure in terms of which that person has been detained.
The detainee must be allowed to choose, and be visited at any reasonable time by, a medical practitioner.
The detainee must be allowed to choose, and be visited at any reasonable time by, a legal representative.
A court must review the detention as soon as reasonably possible, but no later than 10 days after the date the person was detained, and the court must release the detainee unless it is necessary to continue the detention to restore peace and order.
A detainee who is not released in terms of a review under paragraph (e), or who is not released in terms of a review under this paragraph, may apply to a court for a further review of the detention at any time after 10 days have passed since the previous review, and the court must release the detainee unless it is still necessary to continue the detention to restore peace and order.
The detainee must be allowed to appear in person before any court considering the detention, to be represented by a legal practitioner at those hearings, and to make representations against continued detention.
The state must present written reasons to the court to justify the continued detention of the detainee, and must give a copy of those reasons to the detainee at least two days before the court reviews the detention.

(7) If a court releases a detainee, that person may not be detained again on the same grounds unless the state first shows a court good cause for re-detaining that person.

(8) Subsections (6) and (7) do not apply to persons who are not South African citizens and who are detained in consequence of an international armed conflict. Instead, the state must comply with the standards binding on the Republic under international humanitarian law in respect of the detention of such persons.

Enforcement of rights

38. Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are -

anyone acting in their own interest;
anyone acting on behalf of another person who cannot act in their own name;
anyone acting as a member of, or in the interest of, a group or class of persons;
anyone acting in the public interest; and
an association acting in the interest of its members.

Interpretation of Bill of Rights

39. (1) When interpreting the Bill of Rights, a court, tribunal or forum

must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;
must consider international law; and
may consider foreign law.

(2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.

(3) The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.

Chapter 3
Co-operative Government

Sections

Government of the Republic

40. (1) In the Republic, government is constituted as national, provincial and local spheres of government which are distinctive, interdependent and interrelated.

(2) All spheres of government must observe and adhere to the principles in this Chapter and must conduct their activities within the parameters that the Chapter provides.

Principles of co-operative government and intergovernmental relations

41. (1) All spheres of government and all organs of state within each sphere must

preserve the peace, national unity and the indivisibility of the Republic;
secure the well-being of the people of the Republic;
provide effective, transparent, accountable and coherent government for the Republic as a whole;
be loyal to the Constitution, the Republic and its people;
respect the constitutional status, institutions, powers and functions of government in the other spheres;
not assume any power or function except those conferred on them in terms of the Constitution;
exercise their powers and perform their functions in a manner that does not encroach on the geographical, functional or institutional integrity of government in another sphere; and
co-operate with one another in mutual trust and good faith by
1. fostering friendly relations;
2. assisting and supporting one another;
3. informing one another of, and consulting one another on, matters of common interest;
4. co-ordinating their actions and legislation with one another;
5. adhering to agreed procedures; and
6. avoiding legal proceedings against one another.

(2) An Act of Parliament must

establish or provide for structures and institutions to promote and facilitate intergovernmental relations; and
provide for appropriate mechanisms and procedures to facilitate settlement of intergovernmental disputes.

(3) An organ of state involved in an intergovernmental dispute must make every reasonable effort to settle the dispute by means of mechanisms and procedures provided for that purpose, and must exhaust all other remedies before it approaches a court to resolve the dispute.

(4) If a court is not satisfied that the requirements of subsection (3) have been met, it may refer a dispute back to the organs of state involved.

Chapter 4
Parliament

Sections

National Assembly

National Council of Provinces

National Legislative Process

Composition of Parliament

42. (1) Parliament consists of

the National Assembly; and
the National Council of Provinces.

(2) The National Assembly and the National Council of Provinces participate in the legislative process in the manner set out in the Constitution.

(3) The National Assembly is elected to represent the people and to ensure government by the people under the Constitution. It does this by choosing the President, by providing a national forum for public consideration of issues, by passing legislation and by scrutinizing and overseeing executive action.

(4) The National Council of Provinces represents the provinces to ensure that provincial interests are taken into account in the national sphere of government. It does this mainly by participating in the national legislative process and by providing a national forum for public consideration of issues affecting the provinces.

(5) The President may summon Parliament to an extraordinary sitting at any time to conduct special business.

(6) The seat of Parliament is Cape Town, but an Act of Parliament enacted in accordance with section 76(1) and (5) may determine that the seat of Parliament is elsewhere.

Legislative authority of the Republic

43. In the Republic, the legislative authority

of the national sphere of government is vested in Parliament, as set out in section 44;
of the provincial sphere of government is vested in the provincial legislatures, as set out in section 104; and
of the local sphere of government is vested in the Municipal Councils, as set out in section 156.

National legislative authority

44. (1) The national legislative authority as vested in Parliament

confers on the National Assembly the power
1. to amend the Constitution;
2. to pass legislation with regard to any matter, including a matter within a functional area listed in Schedule 4, but excluding, subject to subsection (2), a matter within a functional area listed in Schedule 5; and
3. to assign any of its legislative powers, except the power to amend the Constitution, to any legislative body in another sphere of government; and
(b) confers on the National Council of Provinces the power
1. to participate in amending the Constitution in accordance with section 74;
2. to pass, in accordance with section 76, legislation with regard to any matter within a functional area listed in Schedule 4 and any other matter required by the Constitution to be passed in accordance with section 76; and
3. to consider, in accordance with section 75, any other legislation passed by the National Assembly.

(2) Parliament may intervene, by passing legislation in accordance with section 76(1), with regard to a matter falling within a functional area listed in Schedule 5, when it is necessary

to maintain national security;
to maintain economic unity;
to maintain essential national standards;
to establish minimum standards required for the rendering of services; or
to prevent unreasonable action taken by a province which is prejudicial to the interests of another province or to the country as a whole.

(3) 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.

(4) When exercising its legislative authority, Parliament is bound only by the Constitution, and must act in accordance with, and within the limits of, the Constitution.

Joint rules and orders and joint committees

45. (1) The National Assembly and the National Council of Provinces must establish a joint rules committee to make rules and orders concerning the joint business of the Assembly and Council, including rules and orders

to determine procedures to facilitate the legislative process, including setting a time limit for completing any step in the process;
to establish joint committees composed of representatives from both the Assembly and the Council to consider and report on Bills envisaged in sections 74 and 75 that are referred to such a committee;
to establish a joint committee to review the Constitution at least annually; and
to regulate the business of
1. the joint rules committee;
2. the Mediation Committee;
3. the constitutional review committee; and
4. any joint committees established in terms of paragraph (b).

(2) Cabinet members, members of the National Assembly and delegates to the National Council of Provinces have the same privileges and immunities before a joint committee of the Assembly and the Council as they have before the Assembly or the Council.

The National Assembly

Composition and election

46. (1) The National Assembly consists of no fewer than 350 and no more than 400 women and men elected as members in terms of an electoral system that

is prescribed by national legislation;
is based on the national common voters roll;
provides for a minimum voting age of 18 years; and
results, in general, in proportional representation.

(2) An Act of Parliament must provide a formula for determining the number of members of the National Assembly.

Membership

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

anyone who is appointed by, or is in the service of, the state and receives remuneration for that appointment or service, other than
1. the President, Deputy President, Ministers and Deputy Ministers; and
2. other office-bearers whose functions are compatible with the functions of a member of the Assembly, and have been declared compatible with those functions by national legislation;
permanent delegates to the National Council of Provinces or members of a provincial legislature or a Municipal Council;
unrehabilitated insolvents;
anyone declared to be of unsound mind by a court of the Republic; or
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 Republic, or outside the Republic if the conduct constituting the offence would have been an offence in the Republic, 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. A disqualification under this paragraph ends five years after the sentence has been completed.

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

(3) A person loses membership of the National Assembly if that person

ceases to be eligible; or
is absent from the Assembly without permission in circumstances for which the rules and orders of the Assembly prescribe loss of membership.

(4) Vacancies in the National Assembly must be filled in terms of national legislation.

Oath or affirmation

48. Before members of the National Assembly begin to perform their functions in the Assembly, they must swear or affirm faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2.

Duration of National Assembly

49. (1) The National Assembly is elected for a term of five years.

(2) If the National Assembly is dissolved in terms of section 50, or when its term expires, the President, by proclamation, must call and set dates for an election, which must be held within 90 days of the date the Assembly was dissolved or its term expired.

(3) If the result of an election of the National Assembly is not declared within the period established in terms of 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) The National Assembly 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 Assembly.

Dissolution of National Assembly before expiry of its term

50. (1) The President must dissolve the National Assembly if

the Assembly has adopted a resolution to dissolve with a supporting vote of a majority of its members; and
three years have passed since the Assembly was elected.

(2) The Acting President must dissolve the National Assembly if

there is a vacancy in the office of President; and
the Assembly fails to elect a new President within 30 days after the vacancy occurred.

Sittings and recess periods

51. (1) After an election, the first sitting of the National Assembly must take place at a time and on a date determined by the President of the Constitutional Court, but not more than 14 days after the election result has been declared. The Assembly may determine the time and duration of its other sittings and its recess periods.

(2) The President may summon the National Assembly to an extraordinary sitting at any time to conduct special business.

(3) Sittings of the National Assembly are permitted at places other than the seat of Parliament only on the grounds of public interest, security or convenience, and if provided for in the rules and orders of the Assembly.

Speaker and Deputy Speaker

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

(2) The President of the Constitutional Court must preside over the election of a Speaker, or designate another judge to do so. 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 the Speaker and the Deputy Speaker.

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

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

Decisions

53. (1) Except where the Constitution provides otherwise

a majority of the members of the National Assembly must be present before a vote may be taken on a Bill or an amendment to a Bill;
at least one third of the members must be present before a vote may be taken on any other question before the Assembly; and
all questions before the Assembly are decided by a majority of the votes cast.

(2) The member of the National Assembly presiding at a meeting of the Assembly has no deliberative vote, but

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

Rights of certain Cabinet members in National Assembly

54. The President and any member of the Cabinet who is not a member of the National Assembly may attend, and may speak in, the Assembly, but may not vote.

Powers of National Assembly

55. (1) In exercising its legislative power, the National Assembly may

consider, pass, amend or reject any legislation before the Assembly; and
initiate or prepare legislation, except money Bills.

(2) The National Assembly must provide for mechanisms

to ensure that all executive organs of state in the national sphere of government are accountable to it; and
to maintain oversight of
1. the exercise of national executive authority, including the implementation of legislation; and
2. any organ of state.

Evidence or information before National Assembly

56. The National Assembly or any of its committees may

summon any person to appear before it to give evidence on oath or affirmation, or to produce documents;
require any person or institution to report to it;
compel, in terms of national 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
receive petitions, representations or submissions from any interested persons or institutions.

Internal arrangements, proceedings and procedures of National Assembly

57. (1) The National Assembly may

determine and control its internal arrangements, proceedings and procedures; and
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 the National Assembly must provide for

the establishment, composition, powers, functions, procedures and duration of its committees;
the participation in the proceedings of the Assembly and its committees of minority parties represented in the Assembly, in a manner consistent with democ

Constitution of the Republic of South Africa 1996

EXPLANATORY MEMORANDUM

Contents

Preamble

Chapter 1 Founding Provisions

Sections

Sections

Sections

Chapter 4 Parliament

Sections

The National Assembly

Constitution of the Republic of South Africa
1996

Chapter 1
Founding Provisions

Chapter 4
Parliament