This resource is hosted by the Nelson Mandela Foundation, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
Chapter 4 - Parliament
36 Constitution of Parliament
Parliament shall consist of the National Assembly and the Senate.
37 Legislative authority of Republic
The legislative authority of the Republic shall, subject to this Constitution, vest in Parliament, which shall have the power to make laws for the Republic in accordance with this Constitution.
38 Duration of Parliament
(1) Parliament as constituted in terms of the first election under this Constitution shall, subject to subsection (2), continue for five years as from the date of the first sitting of the National Assembly under this Constitution.
(2) If during the period referred to in subsection (1) Parliament is dissolved under section 73 (9) or 93 (1) or (3) (c), the Houses of Parliament as constituted then, shall continue for the period up to the day immediately preceding the commencement of polling for the election of the National Assembly held in pursuance of such dissolution.
(3) Notwithstanding any dissolution of Parliament-
a. every person who at the date of the dissolution is a member of the National Assembly or the Senate shall remain a member thereof;
b. the National Assembly and the Senate shall remain competent to perform their functions; and
c. the President shall be competent to summon Parliament by proclamation in the Gazette to an extraordinary sitting for the despatch of urgent business, during the period for which the Houses of Parliament continue in terms of subsection (2) after the dissolution.
(4) If Parliament is dissolved and a new Parliament is constituted as contemplated in section 39, this section shall apply mutatis mutandis in respect of such new Parliament save that the new Parliament shall continue for the unexpired part of the period referred to in subsection (1).
39 Elections
(1) Upon a dissolution of Parliament in terms of section 73 (9) or 93 (1) or (3) (c), the President shall by proclamation in the Gazette-
a. call an election of the National Assembly, which election shall take place within 90 days after the dissolution of Parliament on a date or dates specified in the proclamation; and
b. request parties represented in the provincial legislatures to nominate persons as senators for the respective provinces in accordance with section 48 (1) (b).(2) An election referred to in subsection (1) (a) shall be held in accordance with the Electoral Act, 1993.
The National Assembly
40 Composition of National Assembly
(1) The National Assembly shall consist of 400 members elected in accordance with the system of proportional representation of voters as provided for in Schedule 2 and the Electoral Act, 1993.
(2) A person nominated as a candidate for election to the National Assembly on a regional list contemplated in Schedule 2, shall, subject to subsection (3), at the time of the nomination be ordinarily resident in the province in respect of which that regional list applies.
(3) Notwithstanding subsection (2), a regional list may contain the names of candidates who are not ordinarily resident in the province in respect of which that list applies, provided that no such list shall contain the names of more than one such candidate or more than 10 per cent of the total number of candidates the party concerned is entitled to nominate on that list, whichever is the greater number.
(4) For the purposes of this section, a person shall be deemed to be ordinarily resident at the place where he or she normally lives and to which he or she returns regularly after any period of temporary absence, including the place where he or she was previously so ordinarily resident and to which he or she returns regularly after any period of absence.
(5) If a regional list contemplated in subsection (2) contains more names of candidates not ordinarily resident in the province in respect of which that list applies than are permissible under that subsection, the surplus of such names so contained shall be deleted mutatis mutandis in accordance with section 22 (8) of the Electoral Act, 1993. [Date of commencement of s. 40: 9 March 1994.]
41 Speaker and Deputy Speaker of National Assembly
(1) At its first sitting after it has been convened under section 46 (2), and after the election of the President, the National Assembly, with the Chief Justice or a judge of the Supreme Court designated by him or her acting as the chairperson, shall elect one of its members to be the Speaker, and shall thereafter elect another of its members to be the Deputy Speaker.
(2) The provisions of Schedule 5 shall apply mutatis mutandis to the election of the Speaker and the Deputy Speaker.
(3) The Speaker shall be vested with all powers and functions assigned to him or her by this Constitution, an Act of Parliament and the rules and orders.
(4) If the Speaker is absent or for any reason unable to exercise or perform the powers or functions vested in the office of Speaker, or when the office of Speaker is vacant, the Deputy Speaker shall act as Speaker during the Speaker's absence or inability or until a Speaker is elected.
(5) If any of the circumstances described in subsection (4) applies with reference to both the Speaker and the Deputy Speaker, a member of the National Assembly designated in terms of the rules and orders shall act as Speaker while the said circumstances prevail.
(6) The Deputy Speaker or the member designated under subsection (5), while acting as Speaker, may exercise the powers and shall perform the functions vested in the office of Speaker.
(7) The Speaker, the Deputy Speaker or any other member of the National Assembly designated for that purpose in terms of the rules and orders, shall preside over sittings of the National Assembly.
(8) While presiding at a sitting of the National Assembly, the Speaker, Deputy Speaker or other member presiding shall not have a deliberative vote, but shall have and exercise a casting vote in the case of an equality of votes.
(9) The Speaker or Deputy Speaker shall vacate his or her office if he or she ceases to be a member of the National Assembly, and may be removed from office by resolution of the National Assembly, and may resign by lodging his or her resignation in writing with the Secretary to Parliament.
(10) If the office of Speaker or Deputy Speaker becomes vacant, the National Assembly, under the chairpersonship of the Chief Justice or a judge as provided in subsection (1), shall elect a member to fill the vacancy: Provided that the Speaker shall in such event preside at the election of the Deputy Speaker.
42 Qualification for membership of National Assembly
(1) No person shall become or remain a member of the National Assembly unless he or she is a South African citizen and is and remains qualified in terms of section 6 to vote in an election of the National Assembly, or if he or she-
a. at the time of the first election of the National Assembly held under this Constitution is serving a sentence of imprisonment of more than 12 months without the option of a fine;
b. at any time after the promulgation of this Constitution is convicted of an offence in the Republic, or outside the Republic if the conduct constituting such offence would have constituted an offence in the Republic, and for which he or she has been sentenced to imprisonment of more than 12 months without the option of a fine, unless he or she has received a pardon;
c. is an unrehabilitated insolvent;
d. is of unsound mind and has been so declared by a competent court; or
e. holds any office of profit under the Republic: Provided that the following persons shall be deemed not to hold an office of profit under the Republic for the purpose of this paragraph, namely-
i. an Executive Deputy President, a Minister or a Deputy Minister;
ii. a person in receipt of a pension paid from public funds or from a pension fund aided by public funds;
iii. a justice of the peace or appraiser; or
iv. a member of any council, board, committee, commission or similar body established by or under law or a committee of the National Assembly who receives remuneration not in excess of an amount equal to his or her salary as a member of the National Assembly.
(2) For the purposes of subsection (1) (b) no person shall be deemed as having been convicted of an offence until any appeal against the conviction or sentence has been determined, or, if no appeal against the conviction or sentence has been noted, the time for noting such an appeal has expired. [Date of commencement of s. 42: 9 March 1994.]
43 Vacation of seats A member of the National Assembly shall vacate his or her seat if he or she-
a. ceases to be eligible to be a member of the National Assembly in terms of section 42;
b. ceases to be a member of the party which nominated him or her as a member of the National Assembly;
c. resigns his or her seat by submitting his or her resignation in writing to the Secretary to Parliament;
d. without having obtained leave in accordance with the rules and orders, absents himself or herself voluntarily from sittings of the National Assembly or any other parliamentary forum of which he or she is a member, for 15 consecutive days on which the National Assembly or any such forum sat; or
e. becomes a member of the Senate, a provincial legislature or a local government.
44 Filling of vacancies
(1) If a member of the National Assembly vacates his or her seat, the vacancy shall be filled by a person nominated in terms of subsection (2) by the party which nominated the vacating member.
(2) The party entitled in terms of subsection (1) to fill a vacancy shall nominate a person-
a. whose name appears on that list of candidates of that party, compiled in terms of Schedule 2, from which the vacating member was nominated to the National Assembly; and
b. who according to the order of preference of the candidates on such list is the next qualified and available person entitled in terms of Schedule 2 to represent that party in the National Assembly.
(3) A nomination in terms of this section shall be submitted in writing to the Speaker.
45 Oath or affirmation by members of National Assembly
Every member of the National Assembly, before taking his or her seat, shall make and subscribe an oath or solemn affirmation in the terms set out in Schedule 3 before the Chief Justice, or a judge of the Supreme Court designated by the Chief Justice for this purpose, or, in the case of a member nominated under section 44, before the Speaker.
46 Sittings of National Assembly
(1) The National Assembly shall sit at the Houses of Parliament in Cape Town, unless the Speaker, in accordance with the rules and orders and in consultation with the President of the Senate, directs otherwise on the grounds of public interest, security or convenience.
(2) The Chief Justice shall convene the National Assembly within 10 days after an election of the National Assembly.
(3) The National Assembly shall sit during such periods and on such days and during such hours as it may determine: Provided that the President may at any time by proclamation in the Gazette summon the National Assembly to an extraordinary sitting for the despatch of urgent business.
47 Quorum
The presence of at least one third or, when a vote is taken no a Bill, of at least one half of all the members of the National Assembly, other than the Speaker or other presiding member, shall be necessary to constitute a meeting of the National Assembly.
The Senate
48 Composition of Senate
(1) The Senate shall be composed of 10 senators for each province, nominated by the parties represented in a provincial legislature within 10 days of-
a. the first sitting of such legislature after an election of the legislature; or
b. an election of the National Assembly held in pursuance of a dissolution of Parliament.
(2) Each party represented in a provincial legislature shall be entitled to nominate a senator or senators for the relevant province in accordance with the principle of proportional representation as determined by the following formula:
a. The number of senators each party shall be entitled to nominate, shall subject to paragraph (b) be determined by multiplying the number of seats such party holds in the provincial legislature by 10 and dividing the result by the total number of seats in the legislature plus one.
b. If the application of paragraph (a) yields a surplus not absorbed by the number of senators allocated to that party, such surplus shall compete with similar surpluses accruing to any other party or parties, and any undistributed senatorial seat or seats shall be allocated to the party or parties concerned in sequence of the highest surplus.
(3) A member of a provincial legislature or local government nominated as a senator in terms of this section, shall vacate his or her seat in the provincial legislature or local government upon his or her acceptance of such nomination.
49 President and Deputy President of Senate
(1) At its first sitting after it has been convened under section 53 (2), and before proceeding to dispatch any other business, the Senate, with the Chief Justice or a judge of the Supreme Court designated by him or her acting as the chairperson, shall elect one of its members to be the President of the Senate, and shall thereafter elect another of its members to be the Deputy President of the Senate.
(2) The provisions of Schedule 5 shall apply mutatis mutandis to the election of the President and the Deputy President of the Senate.
(3) The President of the Senate shall be vested with all the powers and functions assigned to him or her by this Constitution, an Act of Parliament and the rules and orders.
(4) If the President of the Senate is absent or for any reason unable to exercise and perform the powers and functions vested in the office of President of the Senate, or when the office of President of the Senate is vacant, the Deputy President of the Senate shall act as President of the Senate during the absence or inability of the President of the Senate or until a President of the Senate is elected.
(5) If any of the circumstances described in subsection (4) applies with reference to both the President and the Deputy President of the Senate, a senator designated in terms of the rules and orders shall act as President of the Senate while the said circumstances prevail.
(6) The Deputy President of the Senate or the senator designated under subsection (5), while acting as resident of the Senate, may exercise the powers and shall perform the functions vested in the office of President of the Senate.
(7) The President or Deputy President of the Senate or any other senator designated for that purpose in terms of the rules and orders shall preside over sittings of the Senate.
(8) While presiding at a sitting of the Senate, the President or Deputy President of the Senate or other senator presiding shall not have a deliberative vote, but shall have and exercise a casting vote in the case of an equality of votes.
(9) The President or Deputy President of the Senate shall vacate his or her office if he or she ceases to be a senator, and may be removed from office by resolution of the Senate, and may resign by lodging his or her resignation in writing with the Secretary to Parliament.
(10) If the office of President or Deputy President of the Senate becomes vacant, the Senate, under the chairpersonship of the Chief Justice or a judge as provided in subsection (1), shall elect a member to fill the vacancy:
Provided that the President of the Senate shall in such event preside at the election of the Deputy President of the Senate.
50 Qualification for membership of Senate
No person shall be qualified to become or remain a senator unless he or she is or remains qualified to become a member of the National Assembly.
51 Vacation of seats by senators and filling of vacancies
(1) A senator shall vacate his or her seat if he or she-
a. ceases to qualify to be a senator in terms of section 50;
b. ceases to be a member of the party which nominated him or her as a senator in terms of section 48;
c. resigns his or her seat by submitting his or her resignation in writing to the Secretary to Parliament;
d. without having obtained leave in accordance with the rules and orders, absents himself or herself voluntarily from sittings of the Senate or any other parliamentary forum of which he or she is a member, for 15 consecutive days on which the Senate or any such forum sat; or
e. becomes a member of the National Assembly, a provincial legislature or a local government.
(2)
a. If a senator vacates his or her seat, the vacancy shall be filled by a person nominated by the party which nominated the vacating senator and who is qualified and available to fill the vacancy.
b. A nomination in terms of this subsection shall be submitted in writing to the President of the Senate.
(3) If a provincial legislature is dissolved, the senators from the province in question shall vacate their seats in the Senate with effect from the date of the first sitting of such legislature after the election of such legislature held in pursuance of such dissolution, whereupon the vacancies shall be filled in terms of section 48 (1) (a).
52 Oath or affirmation by senators
Every senator, before taking his or her seat, shall make and subscribe an oath or solemn affirmation in the terms set out in Schedule 3 before the Chief Justice, or a judge of the Supreme Court designated by the Chief Justice for this purpose, or, in the case of a senator nominated under section 51 (2), before the President of the Senate.
53 Sittings of Senate
(1) The Senate shall sit at the Houses of Parliament in Cape Town, unless the President of the Senate, in accordance with the rules and orders and in consultation with the Speaker, directs otherwise on the grounds of public interest, security or convenience.
(2) The Chief Justice shall after an election of the National Assembly convene the Senate as soon as is practically possible, but not later than 30 days after such election.
(3) The Senate shall sit during such periods and on such days and during such hours as it may determine:
Provided that the President may at any time by proclamation in the Gazette summon the Senate to an extraordinary sitting for the dispatch of urgent business.
54 Quorum
The presence of at least one third or, when a vote is taken on a Bill, of at least one half of all the senators, other than the President of the Senate or other presiding senator, shall be necessary to constitute a meeting of the Senate.
The National Assembly and the Senate
55 Powers, privileges and immunities of Parliament and benefits of members
(1) Parliament shall have full power to control, regulate and dispose of its internal affairs, and shall have all such other powers, privileges and immunities as may, subject to this Constitution, be prescribed by an Act of Parliament.
(2) Subject to the rules and orders there shall be freedom of speech and debate in or before Parliament and any committee thereof, and such freedom shall not be impeached or questioned in any court.
(3) A member of Parliament shall not be liable to any civil or criminal proceedings, arrest, imprisonment or damages by reason of anything which he or she has said, produced or submitted in or before or to Parliament or any committee thereof or by reason of anything which may have been revealed as a result of what he or she has said, produced or submitted in or before or to Parliament or any committee thereof.
(4) There shall, subject to section 207 (2), be paid out of and as a charge on the National Revenue Fund to a member of the National Assembly or the Senate such remuneration and allowances as may be prescribed by or determined under an Act of Parliament. [Sub-s. (4) substituted by s. 1 of Act 13 of 1994.]
56 Penalty for sitting or voting when disqualified by law
Any person who in terms of this Constitution is disqualified to sit as a member of a House and who, while so disqualified and knowing that he or she is so disqualified, sits or votes as a member of a House in question, shall be liable to a penalty determined by the rules and orders for each day on which he or she so sits or votes, which may be recovered for credit of the National Revenue Fund by action in a court of law.
57 Joint sittings of Houses
(1) Whenever necessary the National Assembly and the Senate shall convene in a joint sitting, which shall be presided over by the Speaker, the President of the Senate or any other member of the National Assembly or the Senate as may be determined by the rules and orders.
(2) While presiding at a joint sitting the Speaker, the President of the Senate or the other member presiding, shall not have a deliberative vote, but shall have and exercise a casting vote in the case of an equality of votes.
(3) Without derogating from the power of Parliament to regulate its business and proceedings, the President of the Republic may, whenever he or she deems it desirable, request by message to the Speaker and the President of the Senate that a joint sitting of the National Assembly and the Senate be convened.
58 Rules and orders
(1) The National Assembly or the Senate may make rules and orders in connection with the conduct of its business and proceedings, and the National Assembly and the Senate may make joint rules and orders in connection with the conduct of their joint business and proceedings, including rules and orders regulating-
a. the establishment, constitution, powers and functions, procedures and duration of committees of Parliament;
b. restrictions on access to such committees;
c. the competency of any such committee to perform or dispose of its business and proceedings at venues other than the Houses of Parliament; and
d. the designation of members of the National Assembly and the Senate as presiding officers to preside over sittings of the National Assembly or the Senate or joint sittings of the National Assembly and the Senate, as the case may be, as and when the Speaker or the President of the Senate so requires.
(2) For the purposes of exercising its powers and performing its functions, any committee established under subsection (1) (a) shall have the power to summon persons to appear before it to give evidence on oath or affirmation and to produce any documents required by it, and to receive representations from interested persons.
59 Ordinary Bills
(1) An ordinary Bill may be introduced in either the National Assembly or the Senate and shall for its passing by Parliament, subject to subsection (2), be required to be adopted by each House.
(2) An ordinary Bill passed by one House and rejected by the other shall be referred to a joint committee consisting of members of both Houses and of all the parties represented in Parliament and willing to participate in the joint committee, to consider and report on any proposed amendments to the Bill, whereafter the Bill shall be referred to a joint sitting of both Houses, at which it may be passed with or without amendment by a majority of the total number of members of both Houses.
(3) All Bills, except the new constitutional text and those referred to in sections 60 (1), 61 and 62, shall for the purposes of this Constitution be considered to be ordinary Bills.
60 Money Bills
(1) Bills appropriating revenue or moneys or imposing taxation shall be introduced in the National Assembly only.
(2) Bills appropriating revenue or moneys for services provided by the national government shall deal with such appropriation only.
(3) The National Assembly shall not consider any Bill appropriating revenue or moneys unless such Bill was initiated by the Minister responsible for national financial matters, or by any other Minister acting with the concurrence of the said Minister.
(4) The National Assembly shall not pass a Bill referred to in subsection (1) unless it has been considered and reported on by a joint committee of both Houses and, in so far as it may be required in terms of this Constitution, by the Financial and Fiscal Commission.
(5) A Bill shall not be deemed to appropriate revenue or moneys or to impose taxation by reason only of its containing provisions for the imposition or appropriation of fines or other pecuniary penalties.
(6) The Senate may not amend any Bill in so far as it appropriates revenue or moneys or imposes taxation.
(7) If the National Assembly passes a Bill imposing taxation or dealing with the appropriation of revenue or moneys and the Senate rejects it or proposes amendments to it or fails to pass it within 30 days after it has been passed by the National Assembly, the Bill shall be referred back to the National Assembly for reconsideration.
(8) The National Assembly may pass a Bill referred to in subsection (7), with or without amendment, and if passed by the National Assembly such Bill shall be deemed to have been passed by Parliament.
61 Bills affecting certain provincial matters
Bills affecting the boundaries or the exercise or performance of the powers and functions of the provinces shall be deemed not to be passed by Parliament unless passed separately by both Houses and, in the case of a Bill, other than a Bill referred to in section 62, affecting the boundaries or the exercise or performance of the powers or functions of a particular province or provinces only, unless also approved by a majority of the senators of the province or provinces in question in the Senate.
62 Bills amending Constitution
(1) Subject to subsection (2) and section 74, a Bill amending this Constitution shall, for its passing by Parliament, be required to be adopted at a joint sitting of the National Assembly and the Senate by a majority of at least two-thirds of the total number of members of both Houses.
(2) No amendment of sections 126 and 144 shall be of any force and effect unless passed separately by both Houses by a majority of at least two-thirds of all the members in each House: Provided that the boundaries and legislative and executive competences of a province shall not be amended without the consent of a relevant provincial legislature.
63 Requisite majorities
Save where otherwise required in this Constitution, all questions before the National Assembly or the Senate or before the National Assembly and the Senate in a joint sitting, shall be determined by a majority of votes cast.
64 Assent to Bills
(1) A Bill duly passed by Parliament in accordance with this Constitution shall be assented to by the President subject to section 82 (1) (b).
(2) A Bill referred to in subsection (1) to which the President has assented and a copy of which he or she has signed, shall upon its promulgation be an Act of Parliament.
65 Signature and enrollment of Acts
(1) An Act of Parliament referred to in section 64
(2) shall be enrolled of record in the office of the Registrar of the Appellate Division of the Supreme Court in such official South African languages as may be required in terms of section 3, and copies of the Act so enrolled shall be conclusive evidence of the provisions of the Act.
(2) In the case of a conflict between copies of an Act enrolled in terms of subsection (1), the copy signed by the President shall prevail.
(3) The public shall have the right of access to copies of an Act so enrolled, subject to such laws as may be passed by Parliament to protect the safety and durability of the said copies and with due regard to the convenience of the Registrar's staff.
66 Rights and duties of President, Executive Deputy Presidents, Ministers and Deputy Ministers in Houses
The President, an Executive Deputy President, a Minister and a Deputy Minister shall be entitled to sit and to speak in any House and at a joint sitting of the Houses, but may not vote in the House of which he or she is not a member or, if he or she is not a member of any of the Houses, in any House or at a joint sitting of the Houses. [S. 66 substituted by s. 1 of Act 14 of 1994.]
67 Public access to Parliament
Sittings of the National Assembly or the Senate and joint sittings of the National Assembly and the Senate shall be held in public, and the public, including the media, shall have access to such sittings: Provided that reasonable measures may be taken to regulate such access and to provide for the search and, where appropriate, the refusal of entry or the removal of any person.