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 It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.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 9 - Provincial Government
124 Establishment of provinces
(1) The following provinces are hereby established, which for the purposes of this Constitution, but subject to subsection (2), shall be recognised as the provinces of the Republic:
a. Eastern Cape;
b. Eastern Transvaal;
c. KwaZulu/Natal; [Para. (c) amended by s. 1 of Act 2 of 1994.]
d. Northern Cape;
e. Northern Transvaal;
f. North-West;
g. Orange Free State;
h. Pretoria-Witwatersrand-Vereeniging; and
i. Western Cape:
Provided that Parliament shall at the request of a provincial legislature alter the name of a province in accordance with the request of such legislature.
(2) The areas of the respective provinces shall be as defined in Part 1 of Schedule 1: Provided that the establishment of the Northern Cape as a separate province, the establishment in the area of the Eastern Cape of one province, and the inclusion of the areas specified in paragraphs (a) to (f) and (i) to (n) of Part 2 of Schedule 1 within the provinces as defined in Part 1 of Schedule 1, shall be subject to alteration in accordance with this section.
(3)
a. A referendum may be held in terms of this section in each of the areas specified in paragraphs (a) to (n) of Part 2 of Schedule 1 (hereinafter referred to as an affected area) to determine the views of the voters ordinarily resident in such area regarding an issue referred to in ubsection (5) or (6).
b. A referendum referred to in paragraph (a) shall be held in an affected area within three months of the lodging with the Secretary to Parliament of a petition signed by persons entitled to vote and ordinarily resident in such area.
c. The number of signatures on such a petition shall be at least equal in number to such percentage of the votes recorded in terms of subsection (4) in respect of the affected area in question, as may be determined by the Independent Electoral Commission.
d. The Independent Electoral Commission shall not be dissolved in terms of the Independent Electoral Commission Act, 1993 (Act 150 of 1993), after the first election held under this Constitution until it has made a determination in terms of paragraph (c) in respect of all the affected areas.
e. Such a petition shall be lodged with the Secretary to Parliament within a period of six months of the commencement of this Constitution or a period referred to in subsection (10), whichever period expires first.
(4) In the first election of the National Assembly and the provincial legislatures held under this Constitution, votes cast in each of the affected areas shall be counted separately and recorded for use for the purposes of this section.
(5) Subject to subsection (7), the object of a referendum in respect of an area referred to in paragraph (e), (f), (g) or (h) of Part 2 of Schedule 1, shall be the determination of the views of voters ordinarily resident in such an area, concerning, as the case may be-
a. the continued inclusion of the area referred to in the said paragraph (e) in the provincial territory of the Eastern Cape, or its inclusion in the provincial territory of KwaZulu/Natal; [Para. (a) amended by s. 1 of Act 2 of 1994.]
b. the continued inclusion of the area referred to in the said paragraph (f) in the provincial territory of Pretoria-Witwatersrand-Vereeniging, or its inclusion in the provincial territory of the Eastern Transvaal;
c. the continued existence of the area referred to in the said paragraph (g) as one province, or its division into two separate provinces on either side of the line forming the eastern boundaries of the districts of Venterstad, Steynsburg, Hofmeyr, Tarka, Fort Beaufort, Albany and Bathurst; or
d. the continued existence of the area referred to in the said paragraph (h) as a separate province, or its discontinuance as a separate province, in which event those districts of the said area north of the Orange River shall be included in the provincial territory of the North-West, and those districts south of the Orange River shall be included in the provincial territory of the Western Cape: Provided that in the case of a referendum regarding an issue referred to in-
i. paragraphs (a) and (b) of this subsection, a majority of votes cast shall be required to sanction the inclusion of the areas in question in the provincial territories of KwaZulu/Natal or the Eastern Transvaal, as the case may be; [Sub-para. (i) amended by s. 1 of Act 2 of 1994.]
ii. paragraph (c) of this subsection, a majority of at least 60 per cent of the votes cast in either of the two blocks mentioned in paragraph (g) of Part 2 of Schedule 1 shall be required to sanction the division of the said area into two separate provinces; and
iii. paragraph (d) of this subsection, a majority of at least 60 per cent of the votes cast shall be required to sanction the discontinuance of the Northern Cape as a separate province.
(6) Subject to subsection (7), the object of a referendum in respect of an area referred to in paragraph (a), (b), (c), (d), (i), (j), (k), (l), (m) or (n) of Part 2 of Schedule 1, shall be the determination of the views of the majority of the voters ordinarily resident in such an area, concerning-
a. in the case of the area referred to in the said paragraph (a), the continued inclusion of such area in the provincial territory of the Northern Transvaal, or its inclusion in the provincial territory of the Eastern Transvaal;
b. in the case of the area referred to in the said paragraph (b), the continued inclusion of such area in the provincial territory of the Northern Cape, or its inclusion in the provincial territory of the Western Cape;
c. in the case of the area referred to in the said paragraph (c), the continued inclusion of such area in the provincial territory of the Eastern Transvaal, or its inclusion in the provincial territory of the Northern Transvaal;
d. in the case of the area referred to in the said paragraph (d), the continued inclusion of such area in the provincial territory of the Eastern Cape, or its inclusion in the provincial territory of KwaZulu/Natal; [Para. (d) amended by s. 1 of Act 2 of 1994.]
e. in the case of the area referred to in the said paragraph (I), the continued inclusion of such area in the provincial territory of the Eastern Transvaal, or its inclusion in the provincial territory of Pretoria-Witwatersrand -Vereeniging;
f. in the case of the area referred to in the said paragraph (j), the continued inclusion of such area in the provincial territory of the Orange Free State, or its inclusion in the provincial territory of Pretoria-Witwatersrand -Vereeniging;
g. in the case of the area referred to in the said paragraph (k), the continued inclusion of such area in the provincial territory of the Western Cape, or its inclusion in the provincial territory of the Northern Cape;
h. in the case of the area referred to in the said paragraph (l), the continued inclusion of such area in the provincial territory of KwaZulu/Natal, or its inclusion in the provincial territory of the Eastern Cape; [Para. (h) amended by s. 1 of Act 2 of 1994.]
i. in the case of the area referred to in the said paragraph (m), the continued inclusion of such area in the provincial territory of the Northern Cape, or its inclusion in the provincial territory of the North-West; or
j. in the case of the area referred to in the said paragraph (n), the continued inclusion of such area in the provincial territory of the North-West, or its inclusion in the provincial territory of Pretoria-Witwatersrand-Vereeniging.
(7)
a. The Independent Electoral Commission shall be competent to make regulations or give directions concerning the implementation of this section, including-
i. the formulation of the question to be put before the electorate in any particular referendum;
ii. the determination of the sequence of referendums with reference to a province in respect of which more than one petition contemplated in subsection (3) (e) or (10) is received;
iii. the drawing up and registering of party lists for an affected area;
iv. the identification of persons entitled to vote in a referendum or election held in terms of this section;
v. procedures relating to the drawing up of petitions for the purposes of this section; and
vi. any other matters which it considers necessary for such implementation.
b. This subsection shall come into operation on the date of promulgation of this Constitution.
(8) A party or parties representing a majority of voters in an affected area may within a period of one month of the date of the first election under this Constitution of members of the provincial legislature of the province within which such area falls in terms of Part 1 of Schedule 1, petition the Independent Electoral Commission to publish a notice in terms of subsection (9).
(9) If a petition is lodged with the Independent Electoral Commission in terms of subsection (8), requesting that an affected area be altered as contemplated in subsection (5) or (6), and the Independent Electoral Commission is satisfied that the petition has the support of a party or parties representing a majority of voters in that affected area, it shall forthwith cause to be published in the Gazette, notice of the fact that it has received such a petition.
(10) Within five months of the date of publication of a notice referred to in subsection (9) a petition may be lodged with the Secretary to Parliament, calling for a referendum contemplated in subsection (3) to be held in the area in respect of which such notice was published.
(11) If a petition for a referendum as provided for in subsection (10) is lodged with the Secretary to Parliament, the petition lodged with the Independent Electoral Commission under subsection (8) will lapse, and the result of the referendum in respect of such area will be decisive.
(12) If a petition for a referendum as provided for in subsection (10) is not lodged with the Secretary to Parliament within the period referred to in that subsection, the Independent Electoral Commission shall, upon the expiry of that prescribed period, forthwith cause to be published in the Gazette, notice of that fact, and the alteration contemplated in the notice published in terms of subsection (9) shall thereupon be implemented in accordance with subsection (13).
(13)
a. (a) For the purpose of implementing an alteration in terms of subsection (12), or an alteration pursuant to a referendum held in terms of subsection (3), the Independent Electoral Commission shall, if it considers it necessary to do so as a result of an alteration to be made, give directions concerning-
i. the establishment of a new provincial legislature or the reconstitution of an existing provincial legislature;
ii. the holding of an election of a new or reconstituted provincial legislature;
iii. the allocation of seats within such new or reconstituted provincial legislature; and
iv. the names of the persons who will become or remain members of such provincial legislature.
b. The Independent Electoral Commission shall for the purposes of any directions under paragraph (a) have regard to-
i. representations made to it by political parties who will or may be affected by any such directions;
ii. party lists compiled by parties for the purpose of the election of the provincial legislatures which will be dissolved or reconstituted;
iii. party lists compiled pursuant to any regulation made or directions given by it in terms of subsection (7);
iv. the provisions of Schedule 2 (without necessarily being bound thereby in regard to the sequence in which seats are to be awarded or forfeited); and
v. all other factors which in its opinion are relevant to such directions: Provided that if it is of the opinion that any particular alteration does not require an existing provincial legislature to be reconstituted, it may direct that notwithstanding such alteration, such provincial legislature shall not be reconstituted.
c. If a Premier, member of the Executive Council of a province, senator or other officer has been elected, appointed or nominated in terms of this Constitution by the members of any provincial legislature affected by directions given by the Independent Electoral Commission in terms of paragraph (a), the Independent Electoral Commission may also give directions that new elections, appointments or nominations be made, in which event such elections, appointments or nominations shall be carried out in accordance with this Constitution, and within such times as the Independent Electoral Commission may prescribe.
(14) The President shall by proclamation in the Gazette, to take effect on such date as may be determined by the Independent Electoral Commission, amend subsection (1) and Schedule 1 to give effect to any alteration made in terms of this section.
(15) Notwithstanding the provisions of section 62, Parliament may by majority of votes in each House, effect consequential amendments to this Constitution arising out of any alterations to provinces or provincial boundaries, or directions given by the Independent Electoral Commission in terms of this section.
Provincial Legislative Authority
125 Provincial Legislature
(1) There shall be a legislature for each province.
(2) The legislative authority of a province shall, subject to this Constitution, vest in the provincial legislature, which shall have the power to make laws for the province in accordance with this Constitution.
(3) Laws made by a provincial legislature shall, subject to any exceptions as may be provided for by an Act of Parliament, be applicable only within the territory of the province.
126 Legislative competence of provinces
(1) A provincial legislature shall be competent, subject to subsections (3) and (4), to make laws for the province with regard to all matters which fall within the functional areas specified in Schedule 6. [Sub-s. (1) substituted by s. 2 (a) of Act 2 of 1994.]
(2) The legislative competence referred to in subsection (1), shall include the competence to make laws which are reasonably necessary for or incidental to the effective exercise of such legislative competence.
(2A) Parliament shall be competent, subject to subsections (3) and (4), to make laws with regard to matters referred to in subsections (1) and (2). [Sub-s. (2A) inserted by s. 2 (b) of Act 2 of 1994.]
(3) A law passed by a provincial legislature in terms of this Constitution shall prevail over an Act of Parliament which deals with a matter referred to in subsection (1) or (2) except in so far as-
a. the Act of Parliament deals with a matter that cannot be regulated effectively by provincial legislation;
b. the Act of Parliament deals with a matter that, to be performed effectively, requires to be regulated or co-ordinated by uniform norms or standards that apply generally throughout the Republic;
c. the Act of Parliament is necessary to set minimum standards across the nation for the rendering of public services;
d. the Act of Parliament is necessary for the maintenance of economic unity, the protection of the environment, the promotion of interprovincial commerce, the protection of the common market in respect of the mobility of goods, services, capital or labour, or the maintenance of national security; or
e. the provincial law materially prejudices the economic, health or security interests of another province or the country as a whole, or impedes the implementation of national economic policies. [Sub-s. (3) substituted by s. 2 (c) of Act 2 of 1994.]
(4) An Act of Parliament shall prevail over a provincial law, as provided for in subsection (3), only if it applies uniformly in all parts of the Republic.
(5) An Act of Parliament and a provincial law shall be construed as being consistent with each other, unless, and only to the extent that, they are, expressly or by necessary implication, inconsistent with each other.
(6) A provincial legislature may recommend to Parliament the passing of any law relating to any matter in respect of which such legislature is not competent to make laws or in respect of which an Act of Parliament prevails over a provincial law in terms of subsection (3).
127 Composition of provincial legislature
(1) A provincial legislature shall consist of not fewer than 30 and not more than 100 members elected in accordance with the system of proportional representation of voters provided for in Schedule 2 and the Electoral Act, 1993.
(2) The number of seats in a provincial legislature shall, subject to subsection (1), be determined in accordance with Schedule 2.
(3) The members of a provincial legislature shall be elected from provincial lists of party candidates for the province in question. [Date of commencement of s. 127: 9 March 1994.]
128 Duration and dissolution of provincial legislatures
(1) A provincial legislature, as constituted in terms of an election of such legislature under this Constitution, shall, subject to subsection (2), continue for five years as from the date of such election, at the expiry of which it shall be dissolved.
(2) If during the period referred to in subsection (1) a provincial legislature is dissolved in terms of section 154 (1) or (3) (c) or 162, the provincial legislature as constituted then, shall continue for the period up to the day immediately preceding the commencement of polling for the election of the provincial legislature held in pursuance of such dissolution.
(3) Notwithstanding any dissolution of a provincial legislature-
a. every person who at the date of the dissolution is a member of the provincial legislature shall remain a member thereof;
b. the provincial legislature shall remain competent to perform its functions; and
c. the Premier of the province shall be competent to summon the provincial legislature by proclamation in the Provincial Gazette to an extraordinary sitting for the dispatch of urgent business, during the period for which the provincial legislature continues in terms of subsection (2) after the dissolution.
129 Elections
(1) If a provincial legislature is dissolved in terms of section 128 (1), 154 (1) or (3) (c) or 162, the Premier of the province shall upon such dissolution, by proclamation in the Provincial Gazette call an election of such legislature, which election shall take place within 90 days after the dissolution of the legislature on a date or dates specified in the proclamation.
(2) An election referred to in subsection (1), shall be conducted in accordance with the Electoral Act, 1993.
130 Sittings of provincial legislature
(1) The Secretary of a provincial legislature shall convene such legislature within seven days after an election of such legislature.
(2) The provincial legislature shall sit during such periods and on such days and during such hours as it may determine: Provided that the Premier of a province may at any time by proclamation in the Provincial Gazette summon the provincial legislature to an extraordinary sitting for the dispatch of urgent business.
131 Speaker and Deputy Speaker of provincial legislature
(1) At its first sitting after it has been convened under section 130 (1), and after the election of the Premier of the province, a provincial legislature with a judge of the Supreme Court designated by the Chief Justice 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 of such legislature.
(2) The provisions of Schedule 5 and section 41 (3) to (10) shall apply mutatis mutandis in respect of the Speaker and the Deputy Speaker of a provincial legislature.
132 Qualification for membership of provincial legislatures
(1) No person shall be qualified to become or remain a member of a provincial legislature unless he or she is qualified to become a member of the National Assembly.
(2) A member of a provincial legislature who is elected as the Premier or appointed as a member of the Executive Council of a province shall for the purposes of section 42 (1) (e) be deemed not to hold an office of profit under the Republic.
(3) The provisions of section 40 (2), (3), (4) and (5) shall mutatis mutandis apply to a person nominated as a candidate for election to a provincial legislature, and in any such application a reference in that section to a regional list shall be construed as a reference to a provincial list as contemplated in Schedule 2. [Date of commencement of s. 132: 9 March 1994.]
133 Vacation of seats and filling of vacancies
(1) A member of a provincial legislature shall vacate his or her seat if he or she-
a. ceases to be eligible to be a member of the provincial legislature in terms of section 132;
b. ceases to be a member of the party which nominated him or her as a member of the provincial legislature;
c. resigns his or her seat by submitting his or her resignation in writing to the Secretary of the provincial legislature;
d. absents himself or herself voluntarily from sittings of the provincial legislature for 30 consecutive sitting days, without having obtained the leave of the provincial legislature in accordance with the rules and orders; or
e. becomes a member of the National Assembly or the Senate.
(2) The provisions of section 44 (1) and (2) shall apply mutatis mutandis in respect of the filling of vacancies in a provincial legislature, and in any such application a reference to-
a. the National Assembly shall be construed as a reference to a provincial legislature; and
b. a list of party candidates shall be construed as a reference to a list referred to in section 127 (3).
(3) A nomination in terms of this section shall be submitted in writing to the Speaker of the provincial legislature in question.
134 Oath or affirmation by members
Every member of a provincial legislature, before taking his or her seat, shall make and subscribe an oath or solemn affirmation in the terms set out in Schedule 3 before a judge of the Supreme Court designated by the Chief Justice for this purpose, or, in the case of a member nominated under section 133, before the Speaker of the provincial legislature.
135 Powers, privileges and immunities of provincial legislatures and benefits of members
(1) A provincial legislature 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 a law of such legislature.
(2) Subject to the rules and orders of a provincial legislature there shall be freedom of speech and debate in or before such legislature and any committee thereof, and such freedom shall not be impeached or questioned in any court.
(3) A member of a provincial legislature 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 such legislature 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 such legislature or any committee thereof.
(4) There shall, subject to section 207 (2), be paid out of and as a charge on the Provincial Revenue Fund of a province to a member of the legislature of that province such remuneration and allowances as may be prescribed by or determined under a law of the provincial legislature. [Sub-s. (4) substituted by s. 10 of Act 13 of 1994.]
Penalty for sitting or voting when disqualified
Any person who in terms of this Constitution is disqualified to sit as a member of a provincial legislature and who, while so disqualified and knowing that he or she is so disqualified, sits or votes as such a member, 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 Provincial Revenue Fund concerned by action in a court of law.
Rules and orders
(1) A provincial legislature may make rules and orders in connection with the conduct of its business and proceedings.
(2) The provisions of section 58 shall apply mutatis mutandis in respect of a provincial legislature.
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 members of the provincial legislature other than the Speaker or other presiding member, shall be necessary to constitute a sitting of such legislature.
Requisite majorities
Save where otherwise required in this Constitution, all questions before a provincial legislature shall be determined by a majority of votes cast.
Assent to Bills
(1) A Bill duly passed by a provincial legislature in accordance with this Constitution shall be assented to by the Premier of the province subject to section 147 (1) (b).
(2) A Bill referred to in subsection (1) to which the Premier has assented and a copy of which he or she has signed, shall upon its promulgation be a law of the provincial legislature in question.
Signature and enrolment of provincial laws
(1) A law of a provincial legislature referred to in section 140 (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 law so enrolled shall be conclusive evidence of the provisions of such law.
(2) In the case of a conflict between copies of a law enrolled in terms of subsection (1), the copy signed by the Premier shall prevail.
(3) The public shall have the right of access to copies of a law 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.
Public access to provincial legislatures
Sittings of a provincial legislature 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 of and, where appropriate, the refusal of entry or the removal of any person.
Administration of provincial legislatures
(1) For the purposes of setting up a provisional administration of a provincial legislature, the Transitional Executive Council shall as soon as possible after the commencement of this Constitution appoint for each provincial legislature a provisional secretary, who shall hold office as Secretary until an appointment is made in terms of subsection (2). [Date of commencement of sub-s. (1): 9 March 1994.]
(2) The Executive Council of a province shall after consultation with the Commission on Provincial Government appoint a Secretary and such other staff as may be necessary for the discharge of the work of such legislature.
(3) Persons appointed under this section shall be remunerated out of and as a charge on the Provincial Revenue Fund of the province.
Executive autority of provinces
(1) The executive authority of a province shall vest in the Premier of the province, who shall exercise and perform his or her powers and functions subject to and in accordance with this Constitution.
(2) A province shall have executive authority over all matters in respect of which such province has exercised its legislative competence, matters assigned to it by or under section 235 or any law, and matters delegated to it by or under any law.
145 Election of Premiers
(1)
a. The provincial legislature of a province shall at its first sitting after it has been convened in terms of section 130(1), elect one of its members as the Premier of the province.
b. A provincial legislature shall thereafter, as often as it again becomes necessary to elect a Premier, elect one of its members as the Premier of the province.
c. The provisions of Schedule 5 shall apply mutatis mutandis in respect of the election of the Premier of a province.
(2) A judge of the Supreme Court designated by the Chief Justice for this purpose, shall preside over an election referred to in subsection (1).
(3) The election of a Premier in terms of subsection (1) (b) shall take place at a time and on a date fixed by the judge so designated: Provided that-
(a)if such election of a Premier is occasioned by reason of a dissolution of the provincial legislature, it shall take place within 14 days after the election of the provincial legislature held in pursuance of such dissolution; or
(b)if suchelection of a Premier is occasioned by reason of a vacancy in the office of Premier, it shall take place within 30 days after the vacancy arose.
146 Tenure of and removal from office of Premiers
(1) The Premier of a province elected in terms of section 145 (1) shall, subject to subsection (2) and section 154(2), hold office-
a. for the period referred to in section 128 (1); or
b. if the provincial legislature is dissolved during such period, for the period until such dissolution, and shall thereafter remain in office until a Premier has been elected in terms of section 145 (1) (b) after the dissolution and has assumed office.
(2) The Premier of a province shall cease to hold office on a resolution adopted by the provincial legislature by a majority of at least two-thirds of all its members and impeaching the Premier on the ground of a serious violation of this Constitution or the other laws of the Republic or the province in question, or of misconduct or inability rendering him or her unfit to exercise and perform his or her powers and functions in accordance with section 147.
147 Responsibilities, powers and functions of Premiers
(1) The Premier of a province shall be responsible for the observance of the provisions of this Constitution and all other laws by the executive of the province, and shall be competent to exercise and perform the following powers and functions, namely-
a. to assent to, sign and promulgate Bills duly passed by the provincial legislature;
b. in the event of a procedural shortcoming in the legislative process, to refer a Bill passed by the provincial legislature back for further consideration by such legislature;
c. to convene meetings of the Executive Council;
d. to appoint commissions of enquiry;
e. to make such appointments as may be necessary under powers conferred upon him or her by this Constitution or any other law; and
f. to proclaim referenda and plebiscites in terms of this Constitution or a provincial law.
(2) The Premier of a province shall exercise and perform all powers and functions assigned to him or her by this Constitution or any other law, except those specified in subsection (1) or where otherwise expressly or by implication provided in this Constitution, in consultation with the Executive Council of the province: Provided that the Executive Council may delegate its consultation function in terms of this subsection, with reference to any particular power or function of the Premier, to any member or members of the Executive Council.
148 Acting Premiers
(1) The Premier of a province shall appoint one of the members of the Executive Council of the province to act as Premier during his or her absence or temporary incapacity.
(2) Should it be necessary that an Acting Premier be appointed and the Premier is absent or unable to make such an appointment, or if the office of Premier is vacant, the other members of the Executive Council shall make such appointment.
(3) An Acting Premier shall while acting as Premier have all the powers and functions vested in the office of Premier.
149 Executive Councils
(1) The Executive Council of a province shall consist of the Premier and not more than 10 members appointed by the Premier in accordance with this section.
(2) A party holding at least 10 per cent of the seats in a provincial legislature and which has decided to participate in the Executive Council, shall be entitled to be allocated one or more of the Executive Council portfolios in proportion to the number of seats held by it in the provincial legislature relative to the number of seats held by the other participating parties.
(3) Executive Council portfolios shall for the purposes of subsection (2) be allocated mutatis mutandis in accordance with the formula set out in paragraphs (a) to (e) of section 88 (3), to the respective participating parties.
(4) The Premier of a province shall after consultation with the leaders of the participating parties-
a. determine the specific portfolios to be allocated to the respective participating parties in accordance with the number of portfolios allocated to them in terms of subsection (3);
b. appoint in respect of each such portfolio a member of the provincial legislature who is a member of the party to which that portfolio was allocated under paragraph (a), as the member of the Executive Council responsible for that portfolio;
c. if it becomes necessary for the purposes of this Constitution or in the interest of good government, vary any determination under paragraph (a), subject to subsection (3);
d. terminate any appointment under paragraph (b)-
i. if he or she is requested to do so by the leader of the party of which the relevant member of the Executive Council is a member; or
ii. if it becomes necessary for the purposes of this Constitution or in the interest of good government; or
e. fill when necessary, subject to paragraph (b), a vacancy in the office of a member of the Executive Council.
(5) Subsection (4) shall be implemented in the spirit underlying the concept of a government of national unity, and the Premier and the other functionaries concerned shall for the purposes of subsection (4) endeavour to achieve consensus at all times: Provided that if consensus cannot be achieved on-
a. the exercise of a power referred to in paragraph (a), (c) or (d) (ii) of that subsection, the Premier's decision shall prevail;
b. the exercise of a power referred to in paragraph (b), (d) (i) or (e) of that subsection affecting a person who is not a member of the Premier's party, the decision of the leader of the party of which such person is a member shall prevail; and
c. the exercise of a power referred to in paragraph (b) or (e) of that subsection affecting a person who is a member of the Premier's party, the Premier's decision shall prevail.
(6) If any determination of portfolio allocations is varied under subsection (4) (c), the affected members of the Executive Council shall vacate their portfolios but shall be eligible, where applicable, for re-appointment to other portfolios allocated to their respective parties in terms of the varied determination.
(7) The Premier or a member of the Executive Council shall, before formally assuming office, make and subscribe an oath or solemn affirmation in the terms set out in Schedule 3 before a judge of the Supreme Court designated by the Chief Justice for this purpose.
(8) No member of an Executive Council may take up any other paid employment, engage in activities inconsistent with his or her membership of the Executive Council, or expose himself or herself to any situation which carries with it the risk of a conflict between his or her responsibilities as a member of the Executive Council and his or her private interests.
(9) No member of the Executive Council shall use his or her position as such, or directly or indirectly use information entrusted confidentially to him or her in such capacity, to enrich himself or herself or any other person.
(10) There shall, subject to section 207 (2), be paid out of and as a charge on the Provincial Revenue Fund of a province to the Premier and to a member of an Executive Council of such province such remuneration and allowances as may be prescribed by or determined under a law of the provincial legislature. [Sub-s. (10) substituted by s. 11 of Act 13 of 1994.]
150 Executive Council procedure
(1) Meetings of the Executive Council shall be presided over by the Premier.
(2) The Executive Council shall function in a manner which gives consideration to the consensus-seeking spirit underlying the concept of a government of national unity as well as the need for effective government.
151 Temporary assignment of powers and functions to Executive Council members
Whenever a member of an Executive Council of a province is absent or for any reason unable to exercise and perform any of the powers and functions assigned to him or her, or whenever a member of an Executive Council has vacated his or her office and a successor has not yet been appointed, the Premier may appoint any other member of the Council to act in the said member's stead, either generally or in the exercise or performance of any specific power or function.
152 Transfer of powers and functions from one member to another member
(1) The Premier of a province may assign the administration of a law which is entrusted to any particular member of the Executive Council or which entrusts to any particular member of the Council any power or function, to any other member of the Council.
(2) Any reference in such a law to a particular member of the Executive Council as the member to whom the administration of such a law is entrusted, shall upon the assignment under subsection (1) of the administration of such a law to another member of the Council, be construed as a reference to the latter.
153 Accountability of members of Executive Councils
(1) A member of an Executive Council of a province shall be accountable individually both to the Premier and the provincial legislature of the province for the administration of the portfolio allocated to him or her, and all members of an Executive Council shall correspondingly be accountable collectively for the performance of the functions of the provincial government and for its policies.
(2) A member of an Executive Council shall administer his or her portfolio in accordance with the policy determined by the Executive Council.
(3) If a member of an Executive Council of a province fails to administer his or her portfolio in accordance with the policy of the Executive Council, the Premier of the province may require the member concerned to bring the administration of the portfolio into conformity with such policy.
(4) If the member concerned fails to comply with a requirement of the Premier under subsection (3), the Premier may, after consultation with the member, and if the member is not a member of the Premier's party, or is not the leader of a participating party, also after consultation with the leader of such member's party, remove the member from office.
154 Votes of no confidence
(1) If a provincial legislature passes a vote of no confidence in the Executive Council, including the Premier, the Premier shall, unless he or she resigns, dissolve such legislature and call an election in accordance with section 129.
(2) If a provincial legislature passes a vote of no confidence in the Premier, but not in the other members of the Executive Council, the Premier shall resign.
(3) If a provincial legislature passes a vote of no confidence in the Executive Council, excluding the Premier, the Premier may-
a. resign;
b. reconstitute the Executive Council in accordance with section 149 (4); or
c. dissolve such legislature and call an election in accordance with section 129.
(4) The Premier shall where required, or where he or she elects, to do so in terms of this section, dissolve the provincial legislature by proclamation in the Provincial Gazette within 14 days of the vote of no confidence.
155 Provinces' share of revenue collected nationally
(1) A province shall be entitled to an equitable share of revenue collected nationally to enable it to provide services and to exercise and perform its powers and functions.
(2) The equitable share of revenue referred to in subsection (1) shall consist of-
a. a percentage, as fixed by an Act of Parliament, of income tax on individuals which is collected nationally;
b. a percentage, as fixed by an Act of Parliament, of value-added tax or other sales tax which is collected nationally;
c. a percentage, as fixed by an Act of Parliament, of any national levy on the sale of fuel;
d. ny transfer duty, collected nationally, on the acquisition, sale or transfer of any property situated within the province concerned; and
e. any other conditional or unconditional allocations out of national revenue to a province. [Sub-s. (2) substituted by s. 3 (a) of Act 2 of 1994.]
(2A) Sections 59 (2) and 60 shall not apply to an Act referred to in subsection (2), and such an Act shall be passed by the National Assembly and the Senate sitting separately. [Sub-s. (2A) inserted by s. 3 (b) of Act 2 of 1994.]
(3) The percentages referred to in paragraphs (a), (b) and (c) of subsection (2), and the conditions referred to in paragraph (e) of that subsection, shall be fixed reasonably in respect of the different provinces after taking into account the national interest and recommendations of the Financial and Fiscal Commission, and all transfers to the provinces shall be effected expeditiously and without any deduction there from. [Sub-s. (3) substituted by s. 3 (c) of Act 2 of 1994.]
(4) Allocations referred to in subsection (2) (e) shall be determined in accordance with an Act of Parliament, with due regard to the national interest and after taking into account-
a. the provision that has to be made for interest and other payments in respect of the national debt; and
b. the different fiscal capacities, including the revenues derived from sources referred to in subsection (2) (a), (b), (c) and (d), fiscal performances, efficiency of utilisation of revenue, needs and economic disparities within and between provinces, as well as the developmental needs, administrative responsibilities and other legitimate interests of the provinces, and any other objective criteria identified by the Financial and Fiscal Commission; and [Para. (b) amended by s. 4 (e) of Act 2 of 1994.]
c. the legitimate needs and interests of the national government; and
d. the recommendations of the Financial and Fiscal Commission. [Sub-s. (4) amended by s. 3 (d) of Act 2 of 1994.]
156 Levying of taxes by provinces
(1) A provincial legislature shall be competent to raise taxes, levies and duties, other than income tax or value-added or other sales tax, and to impose surcharges on taxes, provided that-
a. it is authorised to do so by an Act of Parliament passed after recommendations of the Financial and Fiscal Commission on the draft text of any such Act have been submitted to and considered by Parliament; and
b. there is no discrimination against non-residents of that province who are South African citizens. [Sub-s. (1) amended by s. 4 (a) of Act 2 of 1994.]
(1A) Sections 59 (2) and 60 shall not apply to an Act referred to in subsection (1), and such an Act shall be passed by the National Assembly and the Senate sitting separately. [Sub-s. (1A) inserted by s. 4 (b) of Act 2 of 1994.]
(1B) A provincial legislature shall notwithstanding subsection (1) have exclusive competence within its province to impose taxes, levies and duties (excluding income tax or value- added or other sales tax) on-
a. casinos;
b. gambling, wagering and lotteries; and
c. betting. [Sub-s. (1B) inserted by s. 4 (b) of Act 2 of 1994.]
(2) A provincial legislature shall not be entitled to levy taxes detrimentally affecting national economic policies, inter-provincial commerce or the national mobility of goods, services, capital and labour.
(3) A provincial legislature shall be competent to enact legislation authorising the imposition of user charges: Provided that-
a. such legislation may only be enacted after consideration by the provincial legislature of any recommendations made by the Financial and Fiscal Commission concerning the criteria according to which such charges should be determined; and
b. there is non discrimination against non-residents of that province who are South African citizens. [Sub-s. (3) amended by s. 4 (c) of Act 2 of 1994.]
157 Raising of loans by provinces
(1) A province-
1. shall, subject to subsection (2), not be competent to raise loans for current expenditure; and
2. shall be competent to raise loans for capital expenditure, provided it does so within the framework of reasonable norms and conditions prescribed by an Act of Parliament passed after recommendations of the Financial and Fiscal Commission relating to the draft text of any such Act have been submitted to and considered by Parliament. [Para. (b) substituted by s. 5 (a) of Act 2 of 1994.]
(1A) Sections 59 (3) and 60 shall not apply to an Act referred to in subsection (1) (b), and such an Act shall be passed by the National Assembly and the Senate sitting separately. [Sub-s. (1A) inserted by s. 5 (b) of Act 2 of 1994.]
(2) Loans referred to in subsection (1) (a) may be raised for bridging finance during a fiscal year, subject to the condition that they shall be redeemed within 12 months and subject to such further, reasonable conditions as may be prescribed by an Act of Parliament passed after recommendations of the Financial and Fiscal Commission relating to the draft text of any such Act have been submitted to and considered by Parliament. [Sub-s. (2) substituted by s. 5 (c) of Act 2 of 1994.]
(3) A province may not guarantee a loan unless-
a. the Financial and Fiscal Commission has verified the need for a guarantee and recommended that it be given; and
b. ...... [Para. (b) deleted by s. 5 (d) of Act 2 of 1994.]
158 Revenue allocations by national government Financial allocations by the national government
a. to a provincial or local government, shall be made in terms of an appropriation Act; and
b. to a local government, shall ordinarily be made through the provincial government of the province in which the local government is situated. [S. 158 substituted by s. 6 of Act 2 of 1994.]
159 Provincial Revenue Funds
(1) There is hereby established in the administration of each province a Provincial Revenue Fund, into which shall be paid all revenue collected by or accruing to the provincial government, and all financial allocations referred to in section 158 made by the national government to such a provincial government and to local governments within the province of such a provincial government. [Sub-s. (1) substituted by s. 7 of Act 2 of 1994.]
(2) No money may be withdrawn from a Provincial Revenue Fund otherwise than by virtue of an appropriation made in accordance with a law of the provincial legislature concerned.
Provincial Constitutions
160 Adoption of provincial constitutions
(1) The provincial legislature shall be entitled to pass a constitution for its province by a resolution of a majority of at least two-thirds of all its members.
(2) A provincial legislature may make such arrangements as it deems appropriate in connection with its proceedings relating to the drafting and consideration of a provincial constitution.
(3) A provincial constitution shall not be inconsistent with a provision of this Constitution, including the Constitutional Principles set out in Schedule 4: Provided that a provincial constitution may-
a. provide for legislative and executive structures and procedures different from those provided for in this Constitution in respect of a province; and
b. where applicable, provide for the institution, role, authority and status of a traditional monarch in the province, and shall make such provision for the Zulu Monarch in the case of the province of KwaZulu/Natal. [Sub-s. (3) substituted by s. 8 (a) of Act 2 of 1994 and amended by s. 1 of Act 3 of 1994.]
(4) The text of a provincial constitution passed by a provincial legislature, or any provision thereof, shall be of no force and effect unless the Constitutional Court has certified that none of its provisions is inconsistent with a provision referred to in subsection (3), subject to the proviso to that subsection. [Sub-s. (4) substituted by s. 8 (b) of Act 2 of 1994.]
(5) A decision of the Constitutional Court in terms of subsection (4) certifying that the text of a provincial constitution is not inconsistent with the said provisions, shall be final and binding, and no court of law shall have jurisdiction to enquire into or pronounce upon the validity of such text or any provision thereof.
161 Development of provincial constitutional dispensation
(1) The development of a system of provincial government shall receive the priority attention of the Constitutional Assembly, and in this regard it shall take into consideration any recommendations of the Commission on Provincial Government and any comments thereon by the respective provincial governments.
(2) Any recommendations of the Commission to the Constitutional Assembly shall include draft provisions for inclusion in the new constitutional text in so far as they relate to matters falling within the ambit of the Commission's object in terms of section 164.
(3) The Constitutional Assembly shall deal with such draft provisions in the same manner as it is required in terms of this Constitution to deal with other constitutional proposals.
(4) Draft provisions recommended by the Commission which are not adopted by the Constitutional Assembly shall lapse, except if the Constitutional Assembly by resolution of a majority of the members present and voting refers the recommended provisions back to the Commission for further consideration.
(5) Draft provisions referred back to the Commission may again be presented to the Constitutional Assembly, provided that if amended in one or more substantive respects, the provisions of this section regarding the acceptance, rejection or referral of the recommendations of the Commission shall apply mutatis mutandis.
162 Election of new provincial governments
A provincial government may at any time after the commencement of a provincial constitution contemplated in section 160 or of the constitutional dispensation contemplated in section 161, petition the Constitutional Assembly to dissolve its provincial legislature and to call an election for the establishment of a new provincial legislature and executive authority in that province.
Commission on Provincial Government
163 Establishment of Commission on Provincial Government
There is hereby established a Commission on Provincial Government consisting of not less than 10 and not more than 15 members appointed by the President subject to section 165.
164 Object and functions of Commission
(1) The object of the Commission is to facilitate the establishment of provincial government, and the Commission shall for the achievement of that object be competent-
a. to advise the Constitutional Assembly on the development of a constitutional dispensation with regard to provincial systems of government;
b. to advise the national government or a provincial government on the establishment and consolidation of administrative institutions and structures in a province or on any matter arising out of the application of section 124; and
c. to make recommendations to the national government or a provincial government on the rationalisation of statutory enactments or public sector resources directed at the introduction and maintenance of an effective system of provincial government.
(2) Advice to the Constitutional Assembly in terms of subsection (1) (a), shall include recommendations in the form of draft constitutional provisions regarding-
a. the finalisation of the number and the boundaries of the provinces of the Republic;
b. the constitutional dispensations of such provinces, including the constitutional structures within such provinces as well as the method of their election and their authority, functions and procedures;
c. measures, including transitional measures, that provide for the phasing in of new provincial constitutional dispensations;
d. the final delimitation of powers and functions between national and provincial institutions of government, with due regard to the criteria that are set out in subsection (3);
e. fiscal arrangements between the institutions of national government and those of the provincial governments;
f. the powers and functions of local governments; and
g. any matter which the Commission considers to be relevant or ancillary to its functions.
(3) In carrying out its functions the Commission shall, inter alia, take into consideration-
a. the provisions of this Constitution;
b. the Constitutional Principles set out in Schedule 4;
c. historical boundaries, including those set out in Part 1 of Schedule 1, former provincial boundaries, magisterial district boundaries and infrastructures;
d. administrative considerations, including the availability or non-availability of infrastructures and nodal points for service;
e. the need to rationalise existing structures;
f. cost-effectiveness of government, administration and the delivery of services;
g. the need to minimise inconvenience;
h. demographic considerations;
i. economic viability;
j. developmental potential; and
k. cultural and language realities.
165 Constitution of Commission
(1) The members of the Commission shall be appointed by the President within 30 days of the commencement of this Constitution.
(2) Unless the President otherwise determines, the members of the Commission shall be appointed in a full-time capacity.
(3) At least one member of the Commission shall be appointed from each province with the concurrence of the Premier of the province.
(4) A member of the Commission shall perform his or her functions fairly, impartially and independently.
(5) A member appointed in a full-time capacity shall not perform or commit himself or herself to perform remunerative work outside his or her functions as a member of the Commission.
(6) A member of the Commission shall not hold office in any political party or political organisation.
166 Chairperson and Deputy Chairperson
(1) The President shall designate one of the members of the Commission as the Chairperson and another as the Deputy Chairperson.
(2)
a. If the Chairperson is absent or unable to perform his or her functions as chairperson, or when there is a vacancy in the office of Chairperson, the Deputy Chairperson shall act as Chairperson, and if both the Chairperson and the Deputy Chairperson are absent or unable to perform the functions of the Chairperson, the Commission shall elect another member to act as Chairperson.
b. While acting as Chairperson the Deputy Chairperson or such member may exercise the powers and shall perform the functions of the Chairperson.
167 Vacation of office and filling of vacancies
(1) A member of the Commission shall vacate his or her office if he or she resigns or if he or she becomes disqualified in terms of section 165 to hold office or is removed from office under subsection (2).
(2) A member of the Commission may be removed from office by the President only on the grounds of misbehaviour, incapacity or incompetence established by a judge of the Supreme Court after an enquiry.
(3) If a member of the Commission ceases to hold office, the President may, subject to section 165, appoint a person to fill the vacancy.
168 Meetings of Commission
(1) The first meeting of the Commission shall be held within 30 days of its appointment at a time and place to be determined by the Chairperson, and subsequent meetings shall be held at a time and place determined by the Commission or, if authorised thereto by the Commission, by the Chairperson.
(2) A quorum for a meeting of the Commission shall not be less than one half of all its members.
(3) A decision of a majority of the members of the Commission shall constitute a decision of the Commission and in the event of an equality of votes the Chairperson shall have a casting vote in addition to his or her deliberative vote.
(4) All the decisions of the Commission shall be recorded.
169 Committees
(1) The Commission may establish committees from among its members.
(2) The Commission shall designate one of the members of a committee as chairperson thereof, and if any such chairperson is absent from a meeting of the committee the members present shall elect one from among their number to act as chairperson.
(3) The Commission may, subject to such directions as, it may issue from time to time-
a. delegate any power granted to it by or under section 164 to such a committee; and
b. authorise such a committee to perform any function assigned to the Commission by section 164.
(4) The Commission shall not be divested of a power so delegated and the performance of a function so authorised, and may amend or withdraw any decision of a committee.
170 Co-option of persons to committees
(1) A committee may co-opt any person to serve on it or to attend a particular meeting thereof in connection with a particular matter dealt with by the committee.
(2) Such a person may take part in the proceedings of the committee in connection with such matter or at the meeting in respect of which he or she has been co-opted, but shall not be entitled to vote.
171 Remuneration of members of Commission and other persons
Members of the Commission and persons referred to in section 170 who are not in the employment of the state, shall be paid, from moneys appropriated by Parliament for the purpose, such remuneration and allowances as the Minister responsible for national financial affairs may determine.
172 Appointment of staff
The Commission may appoint such staff as it may deem necessary for the efficient performance of its functions and administration, and may, in consultation with the Public Service Commission, determine the remuneration and conditions of service of staff members who are not public servants seconded to the service of the Commission.
173 Regulations
The President may make regulations-
a. prescribing procedures in connection with any function of the Commission or a committee thereof;
b. prohibiting conduct aimed at influencing or attempting to influence the Commission or any committee or member thereof and prescribing penalties for any contravention of such a prohibition; and
c. prescribing any other matter in connection with the achievement of the object of the Commission.